Joel Jacobsen

In Michigan a few years back, a police officer shot and killed an unarmed person while on-duty.  A well-known lawyer publicly called the officer a "murderer" and "executioner."  The officer sued the lawyer, and the Michigan Court of Appeals affirmed the trial court's grant of summary judgment, explaining that "rhetorical hyperbole" and the use of "vigorous epithets" and "exaggerated language" is never actionable defamation. 

The same lawyer, referring to a different decision from the same court, characterized it as the work of "three jackass court of appeals judges".  He also said the members of the panel had changed their names from Hitler, Goebbels and Eva Braun.  Mere vigorous epithets and rhetorical hyperbole?

Well, no.  The attorney in question is Geoffrey Fieger, Michigan celebrity lawyer, publicity hound, political martyr and sometime politician.  Every state seems to have its own alpha lawyer.  Out West the fellow dresses in a fringed leather jacket or bears a catchy nickname like Racehorse.   But Fieger is from Detroit.  Not the smoothly harmonious Detroit of the Four Tops and Smokey Robinson, but the rude white-boy Detroit of Eminem, Iggy Pop and the MC5.  

As Law.com reported yesterday, the Michigan Attorney Grievance Commission is going after Fieger, contending that he violated Michigan Rule of Professional Responsibility 3.5, which provides: "A lawyer shall not: ... (c) engage in undignified or discourteous conduct toward the tribunal."  

The Commission lost in front of the Michigan Attorney Grievance Board, which concluded that the rule didn't apply to statements made outside the courtroom, and anyway there are some pretty obvious first amendment problems associated with depriving someone of the right to practice his profession on the ground of impoliteness.  The Commission then appealed to the Michigan Supreme Court ( I wonder how often that happens).

The Commission describes itself on its website as "the investigative and prosecutorial arm of the Michigan Supreme Court for allegations of attorney misconduct. "  You might expect that anyone who served as the prosecutorial arm of a court would want to disguise the confusion of roles, but apparently not.  At any rate, the Commission's position seems to be that "rhetorical hyperbole," "vigorous epithets" and "exaggerated language" are protected by the first amendment only when directed at people less exalted than judges.   Such as, say, police officers.

It's a bit hard to believe the Commission would pursue the matter so relentlessly without a few pats on the head from the hand that feeds it.  Could it all be related to the fact that Fieger devoted nearly half a million dollars to an unsuccessful attempt to unseat a justice of the Michigan Supreme Court?