I have discussed in the past whether it would be constitutional to discipline attorneys for expressing their views when criticizing judges. (See here, and here for example.) Clearly, there is a distinction between speech that may be a threat to someone's reputation (which may be protected by the First Amendment) and speech that actually expresses a threat of physical harm (which would not be). (See here.) But even when the speech is merely a threat to someone's reputation, it may give rise to civil liability for defamation, and in such a case, should it also justify discipline?
For example, in one case that explores the fine line between the authority of the state to regulate attorney speech and an individual attorney's right to express his or her opinion about judges, the United States Court of Appeals for the Sixth Circuit ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission. See here.
In contrast, in other cases, courts have justified disciplinary action against lawyers for expressions about judges. See here and here for example.
Model Rule 8.2(a) states, in part, that 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..." This standard resembles the standard used in defamation cases involving public figures because judges are public officials. It would be unconstitutional for the state to impose discipline based on a lower standard.
Another important element of the standard, however, is that there is a distinction between statements of fact and statements of opinion. A defamation action is not justified if the statement upon which it is based is merely an opinion. A defamatory statement must be, by definition, false, and only a factual statement can be true or false.
For this reason, it is interesting to see how courts handle cases in which lawyers express their opinions about judges, while the state argues that the statement is based on a factual assertion.
I am writing about this today because I just read a short comment over at The Law For Lawyers Today about a new case in Ohio in which an attorney was disciplined for expressing his opinion about certain judges.
In answering a complaint, the lawyer wrote that the appellate judges who had decided against his client had “contrived” their rationale “to justify a decision . . . premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.” In a different document, the lawyer also alleged that The lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”
If the lawyer's statement had ended when he said the judges opinion was contrived, there would be no justification for discipline. We say that often when criticizing opinions we think are wrongly decided, and it is an opinion.
The problem is in the rest of the statement which suggests a fact, ie, that the judges decided the case due to outside influences and for "non-legal reasons." That is a statement of fact. Either it is true or it isn't. Thus, since this statement could give rise to a defamation action, it may give rise to a disciplinary inquiry.
Now the next question, however, is whether the state can meet the Constitutional standard of showing that the speaker issued the statement with knowledge of falsity or reckless disregard for the truth.
Here is where the case gets interesting. In applying that standard, the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations. Note how this is a lower standard than the one the board was supposed to apply. Reasonableness is not recklessness, and it certainly is not knowledge. I don't understand how an analysis based on reasonableness meets the constitutional standard.
Having said that, the ultimate decision was justified because of the lawyer’s own testimony admitting that he “did not actually know why the judges ruled as they did” and that he had not conducted “any investigation” before making his allegations. The court could have said that this was evidence of recklessness. Instead it suggested it was evidence of unreasonableness, which is not the same thing and which creates an unnecessary confusion about the proper analysis.
The case is called Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018) and you can read it here.