Given how deferential most attorneys are to the judiciary, it may comes as some surprise that attorneys actually have wide latitude to criticize judges and the judicial system.
As with the rest of the communications discussed here, First Amendment considerations loom large. Although attorneys are officers of the court and are subject to some special requirements (particularly when in the courtroom or discussing our pending matters), we do not lose our First Amendment rights.
This doesn’t mean that it’s always a good idea to stand on these rights. Considerations of professionalism, effectiveness, and good relations with clients, the bar and the judiciary alike will usually militate for staying on cordial terms with the court.
But let’s put those considerations aside for a moment, and see how just how far we can go if we DO feel compelled to vent our spleens.
How about accusing a federal district court judge of anti-Semitism and being drunk on the bench? Think that might be sanctionable conduct?
Think again, said the Ninth Circuit.
In Standing Committee v. Yagman, the Ninth Circuit found that such statements were protected by the First Amendment and not sanctionable. In so doing, it overturned the Central District of California’s two-year suspension of attorney Stephen Yagman for “impugning the integrity of the court.” 1
While your mileage may vary (depending on how outrageous the statement is), the fact is that local rules – still on the books in some courts – that proscribe attorneys from communications that are “degrading or impugning the justice system,” are unconstitutionally overbroad.
This principle applies as well to criticism of specific judges: attorneys cannot be disciplined for impugning the integrity of a judge unless the statement in question rises to the level of defamation. 2 What’s more, the bar for attorneys to meet this standard is similar to the New York Times v. Sullivan standard for public figure defamation – the defamatory statement must be both untrue and made with either malice or reckless disregard for the truth.
Unfortunately, while the state clearly has the burden of proving these elements, many state bars continue to treat this area as one where the attorney must prove the truth of the statement in order to avoid discipline.
And then, of course, we return to the question of whether berating the judiciary is really that effective of a tool in an attorney’s advocacy quiver.
On balance, most attorneys will conclude that when it comes to speaking of the judiciary – and particularly judges in front of whom they regularly represent clients – the best course of action is to choose their words with great care.
Other Cases of Note:
In re Goode (5th Cir., 2016): Suspension overturned, as “gag rule” on trial participants applied to virtually anything Goode might have said.