Monday, January 27, 2014

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

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