Free Speech or Sanctions?
Phillip S. Sykes
Forman Perry Watkins Krutz & Tardy
Jackson, MS
Model Rules
of Professional Conduct
Rule 8.2: JUDICIAL AND LEGAL OFFICIALS
(a)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 officer or public legal officer, or
of a candidate for election or appointment to
judicial or legal office.
...
MODEL RULES OF PROF’L CONDUCT R. 8.2 (2003).
The First Amendment
Freedom of Speech
“Although Lawyers are
protected by the
Constitution, they are
also bound by an oath
and a code of
professional ethics, that
on the surface appears to
conflict with an attorney’s
right to free speech.”
- In re Glenn, 130 N.W.2d 672
(Iowa 1964).
Attorney Speech, Although Protected,
May be Regulated

“[C]ases reason that the protection of attorney criticism of
judges is similar to protection of criticism of other public
officials, relying upon the principle purpose of the first
amendment: safeguarding public discussion of governmental
affairs.” In the Matter of Green, 11 P.3d 1078, 1085 (Col. 2000)
(citing N.Y. Times v. Sullivan, 376 U.S. 254, 279-280 (1964)).
 Where protected speech begins to interfere with a substantial
state interest, the government may restrict the personal rights
of an attorney. In re Westfall, 808 S.W.2d 829, 835 (Mo. 1991).
 Since attorneys are essential for the administration of justice,
the government has a substantial interest in regulating
attorneys. Id. at 836.
New York Times v. Sullivan
(applied to attorney speech cases by analogy)
 Whether the attorney uttered the statement
with actual malice – that is, with knowledge
that it was false or with reckless disregard as
to its truth.
 A majority of local jurisdictions apply a version
of this standard when considering discipline of
attorneys who criticize judges.
In the Matter of Green, 11 P.3d 1078, 1085 (Col. 2000) (citing N.Y. Times v. Sullivan,
376 U.S. 254, 279-280 (1964)).
New York Times v. Sullivan
(applied to attorney speech cases by analogy)
 Actual Malice:
 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?
 In attorney discipline matters, many courts use an “objective
test” rather than a subjective test:
 “Whether a reasonable attorney, in the same or similar
circumstances and in light of all her professional duties,
would have had a high degree of awareness of the
statement’s probable falsity or would have entertained
serious doubts as to the truth of her statement.”
In the Matter of Green, 11 P.3d 1078, 1086 (Col. 2000) (citing N.Y. Times v. Sullivan, 376
U.S. 254, 279-280 (1964)).
Regulating Attorney Speech:
Additional Factors Courts Consider
 Whether the comment was made to the public media or to a
limited audience. In the Matter of Green, 11 P.3d 1078, 1086
(Col. 2000).
 Whether the comment was directed at a specific sitting judge
before whom legal business was being conducted. Justices of
the Appellate Division, First Dep’t v. Erdmann, 301 N.E.2d 426
(N.Y. 1973).
 Whether the comment was addressing the judicial system as
a whole or was it directed at an individual judge. Id.
 Whether the comment is made during an ongoing case or
after an opinion has been rendered. Id.
Attorney Speech
NOT Protected by First Amendment:
• Geoffrey Fieger was disciplined for making vulgar
comments on his radio show about a panel of judges
that reversed a $15 million dollar judgment initially
entered in favor of his client. Some of Fieger’s
comments included:
“Three Jackass Court of Appeals Judges”
Grievance Admin. v. Fieger, 719 N.W. 123, 130
(Mich.2006).
Attorney Speech
NOT Protected by First Amendment:
• Geoffrey Fieger was disciplined for making vulgar
comments on his radio show about a panel of judges
that reversed a $15 million dollar judgment initially
entered in favor of his client. Some of Fieger’s
comments included:
Comparing the judges to Nazi
leaders and said Judge Jane
Markey was “Eva Braun,” wife
of Adolf Hitler.
Grievance Admin. v. Fieger, 719 N.W. 123, 130
(Mich.2006).
Attorney Speech
NOT Protected by First Amendment:
 On appeal, Fieger argued:
•
Statements were made after the case concluded
•
Statements were made outside the courtroom
(i.e. on the radio)
•
Sanctions violated free speech rights – rules in
question were “unconstitutionally vague”
•
Statements are protected political speech and
campaign speech
Grievance Admin. v. Fieger, 719 N.W. 123, 130 (Mich.2006).
Attorney Speech
NOT Protected by First Amendment:
 Michigan Supreme Court Analysis:
• When statements made, case was pending because time for
appeal had not expired (and Fieger in fact later appealed).
• Even though statements made outside the courtroom,
Fieger’s remarks were made “toward the tribunal” because
they were publicly broadcasted and appellate judges were
part of the intended audience.
• Statements “invit[ing] the sodomization of a judge . . . and . . .
inviting a judge to kiss one’s [backside] do not come close to
the margins of the ‘civility’ or ‘courtesy’ rules.”
