by Paul Alan Levy
Dr. Rosalind Griffin, a Michigan psychiatrist who apparently derives a significant part of her income by testifying as a medical expert for parties defending against tort claims, but also serves as a member of the Michigan Attorney Discipline Board — the adjudicatory arm of the Attorney Grievance Commission — has initiated a bar grievance that ought to be of grave concern to law bloggers everywhere. The fact that the prosecutorial arm of the Grievance Commission has given every evidence of being willing to serve as Griffin’s cat’s paw in pursuing her critic is not encouraging.
The case involves a Michigan lawyer, Steven Gursten, who specializes in representing accident victims. On November 13, 2014, he published a blog post excoriating Griffin personally (he calls her one of the “notorious” Michigan doctors who aids the defense) and decrying her testimony in one of his cases (he calls it a “hatchet job” and asks readers to decide whether she perjured herself, based on several detailed examples from transcripts of her testimony and the case file). Her complaint to the Grievance Commission, dated November 19, 2015, singles out the words quoted above (much of which strikes me as non-actionable rhetoric and as opinion based on disclosed facts). Griffin also quotes out of context a general statement on the blog that “many thousands of innocent and seriously hurt people lose everything because of so-called ‘independent medical exams,’ such as this example by Michigan psychiatrist Dr. Rosalind Griffin;” her grievance characterizes the blog as accusing her of having “intentionally set out to cause ‘seriously hurt people [to] lose everything.’” More generally, her complaint alleges that Gursten’s “one-sided and inaccurate description . . . is defamatory and places me in a false light."
Griffin claims that the speech in the blog post is “ conduct [that] involves dishonesty and misrepresentations which reflect adversely on his honest, trustworthiness and fitness as a lawyer within the meaning of MRPC 8.4,” and also that it is “prejudicial to the administration of justice” in that it portrays the legal system in a bad light. She goes on to complain that the blog post “is the first item returned when someone uses the Google search engine on my name.” The remedy requested is that Gursten “be required to delete his outrageous posting and remove the link to Google results for my name.” (This forensic psychiatrist may be very good at what she does, but plainly she does not understand that private parties do not get to remove links from Google search results.)
Griffin's complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity). It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations. Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.
One might well question whether that is a sound use of public resources, and indeed whether the First Amendment is offended by letting Griffin burst free of the constraints imposed on defamation claims by state law and the First Amendment in seeking relief that benefits only her and her reputation. The Supreme Court held in Hustler Magazine v. Falwell that a plaintiff cannot change the label on a tort claim that amounts to a defamation and thereby evade limits on defamation law, and both the lower federal courts (including in Michigan as well as the Sixth Circuit) and the state court in Ireland v. Edwards have followed that rule.
The legal theories on which Griffin bases her grievance are contrary to a pair of Supreme Court decisions, one based squarely on the First Amendment (Gentile v. Nevada State Bar) and one based on the Supreme Court’s reading of the Federal Rules of Appellate Procedure, but only to avoid unnecessary constitutional issues (In re Snyder). In both cases, bar and judicial authorities pursued disciplinary charges against lawyers who harshly, and rudely, criticized the behavior of prosecutors and judicial officials in the conduct of their duties in cases in which the lawyers were engaged. But the Supreme Court made clear not only that lawyers do not give up their First Amendment rights when they become officers of the court, but also that they have a special role in helping the public discern whether other players in the administration of justice are misbehaving. The marketplace of ideas can then be used to distinguish truth from falsity and fair from unfair criticism. (And here, unlike in the Gentile and Snyder cases, the adjudicative proceeding to which Gursten directed his criticisms was long over, so there was no danger that his remarks would have an improper influence on consideration of his client’s case.
Given how many years Griffin has served as a grievance official, it is shocking that she would not appreciate the First Amendment’s constraints on discipline. Indeed, her apparent inability to compartmentalize her understandable personal anger at having been severely criticized and the limited role of the disciplinary rules in restricting speech on matters of public interest, not to speak of the distressing way in which she wraps her own interest in avoiding criticism in a high-faluting appeal to a desire to protect the administration of justice from being sullied, to my mind calls into question her fitness to serve on the Attorney Discipline Board.
Michigan’s Sorry History of Pursuing Grievances Against Critics
Unfortunately, Griffin’s grievance is not unprecedented in Michigan. Just before the turn of the century, Michigan attorney Jim Ford criticized a decision of the Michigan Supreme Court in these words: “Until widows and orphans can donate as much money as insurance companies (to judicial campaigns) we'll continue to see these types of decisions.” The general counsel of the Michigan Republican Party filed a grievance, and although the complaint was eventually dismissed, Ford had to retain counsel and face a disciplinary proceeding first. There is a lengthy account of the chilling details of this incident in Chapter 6 of Judicial Deceit, a book co-authored by former Michigan Chief Justice Weaver and David Schrock, which reports that, when the AGC contacted Ford about the complaint, the attorney warned him that “they would be playing hardball” with Ford. Apparently, the Commission staff tried to hammer an apology out of Ford in return for dismissing the complaint; it was only when he refused that they dismissed. But in dismissing the complaint, the Commission warned Ford against “making false statements” that criticized judges (is false praise to curry favor allowed?).
