Copyright (c) 1997 Hofstra Law Review Association; Hal R. Lieberman “[J]unk justice.“1 “‘[R]acist.”’2 “ “[A]nti-semitism.”’3 Appellate judges are “‘the whores who became madams.”’4 “‘[S] onofabitch.”’5 Inflammatory attacks on judges and the judiciary, like the foregoing lawyers’ comments reported in the press, are becoming more common. Should such remarks be tolerated under the First Amendment, or […]
a1
A.B., University of Chicago (1964); J.D., Harvard Law School (1967). Mr. Lieberman is the Chief Counsel to the Departmental Disciplinary Committee of the New York Supreme Court, Appellate Division, First Judicial Department. The views expressed herein are his own and do not necessarily represent those of the Departmental Disciplinary Committee or the Appellate Division.
1
John Shanahan, Giuliani Calls for Firing Jurist Who Freed Killer, Star-Ledger (Newark, N.J.), Feb. 15, 1996, at 18.
2
In re Atanga, 636 N.E.2d 1253, 1256 (Ind. 1994) (finding that a lawyer accused a judge, in a widely circulated newsletter, of being “‘ignorant, insecure, and a racist”’).
3
Susan Seager, Judge Sanctions Yagman, Refers Case to State Bar, L.A. Daily J., June 6, 1991, at 1.
4
James Mills, I Have Nothing to Do with Justice, Life, Mar. 12, 1971, at 56, 66.
5
Office of Disciplinary Counsel v. Grimes, 614 N.E.2d 740, 740 (Ohio 1993) (finding that a lawyer “referred to [a judge] as a “sonofabitch,”’ which was later reported in a local newspaper).
6
See Model Code of Professional Responsibility Preface at ix (1985).
7
Model Code of Professional Responsibility DR 8-102(B) (1980).
8
Id. EC 8-6 (endnotes omitted).
9
See Model Rules of Professional Conduct Preface at viii (1992).
10
Id. Rule 8.2(a) (emphasis added).
11
In addition to the District of Columbia, 36 states follow an amended version of the ABA Rules: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Washington, West Virginia, Wisconsin, and Wyoming. Seven of the remaining 14 states still retain a version of the ABA Code (Georgia, Iowa, Maine, Massachusetts, Nebraska, Ohio, and Vermont), six have incorporated a mixture of the ABA Code and Rules (Illinois, New York, North Carolina, Oregon, Tennessee, and Virginia), and California follows neither the ABA Code nor the ABA Rules. See Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 5 (4th ed. 1995); State Ethics Rules, Laws. Man. on Prof. Conduct (ABA/BNA) No. 165, at 01:3-:4 (May 29, 1995).
12
For example, long before the promulgation of the ABA Rules in 1983, a New York court quoted with approval a referee’s finding that a lawyer had made statements concerning a surrogate judge “‘with knowledge of their falsity and with reckless disregard of the truth.”’ Baker v. Monroe County Bar Ass’n, 311 N.Y.S.2d 70, 73 (App. Div. 1970) (per curiam) (emphasis added), aff’d, 272 N.E.2d 337 (N.Y. 1971). Similarly, “‘the rule is well settled that an attorney who engages in making false, scandalous, or other improper attacks upon a judicial officer is subject to discipline.”’ Id. at 74 (emphasis added) (quoting In re Bevans, 233 N.Y.S. 439, 443 (App. Div. 1929)).
13
See, e.g., In re Holtzman, 577 N.E.2d 30 (N.Y. 1991) (finding that an attorney’s false accusations of judicial misconduct warranted discipline under DR 1-102(A)(6) of New York’s Code of Professional Responsibility (now DR 1-102(A)(8)), which prohibits conduct that adversely reflects on a lawyer’s fitness to practice law); see also infra notes 18-24 and accompanying text.
14
Model Rules of Professional Conduct Rule 8.4(d) (1992); Model Code of Professional Responsibility DR 1-102(A)(5) (1980).
15
Model Code of Professional Responsibility DR 7-106(C)(6).
16
Model Rules of Professional Conduct Rule 3.5(c).
17
Model Code of Professional Responsibility DR 1-102(A)(6).
18
577 N.E.2d at 30.
19
See id. at 32, 33.
20
Id. at 33 (quoting New York Code of Professional Responsibility DR 1-102(A)(6) (now DR 1-102(A)(8))).
21
See id.
22
See id. at 31, 32.
23
376 U.S. 254 (1964).
24
Holtzman, 577 N.E.2d at 34.
