Lawyers' Comments About Judges: A Balancing of Interests to Ensure a Sound Judiciary

Georgetown Journal of Legal Ethics, The, Summer 2004 by Butcher, Angela, Macbeth, Scott

INTRODUCTION

In a country founded on inalienable rights, one segment of society has long endured free speech limitations not placed on other citizens. The Supreme Court of the United States has repeatedly upheld state restrictions on the free speech of attorneys.1 Modern ethical standards explicitly incorporate these limits in the pursuit of judicial integrity. Model Rule 3.6 of the Model Rules of Professional Conduct ("Model Rules") restricts the ability of lawyers to make extrajudicial statements that have a "substantial likelihood of materially prejudicing" ongoing judicial proceedings.2 Although the Supreme Court has never directly ruled on the constitutionality of Model Rule 3.6, the standard has been upheld as applied under similar state rules.3 Similarly, Model Rule 8.2 limits the ability of attorneys to criticize members of the judiciary.4 However, the restrictive power of state ethical rules regarding critical comments about judges has varied due to differing interpretations of the dichotomy between fact and opinion,5 the adoption of objective or subjective standards,6 and the application of precedent.7

The Supreme Court of Ohio recently examined lawyers' free speech rights and their ethical implications in Office of Disciplinary Counsel v. Gardner.8 In a motion for reconsideration, or in the alternative certification to the Supreme Court of Ohio, defense attorney Mark J. Gardner passionately accused an appeals panel of misconduct when it affirmed his client's conviction for driving in violation of a court order.9 The police officer who charged Gardner's client mistakenly did so under Ohio's Financial Responsibility Act, a crime of which the client was innocent.10 Though Gardner did not dispute that his client had driven in violation of a court order, he maintained that the conviction was improper because his client had been charged under the incorrect statute.11

In the particularly vitriolic motion to the court, Gardner accused the appeals panel of misconduct, saying among other things that they ignored precedent, showed bias, and subverted the truth.12 Based upon these remarks a panel of the Board of Commissioners on Grievances and Discipline found that Gardner had violated DR 8-102(B) of the Ohio Code of Professional Responsibility. That provision states, "a lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer."13 Gardner appealed the ruling, allowing the Ohio Supreme Court to explore the state of the law concerning lawyers' critical speech about judges.14

The Supreme Court of Ohio examined this case in light of both First Amendment and policy implications, ultimately deciding that Gardner's statements were unethical and subject to discipline.15 As a result, Gardner was suspended from the practice of law in Ohio for six months.16 The analysis in this case provides a good opportunity to consider the legal and ethical implications of lawyers' critical speech about judges and the state of the law regarding such speech. This note will examine the similarities and differences among the states in their restrictions on the free speech of attorneys in light of both the First Amendment and state ethical rules.

I. FIRST AMENDMENT TREATMENT OF LAWYERS' CRITICAL SPEECH

The First Amendment to the United States Constitution provides that Congress shall make no law abridging the freedom of speech.17 However, as early as 1871 the Supreme Court of the United States held that lawyers have an obligation to refrain from making statements attacking the integrity of the judiciary.18

In 1959, a plurality of the Supreme Court overturned the one-year suspension of an attorney, Sawyer, for comments made outside the courtroom but during the course of pending litigation.19 While representing a number of defendants in a federal jury trial in Honolulu under the Smith Act, Sawyer delivered a speech critical of the Smith Act and the government's methods of trying cases under that act from an island 182 miles from the trial city.20 Sawyer did not refer to the judge by name, but he did reference the pending Honolulu trial as an illustration.21 The plurality opinion by Justice Brennan held that lawyers are free to criticize the state of the law; however, this freedom does not include the right to attack the motivation, integrity, or competence of judges.22 The plurality established an effects-based test requiring the state to demonstrate that the speech in question had a tendency to obstruct justice, and concluded that the record in Sawyer's case was insufficient to show that these statements had impugned the integrity, impartiality or fairness of the presiding judge.23

In a concurring opinion, Justice Stewart agreed that Sawyer's comments were protected by the First Amendment, but emphasized the harm that could result from unregulated speech by attorneys, and argued that a lawyer's obligation to the legal profession will at times outweigh his own First Amendment rights.24 In dissent, Justice Frankfurter, joined by three others,25 argued that attorneys surrender some of their First Amendment liberties upon admission to the profession, and that Sawyer's comments were therefore not protected by the Constitution.26