III. Lawyers' Criticism of Courts

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

III. Lawyers' Criticism of Courts

Driven by both altruism and self-interest, lawyers generally are deferential to, and respectful of, courts. Nevertheless, litigation is an exceedingly competitive endeavor and advocates and their clients alike can be very disappointed when decisions go against them. Once a case has reached the appellate stage, opportunities to alter a disappointing outcome often begin to dwindle as a result of the standard of review or simply because the case is closer to reaching a truly final, non-appealable judgment. Unfortunately, advocates who find themselves on the wrong side of a ruling, and especially those who feel pressured by a disappointed client, may allow personal factors to lead them to improperly criticize the court believed to have wrongly decided a case and, in so doing, potentially violate their ethical obligations.

In Northern Security Insurance Co. v. Mitec Electronics, Ltd.,⁹⁵ for example, Mitec's counsel derided the trial court's reasoning and conclusions as "disingenuous," "inane," "ludicrous," and "risible."⁹⁶ While the Vermont Supreme Court did not sanction the lawyers, it pointedly noted that Mitec's briefs "lack the professional tone we expect from members of the bar," and reminded the lawyers that the tenor of their protestations could not create error where none existed.⁹⁷

In Disciplinary Counsel v. Shimko,⁹⁸ an Ohio lawyer was suspended for one year— albeit with his suspension stayed on a condition of good behavior during that pe-riod—for ruthless criticism of a judge in appellate briefs, including "ad hominem attacks and hyperbole," such as "'fabricating allegations,' 'completely fabricating the basis for his decision,' 'deliberately misrepresenting,' 'contriving a reason,' and [being] 'personally invested in the outcome.'"⁹⁹

A Wisconsin lawyer referred to various judges as a "black-robed bigot," a "dirty Jesuit," and a "dastardly Jesuit," among other religiously themed slurs, and described the Minnesota bankruptcy bench as being "composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church."¹⁰⁰

Appellate lawyers must think very carefully in fashioning their criticisms of lower court decisions to ensure that they are not doing so in ways that are capable of being read as attacks on the integrity or qualifications of the responsible judges. If it seems ridiculous to have to suggest that lawyers generally should not attack the integrity or qualifications of courts or judges, the many cases in which lawyers have been disciplined for allowing their zeal or disappointment to overcome their good judgment amply demonstrate the need to call lawyers' attention to their duties under the ethics rules.¹⁰¹ Model Rule 8.2(a) provides:

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.¹⁰²

In addition to potential exposure to discipline, a lawyer who falsely or recklessly remarks about the qualifications or integrity of a court in a brief risks having her brief stricken in whole or part,¹⁰³ surely hurting the client's case as a result.

A. Limitations on Lawyers' Speech Rights and the First Amendment

The decision to insert the "knowingly or with reckless disregard as to its truth or falsity" standard in Model Rule 8.2(a) was no accident. The prohibitions in Model Rule 8.2(a) regarding what lawyers can and cannot say about courts and judges obviously have First Amendment implications.¹⁰⁴ The fact that a lawyer's criticism of a court may be in bad taste or reflect poor judgment does not necessarily make the lawyer's statements unethical. That said, "a lawyer's speech may be limited more than that of a lay person."¹⁰⁵ Although lawyers do not surrender their right to free speech upon admission to the bar, they must temper their criticisms of courts in accordance with professional standards.¹⁰⁶ Still, the drafters of the Model Rules expressly acknowledged the influence of groundbreaking Supreme Court precedent that determined that a lawyer's speech critical of the judiciary was "speech concerning public affairs" and part of "the essence of self-government."¹⁰⁷ In Garrison v. Louisiana,¹⁰⁸the Supreme Court struck down Louisiana's criminal libel statute as unconstitutional. In so doing, the Court overturned the conviction of a district attorney for statements made at a press conference, including speculation about the influence of racketeers on the judiciary and an accusation that the large backlog of criminal cases was caused by "the inefficiency, laziness, and excessive vacations" of certain specifically identified judges.¹⁰⁹ Citing Garrison, the drafters of the Model Rules explained in the legal background relevant to Model Rule 8.2(a) that "critical factors in constitutional analysis are the statement's falsity and the individual's knowledge concerning its falsity at the time of the utterance."¹¹⁰