25
597 N.Y.S.2d 370 (App. Div. 1993).
26
Timothy Clifford, Hurt Not Married to Dancer: Court, Newsday (New York City), Oct. 4, 1989, at 4; see also Vivienne Walt, Jennings’ Lawyer Is on the Hot Seat, Newsday (New York City), Oct. 12, 1989, at 31; Golub, 597 N.Y.S.2d at 371. The incident arose after New York Supreme Court Justice Jacqueline Silbermann entered judgment for the defendant, movie star William Hurt, in Jennings v. Hurt, No. 9736/88, 1989 N.Y. Misc. LEXIS 868 (Sup. Ct. Oct. 3, 1989), aff’d, 554 N.Y.S.2d 220 (App. Div. 1990). See also Hal R. Lieberman, Lawyer Incivility Is Also Unethical, N.Y. L.J., Nov. 15, 1993, at 1.
27
Such public denunciations are not only made by attorneys; government officials have also been involved. The most striking recent example is the uproar following Judge Harold Baer, Jr.’s suppression of drug evidence in United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y. 1996), which he subsequently reversed after an explosive public outcry in United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y. 1996). See generally Linda Greenhouse, Rehnquist Joins Fray on Rulings, Defending Judicial Independence, N.Y. Times, Apr. 10, 1996, at A1; Alison Mitchell, Clinton Pressing Judge to Relent: President Wants a Reversal of Drug Evidence Ruling, N.Y. Times, Mar. 22, 1996, at A1; Henry J. Reske, Questions of Independence: Criticism, Political Matters Heat Up Judges Conference, A.B.A. J., June 1996, at 110.
28
182 N.Y.S. 653 (App. Div. 1920).
29
See id. at 655.
30
Id.
31
See id. at 655, 657.
32
34 N.Y.S.2d 810 (App. Div. 1942).
33
Id. at 813.
34
Id.; see also Baker v. Monroe County Bar Ass’n, 311 N.Y.S.2d 70, 73 (App. Div. 1970) (per curiam) (suspending an attorney who made a statement to a county bar association in which he referred to “crooked judges” and attacked the integrity of the surrogate’s court), aff’d, 272 N.E.2d 337 (N.Y. 1971).
35
301 N.E.2d 426 (N.Y. 1973), rev’g per curiam 333 N.Y.S.2d 863 (App. Div. 1972).
36
Mills, supra note 4, at 56.
37
Id. at 66.
38
See Erdmann, 301 N.E.2d at 427.
39
Id.
40
See discussion infra Part III.
41
12 F.3d 861 (9th Cir. 1993).
42
See id. at 864.
43
Id. at 866.
44
See id.
45
See id. at 866, 867.
46
Id. at 867 (quoting In re Westfall, 808 S.W.2d 829, 837 (Mo. 1991) (en banc)).
47
55 F.3d 1430 (9th Cir. 1995).
48
“[Attorney disciplinary] proceedings are governed by an objective standard, pursuant to which the court must determine “what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.”’ Id. at 1437 (quoting Sandlin, 12 F.3d at 867).
49
Id. at 1434.
50
See id. at 1441-42. A careful reading of Yagman would support discipline in many cases because, as the court held, even statements of opinion can be the basis for sanctions if such opinion can “reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Id. at 1439. The court illustrated this point by providing the following example:
The statement, “I think Jones is an alcoholic,” for example, is an expression of opinion based on implied facts, because the statement “gives rise to the inference that there are undisclosed facts that justify the forming of the opinion.” Readers of this statement will reasonably understand the author to be implying he knows facts supporting his view–e.g., that Jones stops at a bar every night after work and has three martinis. If the speaker has no such factual basis for his assertion, the statement is actionable, even though phrased in terms of the author’s personal belief.
Id. (emphasis added) (citations omitted).
51
See id. at 1438, 1441.
52
70 F.3d 483 (7th Cir. 1995), cert. denied, 116 S. Ct. 1854 (1996).
53
Id. at 485.
54
See id. at 487.
55
The court noted that “[e]ven a statement cast in the form of an opinion (“I think that Judge X is dishonest”) implies a factual basis, and the lack of support for that implied factual assertion may be a proper basis for a penalty.” Id.
56
Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 75 (1964)); accord In re Evans, 801 F.2d 703, 706 (4th Cir. 1986); In re Grimes, 364 F.2d 654, 656 (10th Cir. 1966).
