Disciplinary Complaint Against Dershowitz Dismissed

The Massachusetts Office of Bar Counsel dismissed a disciplinary complaint last Thursday against Frankfurter Professor of Law Alan M. Dershowitz that accused him of unprofessional conduct.

Dershowitz said he anticipated the complaint would be dismissed, adding that the charges against him were an abuse of the judicial process.

“The complaint was irresponsible,” he said. “It was designed solely to get publicity for their unknown organization. So it was frivolous.”

The Muslim Legal Defense and Education Fund (MLDEF) had filed the complaint last month, accusing Dershowitz of encouraging others to break federal law in a March op-ed he wrote for the Jerusalem Post newspaper.

In the article, Dershowitz proposed that whenever Palestinian terrorism resumes after a moratorium, Israel should retaliate with military action against a Palestinian village after giving residents 24 hours’ notice.

The MLDEF said these comments constituted inappropriate conduct for a lawyer and point to an article of the Geneva Convention that says innocent people cannot be punished for a crime they did not commit. Since the U.S. has ratified the convention, it has become federal law.

“That kind of behavior and rhetoric far exceeds the norms of free speech,” said Sareer A. Fazili, a member of the MLDEF Board of Directors. “I’m not a constitutional law expert, like Professor Dershowitz, but I do know we have a responsibility to speak in appropriate manners and fashions, because people listen when we speak.”

Dershowitz said the reason for the dismissal was expressed in a letter he received from the Office of Bar Counsel.

The letter said the complaints were dropped because Dershowitz was protected by the First Amendment and nothing he said constituted a violation of any disciplinary rule.

Despite Dershowitz’s response, MLDEF representatives said they still believe their complaints were sound.

“We strongly feel that this is not a matter of right to speak, because there are certain forms of speech not appropriate,” Fazili said. “When an attorney comes out and calls for violence beyond norms of behavior like Geneva Convention, there must be some checks and balances system.”

The MLDEF is disappointed because it feels its complaint was not given adequate deliberation, Fazili said.

John O. Mirick, chair of the Board of Bar Overseers, said decisions about complaints were only made after a thorough investigation. But he said the Office of the Bar Counsel keeps the specifics of complaint evaluations confidential.

“The rules of the Supreme Judicial Court require that nothing can be revealed about any matter that is under investigation,” said Bar Counsel Daniel C. Crane.

Even the existence of a complaint filed with the Office of Bar Counsel is supposed to be confidential, Crane said, but since both Dershowitz and the MLDEF complained publicly, the charges did not remain secret.

First Assistant Bar Counsel Nancy E. Kaufman said that MLDEF can ask for a review of the decision. But Fazili said yesterday the group is not sure whether it will appeal the decision.

Dershowitz said he does not think that the MLDEF will ask for a review of the decision.

“I don’t think they’ll do anything that doesn’t get them publicity,” Dershowitz said. “They know they’re not going to get anywhere. They knew from the beginning.”

Students who support both the Israeli and the Palestinian sides have mixed opinions about the complaint and its dismissal. Harvard Students for Israel President David B. Adelman ’04 said the organization believed the charges were not going to provoke action from the bar association.

“While many of us might not necessarily agree with what Dershowitz said, he is free to say those things as a lawyer and not feel like he should be reprimanded for it,” Adelman said.

Although the complaint was dismissed, Justice for Palestine President Sam Foster Halabi said he thought that the MLDEF would nonetheless benefit.

“The great success of the whole action was to bring to life that lawyers have particular responsibilities,” said Halabi, a second-year student at Harvard Law School. “Even with Massachusetts saying his speech was within First Amendment bounds, there was great success in raising the issue.”

Dershowitz said he disapproves of the way the MLDEF used the bar counsel office’s disciplinary mechanism and is considering filing a complaint of his own against the group.

“They may be in trouble. They have free speech rights to say whatever they want about me, but lawyers have an obligation to protect [due] process,” Dershowitz said. “And a part of my obligation is to file a complaint against them for abusive process.”