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Attorney under investigation must stay mum

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Attorney under investigation must stay mum

  • Order to keep FBI documents secret doesn’t violate First Amendment rights of attorney targeted by a disciplinary investigation, supreme court says.

June 20, 2003 — An attorney under a disciplinary probe for saying two judges used cocaine cannot talk about or release documents showing the FBI investigated the same judges for cocaine use, the Colorado Supreme Court ruled Monday.

The court says the restriction on speech does not violate the attorney’s First Amendment rights because it is limited to the investigatory phase of the disciplinary action and necessary to protect the privacy of the judges who requested the restriction.

The attorney, whose name remains confidential, received the FBI documents after Colorado’s Attorney Regulation Counsel subpoenaed them while investigating the attorney for disciplinary violations. The attorney then publically distributed the documents detailing the FBI’s investigation by filing them in various courts of record.

The judges who were the subjects of the FBI investigation then asked for a protective order to stop further spread of the information. The judge presiding over the disciplinary action granted the order, which the supreme court upheld.

The state rules governing attorney discipline specifically give an attorney under investigation the right to publicly release any information that emerges during the investigation. Colorado revised the rules in 1999 with a major goal “to make the system of attorney discipline more publicly visible,” Justice Michael Bender wrote in the unanimous opinion.

Although Colorado’s highest court acknowledged both the attorney’s right to publicize the information and a “legitimate public interest in an FBI investigation of two judges,” it held those rights and interests give way to the privacy concerns in this situation. The U.S. Attorney’s office never brought charges against the judges investigated for cocaine use.

The attorney had argued that the restrictions on further release of the FBI investigation was an unconstitutional after-the-fact prior restraint on speech.

The court, however, balanced First Amendment concerns against the government’s interest in protecting the discovery process by allowing for confidentiality, as well as the actual restriction on speech.

The attorney would be free to publicize information about the judges’ alleged cocaine use that he learned from a source independent of the investigatory phase of the disciplinary action or if the documents become part of the public record when a formal disciplinary action is taken against the attorney.

(In re the Matter of the Requests of Investigation of Attorney E.) KH

© 2003 The Reporters Committee for Freedom of the Press

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