Birther madness: lawyers behaving badly?

Filing a lawsuit is not a post on a blog. It is a claim of right and demand for remedy that compels others to respond, courts to hear, and to decide. Lawyers are the filter for such burdensome demands. The Rules of Professional Conduct therefore prescribe:

A lawyer shall not bring or defend a proceeding...unless the lawyer knows or reasonably believes that there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law, or the establishment of new law. RPC 3.1

Attorney Mario Apuzzo of Jamesburg, New Jersey thinks that rule doesn't apply to him. The Courts of the United States must compel the Congress to investigate the (plainly groundless -gwc) claim that Barack Obama is not a native born citizen, he demands on behalf of four apparently like-minded citizens. In a twice-amended complaint Apuzzo seeks to advance his personal belief that to date (Halloween 2009) 283 days have elapsed “ Since the Usurper Putative President Obama aka Barry Soetoro Unconstitutionally Took Office”.

An editorial in the New Jersey Law Journal observes:

The first named plaintiff - Charles Kerchner - a 33 year veteran of the U.S. Naval Reserves - hypothesizes that if he is recalled to active duty in a “national emergency” he ““would need to know whether the President and Commander in Chief who may be giving him orders is in fact the legitimate President and Commander in Chief and therefore obligate him to follow those orders or risk being prosecuted for disobeying such legitimate orders.”

District Judge Jerome Simandle has dismissed the complaint. (Civil No. 09-253) The plaintiffs cannot, he points out, establish “an injury in fact” - that is, a “personal stake” which can be “distinguished from the interest of the general citizenry”. Kerchner’s allegation is entirely speculative and fails to meet the constitution’s jurisdictional case and controversy requirement, according to Judge Simandle’s patient, plain, and solid ruling.

Paper accepts anything written upon it and citizens are free to rant against the wind and the tides, and to tilt against windmills. But lawyers are not free to file frivolous pleadings, to waste the time of the courts and of public servants on groundless matters.

But Apuzzo is undeterred. According to his blog he has filed an appeal in the U.S. Court of Appeals for the Third Circuit in his lawsuit against “Barack Hussein Obama, II, the United States of America, the United States Congress, the United States Senate, the United States House of Representatives, Richard B. Cheney, and Nancy Pelosi.”

Acting U.S. Attorney Paul Fishman and his staff have important business to attend to and they need not police the New Jersey bar. But the Middlesex County District VIII Ethics Committee does have jurisdiction and cause to investigate and, if warranted, to file charges against Mario Apuzzo the attorney who filed the Kerchner complaint.

RPC 3.1 suggests the question: Should an Ethics Committee commence an investigation and seek to discipline Apuzzo for filing a frivolous complaint?

Would such action deter other (presumably more rational) lawyers from testing the outer limits of the law? Would Mr. MacPherson's lawyer be vulnerable under RPC 3.1?

What constitutional provisions are relevant?

Is losing a sufficient sanction?

Federal Judicial Canon 3 A. (3) Provides "A judge should initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a judge or lawyer." Does the judge's failure to take such action dictate inaction by the District Ethics Committee?

P.S. for the discussion this post sparked at Legal Ethics Forum click HERE.

Images: facsimile of Barack Obama's birth certificate, and 1961 birth announcement in Honolulu Advertiser