Eisenberg v. Boardman, 69-C-49.
Decision Date | 08 August 1969 |
Docket Number | No. 69-C-49.,69-C-49. |
Citation | 302 F. Supp. 1360 |
Parties | Sydney M. EISENBERG and Alan D. Eisenberg, Plaintiffs, v. W. Wade BOARDMAN, John P. McGalloway, Clarence E. Fugina, Theron P. Pray, George P. Ettenheim, individually and as members of the Wisconsin Board of State Bar Commissioners, the Board of State Bar Commissioners, and George H. Young, Referee, Defendants. |
Court | U.S. District Court — Western District of Wisconsin |
Lawton & Cates, Madison, Wis., for plaintiffs.
Rudolph P. Regez, Monroe, Wis., for defendants, Warren H. Resh, Madison, Wis., of counsel.
Charles W. Joiner, Detroit, Mich., for amicus curiae Wayne State University Law School.
Before FAIRCHILD, Circuit Judge, and DOYLE and REYNOLDS, District Judges.
Plaintiffs, Sydney and Alan Eisenberg, seek to enjoin a disciplinary proceeding brought against them, as attorneys, in the Supreme Court of Wisconsin. They challenge a portion of the statute defining unprofessional conduct, and seek a declaration that such portion conflicts with the First and Fourteenth Amendments to the Constitution of the United States. The defendants here are members of the Board of State Bar Commissioners, plaintiffs in the disciplinary proceeding, and the referee appointed by the state high court to hear the case and report findings and recommendations.
The Honorable John E. Krueger was a judge of the county court of Milwaukee county (formerly the district court) from January 1961 to August 28, 1968, when he shot and killed himself. The administration of his (traffic) branch of the court was often the subject of controversy. The disciplinary proceedings relate to alleged conduct of the attorneys Eisenberg with respect to Judge Krueger in 1968.1
The complaint in the disciplinary proceeding alleges that the attorneys Eisenberg "were guilty of conduct which was unprofessional and such as would serve to bring the Courts of Justice of this state into disrepute and contempt and which was contrary to defendants' duty as licensed attorneys and to the attorney's oath * * * as set forth at Sec. 256.29 Wisconsin Statutes and which oath provides in part as follows:
Sec. 256.29(1), Wis.Stats., prescribes the oath or affirmation required of every attorney. The oath includes an obligation to "maintain the respect due to courts of justice and judicial officers". Sec. 256.29(2) declares it to be unprofessional conduct and grounds of disbarment for any attorney to violate any provision of the oath.
As we understand plaintiffs' position it is that the attorney's obligation to maintain respect due to judicial officers is open to the construction that the attorney must not make derogatory statements concerning a judge or engage in other expression of similar effect. It is claimed that being open to such construction, the provision is overbroad and has a chilling effect upon the exercise by Wisconsin lawyers of freedom of speech protected by the first and fourteenth amendments.
Persons who make derogatory statements about judges are protected by the first and fourteenth amendments from imposition of civil and criminal liability, unless the statement is made "with knowledge that it was false or with reckless disregard of whether it was false or not."3 We have no doubt that such protection against imposition of civil or criminal liability extends on the same terms to lawyers, at least for utterances made outside the course of judicial proceedings. Whether a lawyer is protected from imposition of discipline as a lawyer upon identical terms has not been made clear,4 but we assume, for our present purpose, that some areas of speech by lawyers which might be deemed disrespectful to courts or judges would be so protected.5
We are satisfied, however, that the Supreme Court of Wisconsin has so construed the provision of the oath in question that an attorney may not be disciplined for derogatory expressions (outside of judicial proceedings) concerning a judge or court.6
Mr. Cannon, in whose case such construction was pronounced, had been previously suspended from membership in the Wisconsin bar for a period of two years. In 1931 he applied for reinstatement. During the period of suspension he made baseless public charges against certain justices and judges. One of the questions on which the Supreme Court directed inquiry by the bar commissioners was whether his conduct during the period of suspension "gives assurance that if he be re-admitted he will observe the obligations of the legislative oath required of attorneys, with especial reference to that clause which requires an attorney to maintain the respect due to courts of justice and judicial officers."
After noting that Mr. Cannon's right to criticize the courts in his capacity as a private citizen could not be challenged in Wisconsin, but that by reason of his having taken the oath he "was under restraint imposed by proprieties at least which do not rest upon the average citizen", the court "arrived at the conclusion that reinstatement cannot be refused solely upon the ground of his criticism of the courts, and that his attitude in his campaigns can only be considered in so far as it reflects his character, aside and apart from his disposition to criticize the courts * * *." He was awarded reinstatement upon payment of the judgment for costs rendered in the original proceeding.
It is suggested that because Mr. Cannon made the statements referred to at a time when his license to practice was suspended, the decision of the court does not squarely stand for the proposition that a Wisconsin attorney may not be disciplined for derogatory statements concerning judges made while he is an attorney and not under suspension.
The Wisconsin court, however, spoke for itself on that point, as follows:
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Westfall, Matter of, No. 72022
...Other courts have in dicta indicated that the New York Times test is applicable in disciplinary proceedings. See Eisenberg v. Boardman, 302 F.Supp. 1360, 1362 (W.D.Wis.1969); State Bar v. Semaan, 508 S.W.2d 429, 432-33 (Tex.Civ.App.1974). Some courts appear to apply the New York Times test,......
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Hinds, Matter of
...speech consisted of mere criticism of judges. For cases imposing sanctions for criticizing judges, see, e.g., Eisenberg v. Boardman, 302 F.Supp. 1360 (D.Wis.1969) (attorney circulated statement designed to humilate judge); In re Lacey, 283 N.W.2d 250 (S.D.1979) (attorney quoted in press as ......
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In re Chmura
...829, 837 (Mo., 1991), and In re Holtzman, 78 N.Y.2d 184, 192, 573 N.Y.S.2d 39, 577 N.E.2d 30 (1991). But see Eisenberg v. Boardman, 302 F.Supp. 1360, 1362 (W.D.Wis., 1969), and State Bar of Texas v. Semaan, 508 S.W.2d 429, 432-433 As the Court of Appeals of New York observed in Holtzman, su......
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Taylor v. Kentucky State Bar Association, 19718.
...under color of state law or court rule, the effect is to chill the exercise of First Amendment freedoms. See Eisenberg v. Boardman, 302 F.Supp. 1360, 1364 (W.D.Wis.1969). The Bar Association urges that the Kentucky Court of Appeals is an indispensible party to this litigation, since only th......