UPDATED: High court considers first disbarment for attorney speech

Carl Smith

The Missouri Supreme Court has already upheld a Douglas County attorney’s false accusations against various local judges, prosecutors and attorneys as constitutionally protected speech.

But the same statements still could cost Ava attorney Carl A. Smith his law license.

During oral arguments Tuesday in Jefferson City, Supreme Court Chief Justice Richard B. Teitelman repeatedly noted Smith’s previously clean discipline record. But he also wondered aloud about what to do with an attorney who’s a “serial prefabricator.”

“[Attorney’s aren’t] supposed to lie for their clients,” Teitelman said. “It’s against the rules, and rightly so.

“Once you’re a liar, you’re always a liar. How do you put someone on probation for acts of lying?”

The Office of Chief Disciplinary Counsel urged the Supreme Court to disbar Smith for a number of written accusations against attorneys in the 44^th Judicial Circuit he included in court filings, waivers and press releases dating back to 2006.

Among other statements, Smith accused a prosecutor and a judge of using a grand jury to cover up judicial misconduct, a prosecutor handing a judge a bag of money on a fishing boat and prosecutor of conducting a sexual relationship with his adopted daughter.

“This is really about conduct instead of speech,” said Nancy Ripperger, an attorney for OCDC. “This is a pattern of trying to razz these judges and prosecutors because he was angry with them.

“Mr. Smith showed no remorse,” she said. “We’re very concerned that if not disbarred, he would continue to do this in practice. Probation is probably not appropriate unless you’re going to have someone sitting beside him, 24/7, saying, ‘Mr. Smith, I don’t think that’s a good idea.’”

Ripperger said at oral arguments that in the past, Missouri attorneys have been suspended but never disbarred for voicing false statements.

Smith, who has practiced law for two decades and served as the prosecuting attorney for Douglas County from 1994 until 1998, had no history of mental illness, Ripperger said. At one point Smith struggled with excessive alcohol use, but those problems were resolved years ago, she said.

In a separate appeal of a contempt conviction against Smith in 2010, the Missouri Supreme Court unanimously upheld Smith’s incendiary statements in as constitutionally protected lawyer speech that posed no immediate threat to judicial proceedings.

It’s not enough for a lawyer’s speech to embarrass judicial officials, former Judge Michael A. Wolff wrote in the Supreme Court’s May 2010 opinion. To support a finding of criminal contempt, the statements need to actually interfere with the administration of justice, the court ruled.

Smith’s attorney, Bruce Galloway of Ozark, again raised First Amendment concerns about the possibility of the court disbarring an attorney for repeating statements told to him by a client.

Smith violated the rules of ethics and should be sanctioned, Galloway told the court.

“The real issue here is whether the court should skate along the thin ice of First Amendment jurisprudence in reaching its conclusion that Mr. Smith violated the ethical rules or whether the court should avoid that,” Galloway said.

At point in the argument, Teitelman invoked Republican presidential contender Michele Bachman.

Bachmann said during a recent debate that a vaccine to prevent a sexually transmitted disease causes mental retardation. Like Bachmann, Smith repeated false statements told to him by someone else.

Bachmann is a lawyer, Teitelman pointed out. “Would that lawyer be subject to discipline because she is a lawyer and she relied on whatever was told to her?” the judge asked.

Galloway replied, “The question is in the future when lawyers receive sworn statements from someone in the course of litigation, does the lawyer take the risk of losing his license if he presents it because it seems relevant?”

The case is In re: Carl Elvin Smith, SC91696.