• No political campaign was involved; therefore, Fieger’s
comments were not protected campaign speech nor were
they political speech. Grievance Admin. v. Fieger, 719 N.W. 123, 136-39 (Mich.2006).
Other Examples of Attorney Speech
NOT Protected by First Amendment:
•
California State Bar sanctioned attorney for statements made
during appeal and ordered him to pass the Professional
Responsibility Exam. Attorney had written in pleadings that
justices on court of appeals had become “parties to the theft . . .
. Money is king and some judges are there to see that it does
not lose.” Ramirez v. State Bar of Cal., 619 P.2d 399, 406 (Cal.
1980).
•
Illinois lawyer disbarred for several remarks about judges in
correspondence to, and motions filed with, state judges, state
administrative offices, and state and federal prosecutors. One of
the several critiques was, “Judge . . . is a crooked judge, who fills
the pockets of his buddies.” In re Palmisano, 70 F.3d 483, 485486 (7th Cir. 1995).
Attorney Speech
Protected by First Amendment
Life magazine article, “I Have Nothing to do with Justice,” quoted a
legal aid lawyer saying:
 “There are so few trial judges who . . . rule on questions of law, and leave guilt
or innocence to the jury. Appellate judges aren’t any better. They’re the
whores who became madams.”
 “I would like to [be a judge] just to see if I could be the kind of judge I think a
judge could be. But the only way to get a [judicial position] is to be in politics. . .
and I don’t even know the going price.”
 Court held that comments were protected under the First
Amendment because:
 Attorney’s comments were directed towards the judiciary as a body and not at
an individual judge, and
 Statements were made outside of courtroom and did not relate to a pending
case.
Justices of App. Div., 1st Dep’t v. Erdman, 301 N.E.2d 426, 427 (N.Y. 1973).
Other Examples of Attorney Speech
NOT Protected by First Amendment:
 Texas attorney wrote a letter to a newspaper, and in comparison to three other
named judges, referred to another judge as “a midget amongst giants.” Texas
Appeals Court held that his comments were not sanctionable because criticism
was attorney’s opinion of the qualifications of the judge and no falsity or
improper motive was involved. State Bar of Tex. v. Semaan, 508 S.W.2d 429 ,
431 (Tex. App. 1974).
 After Colorado trial judge reduced an attorney’s requested fees, he responded
with motions to recuse, affidavits, and several letters, one of which said,
“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.”
Colorado Supreme Court held that attorney’s comments were (1) factually
supported opinions because of his uncontested affidavit’s explanations of
circumstances and context of his remarks and (2) were not made to a public
audience, and, therefore, were protected by the First Amendment. In the
Matter of Green, 11 P.3d 1078, 1082, 1084-85, 1086-87. (Col. 2000).
Advice to Clients about
Trial Judges
 Judges have referred attorneys to disciplinary
committees for giving their clients opinions of
the trial judge.
 Currently, no reported decision describes an
attorney being sanctioned for giving a client an
opinion about a judge.
Joel Cohen and Katherine A. Helm, The Propriety of Criticizing Judges,
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202434286787.
Advice to Clients about
Trial Judges
If there is information available, an attorney should
inform his client about the following:
Whether the Judge has a
reputation for pro business or
pro plaintiff.
Joel Cohen and Katherine A. Helm, The Propriety of Criticizing Judges,
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202434286787.
Advice to Clients about
Trial Judges
If there is information available, an attorney should
inform his client about the following:
Whether to pursue a bench
trial or jury trial.
Advice to Clients about
Trial Judges
If there is information available, an attorney should
inform his client about the following:
Whether a recusal motion
should be strongly
considered.
Emerging Issues:
21st Century Media
 Relatively new internet media devices such as Twitter,
Facebook, and Myspace have given lawyers more
avenues to publish their comments about judges.
 Florida lawyer sanctioned for writing on a law blog
that a particular judge was an “Evil, Unfair Witch.”
Attorneys can be sanctioned for criticizing a sitting Judge, Kentucky has long
zipped lawyers lips, N.Y. Times, September 9, 2009.
Evaluating Al Pacino’s
Character’s Conduct
 Personal attacks on judge’s
integrity
 Comments made during
trial
 ABA Model Rule – more
subjectivity
 Reasonable, objective
attorney test
Conclusion
 No Substitute for Common Sense
 Avoid public statements about your trial judge
(Grievance Admin. v. Fieger, 719 N.W. 123 (Mich.2006)).
 Never make false statements about a judge
(In re Palmisano, 70 F.3d 483 (7th Cir. 1995)).
 Never attack a judge personally
(Ramirez v. State Bar of California, 619 P.2d 399 (Cal. 1980)).
 Attempts at humor or hyperbole can be sanctionable
(Grievance Admin. v. Fieger, 719 N.W. 123 (Mich.2006)).
 Majority of Jurisdictions Cite Both Model Rules and
Objective Standard.
 Application varies by state (compare Justices of App. Div., 1st Dep’t v.
Erdman, 301 N.E.2d 426 (N.Y. 1973) with Grievance Admin. v. Fieger, 719 N.W.
123 (Mich.2006)).