By contrast, in the early 1990's, John Engler, the governor of Michigan, referred to a trial judge in Ingham County (which sits in Lansing) as a “lunatic” who has received his “law degree from a mail order school,” and there was also a bar grievance against the governor. But the governor warned the grievance commission to stay out of this controversy and respect his First Amendment rights; the commission promptly dismissed the complaint. Even so, the letter announcing a vote by the grievance commission not to proceed further cheekily included this threat of future discipline: “[t]he Commission wishes to caution you regarding the adverse consequences that derogatory remarks such as those made by you against Judge James Giddings, can have on the entire legal system of this state. As you are a licensed attorney, the Commission is confident that you share its concerns in this regard.” (The letter is an appendix to the court opinion linked above). The Commission’s appetite for regulating the contents of lawyers’ speech about judges and other figures in the legal establishment is apparent; this is an appetite that the Commission should learn to control.
The Chilling Effect of Allowing Such Grievances
Moreover, there is a serious danger that protected speech will be chilled if lawyer bloggers know that they could lose their right to practice law if some grievance official takes an interest in a stale libel claim and forces the lawyer to hire disciplinary counsel to respond to an investigation, as Gursten tells me he has felt compelled to do. Indeed, although Michigan has no anti-SLAPP statute, even a pro se plaintiff is constrained by the possibility of sanctions for pursuing frivolous litigation, or being sued for abuse of process or malicious prosecution. But if Griffin can use the grievance process as a foil to pursue her claims, even these protections are lost.
The chilling effect can only be heightened when the attorney grievance has been filed by an individual who holds an official role within the Attorney Grievance Commission – Griffin is not only a current member of Michigan’s Attorney Discipline Board, but she has served as the Board’s secretary and has also been a member of the Attorney Grievance Commission. One source told me (obviously, not wanting to be identified as potentially crossing her) that she is a particular favorite of some of the state’s judicial elite. So the Grievance Commission attorneys who decide whether to pursue disciplinary proceedings, and how far, have to worry about whether she might disfavor them in future adjudications if they do not do as she wishes with respect to her own grievance. Indeed, one might expect Gursten’s own bar discipline specialist (and this is a highly specialized line of legal practice) to worry about prejudicing the cause of their own clients by opposing Griffin’s complaint. I have thus far been unable to get answers from either Griffin or the Attorney Grievance Commission about what steps have been made to protect against such conflicts of interest. I also hoped to ask how the Commission ensures that Griffin is excluded from disciplinary cases in which the insurance companies and others whom her testimony serves might have an interest. The Grievance Commission might, indeed, take the position that, to avoid even the appearance of unfairness, grievance staff and board members alike should refrain from filing bar grievances.
Of course, the chilling effect of grievance proceedings over allegedly false and defamatory blog posts could be lessened if the Grievance Commission were to apply a motion to dismiss or summary judgment standard to dispose of bar grievances like this one without subjecting the lawyer to a full investigation. A similar concern has been expressed in recent years about the chilling effect when universities or federal government officials conduct investigations about blog posts or statements by their faculty members that are claimed to implicate Title IX issues because they take the wrong position on issues relating to sexual misconduct. The very opacity of guidelines about how Title IX concerns can be enforced against otherwise protected speech, coupled with the serious penalties that universities can face if they are deemed not to consider claims of misconduct sufficiently, has raised serious concern on the part of civil liberties advocates.
In cases such as Ireland v Edwards and Lins v. Evening News Association, Michigan courts have recognized that the burdens of defamation litigation can have a serious chilling effect on constitutionally protected expression, and that public policy favors early termination of such litigation. And the published explanation of the procedures of Michigan’s Attorney Grievance Commission implies that grievances can be rejected at the outset, without subjecting the attorney respondent to the burdens of an investigation or even of having to answer. The fact that Commission counsel wrote to Gursten demanding a detailed response, and warning that a “failure to submit the statement requested” could itself be considered misconduct subject to discipline,” suggests that the Grievance Commission has decided that Griffin’s complaint against Gursten should not be rejected out of hand. I tried to get comments from the Grievance Commission on whether it takes the chilling effect of complaints into account in deciding whether to process grievances, and how to process them, and why the Commission does not reject out of hand complaints that demand an investigation of alleged defamation. Commission staff have refused to respond.
So Far, the Michigan Attorney Is Standing Up to Griffin and Her Commission
The Commission staff might well be hoping to exact an apology as Gursten's price for peace, but at least so far, Gursten is not only not caving in to Griffin’s pressure, but he has called Griffin's bluff and raised the ante. In a second blog post early this week, he has repeated some of his accusations, including further detail. Indeed, although the single publication rule would protect Gursten from being sued for defamation based on any of the statements in his 2014 blog post, Griffin has been given an out from Gursten’s statute of limitations defense in that, if she really wants to litigate this matter, she can sue over his later blog post.
My own suggestion to the Grievance Commission is that it leave Griffin to her tort remedies, if she is willing to take the risk of filing such a lawsuit.
UPDATE: The Grievance Commission has dismissed the complaint on First Amendment grounds.