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Bell/Gaerte: 3 things to know about criticizing judges

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Bell Gaerte 3 thingsThe case of In the Matter of T.D., --- N.E.2d ----, 71S00-1104-DI-196 (Ind. Oct. 8, 2013), provided guidance to attorneys about judicial criticism. Specifically, this case interpreted Rule 8.2 of the Indiana Rules of Professional Conduct, which 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.”

The respondent in T.D. represented 85 pro-life demonstrators who were charged with trespass on Notre Dame’s campus when President Barack Obama stopped by the university to collect an honorary degree. The trial judge’s husband had a long affiliation with Notre Dame. As part of his representation of his clients and pursuant to Criminal Procedure Rule 12(B), the respondent filed a Motion for Change of Judge alleging that the trial judge was biased.

The Supreme Court Disciplinary Commission took issue with four of the respondent’s statements in his motion, including the statements that the trial judge “did not understand [Trial Rule 65], or she did not feel duty bound to apply the rule because she was biased” and that the trial judge was “willing to ignore the applicable legal standards” in a previous case involving pro-life litigants. Four members of the Indiana Supreme Court disagreed with the commission and concluded that the respondent did not violate Rule 8.2.

Here are three things to know about judicial criticism:

1. The limits on attorneys’ professional speech are not coextensive with the limits for non-attorneys’ speech.

The test for whether an attorney violated Rule 8.2 is: “Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made?” This is in contrast to the subjective test from New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), which held that First Amendment protections prohibited a public official from recovering damages for defamation relating to his official conduct unless the official proved that the statement was made with “actual malice.”

In deciding on an objective test, the court noted that the “societal interest of enabling robust public discourse on issues of public concern . . . must be balanced against the societal interest in the public’s confidence in an impartial adjudicatory process.” The court also noted that “We expect those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process.”

2. Rule 8.2 will not be interpreted to impede an attorney’s advocacy.

The court in T.D. noted that a motion for change of judge “implicate[d] the client’s fundamental . . . right to a neutral decision maker” and that an attorney’s advocacy “must not be chilled by an overly restrictive interpretation of Rule 8.2(a).” The court stated that 8.2(a)’s limitations should be “the least restrictive when an attorney is engaged in good faith advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision.” Under this approach, the court evaluated the respondent’s statements in T.D. within the context of the lawyer’s 40-page submission of facts and deemed his comments relevant to the Motion for Change of Judge rather than a “random pot-shot” at the trial judge.

It should be noted that Rule 8.2 does not limit the scope of possible misconduct to the courtroom or to the drafting of pleadings. The language quoted above suggests that if a lawyer’s comments about a judge are not made during the representation of a client, then the limitations on his or her comments will be more “restrictive.”

3. Keep it far from personal.

While the respondent in T.D. was cleared of all wrong-doing, two of the six judicial officers who reviewed the respondent’s statements found that the statements did violate Rule 8.2(a). Justice Robert Rucker and the hearing officer, who believed that the comments were in violation of Rule 8.2(a), stated that the respondent’s “comments went beyond legal argument, they became personal, and violate[d] current professional standards.” Id. at 16 (Rucker, J, dissenting in part) (emphasis added).

Similarly, in a past decision, the Indiana Supreme Court noted that “Lawyers are completely free to criticize the decisions of judges. As licensed professionals, they are not free to make recklessly false claims about a judge’s integrity.” In the Matter of M.W., 782 N.E.2d 985, 986 (Ind. 2003).

