Incivility and unprofessionalism on appeal: impugning the integrity of judges.

• Date: 22 September 2005
• Author: Wisotsky, Steven
• Published date: 22 September 2005
• Author: Wisotsky, Steven

In general, the ethical duties of appellate lawyers are no different from those of trial lawyers. Yet the specialized nature of appellate practice and procedure produces a relatively small number of recurring issues. (1) One of the more prominent of these is the prohibition against impugning the qualifications and integrity of judges. Disrespectful criticism of judges in briefs, motions, and public statements is a recurring problem. Having lost at trial, lawyers often find themselves unable to resist the temptation to attack the trial judge. Indeed, Eleventh Circuit Judge John Godbold has warned against appealing out of "the nerve ends of disappointment and defiance." (2) The case law addressing these situations arises from conflicting forces: the freedoms of the First Amendment and the ethical restrictions on what lawyers can say or write.

The Model Rules of Professional Conduct prohibit a lawyer from making "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," (3) and state that "false statements by a lawyer can unfairly undermine public confidence in the administration of justice." (4) With that in mind, this article surveys cases in which attorneys have been warned, charged, or disciplined under Model Rule 8.2(a) or its equivalent as a result of attacks on appellate judges in and out of court.

FACT OR OPINION?

At the outset, note that the false-statement language of the rule implies the existence of an objective set of standards for determining the truth or falsity of the statement at issue. Many invectives are not amenable to empirical (dis)proof. Suppose, for example, that appellate counsel were to criticize a bench as arrogant or ignorant. (5) Is that charge a triable fact or an expression of opinion? There is no bright-line distinction between them. In most cases, moreover, the classification does not matter. The insult is what counts. Thus, a lawyer may well be brought under disciplinary scrutiny for harsh or critical statements of opinion if they address a court's motives, qualifications, or alleged biases in deciding an appeal.

This blurring of the fact/opinion boundary was manifest in a case in which a prosecutor publicly criticized a criminal-law appellate decision in a TV interview. The attorney named the author of the opinion, and asserted that "he made up his mind before he wrote the decision, and just reached the conclusion that he wanted to reach." (6) The Missouri Bar filed a disbarment action against him. On review, the lawyer argued that his statements "reflect subjective opinion and not verifiable factual assertions" and could not therefore be "false." (7)

The majority opinion rejected this "artificial dichotomy" and concluded that the statement, in its full context, "at the very least implies that the judge's conduct exhibited dishonesty and lack of integrity and is sufficiently factual to be susceptible of being proved true or false." (8) Notably, a dissenting justice took the opposite view of counsel's statements, and concluded that there was no Rule 8.2 violation: "There is no assertion of objective fact regarding [the judge's] 'judicial integrity.' There is no implication 'that the judge's conduct exhibited dishonesty and lack of integrity.'" (9) In addition to parsing the lawyer's statement as referring to the judge's reasons rather than to his character, the dissenter argued that it was simply an assertion that the panel opinion was "result oriented. This assertion is frequently made about judicial opinions, and cannot be found to be a statement of fact." (10)

The question whether a statement is not opinion but fact, and hence either true or false, is distinct from the question of the lawyer's state of mind in saying it. The language of Rule 8.2(a) clearly requires proof of the lawyer's subjective state of mind, that is, whether he knew the statement to be false, or recklessly disregarded the possibility that it might be false. In this regard, Rule 8.2(a) is analogous to the law of defamation as it applies to public officials, (11) which requires the plaintiff to prove that the defendant's statement was uttered or published with "actual malice," a term of art for knowing a statement to be false or making it with reckless disregard for whether it is true or false.

