Invective on appeal: impugning the integrity of judges.

• Author: Wisotsky, Steven

In general, the ethical duties of appellate lawyers are no different than those of trial lawyers. Yet, the specialized nature of appellate practice and procedure produces a relatively small number of recurring issues implicating ethical matters. (1) Prominent among these is criticism of judges in briefs, motions, and public statements, contrary to the prohibition against impugning the qualifications and integrity of judges. Following a loss at trial, the temptation to disparage the court is at times unresisted. Indeed, Judge John Godbold of the U.S. Court of Appeals for the 11th Circuit was moved to warn against appealing out of"the nerve ends of disappointment and defiance." (2)

ABA Model Rule of Professional Conduct 8.2(a) prohibits 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." Comment [1] states that "false statements by a lawyer can unfairly undermine public confidence in the administration of justice." (3) This article surveys cases in which attorneys have been warned, charged, or disciplined under Rule 8.2(a) or analogous state or federal rules, as a result of comments criticizing trial or appellate judges both in and out of court.

Fact or Opinion?

At the outset, it should be noted 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 disparaging remarks are not amenable to empirical (dis)proof. Suppose, for example, that appellate counsel were to criticize a bench as arrogant or ignorant. (4) 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. Consequently, a lawyer may well be brought under disciplinary scrutiny for harsh or critical statements of opinion about a court's motives, qualifications, or alleged biases in deciding an appeal.

This blurring of the fact/opinion boundary was manifest in a case where a prosecutor publicly criticized a criminal law appellate decision in a televised 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." (5) The Missouri Bar filed a disbarment action against him. On review in the state supreme court, he argued that his statements "reflect subjective opinion and not verifiable factual assertions" and could not therefore be "false." (6)

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." (7) A dissenting justice took the opposite view: "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." (8) In addition to parsing the lawyer's statement as referring to the judge's reasons rather than his character, the dissenter argued that the criticism simply asserted 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." (9)

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, i.e., whether he knew the statement to be false or recklessly disregarded whether it was false. In this regard, Rule 8.2(a) bears an analogy to the law of defamation of public officials. That law requires the plaintiff to prove that the defendant's defamatory 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 its truth. (10)

The Reasonable Attorney Standard

Nevertheless, the majority rule is that the "actual malice" standard of public official defamation does not apply to attorney discipline. In The Florida Bar v. Ray, 797 So. 2d 556, 558 (Fla. 2001), the attorney contended that he had "a subjectively reasonable basis in fact" for making accusations against an administrative law judge hearing immigration cases. But the Florida Supreme Court concluded that "a purely subjective New York Times standard is inappropriate in attorney disciplinary actions." (11) Instead, "the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements." (12) 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 has "a compelling interest in preserving public confidence in the judiciary." (13) Applying the objective standard, the court upheld the imposition of a public reprimand.

Standing Comm. on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995), is important for its constitutional analysis of Rule 8.2(a) and applies to both trial and appellate lawyers. The opinion, written by Judge Alex Kozinski of the Ninth...