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Private Attorneys Are Not “Officers of the Court”

by

According to a recent article in the New York Times, a private attorney has been reprimanded by the Florida Bar Association for describing a local judge as an “evil, unfair witch” on his blog. The lawyer was angry over the judge’s practice of giving criminal-defense lawyers only a week to prepare for trial rather than the customary month or more. According to the lawyer, Sean Conway, the judge’s motive was to pressure defense lawyers into seeking a delay, thereby waiving their client’s right to a speedy trial.

What about a principle called freedom of speech? After all, it’s not as if the lawyer was in the courtroom when he described the judge in such nasty terms. He was outside the courthouse, like at his private office or his home.

The rationale for punishing the lawyer arises from one of the most pernicious — and false — doctrines ever promulgated in the legal profession, one that most lawyers unfortunately have come to meekly accept. It’s a doctrine that claims that private lawyers are “officers of the court,” thereby subjecting their conduct, even outside the courtroom, to the control of the state.

Private lawyers are no more “officers of the court” than their clients or, for that matter, spectators in the courtroom.

The “officers of the court” are those people who are on the court payroll — those who receive a paycheck from the government (i.e., the taxpayers). Court bailiffs are officers of the court. So are judges and prosecutors. These people work for the state as court personnel. That’s what makes them “officers of the court.”

Not so with private attorneys. They serve as agents for their clients, not for the state.

Does the judge have the authority to control the conduct of an attorney within the courtroom? Of course. But that’s only because the courtroom is the judge’s arena. As such, he has the authority to set the rules of decorum and conduct within it. Thus, a judge can prohibit lawyers appearing in his court from making insulting statements in the courtroom. But of course the same holds true for the clients and the spectators.

But that doesn’t convert the spectators, the clients, and the lawyers into “officers of the court.” It simply means that when they walk into a courtroom, they subject themselves to the rules that the judge has set forth for the courtroom.

Once the spectators and the clients leave the courtroom, they’re free to say anything they want about the judge, prosecutor, bailiff, jury, or anyone else, no matter how insulting, nasty, or critical. That’s what freedom of speech is all about. And the same holds true for the lawyers who have represented clients in the courtroom.

To suggest that clients and spectators have somehow become “officers of the court” simply because they have appeared in court would, obviously, be ridiculous.

But it’s just as ridiculous to say that a private attorney is an “officer of the court” simply because he has appeared on behalf of a client in court. He remains as much a private citizen as the spectator and the client. Thus, once he walks outside that courtroom, he is as free as every other private citizen to say whatever he wants about the judge, prosecutor, system, or anything else, no matter how vile, nasty, or critical.

Too bad Sean Conway decided not to fight the state’s punishment for his blog post about that judge all the way to the U.S. Supreme Court. It would have given the Court the opportunity to clarify that the Constitution guarantees the fundamental rights of private attorneys as much as those of everyone else.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.