What cannot be permitted in lawyers, cannot be tolerated in those applying for admissions as lawyers.'" In re Application of Converse, 258 Neb. 159, 170 (1999), quoting In re Appeal of Lane, 249 Neb. 499, 511, 513 (1996). Moreover, a practicing attorney who includes "disrespectful and irrelevant passages" and "allegations . . . totally without record support" may be subject to sanctions.
Id. (Quoting In re McAlevy, 69 N.J. 349, 354 A.2d 289 (1976)). In re Converse, 602 N.W.2d 500, 508 (Neb 1999). [¶ 28.] This Court quoted Converse in Dorothy, 2000 SD 23 at ¶ 48, 605 N.W.2d at 507-508 and expanded its analysis:
Short of chilling free speech and association, the United States Supreme Court has held that it will not disturb a state’s screening processes to make determinations on an applicant’s character. Id.; In re Converse, 258 Neb. 159, 602 N.W.2d 500, 506 (1999) (even assuming an applicant’s conduct "may have been protected by the First Amendment … a bar commission is allowed to consider speech and conduct in making determinations of an applicant’s character"). As this Court recently noted, "attorneys do not lose all First Amendment protections once admitted to the Idaho State Bar," but they " ‘must temper [their] criticisms in accordance with professional standards of conduct.’ "
Short of chilling free speech and association, the United States Supreme Court has held that it will not disturb a state's screening processes to make determinations on an applicant's character. Id.; In re Converse, 602 N.W.2d 500, 506 (Neb. 1999) (even assuming an applicant's conduct "may have been protected by the First Amendment . . . a bar commission is allowed to consider speech and conduct in making determinations of an applicant's character"). As this Court recently noted, "attorneys do not lose all First Amendment protections once admitted to the Idaho State Bar," but they" 'must temper [their] criticisms in accordance with professional standards of conduct.'" Schiermeier v. State, 171 Idaho 311, 324, 521 P.3d 699, 712 (2022) (quoting U.S. Dist. Ct. for E. Dist. of Wash. v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993)).
Absent this, any judicial proceeding is likely to degenerate into [a] verbal free-for-all. . . . [H]abitual unreasonable reaction to adverse rulings . . . is conduct of a type not to be permitted of a lawyer when acting as a lawyer.In re Converse, 602 N.W.2d 500, 508 (Neb. 1999) (citing Appeal of Lane, 544 N.W.2d 367, 376 (Neb. 1996). Distinguishing between reasoned comment protected by the First Amendment and unprotected, unprofessional statements goes back nearly to the establishment of an organized bar in this State:
allenges to attorney disciplinary rules, where plaintiff failed to prove that provisions in question punish substantial amount of protected speech, or that the provisions he attacked involve anything other than terms of common understanding); Roe v. State Bar of Michigan, 2003 WL 21949187 (6th Cir. Aug. 12, 2003) (law students' First Amendment challenge to state bar requirement that they prove "good moral character" as a condition of admission to practice was denied because nothing in the requirement speaks to individuals' rights to free speech and expression, there is no authority for proposition that practicing law is itself a protected First Amendment activity, and plaintiffs failed to demonstrate realistic danger that statute will be applied to compromise their First Amendment rights); Comfort, 159 P.3d at 1011 (denying vagueness and overbreadth challenges to attorney disciplinary provisions that used words with commonly understood meanings and that regulated conduct, not speech); In re Converse, 602 N.W.2d 500, 506 (Neb. 1999) (opining that law is "clear that a bar commission is allowed to consider speech and conduct in making determinations of an applicant's character, and that is precisely what has occurred in the instant case"); Attorney Grievance Com'n v. Alison, 565 A.2d 660, 667 (Md. 1989) (state bar rule prohibiting attorneys from conduct prejudicial to administration of justice held to be neither vague nor overbroad); In re Charges of Unprofessional Conduct Against N.P., 361 N.W.2d 386, 395 (Minn. 1985) (rejecting vagueness challenge to rules of professional responsibility for lawyers because "it is difficult, if not impossible, to enumerate and define, with legal precision, every offense for which an attorney . . . ought to be removed," such that "necessarily broad standards of professional conduct" are constitutionally permissible) (citations omitted)
Board of Professional Responsibility v. Slavin, 145 S.W.3d 538 (Tenn.2004); In re Pyle, 283 Kan. 807, 156 P.3d 1231 (Kan.2007); In re Converse, 258 Neb. 159, 602 N.W.2d 500 (1999); Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); In re Martin-Trigona, 55 Ill.2d 301, 302 N.E.2d 68 (1973); In re Cobb, 445 Mass. 452, 838 N.E.2d 1197 (2005). Stilley's conduct as set out in Count 4 and supported by substantial evidence violated Model Rule 3.4(c).
See also Board of Overseers of the Bar v. Campbell, 663 A.2d 11, 13-14 (Me. 1995); In re Alexander, 807 S.W.2d 70, 73-75 (Mo. 1991). [¶ 13] For example, in In re Converse, 258 Neb. 159, 602 N.W.2d 500, 502 (1999), an applicant for admission to the bar argued the Bar Commission's decision to deny his application should be reversed because the denial rested upon conduct protected by the First Amendment. The Nebraska Supreme Court rejected the argument, reasoning:
As to his second argument, that new charges against him were raised in the second negative report, the applicant seems to have confused this inquiry into his character and fitness to practice law with a criminal trial. See In re Converse, 602 N.W.2d 500, 506-07 (Neb. 1999). It is not a trial, and the applicant has not been charged with any crime. This proceeding is intended to determine the applicant's character and fitness to practice law in New Hampshire. The applicant was aware that he would be required to establish his character and fitness to the satisfaction of the committee and this court.
The second is that there is no evidentiary support for the accusations. In In re Discipline of Eicher, 2003 SD 40, ¶ 27, 661 N.W.2d 354, 363, we cautioned "`the efficient and orderly administration of justice cannot be successfully carried on if we allow attorneys to engage in unwarranted attacks on the court [or] opposing counsel . . . Such tactics seriously lower the public respect for . . . the Bar.'" (citing In re Converse, 258 Neb. 159, 602 N.W.2d 500, 508 (1999)). See also Dorothy, 2003 SD 23, ¶¶ 47-48, 605 N.W.2d at 507-8.