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Indiana Supreme Court Rejects Claim That Lawyer Violated Rule 8.2(a) In A Motion For Change of Judge

The case is captioned In the Matter of Thomas M. Dixon, 71S00-1104-D1-196.

The Indiana Supreme Court dismissed all charges against Thomas Dixon, an attorney who represented 85 pro-life protestors in proceedings before Judge Jenny Pitts Manier.  Judge Manier is married “to Professor Edward Manier, who was a tenured professor at Notre Dame and taught there for 48 years.”

Dixon filed a motion for a change of judge. He sought Judge Manier’s recusal “based on her husband’s alleged advocacy in favor of pro-choice causes and academic freedom for Notre Dame, along with Judge Manier’s failure to disclose this alleged advocacy. [Dixon] argued that his clients were arrested because they acted on beliefs about abortion and academic freedom for Notre Dame that were directly contrary to the beliefs allegedly advocated by Professor Manier during her career….In addition [Dixon] cited Judge Manier’s allegedly erroneous rulings in [a prior case involving abortion-rights protestors.].”

The Rule at issue is Rule 8.2(a) which provides:

RULE 8.2: JUDICIAL AND LEGAL OFFICIALS

(a) 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.

In this case the charge was that Dixon made statements “with reckless disregard as to [their] truth or falsity.” The Indiana Supreme Court held that it would “expressly adopt an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a).

The court further clarified its discussion. “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 in 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. …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).”

Under that objective standard, the charge was dismissed.  There was no evidence that Dixon had a bad motive or that he suggested that Judge Manier was acting based upon improper motives.  The court held that none of the statements made by Dixon in his motion for change of judge violated Rule 8.2(a) and thus the case was dismissed.

Comment: This case is a victory for free speech in advocacy. The lawyer acted appropriately in seeking to change the judge. The Indiana Supreme Court got this one right.

Edward X. Clinton, Jr.