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.