Rumor has it that part of the splashback against me from the judges who do not like The Mongoose and their cronies will be a grievance against me complaining to the State Bar that I have improperly impugned the dignity of those judges I have criticized. The bad news for them is that The First Amendment applies to attorneys (as does the even stronger protection of free speech contained in the Texas Constitution).
Here is an excerpt from "A Primer on What Lawyers Can Say About Judges" published in Texas Lawyer on August 5, 2008 by Bruce Campbell.
Attorneys, generally, are prohibited from making false statements verbally and in writing concerning the qualifications or integrity of judges.
Rule 8.02(a) of the Texas Disciplinary Rules of Professional Conduct 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 official or public legal officer, or of a candidate for election or appointment to judicial or legal office."
What happens when an attorney makes a false statement about a member of the judiciary? Will the offending attorney be disciplined? Perhaps, but not necessarily.
In 1964's Garrison v. State of Louisiana, the U.S. Supreme Court held that the First and 14th Amendments to the U.S. Constitution protect lawyers who make false statements about judges from imposition of civil, criminal and disciplinary sanctions unless the statement is made "with knowledge of its falsity or in reckless disregard of whether it was false or true."
Indeed, the Colorado Supreme Court noted in 2000's In the Matter of Green that "if an attorney's activity or speech is protected by the First Amendment, the disciplinary rules governing the legal profession cannot punish the attorney's conduct."
But attorneys should not view the First Amendment as a license to disparage the judiciary. The test that has been uniformly applied to challenged lawyer statements about judges is a version of that set out in the U.S. Supreme Court's 1964 decision in The New York Times Co. v. Sullivan, et al. First, did the disciplinary authority prove that the statement was a false statement of fact or a statement of opinion that necessarily implies an undisclosed false assertion of fact? Second, did the attorney utter the statement with actual malice -- that is, with knowledge that it was false or with reckless disregard as to its truth?
A few examples of what lawyers have said and gotten away with are instructive in how courts have applied the standard. For example, according to San Antonio's 4th Court of Appeals in 1974's State Bar of Texas v. Semaan, in a letter to the editor criticizing one of the judges in Bexar County, a lawyer called the judge "a midget among giants" in comparison with three other named criminal court judges. The State Bar reprimanded the attorney, but the trial court set aside that judgment, a decision the court of appeals affirmed, because the attorney did not make a false statement nor did he make the statement with reckless disregard of its truth or falsity.
Similarly, the Colorado Supreme Court has recently waded into the issue of lawyer speech. According to its opinion in Green, after the lawyer won a victory on behalf of a client, he requested fees, which the trial judge reduced. The lawyer filed a motion to recuse the judge. An appellate court reversed and remanded the fee order. The lawyer then wrote three letters to the judge and filed a second motion to recuse. One of those letters stated, "Those circumstances characterize you [the judge] as a racist and bigot for racially stereotyping me as unable to be an attorney because I was black."
Another said: "I am entitled to and I affirm my right not to have my attorney fees determined by a racist judge. ... Your dilatoriness in recusing yourself is delaying determination of my fee by a replacement judge. I want my fee determined promptly by another judge. I need not remind you of the dilatoriness standard for judges."
The Colorado Supreme Court noted that disciplinary counsel "brought a complaint against the lawyer, charging him with violating" several Colorado rules of professional conduct. A hearing board of the grievance committee concluded, among other things, that his criticism of the trial judge in his letters and motions to recuse violated several rules. But the Colorado Supreme Court held that the First Amendment banned discipline for the speech, which did not make or imply false statements of fact.
In dismissing the "charges" that the lawyer violated Colorado Rule of Professional Conduct 8.4, the court pointed out that "the right of a lawyer as a citizen to publicly criticize adjudicatory officials ... is particularly meaningful where, as in Texas, the adjudicatory officials are selected through the elective system."
Perhaps the most famous case is Garrison, which involved a district attorney convicted under Louisiana's criminal defamation statute. According to the opinion, the DA was embroiled in a dispute with the eight judges of a parish's criminal district court. The disagreement involved disbursements from a fines-and-fees fund to defray expenses of the DA's office.
After the judges ruled that they would not approve payments from the fund to pay the DA's undercover agents investigating allegations of commercial vice in New Orleans' Bourbon and Canal Street districts and one judge released a statement criticizing the DA's conduct. The DA held a press conference, at which he said: "The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations by refusing to authorize use of the DA's funds to pay for the cost of closing down the Canal Street clip joints. ... This raises interesting questions about the racketeer influences on our eight vacation-minded judges."
In Garrison, the U.S. Supreme Court reversed his criminal defamation conviction, because there was no "reckless disregard for the truth."
