# Sanctions against lawyer-pundits for false information (re: Fox News) **URL:** \ **Category:** Factual Questions\ **Created:** [October 3, 2007, 2:23am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338 "2007-10-03T02:23:39Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 3, 2007, 2:23am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/1 "2007-10-03T02:23:39Z")
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](http://www.youtube.com/watch?v=OVNdudZUNnw) 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 3, 2007, 2:59am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/2 "2007-10-03T02:59:40Z")
[QUOTE=Richard Parker] 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](http://www.youtube.com/watch?v=OVNdudZUNnw) 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? [/QUOTE] 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: > [@](#): > > In his representation of a client, a lawyer shall not > . > . > . > Knowingly make a false statement of law or fact. This does not appear to sanction statements made outside a tribunal, not in futherance of a client’s interest. EC 9-1 provides > [@](#): > > Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession. Arguably, spouting false info contravenes this guidance, but I don’t believe this is sanctionable. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 3, 2007, 3:36am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/3 "2007-10-03T03:36:54Z")
It looks as if New Jersey (Napolitano’s home state) has a somewhat broader rule: > [@RPC 8.4(c) "Misconduct"](#): > > It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. AFAICT, NJ’s RPC doesn’t define misrepresentation. ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [October 3, 2007, 4:08am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/4 "2007-10-03T04:08:01Z")
My guess is that a political pundit has a 1st Amendment right to lie his ass off on national TV. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 3, 2007, 4:29am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/5 "2007-10-03T04:29:14Z")
[QUOTE=brazil84] My guess is that a political pundit has a 1st Amendment right to lie his ass off on national TV. [/QUOTE] You think the rules of professional conduct for the New Jersey State Bar are unconstitutional? I doubt it. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [October 3, 2007, 4:45am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/6 "2007-10-03T04:45:38Z")
[QUOTE=brazil84] My guess is that a political pundit has a 1st Amendment right to lie his ass off on national TV. [/QUOTE] 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. ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [October 3, 2007, 9:56am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/7 "2007-10-03T09:56:53Z")
[QUOTE=Richard Parker] You think the rules of professional conduct for the New Jersey State Bar are unconstitutional? I doubt it. [/QUOTE] 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. > [@](#): > > That has precisely zero relevance to whether the relevant bar association will be inclined to sanction him for doing so. I don’t see why it’s irrelevant. It’s possible for the Constitution to trump attorney disciplinary rules. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 3, 2007, 10:12am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/8 "2007-10-03T10:12:06Z")
[QUOTE=brazil84] I don’t see why it’s irrelevant. It’s possible for the Constitution to trump attorney disciplinary rules. [/QUOTE] 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. ---
**Author:** ![brazil84](https://avatars.discourse-cdn.com/v4/letter/b/8491ac/32.png) [@brazil84](https://boards.straightdope.com/u/brazil84)\ **Post date:** [October 3, 2007, 10:27am UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/9 "2007-10-03T10:27:52Z")
[QUOTE=Fear Itself] 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. [/QUOTE] 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: [http://www.njsba.com/](http://www.njsba.com/) 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. [http://www.judiciary.state.nj.us/oae/index.htm](http://www.judiciary.state.nj.us/oae/index.htm) Which is clearly a governmental entity and subject to the 1st Amendment. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [October 3, 2007, 12:00pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/10 "2007-10-03T12:00:04Z")
[QUOTE=Fear Itself] 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. [/QUOTE] 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. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [October 3, 2007, 12:45pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/11 "2007-10-03T12:45:52Z")
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?) ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 3, 2007, 12:56pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/12 "2007-10-03T12:56:42Z")
[QUOTE=tomndebb] 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. [/quote] Interesting questions. Are these disciplinary actions even public record? > [@tomndebb](#): > > (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?) 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 3, 2007, 1:23pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/13 "2007-10-03T13:23:24Z")
[QUOTE=tomndebb] 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? [/QUOTE] The remarks weren’t exactly like those in the OP, but this recent case comes to mind: > [@](#): > > Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, “Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my ass, too.” Mr. Fieger, referring to his client, then said, “He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their asses.” Two days later, on the same radio show, Mr. Fieger called these same judges “three jackass Court of Appeals judges.” When another person involved in the broadcast used the word “innuendo,” Mr. Fieger stated, “I know the only thing that’s in their endo should be a large, you know, plunger about the size of, you know, my fist.” Finally, Mr. Fieger said, “They say under their name, ‘Court of Appeals Judge,’ so anybody that votes for them, they’ve changed their name from,you know, Adolf Hitler and Goebbels, and I think—what was Hitler’s—Eva Braun, I think it was, is now Judge Markey, she’s on the Court of Appeals.” > > Subsequently, Mr. Fieger filed a motion for reconsideration before the same panel. After that motion was denied, this Court denied Mr. Fieger’s application for leave to appeal on March 21, 2003.3 Fieger was disciplined for these comments. Later a federal court upheld his separate challenge to these rules, as applied: [http://www.mied.uscourts.gov/Opinions/tarnowpdf/06-11684AJT.pdf](http://www.mied.uscourts.gov/Opinions/tarnowpdf/06-11684AJT.pdf) ---
**Author:** ![vetbridge](https://avatars.discourse-cdn.com/v4/letter/v/b5e925/32.png) [@vetbridge](https://boards.straightdope.com/u/vetbridge)\ **Post date:** [October 3, 2007, 3:12pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/14 "2007-10-03T15:12:43Z")
> [@](#): > > Subsequently, Mr. Fieger filed a motion for reconsideration before the same panel. After that motion was denied No way!!! 😃 ---
**Author:** ![SmackFu](https://avatars.discourse-cdn.com/v4/letter/s/53a042/32.png) [@SmackFu](https://boards.straightdope.com/u/SmackFu)\ **Post date:** [October 3, 2007, 3:24pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/15 "2007-10-03T15:24:28Z")
[QUOTE=Richard Parker] AFAICT, NJ’s RPC doesn’t define misrepresentation. [/QUOTE] 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 3, 2007, 5:24pm UTC](https://boards.straightdope.com/t/sanctions-against-lawyer-pundits-for-false-information-re-fox-news/421338/16 "2007-10-03T17:24:18Z")
[QUOTE=vetbridge] No way!!! 😃 [/QUOTE] That’s why I included that part. 😉