Attorneys don’t always have the luxury of running what they write or say about a judge by a trusted colleague prior to publishing the statement. And while the standard espoused by the majority in T.D. for evaluating 8.2(a) claims did not use the term “personal,” that term may still prove be a practical guide for attorneys who are simply working to get a brief out. Attorneys, when self-evaluating what they write or say about a judge, should ask themselves: Am I criticizing the judge’s decision or the judge? Or, stated another way, am I “making this personal?” If the answer to the last question is “no,” then the attorney will have likely kept him or herself away from a violation of Rule 8.2(a).•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  • 2+2 = 5 comrade smith
    The keyword here is blackwhite. Like so many Newspeak words, this word has two mutually contradictory meanings. Applied to an opponent, it means the habit of impudently claiming that black is white, in contradiction of the plain facts. Applied to a Party member, it means a loyal willingness to say that black is white when Party discipline demands this. But it means also the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary. This demands a continuous alteration of the past, made possible by the system of thought which really embraces all the rest, and which is known in Newspeak as doublethink. Doublethink is basically the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them. — Part II, Chapter IX — The Theory and Practice of Oligarchical Collectivism
  • truth and relevance must be admitted or the tribunal loses its moral authority
    Here's another trend that's really scary. If I recall correctly In Re Campiti was a judge-initiated complaint against a lawyer who dared to point out in a divorce proceeding that his client's ex-spouse was an illegal immigrant. And a similar case issued recently. Really! I can't twist my brain into enough of a pretzel to figure out how undocumented immigrant status would NOT be RELEVANT to every single issue in a divorce related to custody and child support especially, if not the other issues too. How can a true and relevant fact be punishable "bias"? If truth and relevance to client's defense are now punishable professional misconduct then the tribunal itself loses its moral authority and legitimacy.
    • phony complaints against lawyers make it personal alright
      Do judges 'make it personal" when they file a bogus complaint like this which causes people to have to defend their license (livelihood), draw on their malpractice insurance defense, suffer the loss of countless hours of prep time, public embarrassment over the hint of "ethical problems," not to mention future increased malpractice premiums? ALL FOR SAYING WHAT WAS VERIFIABLY TRUE AND ABSOLUTELY GERMANE TO THE CASE.
    • Point:: Ogden
      And while we are contemplating that the First Amendment just might apply to officers of the court as well as the great unwashed, let us also consider two clauses from our beloved Indiana constitution: Section 9. Right to free thought, speech, writing and printing; abuse of right Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible. Section 10. In all prosecutions for libel, the truth of the matters alleged to be libellous, may be given in justification. Interesting glossing on this organic and foundational law of our social order found here: http://books.google.com/books?id=a-RQI0gEscUC&pg=PA40&lpg=PA40&dq=Section+9.+Freedom+of+thought+and+speech+Section+9.+No+law+shall+be+passed,+restraining+the+free+interchange+of+thought+and+opinion,+or+restricting+the+right+to+speak,+write,+or+print,+freely,+on+any+subject+whatever:+but+for+the+abuse+of+that+right,+every+person+shall+be+responsible.&source=bl&ots=NUM8fJtVB8&sig=L8NY21TMREmq0gmp57n-MLsHGQc&hl=en&sa=X&ei=vaiUUoCCMYXPqQGBuICIDA&ved=0CDsQ6AEwAw#v=onepage&q=Section%209.%20Freedom%20of%20thought%20and%20speech%20Section%209.%20No%20law%20shall%20be%20passed%2C%20restraining%20the%20free%20interchange%20of%20thought%20and%20opinion%2C%20or%20restricting%20the%20right%20to%20speak%2C%20write%2C%20or%20print%2C%20freely%2C%20on%20any%20subject%20whatever%3A%20but%20for%20the%20abuse%20of%20that%20right%2C%20every%20person%20shall%20be%20responsible.&f=false
    • U.S. Supreme Court
      You might want to read the case, Gentile v. State Board of Nevada. In that case, the U.S. Supreme Court was split, but all the justices agreed that the only time attorney speech can be limited was when it interfered with the administration of a pending case. The Court in another opinion has stated that the fact that an attorney's speech criticizing judges is more likely to be believed is not a basis for more limits on their speech about judges than those imposed on the general public. Unfortunately it appears that a number of states in disciplining attorneys has gone beyond what the U.S. Supreme Court would allow. Given that Gentile was handed down some 22 years ago, it's inevitable in the next few years that SCOTUS will take cert on an attorney free speech case and reverse the trend states have of limiting attorney criticism of judges under Rule 8.2.

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