US Appeals Court Tosses Fieger’s Challenge to Bar Civility Rule

by Norm Kent

A federal appeals court dealt a setback to Michigan attorney Geoffrey Fieger Tuesday when it overturned a federal judge in Detroit who found that state rules requiring lawyers to use 'civility' when they talk about judges were unconstitutional. He is pictured to the right with his attorney, Gerry Spence, who had represented him on other charges relating to improper financing of a presidential campaign.

The lawsuit was challenging an ethics rule requiring lawyers to use courtesy and civility in their professional conduct and dealings.

The Cincinnati-based 6th U.S. Circuit Court of Appeals said Fieger and and Detroit lawyer Richard Steinberg did not have standing to bring the suit, according to the Detroit News and the Associated Press.

Fieger had stipulated to a disciplinary reprimand for vulgar comments he made about appeals judges who ruled against him in a malpractice case, but he reserved the right to challenge the ethics provisions that were the basis of the reprimand. The Michigan Supreme Court affirmed the discipline.

Thus, he brought his claim to the US District Court, which granted him the relief he originally sought. However, the 6th Circuit reversed the ruling today in its 2-1 opinion, a PDF version of which can be found at this site:

http://www.abajournal.com/news/us_appeals_court_tosses_geoffrey_fiegers_challenge_to_civility_rule

Fieger had called the appellate judges “jackasses” for overturning a $15 million verdict and compared them to Nazis during a radio interview.

The Fieger case had been cited by lawyers for Fort Lauderdale attorney Sean Conway last year when he sought to overturn his own consent judgment for branding Circuit Judge Cheryl Aleman 'a witch' on JAABLOG. Fighting his disbarment last year, Jack Thompson of Coral Gables also relied unsuccessfully on Fieger. Judge Adalberto Jordan of the US Southern District crafted distinctions between the Michigan and Florida Bar rules on ethics.

In the decision under review, the district court had ruled that the courtesy and civility provisions of the Michigan Rules of Professional Conduct violate the First and Fourteenth Amendments to the U.S. Constitution because the rules are overly broad and vague and enjoined their enforcement.

The majority on a divided three-judge panel reached the following holding:

We vacate the judgment of the district court and remand with instructions to dismiss the complaint for lack of jurisdiction. We hold that Fieger and Steinberg lack standing because they have failed to demonstrate actual present harm or a significant possibility of future harm based on a single, stipulated reprimand; they have not articulated, with any degree of specificity, their intended speech and conduct; and they have not sufficiently established a threat of future sanction under the narrow construction of the challenged provisions applied by the Michigan Supreme Court. For these same reasons, we also hold that the district court abused its discretion in entering declaratory relief