In re Erdmann, 33 N.Y.2d 559 (1973)

An attorney’s out-of-court statements, even if vulgar or critical of the judiciary, are not subject to professional discipline unless they pose a clear and present danger to the administration of justice.

Summary

This case addresses the extent to which an attorney can be disciplined for making critical, even vulgar, statements about the judiciary outside of court. An attorney, Erdmann, made disparaging remarks about judges to a reporter, which were published in a national magazine. The New York Court of Appeals reversed the lower court’s censure, holding that absent a showing that the statements posed a clear and present danger to the administration of justice, they were protected speech and could not form the basis for disciplinary action. The court emphasized the importance of allowing attorneys to voice criticism of the judicial system, even if that criticism is harsh.

Facts

An attorney, Erdmann, gave an interview to a Life magazine reporter. In the interview, Erdmann made several disparaging comments about judges in New York, including statements that some judges were corrupt and that appellate division judges were “whores who became madams.” Erdmann admitted to making the statements and participating in the preparation of the magazine article. The statements were published in the March 12, 1971 issue of Life magazine, which had a large national circulation.

Procedural History

The matter was brought before the Appellate Division of the Supreme Court, First Department, which censured Erdmann for professional misconduct. Erdmann appealed to the New York Court of Appeals. The Court of Appeals reversed the Appellate Division’s decision, dismissing the petition for disciplinary action.

Issue(s)

Whether an attorney can be disciplined for out-of-court statements critical of the judiciary, when those statements are vulgar and disrespectful, but do not pose a clear and present danger to the administration of justice.

Holding

No, because absent a showing of a clear and present danger to the administration of justice, an attorney’s out-of-court statements, even if vulgar or critical, are protected speech and cannot be the basis for professional discipline. The court found that while the statements were offensive, they did not rise to the level of posing a substantial threat to the judicial system’s functioning.

Court’s Reasoning

The Court reasoned that while lawyers have a professional responsibility to maintain the integrity of the legal system, they also have a right to freedom of speech. The court recognized the importance of allowing attorneys to voice criticism of the judicial system, even if that criticism is harsh or unpopular. The Court balanced these competing interests by adopting a standard that protects attorney speech unless it presents a “clear and present danger” to the administration of justice. The Court explicitly rejected the argument that vulgarity alone justifies discipline. The court stated: “[w]e are not persuaded that the statements were of that character or of such gravity as to warrant disciplinary action.” The court emphasized that while the statements may have been offensive, they did not demonstrably impede the courts’ ability to function or undermine public confidence in the judiciary to a significant degree. The court cited prior free speech cases to emphasize the high bar for restricting speech, even when it is directed at public institutions. Judge Gabrielli dissented, arguing that Erdmann’s statements were ethically reprehensible and tended to discredit the administration of justice, thus warranting discipline. Gabrielli emphasized that the statements were made with the knowledge they would be widely published, amplifying their potential harm. He argued that the majority’s decision condoned the use of “the language of the gutter or of the brothel.”
The key takeaway is that the court prioritized free speech for attorneys, setting a high bar for disciplinary action based on out-of-court statements. The case signals a reluctance to police attorney speech unless it demonstrably threatens the judicial process. This case has practical implications for how bar associations and courts approach attorney discipline for public statements, reinforcing the importance of a high threshold for restricting speech, even when it is critical of the legal system. The decision serves as a reminder that attorneys, like other citizens, possess a right to express their opinions, even if those opinions are controversial or unpopular.