by Paul Alan Levy
Last month I wrote about a proceeding in which Michigan’s Attorney Grievance Commission was investigating Steven Gursten, a Michigan lawyer who had criticized Dr. Rosalind Griffin, a member of the state disciplinary apparatus, for perjuring herself in expert testimony in one of his cases. I argued that the very process of conducting such investigations has a chilling effect on lawyer bloggers, and suggested that the Grievance Commission should dismiss the case out of hand on First Amendment grounds.
I was pleased to learn this afternoon that, in a letter dated one week after my blog post on the subject, the Grievance Commission denied the grievance on the ground that Gursten’s blog was protected by the First Amendment as well as Michigan’s own constitution. And unlike a few previous cases, in which dismissals of complaints over lawyers' extra-judicial speech were accompanied by ominous warnings to the lawyers to watch themselves in the future, this dismissal simply recognized the constitutional protection.
Since posting my article, I have heard about other disciplinary charges filed by the targets of online criticism on lawyer blogs that had to be fended off. The very process of administrative investigation can impose a cost on free speech. So although the Grievance Commission does appear to be learning about the First Amendment, it could still improve its processes by dismissing charges like Griffin’s out-of-hand in light of the real costs that they impose on free speech by bloggers. One solution might be to place the burden on a grievant whose complaint is about online criticism to produce a detailed showing of falsity before requiring the lawyer blogger to respond at all. After all, good disciplinary representation is not cheap, a fact to which Gursten alludes in his blog post expressing relief at having prevailed. Merely by sending Gersten a demand for a detailed response, and warning him that a failure to respond could itself be disciplinable, the Commission enabled Griffin to impose substantial legal costs on Gursten.
I also note one oddity – inspection of the Commission's letter to Griffin reveals that it was dated February 4, but not received by Gursten’s counsel until February 16. I have asked Grievance Commission administrator Alan Gershel for an explanation of this discrepancy.