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Lawyers: Do they have First Amendment rights?
By Barry Tarlow
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RICO Report columns.
A lawyer’s obligation to maintain due respect for the courts, to
refrain from “undignified or discourteous conduct which is degrading to a
tribunal,” and to avoid conduct prejudicial to the administration of
justice is “almost universally recognized in American jurisdictions.” In re Snyder, 472 U.S. 634, 645 n.7
(1985); ABA, Model Code Prof. Resp. DR 7-108(C)(6). In developing the
Model Rules, which replaced the Model Code, the ABA committee attempted
to reduce restrictions that arguably discouraged criticism by lawyers.
ABA, Annotated Model Rules Prof. Conduct 562 (4th ed. 1999). While
retaining the provision condemning knowingly false statements about a
judge’s qualifications or integrity, Model Rule 8.2(a); Model Code DR
8-102(B), the rules eliminated “the requirement that a lawyer be
‘temperate and dignified’ (EC 1-5), and the requirement that the lawyer
be ‘certain of the merits of his complaint, use appropriate language,
and avoid petty criticism.’ (EC 8
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