Let's not really discuss the facts at this point. I think for the present they are not what you are here to talk about. You are here to talk about, if I understand it correctly, certain facts. What then am I in a situation to do or what should I not do? I would think as an abstract matter, and not necessarily relating to this case, that as a general rule the public declaration attributing unethical conduct to another lawyer, be he a public official or not, assuming that to be baseless, might be conduct on which the committee on grievances would interest itself. That's what we are talking about.

FREEDMAN: I don't think we can weigh that apart from such things as the professional standards and constitutional standards that a lawyer is required to abide by in representing a client. The test is, according to Anderz v. California, a Supreme Court decision in 1967, that the attorney is required to argue an issue unless it is wholly frivolous as long as it might arguably support the client's position.

Then, in the code of professional responsibility, specific notice is taken of the problem of state of mind as being what they call a particularly perplexing matter.

COURT: Let me interrupt you for a moment. I want to cast this thing in its perspective.

Let's assume that Professor Dershowitz has said-and I am picking each word rather carefully-that the United States Attorney deliberately-and the last is the key word-suppressed evidence in the Supreme Court. We are not talking about negligence suppression. We are talking about deliberate suppression.

Now, let us assume that there is not the slightest evidence of the deliberate suppression. Just for the purpose of this discussion, would you say that such conduct is above discipline?

FREEDMAN: I would say so on at least two grounds, although I have difficulty in the context of this case accepting a premise that to suggest deliberateness on the part of the government is wholly frivolous and beyond the good faith argument on Professor Dershowtiz's part.

But the Supreme Court has held, for example, that the justices themselves as public officials are not above the most extreme degree of criticism. The Kongisberg case was one where the lawyers charged that the members of the Supreme Court were part of the cold war machinery that was betraying America, and Konigsberg was denied membership in the bar because of that. The Justices of the Supreme Court said, "We are public officials just like others and what he is doing is exercising his free speech rights in criticising public officials." I don't think a public prosecutor is above a Supreme Court Justice in that regard.

I think the standard must be, if criticism of a public official can be grounds for discipline, it must be wholly frivolous. It cannot be anything other than the constitutional standard of effective representation or standards set down by the Code.

In this very courthouse there was recently a charge of deliberate obstruction of justice against a former prosecutor, the Attorney General of the United States [John N. Mitchell]. The government or the lawyers who levied that charge failed to prove it. I am not aware of any suggestion that they be disciplined for that. It seems to me--

COURT: You see the difference wherein they presented evidence to a grand jury and the grand jury has found probable cause to believe that the crime has been committed and just some lawyer standing up in the courtroom and making this--you surely see there is a difference?

FREEDMAN: I see there is a difference, but I would not characterize Professor Dershowitz as some lawyer standing up in a courtroom and making wild allegations.

COURT: Because of the office that he holds in the university he should be held to a higher standard and because of the situation in teaching young people to become lawyers. I really feel that he ought to be held to a higher standard than some fellow who has not the background and who is not constantly exposed to classes upon classes of our best young people.

FREEDMAN: Whether we hold it at a higher or lower standard his obligation remains to represent his client vigorously.

COURT: There comes a point beyond which vigor is not acceptable.