State Disciplinary Bodies 98% of the Time Find Facts Insufficient to Support Attorney Criticism of Judges

Rule 8.2 is the disciplinary rule used to sanction attorneys for criticism of judges, judicial candidates and other legal officers.  In defending their aggressive use of this rule to go after the speech of attorneys, disciplinary bodies always say that if what the attorney is said to be true, he or she she will have nothing to worry about, i.e. that evidence will lead to the attorney being exonerated. I decided to look at Rule 8.2 cases and see how often that actually happens.

Before doing that though, let's set forth some background on Rule 8.2:

The ABA's Model Rule 8.2 says:

(a) A lawyer shall not make a statement concerning the qualifications of a judge, adjudicatory officer or other public legal officer, or of a candidate for election or appointment to judicial or legal office, that the lawyer knows to be false or with reckless disregard as to its truth or falsity. 

In the commentary accompanying Rule 8.2, the drafters made clear that in using that language they were adopting the NY Times v. Sullivan actual malice (subjective) standard and that adoption of the rule was intended to end the prosecution of attorneys for judicial criticism "intemperate in tone."  Further, the drafters at length pointed out that actual malice standard for limiting attorney criticism of judges under the disciplinary rules was constitutionally required.

Model Rule 8.2 has been adopted almost verbatim in 48 of the 50 states (California is the only holdout).  However, most states have simply ignored the directive that the rule is an actual malice standard, i.e. that the attorney much have "actual knowledge of its falsity at the time of utterance."  Instead an objective, "reasonable lawyer" standard is employed in most states to judge the speech deemed to be untruthful.   Further, even though the drafters of Rule 8.2 also indicate that the rule was just to be applied to statements of fact, not of opinion, states have routinely prosecuted attorneys for "false opinions" under Rule 8.2.

But what of the claim by disciplinary bodies that attorneys have nothing to worry about...that if they are charged with a Rule 8.2 violation those attorneys can simply exonerate themselves at the disciplinary evidentiary proceeding?

Even though in most states the prosecutor is required to show by "clear and convincing evidence" (a relatively high standard of proof) that a disciplinary violation has been committed, when it comes to Rule 8.2, the prosecutor, again in most states, will only be required to show that the attorney made a statement criticizing a judge.  The states then switch the burden to the attorney to prove the statement to be true or that a reasonably, objective attorney wouldn't have uttered the statement that the attorney cannot prove is be true.   Again, this even goes for opinions.

I decided to review the various state Rule 8.2 decisions to see how often attorneys facing charges were able to prove that their statements were true or that a reasonably, objective attorney wouldn't have made  the statement. (Given Model Rule 8.2 wasn't adopted in most jurisdictions until the 1980s, no case I looked at dated earlier than 1990.) The result of that analysis is chilling:

I found 94 state disciplinary cases involving a disputed factual determination as to whether the standard in Rule 8.2 had been met. Of those 94 cases, 92 times the state disciplinary body found that the evidence insufficient to support the attorney's criticism of the judge and the attorney was disciplined.  Thus, the attorneys failed 98% of the time.  One of the exceptions is a 2000 case out of Oklahoma, but even in that case the Court still imposed reciprocal discipline under Rule 8.2 pursuant to another jurisdiction's finding that the attorney violated the rule.  The only other exception is the case In the Matter of Dixon decided by the Indiana Supreme Court in 2013. In that case, while the Court found Dixon had met his factual burden under Rule 8.2, it appears that were Dixon not to have made his criticism in conjunction with a motion to recuse in which he was obligated to allege bias, Dixon's evidence too might have been found lacking.

Limiting attorney criticism of judges does not protect the public. Instead what it does is it chills attorney free speech and results in attorneys, who are keenly positioned to blow the whistle on judicial misconduct, to choose instead to remain silent and protect their licenses. My examination of these Rule 8.2 cases as well as my own personal experience show that even reporting judicial misconduct using the proper channels can result in an attorney being accused of a Rule 8.2 violation.  If the attorney cannot "prove" his allegation of judicial misconduct the attorney will be disciplined.   Given the fact that 98% of the time attorneys will lose that evidentiary battle is it any wonder that attorneys choose to remain silent rather than speak out about judicial misconduct?  Chilling attorney free speech by aggressively pursuing attorneys who are judicial critics doesn't protect the public, it harms the public.

