This is a decision of the ARDC Review Board recommending a three-year suspension for a lawyer who attacked the integrity of four judges. The Review Board concluded that the statements were not protected by the First Amendment because the statements were obviously false. The lawyer accused the judges of corruption when they did not agree with him.
Rule 8.2(a) is relevant here. It provides in relevant part: ”
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.”
Lawyers can criticize the reasoning of judges. What lawyers cannot do is to criticize the integrity of judges and the judicial system without a strong factual basis for doing so. Such criticisms are viewed as an attack on the system in that they undermine confidence in the judicial system. In every case that is resolved by trial or hearing, there is a winner and a loser. It is harmful for lawyers to imply that the process is unfair or biased.
The panel explains:
“Respondent submits that his statements about the judges are protected by the First Amendment. Accordingly, Respondent contends that Rule 8.2(a) is unconstitutional as applied to his conduct. Again, Respondent’s arguments are without merit.
The United States Supreme Court has never ruled Rule 8.2 unconstitutional. In In re Sawyer, 360 U.S. 622 (1959) the United States Supreme Court upheld a lawyer’s right to criticize the state of the law. However, the Court distinguished statements criticizing the law from statements attacking the integrity or competence of judges. 360 U.S. at 631. The Court did not find the Rule prohibiting lawyers from making false statements regarding the integrity of judges to be unconstitutional. Indeed, the Court noted that the lawyer in question “did not say that [the judge] was corrupt or venal or stupid or incompetent.” 360 U.S. at 635. See also, In re Disbarment of Moore, 529 U.S. 1127 (2000).
Similarly, the Illinois Supreme Court has routinely rejected attempts by respondents to argue that the First Amendment protects false statements regarding the integrity of a judge. In re Palmisano, 92 CH 109 (Review Bd., Feb. 17, 1994), approved and confirmed, No. M.R. 10116 (May 19, 1994); In re Kozel, 96 CH 50 (Review Bd., Dec. 30, 1999), petitions for leave to file exceptions allowed, No. M.R. 16530 (June 30, 2000); In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), recommendation adopted, No. M.R. 24030 (Sept. 22, 2010); In re Mann, 06 CH 38 (Review Bd., March 29, 2010), recommendation adopted, No. M.R. 23935 (Sept. 20, 2010).
The Illinois Supreme Court has long held that although attorneys are permitted to engage in fair criticism of a judge’s rulings, they are not permitted to engage in unjust criticism, insulting and scurrilous attacks, or other offensive conduct toward members of the judiciary.”
Edward X. Clinton, Jr.