May 2017 • Volume 105 • Number 5 • Page 10
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Accusations against judges: Balancing lawyer ethics and the First Amendment
If you accuse a judge of misconduct, make sure your accusation is based on facts, not your subjective belief. Otherwise, you can run afoul of ethics rules.
All attorneys have opinions about judges. Those opinions are sometimes negative and are often shared around the office, or when talking shop with a colleague.
But lawyers should beware of voicing those opinions in a more public forum. Rule 8.2 of the Illinois Rules of Professional Conduct prohibits attorneys from knowingly making false statements concerning the qualifications or integrity of a judge.
So when do opinions become lies? The First Amendment protects people who are stating opinions. It doesn't protect defamatory speech. And the issue gets even more complicated when that speech is part of a document filed with the court.
Some years back, the seventh circuit considered the nexus between the First Amendment and ethical rules in In re Palmisano, 70 F.3d 483 (7th Cir. 1995). There, the court reviewed a rule to show cause why an attorney who had been disbarred in Illinois should not be disbarred by the U.S. District Court for the Northern District of Illinois as well.
The Illinois Supreme Court disbarred Palmisano for making "baseless accusations of crime (and lesser wrongs) against judges.…" Palmisano, 70 F.3d at 485. He referred to specific judges as "crooks" and "fixers." Id. He made these statements in pleadings as well as in correspondence to other judges. The seventh circuit noted that Palmisano provided no factual basis for his statements.
Chicago attorney Mary Robinson says that Palmisano is instructive because it stands for a basic proposition: "When lawyers say that a judge is crooked, the public assumes it's true because a lawyer wouldn't say so if it wasn't the case." The First Amendment doesn't protect defamatory speech, she said. Similarly, it doesn't protect reckless statements about a judge. "If you're going to accuse someone of an intentional criminal act, you need to have a factual basis."
Robinson, who was the Administrator of the ARDC from 1992-2007, points out that the majority of disciplinary cases regarding attorneys speaking out all involve a "line being crossed." That line, she says, is similar to the one that distinguishes opinion from defamation.
The Walker case
A recent case that implicates this distinction between a protected opinion and an ethical violation is that of Bloomington attorney James Walker. According to the Pantagraph (http://bit.ly/2oTdqms), Walker, who is now retired, is asking the Illinois Supreme Court to dismiss his two-year suspension for statements he made about judges in Illinois' third appellate district.
Walker had accused the justices of the third district of engaging in official misconduct, which is a crime in Illinois. Walker told the ARDC Hearing Board he believed the misstatements made by the third district could have been corrected but weren't. In re James Walker, 14 PR 0132, at p. 6. Walker believed that the only reason the court did not correct itself was official misconduct. The Hearing Board disagreed.
The Report and Recommendation of the Review Board in Walker stated that "[a] reasonable belief must be based on objective facts; a subjective belief, suspicion, speculation, or conjecture does not constitute a reasonable belief." In re Walker, p. 8.
When attorneys voice a subjective belief about misconduct, they cross the line from "voicing appropriate criticism or disagreement" to "making improper, unsupported accusations that impugn the integrity or motivation of a judge." Id. at p. 9.
According to the Palmisano court, unsupported accusations "do not enjoy Constitutional protection." Palmisano, 70 F.3d at 487. Attorneys are held to a higher standard than "participants in a public debate." Id. What's more, the Palmisano court pointed out, even a journalist making such statements about a public figure could be sanctioned.
Robinson notes that this can be a problem for attorneys who are dissatisfied with a result. "There is a big gap between being [a judge being] wrong and [committing] criminal conduct."
"The fact that judges rule against you does not mean that you can call them corrupt," Robinson said. Lawyers must play by the established ethical rules because otherwise, the public would not trust the system.
At the end of the day, attorneys who suspect that a judge has behaved unethically should ensure that they have objective facts to prove their assertions before making them public. Any other talk is best saved for the office or not said at all.