Sixth Circuit opinion on attorney speech and the First Amendment

From the Sixth Circuit Court of Appeals opinion, released July 27, 2012:

The balance between an attorney's right to free political speech and a state's right to regulate attorney conduct is delicate. States often successfully navigate the tension between these competing interests, permitting open critique while protecting the viability and vitality of judicial institutions. One of the ways that states do this is through ethical rules that prohibit attorneys from making false or reckless statements about judicial officers. Sometimes, however, the balance is upset and the state applies its rules in a way that impinges upon the free interchange of ideas that is vital to self-government. This is especially problematic when the speech is made by attorneys, who are often the citizens best situated to criticize government abuse.

Want to take a guess at what test the court applied?  New York Times v. Sullivan? Standing Commission v. Yagman? Something else?

As a preliminary matter, it is not necessary for us to resolve whether the highly protective defamation standard applies in this case, because we ultimately determine below that Berry's speech may not be sanctioned even under a less demanding standard. Both parties recognize that Berry has a right to engage in speech involving “governmental affairs” and “the manner in which government is operated or should be operated, and all such matters relating to political processes” under Mills v. State of Alabama, 384 U.S. 214, 218–19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). Berry contends that he can be punished only if his statements are knowingly false or made with reckless disregard of their falsity, applying the defamation standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). While “[j]udges should hesitate to insulate themselves from the slings and arrows that they insist other public officials face,” Matter of Palmisano, 70 F.3d 483, 487 (7th Cir.1995), “there are significant differences between the interests served by defamation law and those served by rules of professional ethics,” Standing Comm. v. Yagman, 55 F.3d 1430, 1437 (9th Cir.1995). Defamation is essentially a private action that seeks to compensate individuals who are injured by false or reckless speech. Id. The ethical rules, by contrast, do not compensate judges or “shield [them] from unpleasant or offensive criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice.” Id. Because of this distinction, ethics rules can permissibly reach speech that defamation suits cannot. The New York Times standard is therefore arguably too restrictive to apply in all its strength to court-enforced ethical obligations. The Ninth Circuit has compellingly articulated a more appropriate test in United States District Court v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993): a court should “determine what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” “The inquiry focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made.” Yagman, 55 F.3d at 1437. Because Berry's statements cannot be sanctioned even under this test, it is not necessary to resolve definitively whether the stricter New York Times test applies.

Full text here.

Comments

[Rick Underwood]

The Model Rule comments make it clear that it only punishes falsehood, and the poorly written blackletter seems to incorporate the New York Times rule. The Restatement (a better formulation) also makes it clear that the New York Times rule is the standard. The 6th Circuit got the right result because there was no falsehood - just opinion. It do not understand why the opinion screws around with some kind of judge-made intermediate standard when the Kentucky Bar rule sets the bar. Yagman seems to me to be beside the point. Did it involve the Model Rule? I can't remember. If the court invents a lower standard (mental element) for punishment than is contained in the rule (notice) doesn't that offend due process.

The trial judge's opinion suggests that the Bar can punish "reckless truth" (!?). Is that like "reckless love?" It also said that only a little bit of protected speech was affected so no big deal. Continuing with the bad analogy, is that like "a little bit pregnant"? It's all like a bad country song.

[Rick Underwood]

OK - I'm no ConLaw expert. But I did go to the Bob Dylan and the Law Conference.

[Rick Underwood]

As a follow up, I was so pissed about this case that I wrote a letter to the editor criticizing the trial court opinion. Although I was the KBA Ethics Chair for 14 years, and have taught the subject for 32 years, nobody paid any attention . Now the membership has to pay (I am informed) $190,000 to the ACLU, and who knows how much to the KBA's outside counsel. $190,000 would just about pay a year's salary for two new Assistant Professors at my school - new Assistant Professors with excellent credentials and practice experience. There is something wrong here, right?

I may not be a "real lawyer" and may be a pointy-headed intellectual like Bruce Green, but come on guys! This is totally irresponsible behavior on the part of a bar association.

[Rick Underwood]

Also, before you get your diapers in a twist, Bruce used the term "pointy headed-intellectuals" jokingly when he was commenting on snide comments made by some (you know who you are) about those of us who attended the Bob Dylan and the Law Conference. You are all just jealous.

[John Steele]

The Fordham conference on Bob Dylan is online, I believe, at Westlaw and Lexis.

Btw, the lawyer's speech in this case involved the metaphor of a stacked deck:

Berry was unhappy with how the session was conducted—the Commission closed the session to the public but allowed Williams to remain—and Berry drafted a letter expressing his displeasure. The letter stated that the Commission’s procedures could cause the public to think that the “deck was stacked.”

"The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, . . . ."

[Paul J. Burgoyne]

I enjoy this post and the comments, but, to quote Cole Porter:
“At words poetic, I'm so pathetic
That I always have found it best,
Instead of getting 'em off my chest,
To let 'em rest unexpressed…”

[Rick Underwood]

If you keep it inside, you will explode. That's my story, an' I'm stick'n to it.

Anyway, at my age I'm goin' nowhere soon.

I have no idea why I am writing this way. Probably just mess'n with you.

Didn't we kick your ancestors ass at Saratoga?

Columbia records, here I come! (?)

[Rick Underwood]

There is a good post on the outcome of the Berry case at the LawReader Blog, written by retired Ky Court of Appeals Judge Stan Billingsley. The estimate of total cost to the KBA may run as high as 400K according to him. Seems like a lot of membership dues to waste trying to punish "reckless truth."