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Score One for the First Amendment

Score one for the First Amendment. Steve Gursten of Michigan Auto Law and chair of the Auto Crash Litigation 3.1 conference (April 2-3) wrote in his blog that Dr. Rosalind Griffin, DME, who happens to sit on the Attorney Discipline Board, conducted the defense exam on his client who had been seriously injured in a truck accident in Jackson County, Michigan. In testifying, Dr. Griffin made statements that misrepresented the statements made by the client in the video taped exam. When Mr. Gursten challenged the Doctor, she wavered some on her statements.

As a creative trial lawyer and defender against bullies, Mr. Gursten asked his blog 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. Mr. Gursten, in the blog, used actual trial transcript excerpts and video to demonstrate the inconsistencies.

Dr. Griffin first demanded that Mr. Gursten take down the blog and the link from Google to the post. When he refused, Dr. Griffin then attempted to use her position and power on the Michigan Attorney Discipline Board (she is a non-lawyer member) to demand Mr. Gursten take down the blog post about her because she didn’t like that Mr. Gursten put her sworn testimony under oath in an accident case on the Internet for people to read, a blatant attempt to use the Michigan Attorney Grievance Commission as an instrument to suppress the post and punish Mr. Gursten for exposing her conduct. When Mr. Gursten refused, Dr. Griffin filed a grievance.

As trial lawyers, we have to thank the Michigan Attorney Grievance Commission for seeing the truth of Dr. Griffin’s action and in a letter to her announced that “no further action” would be taken on her grievance against Mr. Gursten. 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 action by the Commission 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.”

To read Mr. Gursten’s blog about this challenge click here.

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