Fordham Law


Court Dismisses Lawyer’s Appeal to Wear Baseball Cap in Court

Martin Flaherty in The New York Times, June 17, 2011

Media Source

By ADRIANE QUINLAN

Your typical lawyer does not dress for court in jeans and a baseball cap. But Todd C. Bank is not your typical lawyer.

In 2008, he walked into housing court in Queens in a button-down shirt, jeans and a baseball cap that read “Operation Desert Storm.” In court to argue in his own landlord-tenant dispute, he had noted that the court had what he saw as an unfair hat policy: a woman was asked to remove a knit cap, but a clerk was allowed to wear a yarmulke. Mr. Bank recalled thinking, “Next time I come here I have to wear a hat just to see what happens.”

He wanted to argue that, like the yarmulke — a religious garment — his hat was a form of expression protected by the First Amendment.  Hat in hand, Mr. Bank asked Judge Anne Katz to allow him to “exercise his rights under the First Amendment of the U.S. Constitution by wearing a baseball hat.” Judge Katz said no.

Mr. Bank complied, but the next day he filed a suit in federal court contending that Judge Katz had infringed on his rights to free speech and liberty under the First and the 14th Amendments.

In 2009, a judge dismissed the suit, ruling that “It is appropriate for a court to expect litigants to appear in attire that is suitable to the dignity of a courtroom, rather than to show up in clothes they might have worn to a baseball game.”

Mr. Bank appealed.

On Thursday, he lost.

Three federal circuit judges — Roger J. Miner, Robert D. Sack and Peter W. Hall — ruled in a summary order that Mr. Bank had “no legal basis for concluding that a lawyer’s interest in dressing as he pleases when appearing in court rises to the level of a fundamental constitutional right.”

“My own personal philosophy,” Mr. Bank explained, “Is that the government should not restrict free speech rights any more than is necessary.”

And what would be necessary?

“If I had worn a 10-gallon hat and people behind me couldn’t see.”

In the past, judges have punished lawyers — going so far as to imprison them — for sighing loudly, throwing sarcastic looks and arriving five minutes late. In one instance, an Arizona lawyer was suspended for six months after calling a judge “brainless.”

Martin Flaherty, a professor at Fordham Law School who teaches courses on professional responsibility, said that in most cases, lawyers did not appeal simply because they were likely to lose. “Most courts would probably err on the side of their own interest.”

And they have the power to. Courtroom rules are set loosely in the Model Rules of Professional Conduct, as outlined by the American Bar Association. But these rules are broad and open to interpretation, giving a judge leeway. Professor Flaherty said that Judge Katz’s decision to call Mr. Bank’s dress inappropriate could have fallen under Rule 3.5(d), which states that a lawyer shall not “engage in conduct intended to disrupt a tribunal.”

But are hats disruptive? That’s up to the judge.

Hanni Ismail, a designer for the hat boutique Pole Berg in Queens, which has sold hats to Lakers players and actors from “Entourage,” represented himself in a family dispute nine years ago. To court, he wore an orange Yankees cap. Mr. Ismail said that he wanted to be judged for his fashion choice in order to defend it: “I wanted them to say something.”

But Mr. Ismail said that the judge did not seem to care, and he won his case.

Mr. Bank, for his part, said that he first wore his hat in order to push boundaries as the lone conservative in a liberal course in college. “I wore my frat sweatshirt,” Mr. Bank recalled. “I had my hat — the Operation Desert Storm hat — and I had a little American flag pin that I wore on my sweatshirt.”

Mr. Bank said that he wore the hat, first and foremost, to express his support for the troops. “I wasn’t really being phony,” he said. “Because I generally don’t wear baseball hats.”