ILNews

Bell/Gaerte: 3 things to know about criticizing judges

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

  • 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.

      Post a comment to this story

      COMMENTS POLICY
      We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
       
      You are legally responsible for what you post and your anonymity is not guaranteed.
       
      Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
       
      No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
       
      We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
       

      Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

      Sponsored by
      ADVERTISEMENT
      Subscribe to Indiana Lawyer
      1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

      2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

      3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

      4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

      5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

      ADVERTISEMENT