Finally, it is interesting to see what states have been the most aggressive in pursuing Rule 8.2 violations.  According to my analysis of cases that ended in published decisions, Indiana is No. 1 in Rule 8.2 prosecutions with 9.  Ohio and Wisconsin are tied for second with 8 and Florida is third with 7.  While I decided to stick strictly to Rule 8.2 cases, notably Indiana has had several other published prosecutions of attorney speech that weren't prosecuted under Rule 8.2.  For example, the Indiana attorney who was prosecuted for calling the Washington Township Small Claims Court a "Mickey Mouse" court was actually prosecuted under Rule 8.4 and didn't count among the 9.  

See also: Monday, December 16, 2013, Commentary to Model Rule Limiting Attorney Criticism of Judges Shows Rule Being Misinterpreted and Misapplied by State Disciplinary Bodies

Florida Supreme Court Ignores Facts and Law in Suspending Attorney for Two Years for Speech Critical of Another Attorney

When Florida attorney Jeffery Norkin appeared in a case for a business defendant, he concluded his client was right, that the suit against his client should already have been dismissed.  A court-appointed forensic accountant, a former IRS and FBI forensic investigator as well as an attorney, had testified in court that the allegations in the complaint were false and that the defendant had not stolen money from the company the parties co-owned. 

Florida Attorney Jeffrey Norkin

Norkin wrote several emails and letters to long-time attorney Gary Brooks saying that Brooks had been dishonest in how he had handled the case and demanding that he dismiss it.  Brooks refused to do so. Norkin filed a counterclaim.  In five months time, the court granted Norkin’s motion for summary judgment dismissing Brooks’ complaint, and holding Brooks’ client liable on Norkin’s abuse of process counterclaim.  

 

Rather than settling, Brooks sought to gain leverage in the case by filing a bar grievance against Norkin based on the emails and letters criticizing him, most of which by then were 18 months old.  The Florida Bar, which typically dismisses grievances filed that involve pending litigation, instead decided to aggressively pursue Norkin for misconduct, which complaint again was initiated by Brooks.

 

Norkin eventually obtained a $318,000 jury verdict on the counterclaim. Brooks though continued to delay the case which proved financially devastating to Norkin’s client.  In some hearings leading up to the trial, two judges told Norkin he was yelling, but he was never sanctioned or even warned a sanction could be forthcoming.

The Florida Bar charged Norkin with violating Florida Disciplinary Rule 4-8.4(d) which "prohibits an attorney from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage or humiliate others lawyers on any basis."

The referee assigned to the case found that Norkin had violated that rule as well as others and recommended a 90 day suspension followed by a 180 day period of probation. The Florida Supreme Court also found Norkin had violated the rules, but imposed a two year suspension with other conditions and sanctions.  

 

The fact that Norkin might be obnoxious or too aggressive in his advocacy on behalf of his clients does not relieve the Florida Supreme Court of its duty to apply the disciplinary rules correctly. Further, simply because Norkin is an attorney does not mean he can be sanctioned for his speech.  As the United States Supreme Court said 1991 case Gentile v. Nevada the only time an attorney's speech can be more proscribed than a private citizen is when the attorney's speech is be interfering with the public administration of a pending case.  Some of what Norkin is accused of by the Bar arguably falls into that category, but most of it does not.  To the Florida Supreme Court though, that didn't matter.  The Florida justices were offended by Norkin's lawyering and any objective analysis went out the window.

 

An attorney with even an elementary understanding of how to interpret statutes and rules could see 

Florida Supreme Court

why, even without getting to the First Amendment issues, Rule 8.4 did not apply to Norkin's emails and correspondence to Brooks.  That rule applies to conduct that is "prejudicial to the administration of justice." While the rule lists some types of conduct that are included, i.e. "knowingly, or through callous indifference, disparag[ing] or humiliat[ing] other lawyers" that conduct still must be "prejudicial to the administration of justice."   It is not clear how Norkin's private correspondence with Brooks could have in any way prejudiced the administration of justice.

The Florida Supreme Court simply ignores that issue in its opinion.  Its lengthy opinion also ignores Norkin’s extensive submission of facts and evidence, discussed in his over 100 pages of briefs.  As I have learned all too well, when you're charged with a speech violation as an attorney, no amount of evidence will be ever be found sufficient to justify your speech.  I don't think an attorney anywhere has ever met that burden in the eyes of the disciplinary authorities.

