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Accusing Judges: Balancing Lawyer Ethics and Free Speech

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 Palmisano70 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 and former Illinois ARDC Administrator 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." Find out more about how to stay on this side of the line in the May Illinois Bar Journal.

Posted on May 3, 2017 by Mark S. Mathewson
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