Foot(note) in Mouth Disease?

Found this at Law.com. Seems the justices DO read the footnotes after all. This makes me, the hapless legal secretary in charge of typing the brief, which with its cover page, table of contents, table of authorities and other extraneous pages, plus the contents, usually runs about 60 pages, very, very, very happy. It at least means they are paying attention.

My boss is very careful about what she says and how she says it. But I have to hand it to her: she can turn a phrase. And be scathing, when it’s warranted. But never flip, and never disrespectful of the jurists who will ultimately be reading the brief and deciding our client’s fate based on it….

[Reprinted below]

?2002 Law.com

Footnote Gets a Lawyer Suspended

Gary Young
The National Law Journal
11-13-2002

A sharply worded footnote in a legal brief has cost an Indiana attorney a one-month suspension from the practice of law.

In a 3-2 decision, the Indiana Supreme Court said that Michael A. Wilkins impugned the integrity of the Indiana Court of Appeals by suggesting that one of its opinions was results-driven.

Under Indiana rules, Wilkins, a partner in the Indianapolis firm Ice Miller, must notify his clients of the suspension and close up shop for one month. In re Wilkins, No. 49S00-0005-DI-341 (Oct. 29, 2002).

The case has drawn controversy not only because it raises questions about the free speech rights of attorneys, but because one of the judges who voted for Wilkins’ suspension, Justice Robert D. Rucker, served on the court of appeals until 1999 and had a hand in the decision that Wilkins criticized.

Rucker told The Indianapolis Star on Nov. 5 that he might have removed himself from the case if he had recalled his involvement. Wilkins’ attorney, G. Daniel Kelley Jr., also of Ice Miller, said that he did not ask Rucker to recuse himself, but declined to comment why.

In 1997, Wilkins signed on as local counsel to Michigan Mutual Insurance Co. in a dispute with an Indiana bowling alley over insurance coverage. A three-judge panel of the court of appeals ruled against Michigan Mutual in 1999, with Rucker concurring. Michigan Mutual’s lead counsel, Jeffrey R. Learned of the Southfield, Mich., firm Morrison, Mahoney & Miller, wrote a brief urging the supreme court to take review. In a footnote, Learned wrote that the Court of Appeals opinion “is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual’s opponent] and then said whatever was necessary to reach that conclusion.”

The supreme court declined to review the case and struck the brief from the record, describing the footnote (in 1999) as “a scurrilous and intemperate attack on the integrity of the Court of Appeals.”

Soon after, the supreme court’s disciplinary commission began an investigation. In its Oct. 29 decision, the supreme court acknowledged that Wilkins was not the author of the footnote, but said he took responsibility by signing and submitting Learned’s brief. Charges are still pending against Learned. His attorney, Kevin P. McGoff of Indianapolis’ Kiefer and McGoff, said that Learned has agreed to accept a public reprimand, but that the supreme court has not yet approved the deal.

Wilkins was suspended under a disciplinary rule drawn from the ABA’s model code and widely adopted by state and federal courts. Indiana Professional Conduct Rule 8.2(a) states that a “lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge.”

In briefs, Kelley attacked on several fronts. He argued, among other things, that the footnote did not fall under the rule because it was statement of opinion, not of fact. He claimed that “result-driven” was commonly understood by lawyers and judges as a criticism of a certain kind of legal reasoning, not of the integrity of the reasoner. He also argued that a suspension would violate Wilkins’ First Amendment right to free speech.

In their opinion, the supreme court majority did not address the fact/opinion distinction or the degree to which the lower court’s opinion may in fact have been results-driven and claimed that Wilkins had adduced no authority in support of his First Amendment argument.

W. Bradley Wendel, a professor at Washington and Lee School of Law, has argued in a law review article that court-crafted restrictions on attorney speech often infringe the First Amendment.

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