 

The Norkin case also involves a Rule 8.2 matter.  In a dispute involving the two directors of a Florida company, trial judge Ronald Dresnick appointed David Tobin, a retired circuit judge, to serve as a provisional director in order to break the tie vote on any matter on which the two directors didn't agree.  Norkin originally agreed to the appointment, hoping that Tobin would help his client by ending the plaintiff's complained of conduct.  That didn't happen.  When Tobin submitted his substantial bill, in which he charged at over $400 an hour, Norkin strenuously objected.  Instead of submitting the fee dispute to an adversary proceeding, Tobin withdrew from the case and, according to Norkin, without notice, a pleading, or a hearing, obtained an ex parte judgment and proceeded to garnish money from Norkin's client.  In response, Norkin sent a letter to Tobin which stated that if Tobin did not return the funds, he would investigate the "cozy, conspiratorial nature of [his] relationship" with Brooks’ client, who had filed the dismissed complaint and was destroying the company.  

The referee found that Norkin's "correspondence to Tobin improperly threatened the filing of a legal action against Tobin personally and, without supporting facts, asserted that Tobin was involved in a conspiracy."  Further the referee "concluded that that Tobin did not have a cozy, conspiratorial relationship with Ferguson or his attorney. The referee found that there was no conspiracy and that Respondent had made the statement with reckless disregard for the truth."

 

In its opinion, the Florida Supreme Court failed to engage in even a modicum of analysis as to whether Rule 8.2 was applied correctly by the referee.  First, Tobin was not acting in a judicial capacity so it is not clear that Rule 8.2 even applied to the communication. Second, there is no indication that the correspondence went to anyone but Tobin.  As Rule 8.2 is supposed to be about protecting the public's perception of the judicial branch, it is not clear how Norkin's private letter to Tobin violated the rule.  The Florida Supreme Court simply ignored those critical issues as well as facts regarding what Tobin had done that sparked Norkin's reaction.

Norkin also had filed a motion that Judge Dresnick recuse himself from the case alleging in part:

At all times, Judge Dresnick's rulings and demeanor have been favorable to Ferguson, who has, in fraudulent and criminal manner, used this Court as an instrument of destruction. He has accomplished this exclusively through the conduct of the case by Judge Dresnick.

. . . [I]t seems apparent that Judge Dresnick has known and been well-acquainted with opposing counsel, Gary Brooks, Esq. They exchange personal information and are very friendly with each other. On the other hand, there have been no such pleasantries between Judge Dresnick and this attorney. Obviously, based on the foregoing, Judge Dresnick's treatment and demeanor toward undersigned has been quite opposite: hostile, impatient, and highly critical and disapproving. 

The hearing officer and the Florida Supreme Court concluded that this act also violated Rule 8.2.  Again, the court's opinion was devoid of analysis as to a critical issue - how can an attorney make the obligatory allegation of bias sufficient to warrant a judge recusing himself if that allegation of bias is going to subject that attorney to a disciplinary action?  Further, it is apparent that much of Norkin's opinion of Judge Dresnick was based on his observations of Dresnick during hearings.  How could the referee and the Florida Supreme Court justices simply conclude that Norkin's opinion of his observation of Dresnick's behavior in court was wrong and sanctionable when Judge Dresnick did not even testify at Norkin's hearing?  Then of course you have the issue of whether Rule 8.2 even applies to opinions, yet another issue that the Florida Supreme Court simply ignores.  According to the notes accompanying Model Rule 8.2, the rule was never intended to apply to statements of opinions.

In a footnote slapping themselves on the back for their opinion, the Florida justices declared: "[m]embers of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior."  Better yet, the Norkin opinion should be read by members of the Florida Bar, law professors, and indeed attorneys everywhere, as a glaring example of a court allowing its subjective displeasure with an attorney prevent it from engaging in an objective and unbiased analysis of the facts of a case, the applicable disciplinary rules and court decisions that protect an attorney's free speech rights under the First Amendment.

Alabama Attorney-Blogger Remains in Jail Indefinitely Due to Judge's Order Imposing Prior Restraint on Speech

Earlier this month, the New York Times reported on  remarkable story about a blogger-attorney who has been in jail for three months based on a judge's contempt order:

Attorney-Blogger Roger Shuler

For over six years, Roger Shuler has hounded figures of the state legal and political establishment on his blog, Legal Schnauzer, a hothouse of furious but often fuzzily sourced allegations of deep corruption and wide-ranging conspiracy. Some of these allegations he has tested in court, having sued his neighbor, his neighbor’s lawyer, his former employer, the Police Department, the Sheriff’s Department, the Alabama State Bar and two county circuit judges, among others. Mostly, he has lost.

