Column: A First Amendment Clash Between Whistleblowing and Legal Ethics

By Christopher Dunn

Last week the National Law Journal disclosed that District of Columbia bar authorities had filed formal charges against a former Department of Justice lawyer who had called a New York Times reporter (from a phone booth!) to alert the reporter to an unlawful wiretapping program being operated by the Justice Department with the full knowledge of then Attorney General John Ashcroft. Bar authorities have accused the lawyer – Thomas M. Tamm – of violating bar rules by having failed to report the misconduct to the Justice Department’s internal inspector general and for having disclosed confidential attorney-client information to the reporter. The propriety of disciplining a lawyer for disclosing confidential client information seems like a pretty straightforward proposition. But that proposition gets more complicated when the lawyer is a public employee, the disclosure is about egregious unlawful conduct and is made to a newspaper reporter, and the client is the government.

Given these circumstances, the prospect of disciplining Mr. Tamm presents an interesting conflict between state-sanctioned rules governing the conduct of lawyers and long-established First Amendment protections afforded to public employees who blow the whistle by disclosing government misconduct to outsiders. Thinking about how to resolve that conflict starts with the seminal United States Supreme Court case addressing an effort to use legal ethical rules to punish claimed First Amendment activity.

Challenging Sterilization

In 1978 the Supreme Court decided In re Primus¹ ,a case central to the work of ACLU lawyers and other lawyers working with organizations that bring public-interest litigation. The controversy underlying the case arose out of newspaper reports in 1973 that mothers on public assistance in Aiken County, South Carolina were being sterilized or threatened with sterilization as a condition of continuing to receive public benefits. Edna Primus was a South Carolina lawyer who volunteered to litigate cases for the ACLU of South Carolina. Following the disclosures about sterilizations in Aiken County, she met with women who had been sterilized or were facing sterilization to inform them of their legal rights and to suggest the possibility of a lawsuit. Primus subsequently wrote a letter to one of the women who had been sterilized informing her that the ACLU would be willing to represent her. The woman in turn showed the letter to the doctor who had sterilized her and his lawyer. They persuaded her to sign a release of any liability by the doctor and then turned Primus’s letter over to bar authorities, who charged Primus with unethical solicitation in violation of South Carolina bar rules. Primus invoked the First Amendment in defending the charges, but bar authorities found her guilty and imposed a private reprimand.

The case went to the South Carolina Supreme Court, which affirmed the misconduct finding and increased the penalty to a public reprimand. With an observation that applies equally to the present controversy involving the Justice Department lawyer, the United States Supreme Court opened its analysis in Primus by noting that “[t]his appeal concerns the tension between contending values of considerable moment to the legal profession and to society.” More specifically, the Court noted that, on the one hand, the states have “broad powers” to regulate legal practice within their borders while, on the other hand, Primus “had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization.” In addressing the threshold constitutional issue, the Court explained that prior decisions had established the principle that “collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” It then rejected South Carolina’s argument that this principle did not apply to the ACLU:

[T]he ACLU and its local chapters. . . engage in extensive educational and lobbying activities and also devote much of their funds and energies to an extensive program of assisting certain kinds of litigation on behalf of their declared purposes. . . . . It has engaged in the defense of unpopular causes and unpopular defendants and has represented individuals in litigation that has defined the scope of constitutional protections in areas such as political dissent, juvenile rights, prisoners’ rights, military law, amnesty, and privacy. For the ACLU, . . . litigation is not a technique of resolving private differences; it is a form of political expression and political association.

Given the nature of the ACLU’s work (which the Court held was unaffected by the ACLU’s practice of seeking and obtaining statutory attorneys’ fees), the Court held that South Carolina’s effort to apply bar no-solicitation rules to Primus’s sterilization solicitation “must withstand the exacting scrutiny applicable to limitations on core First Amendment rights.” And as measured against that standard, South Carolina did not fare well:

At bottom, the case against [Primus] rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply proposes a commercial transaction. In the context of political expression and association, however, a State must regulate with significantly greater precision.

Public-Employee Speech

Separate and apart from recognizing First Amendment protections for public-interest organizations seeking to use litigation to challenge government misconduct, the Supreme Court in the late 1960s started to develop strong First Amendment protections for public employees. Contemporary public-employee, free-speech law traces back to Marvin Pickering, an Illinois high school teacher. Unhappy about how his school district had handled its finances, Pickering wrote and had published in the local newspaper a letter to the editor criticizing the school board. As the Supreme Court described it, “The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.”

