U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996)

The oath that Washington attorneys take to get licensed is archaic to say the least.  One of the things that Washington attorneys must do is swear to “abstain from all offensive personalities.”  APR 5(d), Item 7.

I recently came across a ninth circuit case that found the prohibition of “offensive personalities” as found in a California statute to be unconstitutionally vague.  U.S. v. Wunsch, 84 F.3d 1110, 1119-20 (9th Cir. 1996).  While the case dealt with a California statute, not the Washington oath, the California statute is equivalent to our oath and the reasoning of the court would seem to apply to the Washington oath.

In that case, a lawyer named Swan had been disqualified by the federal district court –based on a conflict of interest — from representing both parents and their daughter in a criminal tax prosecution.   Swan was sufficiently unhappy that the AUSA had gotten him and his partner disqualified that he sent her a letter expressing his belief that “Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.”   More to the point, he “[a]ppended to the letter …a single sheet of paper with the following photocopied words, all enlarged and in capital letters:  `MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER.'”  The federal district court found that this letter violated several local rules, including one that incorporated by reference a California statute,  (then) Section 6068(f) of California’s Business and Professions Code, which read, in relevant part: “It is the duty of an attorney … [t]o abstain from all offensive personality[.]”  The court ordered Swan to apologize to the AUSA and referred the matter to disciplinary authorities. Swan appealed the trial court’s order and the ninth circuit reversed.    It upheld Swan’s facial challenge to the “offensive personalities” statute (which has since been amended by deleting the offending offensive personalities).   According to the court:

Clearly, “offensive personality” is an unconstitutionally vague term in the context of this statute. … As “offensive personality” could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients’ interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute. For the same reason, the statute is “so imprecise that discriminatory enforcement is a real possibility[,]” …., and is likely to have the effect of chilling some speech that is constitutionally protected, for fear of violating the statute.

Id. at 1119 (citations omitted).   Judge Farris dissented from this conclusion, believing that “offensive personalities” could be saved by giving it a limiting interpretation to “conduct that affects the administration of justice.”

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