CHAPTER 4 - 4-1 RESPECT FOR JUDGES

• Jurisdiction: United States

4-1 Respect for Judges

A lawyer shall not make a statement about a judge or other adjudicatory officer that the lawyer knows is false or with reckless disregard for its truth or falsity.¹ If a lawyer can offer no evidence for a reasonable belief in the truth of a defamatory statement about a judge, it will be presumed that the statement was false or was made with reckless disregard for its truth or falsity.² The three seminal cases on disrespect for judges are Notopoulos and two Burton matters.³

In Notopoulos an attorney was disciplined for violations of Rules 8.2(a) and 8.4(4) when he sent a letter to a probate judge making accusations of corruption and extortion. In deciding the matter, the Supreme Court relied on an earlier matter, Burton v. Mottolese.⁴ That matter involved a disbarment of an attorney for a variety of misconduct, including making unsubstantiated allegations of bias by a judge.

In deciding this issue in Burton, the Supreme Court adopted a rule requiring proof of an objective basis in fact, as opposed to a subjective belief in the truth of the statements, when a lawyer makes allegations of misconduct by a judge. "Unsupported allegations do not give rise to an objective, reasonable belief that the assertions are true."⁵ The rule was first adopted for attorneys in a matter from Washington State called Sandlin.⁶ This rule is the dominant one and is employed in most jurisdictions.⁷ It imposes a high standard on the attorney, and is the reverse of the rule of N.Y. Times v. Sullivan.⁸

Sullivan held that the First Amendment protected criticism of public officials unless malice were shown, malice being defined as actual knowledge of the falsity of the statement. Sandlin found that a better rule for attorneys criticizing judges would be one that required objective proof rather than a subjective belief in the truth of the statements being made. An excellent treatment of First amendment issues implicated in attorney speech critical of judges can be found in a matter called Standing Committee v. Yagman.⁹

In Yagman, the Ninth Circuit vacated a disciplinary sanction against an attorney who had made outrageous comments about a sitting district court judge, including that the judge was anti-Semitic, was the worst judge in the central district, was ignorant, dishonest, ill-tempered, and a bully, and "probably is one of the worst judges in the United States." He went on the say that "(i)f television cameras ever were permitted in his courtroom, the other federal judges in the Country would be so embarrassed by this buffoon that they would run for cover."¹⁰

The Ninth Circuit, while finding that Sandlin struck the "appropriate balance" between a lawyer's professional obligations and his First Amendment rights, found that Yagman's comments, though imaginative, colorful, lusty, and hyperbolic were matters of opinion, not intended to be taken literally and not capable of being proven true or false and, thus, protected speech. It did, however, also note that the speech...