I would like to think I'm alone in being a victim of the overzealous application of Rule 8.2. However, since my situation became public I have heard from attorneys all over the country how they too are being disciplined for criticizing judges. An attorney in Utah was actually jailed for three days and publicly reprimanded for criticizing a judge in a motion to withdraw. A Tennessee attorney wrote an email to a judge complaining about comments the judge had made to the media after a case they had been involved in was over. He now faces Rule 8.2 charges. A South Carolina attorney is charged with violating Rule 8.2 for comments he made about a judge on Twitter. The list is endless.
Let's take a look at Rule 8.2:
Almost every state supreme court and disciplinary body has rejected Rule 8.2 as employing the New York Times v. Sullivan actual malice libel standard for public officials, an exception to the Free Speech Clause which requires that the speaker has knowledge of the falsity of his statements about a public official. Instead state supreme courts have applied Rule 8.2 in such a way as to shift the burden of proving criticism of judges is true to the attorney speaker, even requiring the attorney to often prove that critical opinions are true. The supposed justification for such an approach limiting,even chilling attorney free speech, is the need to uphold the "public integrity" of the judicial branch. To students of history, the justification should sound eerily familiar. It is the exact same argument the Federalists use for justifying the 1798 Alien and Sedition Acts which criminalized false criticism of the executive and legislative officials.(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
What is interesting is that in none of the published Rule 8.2 cases I have read has a court actually reviewed the commentary and notes to the Model Rule 8.2 was adopted by American Bar Association Commission on Evaluation of Professional Standards to see what was intended. Well, to the credit of my attorney Adam Lenkowsky, he had the foresight to do exactly that. He went looking for the background on Model Rule 8.2 and found information that completely refutes the approach most states, including Indiana, have been taking as to the application of Rule 8.2. The rule was intended to apply the NY Times v. Sullivan actual malice standard, was intended to cease attorney prosecutions for "intemperate speech" and for the expression of opinions for the expression of opinions. Here is the commentary and notes to Rule 8.2 with certain provisions highlighted which contradict how the rule is being applied:
It is clear that the adoption of Rule 8.2 was intended to incorporate the NY Times v. Sullivan standard of actual malice for criticizing public officials and that, under the Rule 8.2 states were supposed to show the attorney had actual knowledge that the statement was false. (For states to go beyond that and impose additional restrictions attorney speech criticizing judges, i.e. public officials beyond the exception allowed by the Supreme Court in NY Times v. Sullivan would violate the First Amendment.) Further, Rule 8.2 was never intended to apply to statements of opinions which can't be proven true or false. That the rule was intended to apply only to statements of fact which can readily be proven true or false is consistently ignored by many state disciplinary bodies as they prosecute attorneys for judicial criticism.COMMENT: Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice. When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.Rule 8.2 applies to a statement of fact. Accord, State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974)(inasmuch as criticism involved opinion, truth or falsity of underlying allegation not in issue); See Justices of Appellate Div. v. Erdmann, 33 N.Y.2d 559, 301 N.E.2d 426, 347 N.Y.S. 2d, 441 (1973). Compare Rinaldi v. Holt, Rinehart & Winston, Inc. 42 N.Y.2d 369, 366, N.E.2d 1299, 397 N.Y.S. 943 (Fuchsberg J., concurring), cert. denied, 434 U.S. 969 (1977). Contra, In re Raggio, 487 P.2d 499 (Nev. 1971) (district attorney criticized court's opinion as "shocking and an exercise in "semantical gymnastics."
With regard to Rule 8.2(a), DR 8-102(A) provides that "A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office," DR. 8-103(B) provides that "A lawyer shall not knowingly make false statements against a judge or other adjudicatory officer."
Rule 8.2(b) is substantially identical to DR 8-102.
A lawyer's right "as a citizen to [criticize] and attack a candidate for an elective office must be recognized, so long as the right is not abused. That the office is judicial, and that the candidate is there serving as a judge, can make no difference in the basic principle involved….We cannot think that a lawyer's citizen's criticism of such a candidate must [sic] needs to be confined to what is decent and respectful. His criticism may be as indecent and disrespectful as the facts justify. The rule governing … such utterances must be that of a qualified privilege…." Thatcher v. United States, 212 F. 801, 07 (6th Cir. 1914), appeal dismissed, 241 U.S. 644 (1916.)
