“Hey @MichaelCohen212 — Do your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat. I wonder if she’ll remain faithful when you’re in prison. She’s about to learn a lot…”
Look familiar? This was the tweet that Congressman Matt Gaetz, one of Florida’s Congressman to the United States House of Representatives, wrote on the eve of Michael Cohen’s testimony to a U.S. House Committee last Tuesday. While he later deleted the text and offered a personal apology to Michael Cohen, Congressman Gaetz is still in hot water. However, his problems do not lie with his fellow representatives. Nor does he constitutes seem to mind the content of the tweet. Rather, Congressman Gatez is also known as Attorney Gatez in the State of Florida. This means that his conduct can be examined by the Florida Bar which launched an investigation into the matter shortly after the tweet went public.
Florida Bar spokeswoman Francine Walker was quoted in an email last week that an investigation was opened into Attorney Gaetz. Gates has fifteen days to respond and then a bar attorney will decide to send the case forward to a grievance committee for a probable cause determination or dismiss it at the initial level. Yet the entire situation brings forth a conflict that has existed with the Florida Bar and individual attorneys for many years. At what point does the First Amendment and Freedom of Speech not enable attorneys to say what they want to say?
The policy behind limitations on attorneys’ speech have mostly been focused on advertising and preserving the appearance of civility in the profession. Indeed, one could easily argue that a commercial that has an attorney acting in an undignified manner belittles lawyers everywhere in the state. But here, Congressman Gatez’s comments have nothing to do with the practice of his legal profession. There is no requirement that an individual be a lawyer to be in government. Yet, at present, the Florida Bar is the only entity outraged enough by the statement against Cohen that further action has been taken.
From the Bar’s perspective, it seems to be more an issue of whether Gatez’s text rose to level of an actual crime as opposed to whether it was a poor reflection on attorneys from the State. Many of asserted that the text rises to the level of a threat and even witness tampering as it seems that it was fashioned in a way to pressure if not encourage Cohen to back out of his testimony at the last minute. In either event, how the Bar chooses to handle the matter could set interesting precedent for how lawyers conduct themselves in future matters outside their role as attorney.
-By Marc Consalo, Director of the Center for Law and Policy