Model Rule 8.2(a) might be subject to serious attack on First Amendment grounds if, for example, it were employed to discipline a lawyer for speech about a judicial candidate while campaigning on behalf of a sitting judge during a contested judicial election.¹¹¹ It is not as vulnerable when applied to lawyers' speech as advocates in litigation. The First Amendment generally does not exempt a lawyer from discipline for intemperate speech in court¹¹² or from inappropriate statements in pleadings or briefs.¹¹³ In most jurisdictions, lawyers' false statements about courts and judges in such contexts made knowingly or with reckless disregard for the truth simply do not enjoy any significant constitutional protection.¹¹⁴ Further, despite the historical underpinnings of the adoption of this standard in the rule, "recklessness" as used in Model Rule 8.2(a) is measured by the majority of courts using an objective standard, rather than a subjective one.¹¹⁵ This principle remains true where the lawyer is a party and appears pro se.¹¹⁶

Ramirez v. State Bar of California¹¹⁷ is a prime example of a lawyer finding no solace in the First Amendment as a defense to discipline for attacking the integrity of a court. The lawyer charged with misconduct in that case, Glenn Ramirez, was representing his clients in a case involving the foreclosure of security interests in the clients' farm property, equipment, and livestock. Ramirez filed a reply brief in the Court of Appeals for the Ninth Circuit that asserted that three state court judges who decided a related case involving the same issues had acted "illegally" and "unlawfully" in reversing a trial court judgment for his clients.¹¹⁸ He also argued that the judges had "become parties to the theft" of his clients' property, and that they had entered into an "invidious alliance" with the foreclosing creditor.¹¹⁹ In a subsequent petition for certiorari, Ramirez implied that the state court judges had falsified the court record, and further stated that their "'unblemished' judicial records were 'undeserved.'"¹²⁰ The California State Bar charged Ramirez with violating provisions of the state's Business & Professions Code that prohibited lawyers from falsely maligning judges.

In arguing against discipline, Ramirez contended that his statements were protected by the First Amendment. The California Supreme Court disagreed, concluding that Ramirez's statements were made with reckless disregard for the truth, and thus were not constitutionally protected. Ramirez also argued that his statements should be excused because they were the product of the "zealous but proper representation of his clients' interests."¹²¹ The court rejected this argument as well, noting that Ramirez's perceived duty of zealous advocacy did not excuse "the breach of his duties as an attorney."¹²² The court ultimately suspended Ramirez from practice for one year. In doing so, it reasoned that Ramirez had to be punished "if for no other reason than the protection of the public and preservation of respect for the courts and the legal profession."¹²³

A number of courts have rejected efforts by attorneys to claim that their challenged statements about a judge were merely statements of opinion that should be constitutionally protected.¹²⁴ In In re Disciplinary Action Against Nathan,¹²⁵ for example, a lawyer who wrote that the judge whose order he was seeking to have overturned on appeal was "a bad judge" who "won election to the office of judge by appealing to racism" and had "substituted his personal view for the law" was disciplined despite his claim that such statements were statements of opinion for which he could not be punished.¹²⁶ In rejecting the lawyer's argument, the Minnesota Supreme Court explained that "[m]erely cloaking an assertion of fact as an opinion does not give that assertion constitutional protection."¹²⁷

Another illustrative case where an appellate advocate was disciplined for attacks on the judiciary after unsuccessfully invoking the First Amendment is Office of Disciplinary Counsel v. Gardner.¹²⁸ After losing his client's case before the Ohio Court of Appeals, Mark Gardner filed a motion for reconsideration that alternatively sought certification to the Ohio Supreme Court. In that motion, Gardner accused the appellate panel that heard the case of being dishonest and ignorant of the law.¹²⁹ He declared the panel's decision "so 'result driven' that 'any fair-minded judge' would have been 'ashamed to attach his/her name' to it."¹³⁰ He added that the court "did not give 'a damn about how wrong, disingenuous, and biased its opinion [was].'"¹³¹

Gardner further accused the panel of distorting the truth and of having done so grossly and maliciously.¹³² Although that would likely have been more than enough for any author to feel like he had made his point, Gardner went on to write:

Wouldn't it be nice if this

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