Compare Palmisano to the reasoning forwarded by the court in United States v. Brown, 72 F.3d 25 (5th Cir. 1995). In Brown, the court ruled that a lawyer’s motion for a new trial, which included claims that the trial judge’s gestures, facial expressions, and comments showed bias against the lawyer’s client, did not warrant suspension, see id. at 27, 28, under ethical rules prohibiting “remarks about a judge that are false or made with a reckless disregard as to their truth or falsity.” Id. at 27. The court concluded that the lawyer’s comments were made in the context of the judicial process and that lawyers “should be free to challenge…a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court.” Id. at 29.
57
See In re Riley, 691 P.2d 695, 704 (Ariz. 1984) (in banc) (public censure; lawyer’s statement that the “‘state simply doesn’t get a fair trial in [that judge’s] court”’); Florida Bar v. Kleinfeld, 648 So. 2d 698, 701 (Fla. 1994) (three year suspension; lawyer impugned the “fairness and honesty of a judge for the sole purpose of shopping for a more favorable forum”); In re Jafree, 444 N.E.2d 143, 149 (Ill. 1982) (disbarment; lawyer made “numerous scurrilous and defamatory statements about the judiciary, and certain judges”); In re Atanga, 636 N.E.2d 1253, 1256 (Ind. 1994) (30 day suspension; lawyer accused a judge, in a widely circulated newsletter, of being “‘ignorant, insecure, and a racist’ and “motivated by political ambition”’); In re Frerichs, 238 N.W.2d 764, 765 (Iowa 1976) (public admonishment; lawyer’s statement, in a petition for rehearing, that the court was “ “willfully avoiding the substantial constitutional issues”’ in the case); Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165, 166 (Ky. 1980) (public reprimand; lawyer characterized a judge’s decision as “‘highly unethical and grossly unfair”’ at a press conference); Louisiana State Bar Ass’n v. Karst, 428 So. 2d 406, 408 (La. 1983) (one year suspension; lawyer’s public accusation that a judge was “ “dishonest, corrupt,”’ and was either “‘blackmailed”’ or “ “accept[ed] bribes to influence his decision”’); In re Raggio, 487 P.2d 499, 500 (Nev. 1971) (per curiam) (public reprimand; lawyer, a district attorney who was a potential candidate for governor or U.S. senator, characterized a Nevada Supreme Court decision as “‘shocking and outrageous,”’ and as “‘judicial legislation at its very worst”’); Office of Disciplinary Counsel v. Grimes, 614 N.E.2d 740, 740 (Ohio 1993) (public reprimand; lawyer, while speaking with a reporter, “referred to [a judge] as a “sonofabitch”’); In re Lacey, 283 N.W.2d 250, 251 (S.D. 1979) (public censure; lawyer remarked to the press that “‘state courts were incompetent and sometimes downright crooked, Judge Adams excepted”’). See generally W.E. Shipley, Annotation, Attorney’s Criticism of Judicial Acts as Ground of Disciplinary Action, 12 A.L.R.3d 1408 (1967).
58
766 P.2d 958 (Okla. 1988).
59
Id. at 961.
60
Id. at 969.
61
See id. at 966-69.
62
Id. at 968.
63
Id.
64
Going one step further, concurring Justice Opala urged for the adoption of a completely subjective test: “Even if … the Bar had followed up with a formal and particularized offer to prove that the respondent’s remarks were false in fact, no discipline would be imposable here. Respondent’s constitutional freedom of speech does not depend on the truth of its content.” Id. at 970.
65
For example, a lawyer, unhappy with a judge’s decision, alleged that there was a conspiracy between the judge and the opposing party. See In re Disciplinary Action Against Graham, 453 N.W.2d 313, 318 & n.3 (Minn. 1990). Despite the lawyer’s apparently genuine belief that his statement was true, he had no facts to support his accusation and was suspended for 60 days; the court specifically articulated an objective test. See id. at 322, 324.
In a similar ruling, a lawyer was disciplined for asserting that the judge had “‘made up his mind”’ before hearing the case. In re Westfall, 808 S.W.2d 829, 832 (Mo. 1991) (en banc). The court rejected the lawyer’s claim that his actionable statement was only an opinion, not a statement of fact, calling that argument an “artificial dichotomy” and noting that a lawyer cannot screen himself from the disciplinary rule by adding “I believe” to the beginning of otherwise offensive comments. Id. at 833.
66
408 S.E.2d 274 (W. Va. 1991).
67
See id. at 283-84.
68
Id. at 285.
69
See Model Code of Judicial Conduct Canon 3(B)(9) (1990).
70
Model Code of Professional Responsibility EC 8-6 (1980).
71
Model Rules of Professional Conduct Rule 8.2 cmt. (1992).
