Virginia Lawyers Weekly

Litigators occasionally feel frustrated about how judges treat them or their clients. But how far can they go in expressing it? As in so many other ethics contexts, it is easy to see both sides of the issue.

Judges should not be above any public criticism. After all, litigators implicitly criticize judges whenever they appeal a case. On the other hand, the justice system suffers when lawyers engage in unlimited public condemnation of judges, in part because judges generally cannot defend themselves.

The ABA Model Rules contain an odd restriction that prohibits lawyers from making any statement “concerning the qualifications or integrity” of a judge that the lawyer “knows to be false or with reckless disregard as to its truth or falsity.” (Rule 8.2(a))
This is the standard of constitutional malice applicable in the defamation context, under the U.S. Supreme Court’s 1964 decision in The New York Times Co. v. Sullivan (376 U.S. 254). But it is difficult to imagine a less appropriate standard for assessing lawyers’ statements about judges.

For one thing, this standard looks only at the subjective belief of the speaker or author. The standard also immunizes statements of pure opinion, because they cannot be objectively proven true or false. One of the ironies of defamation law is that the uglier the statement, the more likely it is to deserve protection as an opinion or what some courts call “rhetorical hyperbole.”
In the courts.

Some courts take the Rule 8.2(a) standard at face value.

For instance, the Colorado Supreme Court has protected a lawyer’s pleading that called a judge a “racist and bigot.” (In re Green, 11 P.3d 1078 (Colo. 2000).)

A few years earlier, the 9th Circuit reached the same conclusion about a lawyer’s statement that a judge was “ignorant, ill-tempered, [a] buffoon, sub-standard human, right-wing fanatic, a bully.” (Standing Committee on Discipline of the U.S. District Court v. Yagman, 55 F.3d 1430 (9th Cir. 1995).)

Thus, applying the Rule 8.2(a) standard to lawyers’ statements about judges essentially immunizes from sanctions exactly the type of ugly statements that might undermine the public’s faith in the justice system.

However, most courts have tended to ignore the Rule 8.2(a) standard.

For instance, the Florida Supreme Court concluded that this “subjective … standard is inappropriate in attorney discipline actions.” (Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001).)

Instead, most courts apply what amounts to an objective standard in analyzing lawyers’ criticism of judges. The problem is that under an undefined objective standard, lawyers might have trouble knowing when they have crossed the line.

The Fieger case

Given the unclear standard governing lawyers’ criticism of judges, it is not surprising that aggressive lawyers have tussled with judges.

Perhaps the most interesting recent example involves the long-running dispute between well-known Michigan lawyer Geoffrey Fieger and the Michigan state judiciary.

Fieger called three Michigan Court of Appeals judges “jackass judges,” and compared them to Nazis. When someone used the word “innuendo” in referring to Fieger’s criticism, Fieger reportedly said, “I know the only thing that’s in their endo should be a large, you know, plunger about the size of, you know, my fist.”

Fieger’s situation was more complicated because he made the statements on his radio talk show – potentially implicating the media’s protection under the First Amendment – although he was discussing a case that he had handled.

The Michigan Attorney Disciplinary Board declined to punish him – finding that the Michigan ethics rules limiting lawyers’ criticism of judges violated the Constitution – but the Michigan Supreme Court reversed.

A U.S. District Court then found that the state’s prohibition on lawyers making “discourteous” or “undignified” statements about tribunals was unconstitutionally overbroad and vague.

But the 6th Circuit reversed, finding that Fieger had not established a threat of future sanctions sufficient to give him standing. (Fieger v. Michigan Supreme Court, 553 F.3d 955 (6th Cir. 2009).)

This Michigan slugfest highlights the difficulty of drawing the line between a legitimate critique of public servants who serve as judges and the criticism that weakens public faith in the justice system at the expense of those judges, who cannot enter the fray without exacerbating the systemic damage.

The ABA has not made this balancing test any easier by selecting a standard which clearly does not fit.

As a result, lawyers would be wise not to rely on a court’s literal interpretation of the ABA standard. Instead, lawyers should express their criticism in respectful and temperate terms. Not surprisingly, courts ignoring the ABA standard tend to punish most severely lawyers’ ugly emotional outbursts.

Tom Spahn practices as a commercial litigator at McGuireWoods LLP in McLean. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.

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