Traditional rules governing criticism of courts have been sweeping in scope. Some courts have justified a broad prohibition on criticism of judicial officers on the need to maintain public confidence in the judicial system. See, e.g., Justices of Appellate Div. v. Erdman, 40 A.D.2d 521, 333 N.Y.S.2d 862 (1972); In re Raggio, 487 P.2d 499 (1971); Nelles & King, "Contempt by Publication in the United States," 28 Colum. L. Rev. 401, 525 (1928). In a number of cases, however, the Supreme Court has rejected attempts to penalize extrajudicial criticism of judicial officers on such grounds. See, e.g., Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 311 (1946). Truthful criticism is protected by the First Amendment, subject to regulation only to the extent it presents a clear and imminent threat to the fair administration of justice or involves conduct disruptive of a judicial proceeding. See Rules 3.5 & 3.6.
The Supreme Court has held that false statements about public officials may be punished only if the speaker acts with knowledge that the statement is "false or with reckless disregard of whether it is false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Garrison v. Louisiana, 379 U.S. 64 (1964). Rule 8.2 is consistent with that limitation. See Note, "In re Erdmann: What Lawyers Can Say About Judges," 38 Alb. L. Rev. 600, 609-610 (1974) ("Since disciplinary actions against attorneys seem to constitute a serious deterrent to free political discussion, it is arguable that such actions should be subject to the same constitutional limitations as the Supreme Court has imposed in defamation actions.") Compare Spencer v. Dixon, 290 F. Supp. 531 (W.D. La. 1968); State v. Nelson, 504 P.2d 211 (Kan. 1972); Justices of the Appellate Div. v. Erdmann, 33 N.Y. 559, 560, 301 N.E.2d 426, 427, 347 N.Y.S. 2d 441, 442 (1973)(Burke, J, dissenting).
Rule 8.2 eliminates the Code's distinctions between "false accusations" and "false statements of fact." The critical factors in constitutional analysis are the statement's falsity and the individual's knowledge concerning its falsity at the time of the utterance. See Garrison v. Louisiana, 379 U.S. 64 (1964); Baker v. Monroe County Bar Ass'n, 34 A.D. 2d 229, 311 N.Y.S.2d 70 (1970), aff'd, 28 N.Y.2d 977, 272 N.E.2d 337, 323 N.Y.S.2d, cert. denied, 404 U.S. 915 (1971.)
Rule 8.2 does not continue the standard of EC 8-6 which stated that a lawyer who criticizes judicial officials "should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism…." Nor does Rule 8.2 incorporate the statement in EC 8-6 that adjudicatory officials are "entitled to receive the support of the bar against unjust criticism." Each has been involved to penalize criticism considered to be intemperate in tone. See e.g., In re Shimek, 288 So.2d 686 (Fla. 1973); In re Frerichs, 238 N.W.2d 764 (Iowa 1976); State v. Nelson, 504 P.2d 211 (Kan. 1972). But see Polk v. State Bar, 374 F. Supp. 784(N.D. Tex. 1974); Justices of the Appellate Div. v. Erdmann, 39 A.D.2d 223, 333 N.Y.S. 863 (Greenblatt, J., dissenting) (1972), rev'd, 33 N.Y.2d 559, 301 N.E. 2d 426, 347 N.Y.S. 441 (1973). See also State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974)(court rejected attempted discipline of lawyer under DR 1-102(A)(5) stating that "the only specific limitation on criticism of a judicial officer is set forth in DR 8-102(B)…."). EC 8-6 has also caused some judicial officers to take the view that lawyers have an affirmative duty to defend judges. See Rinaldi v. Holt, Rinehart & Winston, Inc. 42 N.Y.2d 369, 366, N.E.2d 1299, 397 N.Y.S. 943 (Fuchsberg, J., concurring), cert. denied, 434 U.S. 969 (1977); Palmer, "The Judge: Maligned, Attacked and Undefended," 55 Chi B. Rec. 21 (1973).
Again, credit goes to my attorney Adam Lenkowsky for having the presence of mind to actually go look up the notes and commentary accompanying the adoption of Model Rule 8.2. Now if state disciplinary bodies will only start reading the background on Rule 8.2 and apply it as intended and in accordance with what the Constitution requires...
Note: This article first appeared in my other blog, Ogden on Politics, on December 16, 2013.