...

A former sports reporter and a former employee in a university’s publications department, Mr. Shuler, 57, was arrested in late October on a contempt charge in connection with a defamation lawsuit filed by the son of a former governor. The circumstances surrounding that arrest, including a judge’s order that many legal experts described as unconstitutional and behavior by Mr. Shuler that some of the same experts described as self-defeating posturing, have made for an exceptionally messy test of constitutional law.

...

His allegations are frequently salacious, including a recent assertion that a federal judge had appeared in a gay pornographic magazine and a theory that several suicides were actually a string of politically motivated murders. Starting in January 2013, Mr. Shuler, citing unidentified sources, began writing that Robert Riley Jr., the son of the former governor, had impregnated a lobbyist named Liberty Duke and secretly paid for an abortion. Both denied it, and Ms. Duke swore in an affidavit that they had never even been alone in the same room.

In July, Mr. Riley and Ms. Duke sought an injunction in state court against such posts, citing Mr. Shuler and his wife, Carol, in defamation suits. A judge issued a temporary restraining order in September barring the Shulers from publishing “any defamatory statement” about Mr. Riley and Ms. Duke and demanding that the offending posts be immediately removed.

When the Shulers missed a hearing, the judge replaced the restraining order with a similarly worded preliminary injunction.   Shuler continued to blog and eventually he was arrested for contempt and resisting arrest.  He was taken to the county lockup.  

The Times reports what happened next:

On Nov. 14, the judge held a hearing, and Mr. Shuler, who was representing himself, took the stand, insisting that the court had no jurisdiction over him and calling the court a joke. The judge decided that the hearing had “served as a trial on the merits” and made his final ruling: Mr. Shuler was forbidden to publish anything about Mr. Riley or Ms. Duke involving an affair, an abortion or payoffs; was to pay them nearly $34,000 for legal fees; and was to remove the offending posts or remain in jail.

Today, Shuler sits in jail indefinitely.  He is on the Committee to Protect Journalists list of imprisoned journalists. As the Times article notes:  "[t]here, in the company of jailed reporters in China, Iran and Egypt, is Mr. Shuler, the only person on the list in the Western Hemisphere."

It is easy to write this and downplay the judicial culpability in what has happened to Mr. Shuler. Even a first year law student knows the Constitution does not allow prior restraint on speech.   Yet that is exactly what the judge ordered on several occasions.  Undoubtedly he knew his ruling violated the Constitution but he also undoubtedly knew that Shuler's remedy for such an unlawful order was probably years down the road long after the issues in the case would be mooted by the passage of time.  That is unacceptable conduct by the judge.

Ninth Circuit Judicial Panel Attempts to Cover Up Misconduct by Fellow Judge

The AP reports:

A former Montana judge who was being investigated for forwarding a racist email involving President Barack Obama sent hundreds of other inappropriate messages from his federal email account, according to the findings of a judicial review panel released Friday.

Federal Judge Richard Cebull

Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths and some with inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.

A large number of emails also related to pending issues that could have come before Cebull's court, such as immigration, gun control, civil rights, health care and environmental issues, the council found in its March 2013 order.

The council issued Cebull a public reprimand, ordered no new cases be assigned to him for 180 days, ordered him to complete training on judicial ethics, racial awareness and elimination of bias and ordered him to issue a second public apology that would acknowledge "the breadth of his behavior."

What I find even more interesting is what should qualify as an attempted coverup.  The 9th Circuit Judicial Council didn't originally make its sanction of Judge Cebull public.  Instead, two weeks after the sanction, Judge Cebull resigned.  The Judicial Council then vacated its previous order and wrote a new one calling the complaints against Cebull "moot" because of his retirement.  Details from the original unpublished order about the other emails Cebull had sent were also removed.

Judge Theodore McKee, the chief judge of the 3rd U.S. Circuit, filed a petition with the national Judicial Conference's Committee on Judicial Conduct and Disability asking the committee to review the council's work and publish the original March 15 order.

