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Attorney’s blog constitutes protected speech under state and federal constitutions

February 17, 2016 by Steven M. Gursten

Dr. Griffin’s grievance is dismissed, her attempt to suppress blog post asking if she committed perjury is rejected

I recently asked: Will the First Amendment lose out when an IME doctor – who also happens to sit on the Attorney Discipline Board – files a grievance to suppress a blog post of her testimony under oath that questions whether she committed willful perjury? 

Yesterday afternoon I received my answer. The First Amendment wins. Citing U.S. and Michigan Constitutional grounds, the Michigan Attorney Grievance Commission has dismissed Dr. Rosalind Griffin’s grievance against me.

In my original blog post that led to the grievance, I wrote about Dr. Griffin’s defense medical examination of my client, who had been seriously injured in a truck accident in Jackson County, Michigan. I asked readers to compare what my client told Dr. Griffin during her recorded examination with what she later testified he told her – and then asked the readers to decide if she was willfully committing perjury when she was testifying under oath, and if this was an egregious example of IME abuse.

Dr. Griffin was demanding I remove the blog. She was also demanding I remove the link from Google to the blog post, which she wrote in her investigation request was coming up first in the search results when people searched for her name.

Dr. Griffin was attempting to use her position and power on the Michigan Attorney Discipline Board to force me into taking down this blog post about her because she didn’t like that I put her sworn testimony under oath in an accident case on the Internet for people to read. She was attempting to use the Michigan Attorney Grievance Commission as an instrument to suppress the post and punish me for exposing her conduct.

But I was taught to stand up to bullies, and I was gearing up for a good fight to expose what Dr. Griffin did here and to educate the public on what too many IME doctors are doing to people these days.  The video above is a short example of what she may have gotten away with if the IME exam had not been recorded.

In its letter to Dr. Griffin announcing that “no further action” would be taken on her grievance against me, the Attorney Grievance Commission (through its Senior Associate Counsel) explained the reasoning behind its decision as follows:

“The information Attorney Gursten posted on his blog constitutes protected speech under the Michigan and United States Constitutions.”

This is important for many reasons. In this new and emerging world of social media and attorney blogs, the rules have not caught up to the technology. This is one of the first reported instances where what an attorney has written is found to be  constitutionally “protected speech.”

My blog post about what Dr. Griffin did to my client, and the very real harms that many of these IME doctors are causing people, is precisely what the First Amendment’s Free Speech protections were intended to safeguard. As Eric Turkewitz wrote, attorneys have even more of an obligation to speak out when we see injustice:

“Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice.”

We as attorneys have more of an obligation to “speak truth to power,” not less, and to stand up for what we believe is right.  And even though I was preparing for a fight with Dr. Griffin and the Attorney Grievance Commission over this, I don’t want to gloss over what has already been done by just forcing me to respond to this grievance. I did have to hire a lawyer to defend me, incur attorney fees and lose considerable time from my own legal practice to respond to this grievance – a response which was demanded or would be considered misconduct.  I also have a very uncomfortable feeling that if this grievance had not received the legal attention and media scrutiny that it did, that an investigation would have been initiated. Just forcing me to respond to this grievance creates a dangerous “chilling effect” for other lawyers and for their own willingness to speak out, lest they be the victim of a grievance and the costs, time and threat of sanction responding to one. For this, we all lose out and damage has already been done.

Truthful speech on issues of public concern

I wrote my first blog about Dr. Griffin because I wanted the public to know what too many of these insurance doctors and defense medical examiners are doing to people every single day in personal injury lawsuits, No Fault exams and workers’ compensation exams.

Based on the support I’ve received from respected lawyers and prominent legal scholars around the country, it appears I’m not alone in my belief that attorneys have the same First Amendment protections to speak out truthfully about important issues of public concern.

  • Paul Levy, in the Public Citizen Consumer Law & Policy Blog, wrote: “the Supreme Court [Gentile v. Nevada State Bar and In re Snyder] made clear not only that lawyers do not give up their First Amendment rights when they become officers of the court, but also that they have a special role in helping the public discern whether other players in the administration of justice are misbehaving.”
  • Peter Lubin and Vincent DiTommaso wrote: The main goal of the First Amendment is to encourage open debate” and that “[l]awyer ethics rules and complaints should not be used as a tool to stifle debate the free exchange and publication of harsh opinions.”
  • Josh King, Avvo’s Chief Legal Officer, said in his “Socially Awkward” blog post, “Doctor files grievance against attorney over blog post,”: “the definition of defamation is NOT ‘something that someone wrote about me on the internet that I don’t like.’ Rather, to be actionable, defamation requires false statements of fact that cause damages.” He writes “we shouldn’t underestimate the power of butthurt doctors. After all, the medical profession has produced a spate of lawsuits over Yelp reviews, attempts to contract away free speech rights, and even reflexive suing of legal bloggers. So I guess it should come as no surprise that a doctor – who also happens to be a member of the Michigan Attorney Discipline Board – would file a grievance seeking bar discipline for a lawyer over a post he wrote that was critical of her.”

Educating the public about IME abuse in auto accident and workers’ compensation cases

I know first-hand the devastation that IME doctors cause. I see it all the time.  I see the harms it causes to my clients.

What Dr. Griffin did here is just one example of what happens all the time when people are forced to attend insurance medical exams. Many IME doctors make staggering amounts of money performing these one-time examinations on behalf of insurance companies and defendants in auto accident and workers’ compensation lawsuits. These doctors rarely find anything wrong with the people who are forced to see them, because they have a perverse financial incentive not to find anything wrong. Accident victims are forced to see these doctors and then often cut-off from desperately necessary auto No Fault insurance benefits, wage loss, medical care and treatment.  There is no physician-patient relationship, so these doctors cannot be held responsible for the harms they cause.

When all else fails, many of these doctors can just make something up that an accident victims allegedly told them during the examination. Why not? After all, they get away with it time and again as these exams occur in doctor offices with only the doctor and the auto accident victim present. There are no witnesses to verify or dispute the doctor’s version of what was said and what occurred. Many trial judges do not allow injury attorneys like myself to record these exams.

Even though Michigan has significant restrictions on the ability of attorneys to record these so-called “independent” medical exams, in my case, we were able to get permission to videotape Dr. Griffin’s examination of my client from the trial court. As a result, I had proof of what my client told Dr. Griffin during his IME exam with her. It is very different from what Dr. Griffin testified to under oath.

But what would have happened if this exam between Dr. Griffin and my client had not been recorded?

The public needs to know that this is happening. The public needs to know about the enormous harms that far too many IME doctors are causing to people when they sacrifice their professional integrity for insurance company cash.

I will continue to speak out against this. I hope other attorneys will now speak out against this and other important issues that impact the public as well, hopefully knowing that we have the same rights to protected speech under the First Amendment as everyone else.

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