For this, Pickering was fired, a decision the Illinois Supreme Court upheld. In a 1968 opinion written by Justice Thurgood Marshall, however, the Supreme Court reversed in Pickering v. Board of Education of Township High School District 205²  the case that gave birth to what is known as the “Pickering doctrine.” Under that doctrine, the First Amendment protects speech by public employees about their employer agencies so long as their speech is on a matter of “public concern.” Like all First Amendment protections, this one is not absolute, but it has afforded substantial protection to public employees. At the heart of the Pickering doctrine is the recognition that public- employee speech about misconduct within the employee’s agency is particularly valuable for the public to receive and therefore must be protected. In Pickering, for example, the Court explained, “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out on such questions without fear of retaliatory dismissal.” This core notion of the Pickering doctrine runs through the Supreme Court’s public-employee, free-speech caselaw, as the Court noted in its most recent Pickering case:

The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion. Pickering again provides an instructive example. The Court characterized its holding as rejecting the attempt of school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” It also noted that teachers are “the members of a community most likely to have informed and definite opinions” about school expenditures. The Court’s approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed.

For nearly fifty years after 1968, the Pickering doctrine has remained relatively stable, and the Supreme Court decided only a handful of cases arising under the doctrine, usually siding with public employees. Indeed, the Court has never upheld the discipline of a public employee who has engaged in speech that is on a matter of public concern within the meaning of the Pickering doctrine and that has not otherwise been part of the employee’s specific job duties.

Tamm’s Dilemma

So what to do about Thomas Tamm having dropped a dime on John Ashcroft? Plainly, his speech about the wiretapping program falls within the Pickering doctrine’s First Amendment protections, as Tamm was a public employee and his speech was on a matter of public concern. Pickering protections are not absolute, however, and bar authorities undoubtedly have a strong interest in preventing lawyers from betraying client confidences. But several considerations may give Tamm some First Amendment hope. As an initial matter, the charges against Tamm are vague about how he learned of the covert surveillance program. They assert only that Tamm “became aware that there were some surveillance applications that were given special treatment . . . and could be signed only by the Attorney General” and further that he “learned that these applications involved special intelligence obtained from something referred to as ‘the program.’” In the Matter of Thomas M. Tamm, Bar Docket No. 2009-D195 (D.C. Court of Appeals Bd of Prof. Resp., Dec. 29, 2015).

Notably, the charges never assert that Tamm learned of the program in the course of actually representing the government with respect to one of the applications. If Tamm did not learn of the surveillance program through his personal representation of the government, then questions may arise as to the extent to which District of Columbia Rule of Professional Responsibility 1.6(b) actually applies to his conduct. Even assuming, however, that Tamm learned of the program through direct representation, it is worth noting that ethical nondisclosure rules are not absolute. Rather, many jurisdictions have loosened their rules to allow attorneys to report confidential client information when that information suggests that the client may be about to engage in serious criminal behavior. To be sure, these exceptions are narrow and not constitutionally mandated, but they demonstrate that even bar authorities recognize that countervailing considerations can trump attorney-client confidentiality. Which then leaves one to consider the core constitutional question presented by the charges against Tamm: whether the First Amendment values implicated by his speech are sufficient to outweigh the substantial interest bar authorities have in protecting client confidences. And at this point, In re Primus may become instructive. There the Supreme Court fully recognized the legitimacy of limits on solicitation but also condemned rules that swept broadly and that failed to take into account solicitation designed to further the public interest as protected by the First Amendment. Likewise, it appears that the District of Columbia’s non-disclosure rule sweeps broadly and fails to account for any possible countervailing First Amendment interests.

n addition, there is the fact that Tamm’s client was the government. Whether government lawyers in truth represent the government or the public the government ostensibly serves has long been a topic of academic debate, but that debate is no longer academic when we are talking about punishing a lawyer whose actions helped spark a national debate about the propriety of government surveillance program that was established in the aftermath of 9/11 and that is widely viewed as having been unconstitutional. In the minds of many, Tamm’s disclosures were of enormous importance to the public, which it could be argued was his real client. In this respect, the Tamm controversy directly raises the Pickering doctrine’s embrace of the important role that government-employee speech plays in public discourse about government policy. Notwithstanding these considerations, however, Tamm faces substantial obstacles in mounting a First Amendment defense. But when viewed through the prism of Primus and Pickering, the validity of those charges is more complicated than one might think. *=

Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at cdunn@nyclu.org

Footnotes 1 436 U.S. 412 (1978). 2 391 U.S. 563 (1968).