In response to McKee's petition, the 9th Circuit Council said that it sought only to disclose enough about the investigation to ensure the public knows the matter was taken seriously, and it did not intend to publish the original order. The national committee did not agree with the position and published the original order detailing Judge Cebull's misconduct.

The eleven federal judges who sit on the 9th Circuit Judicial Council exercised extremely poor judgment in their attempt to prevent their original report detailing wrongdoing by Judge Cebull from being made public.  Not only did they try to keep a report issued public entity about a public official private, they after the fact altered the original report undoubtedly for the purpose of reducing the embarrassment faced by a fellow federal judge.

The 9th Circuit Judicial Council's attempt to protect a colleague reminds one of the Rule 8.2 cases in which state judges have said that the standard protection (actual malice) afforded speech critical of executive and legislative branch officials is not sufficient enough when it comes to attorney criticism of judges.  Although the claim is always that such added protection for judges is about protecting the public, the truth is it is always about judges protecting other judges from criticism.

Law School Professor Files Disiplinary Complaint Against Attorney Who Criticized Her Anonymously on Blogs

Prof. Jonathan Turley reports:

There is a free speech controversy swirling around an ethics complaint in Illinois brought by University of Denver law professor Nancy Leong. Leong runs a blog site called Feminist Law Professors and recently discovered the identity of an anonymous commenter who has, according to Leong, left racist and sexist comments. She says that he is a a public defender in his late 40s and she wants him punished for his comments. We have discussed the free speech rights of public employees in an earlier column and blog postings, including the right to speak on blogs and Internet sites. The actions of Leong are troubling for those of us who believe strongly in free speech values, including the right to anonymity.   

The poster used “dybbuk” in posts that referenced Leong. In one post, he talks about a

Prof. Nancy Leong

28-year-old law grad and wrote “I think she has the right age, gender, credentials, and eager-to-please attitude for an ‘odd job’ I have in mind . . . Basically it involves the girl dressing up as a law professor, bending over, and trying to ask me questions about International Shoe while I spank her with a wet slipper.” He also criticized Leong, including her presentation in Hawaii on “racial capitalism,” stating “Now that is what I call a gravy train or, shall I say, a luau train. Law professors enjoying a free Hawaii vacation at some seaside hotel. All they have to do is attend some ‘annual meeting’ of some ‘society’ where they pretend to listen to Leong yap about ‘pragmatic approach[es] of reactive commodification,’ while undressing her with their eyes.”

Leong found dozens of references about her on five different websites as part of her investigation, including disparaging her scholarship and describing her as “a comely young narcissist” and a “law professor hottie.” She also said that other professors that he criticized on these various sites were overwhelmingly directed at women and professors of color. She considers anonymous postings with sexist elements to be unethical. She writes in the complaint that “There are over 6,000 tenured and tenure-track law professors in the United States have less practice experience than I do. Most of them have weaker publishing records than I do. Most of them have weaker teaching evaluations than I do. Almost all of them have been members of the legal academy longer than I have. Almost all of them have more power and prominence than I do. In light of these facts, it is difficult to think of a reasonable explanation for [dybbuk's] obsessive attention to an untenured professor.”

Prof. Turley doesn't believe Prof. Leong's complaints rise to the level of a disciplinary matter.  He is too kind though in his criticism of Leong.  She obviously spent considerable time researching the time and identity of the anonymous poster.  She probably used university resources in the process as well.  The worst thing though is her utter disdain for the First Amendment by attempting to silence a critic, albeit an anonymous one, by using very general rules in the Rules of Professional Conduct to go after her critic.  My guess is she saw the, thus far, success of Prof. Michael Mann, who came up with the now discredited hockey stick graph to explain his theory about global warming, in suing his critics who publicly disparaged his work.

Turley's column details Leong's tracking down her critic and trying to confront him.  It was only when dybbuk refused to talk to her about his comments that she filed the disciplinary grievance.  If he committed a disciplinary violation wouldn't it have been a violation regardless he agreed to engage in a verbal exchange with her over the anonymous commentary?  This reminds me of judges who demand apologies from attorneys then not getting one file a disciplinary grievance against the attorney, a fact I know all too well.  How does an apology wipe away a disciplinary violation?  The fact that an accuser wouldn't file a grievance if he got an apology is evidence that the disciplinary process is being used to settle scores, not enforce the rules.

Prof. Turley continues:

It clearly did not work and Leong proceeded to file a formal complaint. That is where I have to respectfully disagree with Professor Leong. The effort to punish this poster threatens free speech and creates a chilling message for those who wish to engage in discussions on an anonymous basis. I know that that is not her purpose but she is attempting to discipline a person for criticizing her and engaging in language that she finds offensive. That is anathema for most civil libertarians even though most of us find these writings to be offensive and insulting. As academics, we owe a special duty to free speech and the need to preserve protected spaces for such speech on campus and the Internet. This is precisely why it was so alarming to see Jewish students recently seek to strip anonymity for posters of material that they find objectionable. Free speech comes at a cost, particularly for those who become public figures. The Internet is rife with hateful and false statements. However, it is also the single greatest advance in free speech in history. I am confident that the work of Professor Leong will be remembered long after dybbuk has passed into well-deserved obscurity. However, this should not be part of that legacy.

Pennsylvania Supreme Court Silenced Attorney Whistleblowers Who Could Have Reported "Kids for Cash" Judicial Scandal

The New York Time details what is certainly the biggest judicial scandal in Pennsylvania history:

Things were different in the Luzerne County juvenile courtroom, and everyone knew it. Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway. 

Judge Mark Ciavarella

“The judge’s whim is all that mattered in that courtroom,” said Marsha Levick, the legal director of the Juvenile Law Center, a child advocacy organization in Philadelphia, which began raising concerns about the court to state authorities in 1999. “The law was basically irrelevant.”

Last month, the law caught up with Judge Mark A. Ciavarella Jr., 58, who ran that juvenile court for 12 years, and Judge Michael T. Conahan, 56, a colleague on the county’s Court of Common Pleas. 

In what authorities are calling the biggest legal scandal in state history, the two judges pleaded guilty to tax evasion and wire fraud in a scheme that involved sending thousands of juveniles to two private detention centers in exchange for $2.6 million in kickbacks.

Following the revelation of the scandal, the Interbranch Commission on Juvenile Justice was commissioned by an act of the Pennsylvania General Assembly with the support of the governor to investigate the scandal.  The 11 member commission, which had four appointed by the Chief Justice, three by the Governor and four by the leadership of the House and Senate, authorized nvestigate circumstances that led to corruption in the juvenile court of Luzerne County resulting in federal criminal charges against two judges, to restore public confidence in the administration of justice and to prevent similar events from occurring there or elsewhere in the Commonwealth.

During the hearings, Commission members questioned why attorneys had remained silent when they knew about problems in Judge Ciavarella's court.  A summary of the final report included a finding that attorneys had remained silent and that they should be reminded of their ethical responsibilities to speak out about judicial misconduct:

• Ensure that judges and lawyers are aware of their ethical responsibility to report misconduct, and develop educational materials so the general public is aware of how to report judicial misconduct. 

The final report criticized attorneys for not fulfilling their ethical obligation to report judicial misconduct and chided the Disciplinary Board for not prosecuting attorneys for not reporting such misconduct.

Perhaps not surprisingly since the 11 member panel was made up of four appointees from the Pennsylvania Chief Justice that another reason for attorneys not speaking out was not considered.  That reason was that the Pennsylvania Supreme Court had in the years leading up to the "Kids for Cash" scandal took away the licenses of attorneys who had publicly claimed judges had engaged in misconduct.  Attorneys in Pennsylvania had received a very loud and clear message from the Pennsylvania Supreme Court that if they engaged in whistleblowing they could well lose their license.

Judge Michael Conahan

In 1999, Attorney Neil Warner Price was charged with misconduct for accusing a judge had engaged in impropriety in a criminal case he was personally involved in.  In giving Price a five year suspension, the Pennsylvania Supreme Court said that he had not met the steep burden of proving the accusations were true and had instead "relied on rumors innuendo and his own perceptions" and that "the vast amount of documentary evidence [Price] presented did not support his claims."


In 2000, Attorney Robert Surrick was charged for alleging that a judge had been motivated by political influence and that "outside intervention" was the only explanation for a negative ruling on a foreclosure matter with which he was personally involved.  In that case, the Pennsylvania Supreme Court rejected Surrick's defense that he believed his allegation to be true and instead employed a "reasonable lawyer" standard for measuring whether Surrick had engaged in misconduct under Disciplinary Rule 8.2, the rule governing attorney criticism of judges.  The "reasonable lawyer" standard is considered the most strict standard that has been used by some states in enforcing Disciplinary Rule 8.2, governing attorney criticism of judges, i.e. states with a "reasonable lawyer" approach to Rule 8.2 broaden the number of attorneys who can be sanctioned for criticizing judges.  Surrick was given a five year suspension.

In 2006, the Pennsylvania Supreme Court dealt with a disciplinary matter involving attorney Eugene Andrew Wrona who had accused a Lehigh County Judge William Ford of misconduct in the handling of a child support matter.  In particular, Wrona alleged in a letter to the presiding judge of the county, a motion for disqualification and in a later press release posted on the website of The Center for Children's Justice - Pennsylvania Chapter, that Judge Ford had helped suborn perjury by participating in or allowing staff members to alter audio tapes of the hearing to remove a false statement witness.  The Pennsylvania Supreme Court found that it was not enough that Wrona believed the allegations to be true.  The court found Wrona had failed to prove his allegations and that "the general public is well-served" by Wrona's disbarment.

Given the three cases involving two five year suspensions and a disbarment all for speaking out about Pennsylvania county court judges, it is not surprising that that Pennsylvania attorneys chose not to say anything rather than accuse Luzerne County judges Mark A. Ciavarella Jr. and Michael Conahan of misconduct in the "Cash for Kids" kickback scheme.  Any attorney who dared to lodge such allegations faced the real possibility they would lose their license.  Should any of those attorneys dared to take that risk, that attorney would have faced a shifting burden of proof that placed the responsibility of proving substantial details of the kickback scheme.  Even if the attorney can successfully prove that off, he might still have to spend a year or more defending himself against disciplinary charges that damage his reputation and cost him a small fortune.  Most attorneys would choose to remain silent in the face of possible judicial misconduct than pay off.

In imposing the lowest threshold for discipline (the "reasonable lawyer" standard) in enforcing Rule 8.2, the Pennsylvania Supreme Court chilled attorney free speech and slammed the door on lawyers who might have otherwise blown the whistle on the outrageous judicial misconduct in Luzerne County.  In its harsh sanctions of attorneys who accused judges of misconduct, the Pennsylvania Supreme Court was not acting to protect the public but instead to protect their colleagues from criticism they considered unseemly.  The public - including countless families and hundreds of children - paid a hefty price for the Court's silencing of attorney free speech.

Welcome to the "Disbarring the Critics" Blog

This year marks my 26th year as an attorney.  The best period of that legal career was the 3 1/2 years I spent clerking for Judge Paul H. Buchanan, Jr. of the Indiana Court of Appeals.  The judge was near the end of a very distinguished career and I at the beginning of mine.  Judge Buchanan, the last appellate judge elected in Indiana, became a mentor to me, helping to sharpen my writing skills but also teaching me about honor and integrity in the legal profession.

I will never forget the last case he had as a judge.  As a clerk, I picked that case out of the pile.  It involved an attempted murder, a man who threw his grandmother in a reservoir and left her to die.  Looking at the timeline of the case, I quickly realized the trial judge had blown the speedy trial rule and Judge Buchanan would have to reverse his conviction.  I knew it was the type of case that could get publicity, very negative publicity for the judge as he was set to retire. I asked the judge if I could put the case back and leave it for the next judge.  He said "no," that I had pulled out that case and that was the case he was going to decide.

Another story about the judge is more closely related to the subject of this blog.  We had written an opinion that didn't sit well with an older attorney who was on the losing side.  In a rehearing brief, the attorney slammed Judge Buchanan and the other two appellate judges on the panel using a derogatory term to refer to the trio in the brief.  I showed it to the judge, expecting him to take offense. Instead Judge Buchanan laughed and said the attorney was just blowing off steam and it was no big deal.  Then he proceeded to say something I'll never forget:  "Part of the job of being a judge is to accept criticism, even comments like that attorney made.   If a judge is not able to do that, that person shouldn't be a judge."   Those words turned out to be a harbinger of my future two decades later.

I went on to other legal positions both in and out of government, including spending years in private practice.  In a quarter century, I had never received so much as a private reprimand as an attorney.  But in this, my 26th year, I find myself on the verge of losing my license for the horrific offense, sarcasm intended, of criticizing a trial judge's handling of an estate case in private emails.

Indiana has a lengthy history of punishing attorneys for judicial criticism.  Indeed a review of various state disciplinary cases across the country suggest that Indiana, under the guise of protecting the public and the integrity of the judicial branch, has led the way in imposing additional restrictions on attorney speech critical of judges than the United States Supreme Court has allowed with respect to criticism of other public officials.

