November 4, 2013

Criticism Of Judges Is Protected If Part of Professional Good Faith Advocacy

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The Indiana Supreme Court’s recent decision in In re Dixon, 994 N.E.2d 1129 (Ind. 2013), is an important landmark on how the Indiana bar should behave under Indiana Rule of Professional Conduct 8.2 (a), which governs statements about judicial officers. In this case, the Court both specifies what test should be used to govern judicial criticism and describes a “safer harbor” for such criticism to take place within.

Dixon is an attorney in South Bend who agreed to represent dozens of individuals arrested at pro-life demonstrations at Notre Dame. The case was assigned to Judge Manier in South Bend. Judge Manier is married to a retired Notre Dame professor and had previously presided in an abortion-related case that reached a result that Dixon did not like. Dixon filed a motion for a change of judge, arguing, inter alia, that these facts “call into profound question her ability to navigate the waters of defendants’ legal defenses,” that “she did not feel duty bound to apply [a rule in the prior case] because she was biased in favor of the abortuary,” and that “she was willing to ignore the applicable legal standards in order to move the [prior] case in a direction that negatively affected [the prior client]’s legal rights.” Judge Manion initially denied the motion, but recused herself after filing a grievance against Dixon.

Disciplinary counsel argued that the above-quoted statements violated Rule 8.2(a), which states,

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

The hearing officer agreed, but the Court did not.

First, the Court noted that while the Rule sounded like the standard in New York Times Co. v. Sullivan, “the limits on professional speech by attorneys are not coextensive with the limits of the First Amendment.” Therefore, while defamation is governed by a subjective standard (i.e., that the person making the statement entertained serious doubts as to its truth), violations of Rule 8.2(a) are governed by an objective one:

Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made?

But even under this more rigorous standard, Dixon’s statements did not violate Rule 8.2(a) because Dixon was “engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision” when he made the statements.

But even though Rule 8.2 holds attorneys to a higher disciplinary standard than New York Times does in defamation cases, we also recognize that attorneys need wide latitude in engaging robust and effective advocacy on behalf of their clients—particularly on issues, as here, that require criticism of a judge or a judge’s ruling. And as discussed above, in seeking a change of judge under Criminal Procedure Rule 12(B), a party must allege personal bias or prejudice on the part of the judge—and an attorney must therefore be allowed to assist the client in doing what the rule requires. A motion for a change of judge due to personal bias is inherently sensitive, but it implicates the client’s fundamental due process right to a neutral decision maker. Counsel’s advocacy on such matters must not be chilled by an overly restrictive interpretation of Rule 8.2(a).
We will therefore interpret Rule 8.2(a)’s limits to be the least restrictive when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision. In any other context, counsel’s advocacy would be limited only by Professional Conduct Rule 3.1, which requires only “a basis in law and fact . . . that is not frivolous,” and Indiana Trial Rule 11(a), under which an attorney’s signature “constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support it; and that it is not interposed for delay.” And while criticism of a judge necessarily implicates Rule 8.2(a), even in genuine professional advocacy, any further restrictions of counsel’s advocacy on that sensitive subject should be as minimal as possible.

Under these standards, Dixon’s statements (which were supported by “a lengthy recitation of facts, in documents totaling 40 pages in length”) did not violate Rule 8.2(a).

Lessons:

  1. Violations of Prof. Cond. Rule 8.2(a) will be judged on whether the attorney lacked any objectively reasonable basis for making the statement at issue.
  2. Criticism of a judge made in the course of good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision will be given wide latitude.
  3. Counsel should document the facts upon which their criticism of a judge relies, even if it falls within the “safer harbor” of lesson #2.

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