Sanctions against lawyer-pundits for false information (re: Fox News)

Are lawyer-pundits subject to any sort of sanctions for offering legal analysis that is blatantly wrong?

In recent weeks, I’ve seen a few attorney/ talking-heads make statements that, if made to a client, would constitute malpractice. The most egregious of which was Fox News’ Judge Napolitano who told Bill O’Reilly that it is a settled legal fact that impeachment at the federal level requires a felony crime (see linked video from 6:30-7:10). That’s just false–it isn’t settled and the weight of authority/opinion is entirely in the opposite direction.

I know that legal malpractice requires an attorney-client relationship, but do state bars have the ability to punish in any way these actions?

In my opinion, no.

In Virginia, anyway. The Virginia Code of Professional Responsibility has “DR’s” and"EC’s." The DR’s are Disciplinary Rules, violation of which is sanctionable. The “EC’s” are Ethical Considerations, which are “…aspirational in character and represent the objectives toward which every member of the profession should strive.” Both ERs and DCs derive from the basic Canons, general statements of attorney responsibility and conduct.

DR-7 102(A)(5) provides:

This does not appear to sanction statements made outside a tribunal, not in futherance of a client’s interest.

EC 9-1 provides

Arguably, spouting false info contravenes this guidance, but I don’t believe this is sanctionable.

It looks as if New Jersey (Napolitano’s home state) has a somewhat broader rule:

AFAICT, NJ’s RPC doesn’t define misrepresentation.

My guess is that a political pundit has a 1st Amendment right to lie his ass off on national TV.

You think the rules of professional conduct for the New Jersey State Bar are unconstitutional? I doubt it.

Of course he has a 1st Amendment right to lie his ass off on national TV. That has precisely zero relevance to whether the relevant bar association will be inclined to sanction him for doing so.

If they were, it wouldn’t be the first time that attorney disciplinary rules have been held unconstitutional.

e.g. Bates v. State Bar of Arizona, 433 U.S. 350 (1977)

I’ve never heard of a bar disciplinary authority instituting disciplinary proceedings against a lawyer/pundit, so it may not have been tested.

But I would say that if the Courts are willing to hold that the 1st amendment protects an attorney’s right to advertise, it follows, a fortiori that the Courts will protect an attorney’s right to engage in political punditry, even though political punditry typically involves a good deal of spin, exaggeration, and outright BS.

I don’t see why it’s irrelevant. It’s possible for the Constitution to trump attorney disciplinary rules.

The First Amendment does not trump a non governmental entity like a bar association, who is free to impose all sorts of professional standards on their voluntary membership, including standards for public speech. The First Amendment only restricts the power of government to limit speech. It’s like here on the SDMB; the First Amendment does not guarantee you the right to say anything you want, and you can be banned if you violate the rules limiting your speech. Same thing with the bar associations.

In most jurisdictions, there’s a difference between being a member of the bar and being a member of the “bar association.”

Since we are talking about New Jersey, I’ll refer you to the website of the New Jersey State Bar Association:
Membership is voluntary and the NJSBA is not responsible for attorney discipline, as far as I know.

Attorney discipline in New Jersey is handled by the Office of Attorney Ethics of the New Jersey Supreme Court.
Which is clearly a governmental entity and subject to the 1st Amendment.

Some states have “unified” bar associations, to which all lawyers in the state belong and which may have a role in lawyer discipline. Others “voluntary” bar associations are just trade groups to which lawyers may elect to join or not at their option.

In states with unified bar associations, the association’s control over the practice of lawyers – which is a control over access to the courts – would probably be held to be a “governmental” function subject to the First Amendment. A voluntary bar association may deny membership to a particular lawyer, but that has no role on whether that lawyer may practice law.

Has anyone ever heard of any state bar invoking sanctions against a lawyer for remarks made while running for office?

Has anyone ever heard of any state bar invoking sanctions against a lawyer for remarks made in any situation comparable to that of the OP?

I am not sure where the theoretical line might fall in such a situation, but it would seem that as a practical matter, state bars are not given to take such actions.

(The situation of the OP also suffers from a certain lack of clarity regarding mens rea and related issues. If Napolitano was just stupid or ignorant and not intending to mislead, was he guilty of anything beyond stupidity or ignorance?)

Interesting questions. Are these disciplinary actions even public record?

Well, certainly in some jurisdictions a lawyer can be disciplined for stupidly or ignorantly stating that he knows something to be fact when it is not. That sort of negligence is even contemplated in the NJ RPC.

The remarks weren’t exactly like those in the OP, but this recent case comes to mind:

Fieger was disciplined for these comments.

Later a federal court upheld his separate challenge to these rules, as applied:

No way!!! :smiley:

Misrepresentation is usually just misrepresenting who you are and saying you’re something you’re not. Like saying you’re a criminal defense lawyer when you are a tax lawyer.

That’s why I included that part. :wink: