This month, the Coolidge Reagan Foundation has called upon the Michigan bar to investigate and sanction Rep. Rashida Tlaib, D-Mich., over her comments on Gaza and Israel. While I have been critical of Tlaib over her rhetoric and claims on the Hamas attack and later war, I believe that such sanctions would be inimical to free speech and pull the bar into political controversies.

Dan Backer, the foundation’s counsel, accused Tlaib of spreading “vile, antisemitic lies to foster hatred towards a people” and said that she should be held accountable.

Backer insists that Tlaib “clearly violated” the Michigan bar’s ethics code due to her inflammatory remarks.

The complaint alleges

“Attorney Tlaib’s false, discriminatory, and anti-Semitic comments regarding the horrific massacre and other crimes the international terrorist group Hamas ruthlessly unleashed against innocent Israeli civilians on October 7, 2023, including kidnapping, rape, beheading children, burning people alive, and murdering a baby by placing him in an oven. In response to these atrocities, Attorney Tlaib made several public statements evincing deeply discriminatory, antisemitic views that call into question her character and fitness to practice law.”

What is interesting about the complaint is that it cites the fact that, on November 7, 2023, the U.S. House of Representatives publicly censured Attorney Tlaib for her statements. Censure resolutions have no inherent punitive element unless they are tied to a removal or ban from committees. However, it can be used, as here, as the basis for collateral sanctions.

The question is whether this is an appropriate basis for the bar to investigate and sanction a member. Once again, I am in accord with the Foundation in the view of Hamas as a terrorist organization. However, the bar is not the proper forum for such controversies, in my view, and the action could make it more likely that sanctions will be used in the future against other political viewpoints. I have expressed that same discomfort with the effort to disbar many Trump lawyers over their election claims absent unethical filings or unlawful actions.

The complaint points out that Tlabi said that she was “grieving” for the Palestinian losses and supported the “resistance” to what she said was Israel’s “apartheid.” The group admits that these comments are not “actionable in themselves” but cites them as evidence supporting possible sanctions.

The group also cites Tlaib’s claim that Israel intentionally bombed al-Ahli Arab Hospital. I also criticized Tlaib at the time for making this unsupported claim. However, she was not alone. The New York Times and other media outlets were making the same claim. They were also wrong to do so, but this was a common point of contention among media, governments, and advocates.

The group notes correctly that Tlaib did not remove her social posting and continued to call for an investigation by the United Nations. However, again, calling for an investigation cannot be an unethical act. She publicly stated that she wanted the investigation to confirm the culprit. The failure to remove the earlier claim can be defended as superfluous given the widespread reporting of the comment and her later public call for an investigation.

The group also cites Tlaib’s statements that Israel is engaging in ethnic cleansing, “genocide,” and the massacre of civilians. Those are political statements that should not be the subject of bar investigations in my view. They are protected speech under the First Amendment.

Finally, the group cites Tlaib’s use of the slogan “from the river to the sea!” It is generally viewed as a call for the eradication of Israel. However, again, this is a political slogan and its use would be protected speech under the First Amendment.

The group cites Mich. R. Prof’l Cond. 6.5(a) requiring “A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic.” This rule would take on a dangerous meaning if political advocacy could be treated as unethical conduct because it is viewed as “discourteous.”

The group notably cites the Fieger case in Michigan, a case that I previously criticized as denying the free speech rights of attorneys. The case against controversial lawyer Geoffrey Fieger  was successful, but in my view was wrong despite my disagreement with Fieger’s comments. The action was based on an incident in 1999 after the state Court of Appeals earned Fieger’s ire with a ruling that overturned a $15-million jury verdict Fieger won for a client in a medical malpractice case. Fieger took to his radio show to blast the judges with vulgarity. It was viewed as an insult to the bench and unbecoming a member of the bar.

Fieger was tied directly to the need for lawyers to act with respect to the bench and to maintain proper decorum in the discussion of such cases. Putting aside the opposition from some of us in the free speech community, it was not a broader ruling allowing sanctions for political advocacy.

The second basis for the complaint is Mich. R. Prof’l Cond. 8.4(b), which declares that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, [or] misrepresentation . . . where such conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The group notes that as a member of Congress, she has “heightened duties … beyond other citizens.”

The Foundation cites the Deutsch case. However, that case involved a threshold ruling reversing the dismissal of actions against Marvin G. Deutch and Vickey O. Howell after they were found to have committed drunk driving claims. Notably, Deutch was remanded for further proceedings under a different provision concerning criminal acts under MCR 9.104(5).

Howell was remanded under Rule 8.4.  However, the emphasis was on the fact that she committed a criminal act and the remand was to allow the bar to “fully consider Howell’s recidivism and probation violation, among other aggravating and mitigating factors.” Again, the extension of such rationales to political advocacy presents serious implications for the First Amendment as well as the bar.

The fact is that lawyers often advocate for unpopular clients or causes. The majority often finds their advocacy obnoxious, discourteous, or even threatening. However, if political advocacy can be used as the basis for disbarment or sanctions, the chilling effect would be glacial.

As members of the free speech community, we often advocate for the speech rights of those with whom we disagree. I have long disagreed with Rep. Tlaib on a host of issues, including the Hamas massacre. However, this action would cross a dangerous line in the sanctioning of political speech in my view.

For that reason, I must respectfully disagree with this effort and I believe the bar should reject the call for sanctions.