I do not accept, and will never accept, that the law license I received in 1987 came with a restriction on my right to speak out about issues relating to my profession and the judiciary, including criticizing judges.  Justice Kennedy, inn the 1991 case, Gentile v. Nevada, took aim at this unconstitutional approach:

We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.

If my career as a practicing attorney is indeed coming to an end, I will not be terribly disappointed.   The day-to-day practice of law has become a burden.  While I enjoy helping people, dealing with their personal issues on a daily basis can be exhausting.   When so often the judicial system can offer no relief for clients I know have been harmed, frustration sets in.  Unfortunately the intellectual challenges, which I enjoyed so much as an appellate law clerk, are rarely present in litigation.  My efforts to be elected to the bench in 2012 were unsuccessful and this current disciplinary matter, regardless of the outcome, will probably make any appellate judicial appointment in the future unlikely.  I am stuck practicing law and frankly I'm tired.

One thing that has given me great pleasure in life is being able to speak out about the various issues of the day.  During my last few years, I've been provided a greater opportunity to do that through my Ogden on Politics blog.  I plan to continue that blog, focusing more on politics than legal issues.

However, my disciplinary case, as unpleasant as it has been, has opened my eyes to a very important battle going on that affects my profession and the judicial branch.  Attorneys from all over the country have contacted me to tell me stories of their being charged with disciplinary violations for their speech, including charges so outrageous that mine seems mild by comparison.  An attorney out west was put in jail for three days for criticizing a judge in a motion to withdraw.  Down south, an attorney is charged for criticizing a judge in an email he sent only to the judge complaining about the public comments he had made about a case he had before the judge.  Then you have attorneys charged for judicial criticism for saying something negative about a judge on internet bulletin boards, Twitter and Facebook.  But it is not just criticism of judges, in a very recent case an attorney has been suspended for two years for his writing to another attorney saying he had not been honest in how he handled a case on which they had been on opposite sides. 

In all these instances, state disciplinary bodies are spending enormous resources prosecuting attorneys when they could instead be focused on dishonest lawyers who continue to hurt the public.  Of course, the dubious justification for these disciplinary prosecutions is that attorney criticism harms the public and thus should be sharply limited.  There is no actual evidence that supports this claim, however, which not so ironically is same justification the Federalists used in passing the 1798 Sedition Act which criminalized criticism of the President and members of Congress.   As Justice Black's quote at the top of this blog says, limits on speech critical of the judiciary would "probably be more likely to likely engender resentment, suspicion, and contempt than enhance respect" for judges.

In addition to these speech prosecutions diverting precious resources from pursing unethical attorneys, these prosecutions hurt the public in another way.  They have an enormous chilling effect on attorney who might otherwise speak out about judicial misconduct.  We attorneys sit as the primary, and often the only, persons positioned to blow the whistle on judicial misbehavior.  When attorneys see their colleagues given lengthy suspensions and even disbarred for criticizing judges, attorneys understandably will no longer speak out.  As a result, matters of judicial misconduct continue on for much longer if they are ever uncovered at all.  The public is harmed even more.

Aside from policy reasons that attorneys should be allowed to criticize judges just like other citizens, the Constitution demands it.  The United States Supreme Court has said that attorneys are just like everyone else when it comes to free speech with the exception of when their public speech might obstruct with the administration of justice in a pending case.  It is case law that numerous states have simply ignored in their zeal to protect their judicial colleagues from criticism.  That judicial protection from criticism is arrived at by the state courts carving out an unconstitutional exception to the First Amendment that goes beyond the limited "actual malice" exception to criticism of public officials set out in New York Times v. Sullivan.

My hope with this blog is to tell attorneys' stories, to highlight the abuses of attorney free speech going on in the states, and to outline the constitutional guarantees that protects attorney free speech.  As I write this blog, the First Amendment continues to be ignored as states increase their prosecutions of attorney speech critical of judges, an increase commensurate with new modes of communication that make such attorney criticism of judges easier.   It is hoped that this blog will supplement a book project on the subject of attorney free speech that I hope to complete this summer.  

Again, I want to tell stories on this blog.  Please feel free to contact me below and tell me your story.  I can be reached at:

Paul K. Ogden
pogden297@comcast.net
(317) 297-9720