## Facts

- The United States prosecuted William Wunsch, Beverly Wunsch, and their daughter, Teri Sowers, in a federal criminal tax case in the Central District of California.
- Attorney Frank L. Swan initially acted as counsel for Sowers and had represented the family in related IRS civil matters.
- The government moved to disqualify Swan (and another lawyer) based on conflict-of-interest concerns arising from representing multiple family members who were targets in the investigation.
- The district court found a serious potential conflict and disqualified Swan from representing Sowers; the court later disqualified him from representing the Wunsches as well.
- After disqualification, Swan sent a letter to the federal prosecutor with an attachment expressing sexist statements contrasting “male lawyers” and “female lawyers” in derogatory terms.
- The prosecutor forwarded the mailing to the district judge.
- The district court sanctioned Swan under Central District of California Local Rules 2.5.1 and 2.5.2, California Business and Professions Code § 6068(f) (duty to “abstain from all offensive personality”), and the court’s inherent authority.
- Swan appealed, arguing the sanctions exceeded the court’s authority and violated the First Amendment and due process.

## Issues

1. Whether a federal district court may sanction an attorney for offensive, extrajudicial speech occurring outside court and after the attorney has been disqualified and no longer represents any party in the case.
2. Whether applying local rules requiring respectful conduct and California’s “offensive personality” statute to such speech is unconstitutional under the First Amendment and due process (vagueness/overbreadth).

## Decision

- The Ninth Circuit reversed the sanctions order.
- The court held the district court did not properly exercise disciplinary authority over Swan for the challenged mailing.
- As applied to Swan’s post-disqualification, out-of-court expression that did not disrupt proceedings, the invoked standards were unconstitutional because they were insufficiently definite and risked punishing protected speech based on its content.

## Legal Principles

- Federal courts have inherent authority to supervise attorneys and may enforce professional standards, but that authority has limits, especially when regulating attorney speech outside the courtroom.
- Attorneys retain First Amendment protection; speech may not be sanctioned merely because it is insulting or offensive absent a sufficient connection to legitimate judicial interests (e.g., preventing interference with proceedings or obstruction of justice).
- Disciplinary rules and statutes used to punish speech must provide clear notice of prohibited conduct; broad standards such as a duty to abstain from “offensive personality,” when used to punish extrajudicial expression, raise due process vagueness and overbreadth problems.
- The permissibility of sanctions depends materially on nexus: in-court misconduct or conduct that disrupts proceedings may be regulated more strictly than non-disruptive, extrajudicial expression.

## Conclusion

The Ninth Circuit set aside sanctions imposed on an attorney for an offensive, sexist mailing sent to a prosecutor after the attorney’s disqualification, concluding that punishing such non-disruptive out-of-court expression under broadly worded professional standards violated First Amendment protections and due process limits on vague and overbroad disciplinary rules.


United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996)