Eric Muller's site "Is That Legal?" is one of my favorite blogs (or "blawgs," if you like that jargon). He spends a lot of time carefully debunking the silliness that sometimes passes as discourse in the blogosphere, and for this effort he is often rewarded with vituperative e-mails. Recently he received this bit of abusive e-mail, from a lawyer no less, and posted it on his site. (Basically the message questions Muller's manhood.) Brian Leiter suggests that someone should report the flamer to the Illinois bar. Can anyone think of a reasonable basis for doing so?
Lawyers are prohibited by Rule 8.2 from making, with NY Times v. Sullivan actual malice, false statements about the qualifications or integrity of a judge. Although he probably deserves to be, Muller is not a judge. Lawyers may not engage in conduct that has no substantial purpose other than to embarrass, delay, or burden a third party, Rule 4.4(a), but this rule applies only where the laywer is acting in a representative capacity. There are all sorts of obligations of decorum and candor in the 3-series rules, but these all apply only to conduct before a tribunal. That leaves only the catch-all provisions of Rule 8.4 -- conduct involving dishonesty, fraud, deceit, or misrepresentation (i.e. if Muller is really a tough guy) or conduct prejudicial to the administration of justice. In my view, these provisions ought to be interpreted consistently with the first amendment protections afforded to hyperbolic speech, even if shocking, offensive, or threatening, as long as it doesn't constitute a clear and present danger of imminent violence -- see, e.g., Cohen v. Calif., Hustler v. Falwell, Texas v. Johnson, R.A.V. v. St. Paul, etc.
I realize Leiter is probably only kidding about reporting this yahoo -- it's far more effective to ignore him or mock his own manhood. But the serious point here is that courts and bar associations sometimes interpret the disciplinary rules to prohibit speech that is constitutionally protected, on the theory that lawyers have special obligations of civility or decency, or that they surrender some of their expressive liberties in exchange for receiving a bar license (unconstitutional conditions, anyone?). It's true that lawyers don't enjoy full-on Speaker's Corner expressive liberties while representing clients, but that doesn't mean they're not free to pop off, and act like jerks, when they're not acting in a representative capacity.