THE REASONABLE ATTORNEY STANDARD

The majority rule is that the "actual malice" standard of public-official defamation does not apply to attorney discipline. Thus, in The Florida Bar v. Ray, (12) an attorney contended that he had "a subjectively reasonable basis in fact" for making accusations against an administrative law judge hearing immigration cases. But the court concluded that "a purely subjective New York Times standard is inappropriate in attorney disciplinary actions." (13) Instead, "the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements." (14) The rationale for rejecting the defamation standard is that lawyers "are viewed by the public as having unique insights into the judicial system" and therefore the state's "compelling interest in preserving public confidence in the judiciary" (15) is paramount. Applying this objective standard, the Ray court concluded that the attorney had no reasonable basis in fact for questioning the judge's veracity, and upheld the imposition of a public reprimand.

Standing Committee on Discipline v. Yagman (16) is important for its constitutional analysis of Rule 8.2(a), and because it applies to both trial and appellate lawyers. The opinion, written by the irrepressible Alex Kozinski, describes Rule 8.2(a) as "overbroad" (17) and in need of a narrowing interpretation to avoid First Amendment invalidity. The opinion also notes that "the purely subjective standard applicable in defamation cases is not suited to attorney disciplinary proceedings," and that such cases are to be governed by an objective standard based upon a reasonable attorney.'" (18) But unlike the Florida Supreme Court, and indeed unlike most courts, the Ninth Circuit in Yagman insisted on adhering to the distinction between false statements of fact and expressions of opinion. Thus,

 statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false, statements of opinion are protected by the First Amendment unless they "imply a false assertion of fact." (19) 

Further, "the disciplinary body bears the burden of proving falsity." (20)

The court's closely reasoned opinion allowed Yagman to escape discipline for his out-of-court accusation (made to a reporter) that a district judge was anti-Semitic; the court regarded that charge as containing both an assertion of fact, not proven to be false, and an expression of opinion. (21) The court also protected Yagman's survey-response letter to Prentice Hall calling the judge "the worst judge in the central district" and containing a "string of colorful adjectives," including "ignorant," "ill-tempered," "buffoon," "sub-standard human," "right-wing fanatic," and the like. (22) The court held that these barbs were "statements of rhetorical hyperbole, incapable of being proved true or false." (23) As such, they were protected by the First Amendment.

The court then considered an alternative theory of punishment based on interference with the administration of justice, noting that First Amendment protections might have to give way in the face of "a clear and present danger" to the administration of justice, a standard that the court characterized as "demanding." (24) But the court found a lack of immediacy or "direct and immediate impact on the fair trial rights of litigants" from Yagman's invective. (25) The court emphasized the fact that Yagman was not commenting upon a pending case, whereas the Supreme Court's decision in Gentile v. State Bar of Nevada (26) was concerned about the fair-trial impact of lawyers' comments to the press. Thus, the Yagman court interpreted Gentile to impose the clear-and-present danger test where no case was pending, but a lesser substantial-likelihood test where a case was pending. It is not clear which test should apply to a completed appeal, although the Florida Supreme Court applied the latter in 5-H Corp. v. Padovano. (27)

Yagman notwithstanding, other courts are less clinically analytical and less tolerant of tirades. Lawyers who bad-mouth judges, whether to reporters or in their court filings, are at risk of bar discipline. "Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech." (28) A lawyer is not only an advocate for a client but also an officer of the court, and must therefore refrain from hostile utterances that might well pass constitutional muster under other circumstances. Accordingly, he or she must refrain from "undignified or discourteous conduct which is degrading to a tribunal." (29) As a result, derogatory remarks and the expression of unfavorable opinions are likely to get a lawyer in trouble, even though the Model Rules deleted the Model Code requirement that the lawyer be "temperate and dignified." (30) Cases from many states have put lawyers on notice.

WHAT NOT TO WRITE OR SAY

Motions for rehearing are one especially troublesome area of appellate practice for lawyers inclined to invective; apparently, the sting of an adverse panel opinion drives many lawyers to use harsh language. Thus, counsel for one appellant characterized the panel's decision as a "bad lawyer joke" in his motion for rehearing, and the court struck an entire section of the motion as...