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Invective on Appeal: Impugning the Integrity of Judges

Appellate Practice

In general, the ethical duties of appellate lawyers are no different than those of trial lawyers. Yet, the specialized nature of appellate practice and procedure produces a relatively small number of recurring issues implicating ethical matters.1 Prominent among these is criticism of judges in briefs, motions, and public statements, contrary to the prohibition against impugning the qualifications and integrity of judges. Following a loss at trial, the temptation to disparage the court is at times unresisted. Indeed, Judge John Godbold of the U.S. Court of Appeals for the 11th Circuit was moved to warn against appealing out of “the nerve ends of disappointment and defiance.”2

ABA Model Rule of Professional Conduct 8.2(a) prohibits a lawyer from making “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.” Comment [1] states that “false statements by a lawyer can unfairly undermine public confidence in the administration of justice.”3 This article surveys cases in which attorneys have been warned, charged, or disciplined under Rule 8.2(a) or analogous state or federal rules, as a result of comments criticizing trial or appellate judges both in and out of court.

Fact or Opinion?
At the outset, it should be noted that the false statement language of the rule implies the existence of an objective set of standards for determining the truth or falsity of the statement at issue. Many disparaging remarks are not amenable to empirical (dis)proof. Suppose, for example, that appellate counsel were to criticize a bench as arrogant or ignorant.4 Is that charge a triable fact or an expression of opinion? There is no bright-line distinction between them. In most cases, moreover, the classification does not matter; the insult is what counts. Consequently, a lawyer may well be brought under disciplinary scrutiny for harsh or critical statements of opinion about a court’s motives, qualifications, or alleged biases in deciding an appeal.

This blurring of the fact/opinion boundary was manifest in a case where a prosecutor publicly criticized a criminal law appellate decision in a televised interview. The attorney named the author of the opinion and asserted that “he made up his mind before he wrote the decision, and just reached the conclusion that he wanted to reach.”5 The Missouri Bar filed a disbarment action against him. On review in the state supreme court, he argued that his statements “reflect subjective opinion and not verifiable factual assertions” and could not therefore be “false.”6

The majority opinion rejected this “artificial dichotomy” and concluded that the statement, in its full context, “at the very least implies that the judge’s conduct exhibited dishonesty and lack of integrity and is sufficiently factual to be susceptible of being proved true or false.”7 A dissenting justice took the opposite view: “There is no ‘assertion of objective fact regarding [the judge’s] judicial integrity.’ There is no implication ‘that the judge’s conduct exhibited dishonesty and lack of integrity.’”8 In addition to parsing the lawyer’s statement as referring to the judge’s reasons rather than his character, the dissenter argued that the criticism simply asserted that the panel opinion was “result oriented. This assertion is frequently made about judicial opinions, and cannot be found to be a statement of fact.”9

The question whether a statement is not opinion but fact, and hence either true or false, is distinct from the question of the lawyer’s state of mind in saying it. The language of Rule 8.2(a) clearly requires proof of the lawyer’s subjective state of mind, i.e., whether he knew the statement to be false or recklessly disregarded whether it was false. In this regard, Rule 8.2(a) bears an analogy to the law of defamation of public officials. That law requires the plaintiff to prove that the defendant’s defamatory statement was uttered or published with “actual malice,” a term of art for knowing a statement to be false or making it with reckless disregard for its truth.10

The Reasonable Attorney Standard
Nevertheless, the majority rule is that the “actual malice” standard of public official defamation does not apply to attorney discipline. In The Florida Bar v. Ray, 797 So. 2d 556, 558 (Fla. 2001), the attorney contended that he had “a subjectively reasonable basis in fact” for making accusations against an administrative law judge hearing immigration cases. But the Florida Supreme Court concluded that “a purely subjective New York Times standard is inappropriate in attorney disciplinary actions.”11 Instead, “the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements.”12 The rationale for rejecting the defamation standard is that lawyers “are viewed by the public as having unique insights into the judicial system” and therefore the state has “a compelling interest in preserving public confidence in the judiciary.”13 Applying the objective standard, the court upheld the imposition of a public reprimand.

Standing Comm. on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995),is important for its constitutional analysis of Rule 8.2(a) and applies to both trial and appellate lawyers. The opinion, written by Judge Alex Kozinski of the Ninth Circuit Court of Appeals, begins by describing a local federal rule counterpart of Rule 8.2(a) as “overbroad”14 and in need of a narrowing interpretation to avoid First Amendment invalidity. The opinion agrees that “the purely subjective standard applicable in defamation cases is not suited to attorney disciplinary proceedings” and that such cases are to be governed by an objective standard, the “reasonable attorney.”15 But unlike the Florida Supreme Court and most other courts, Yagman insisted on adhering to the distinction between false statements of fact and expressions of opinion. Thus, “statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they imply a false assertion of fact.”16 Further, “the disciplinary body bears the burden of proving falsity.”17

The court’s closely reasoned opinion concluded that Yagman should not be disciplined for his out-of-court accusation (made to a reporter) that a district judge was anti-Semitic; the court regarded that charge as containing both an assertion of fact, not proven to be false, and an expression of opinion. The court also protected Yagman’s survey-response letter to a judicial almanac publisher calling the judge “the worst judge in the central district” and containing a “string of colorful adjectives,” including “ignorant,” “ill-tempered,” “buffoon,” “substandard human,” and “right-wing fanatic.”18 As “statements of rhetorical hyperbole, incapable of being proved true or false,”19 they were protected by the First Amendment.

The court then considered an alternative theory of punishment based on interference with the administration of justice, noting that First Amendment protections might have to give way in the face of “a clear and present danger” to the administration of justice, a standard that the court characterized as “demanding.”20 But the court found a lack of immediacy or “imminent. . . threat” to the administration of justice from Yagman’s remarks.21 The court emphasized the fact that Yagman was not commenting on a pending case, whereas the Supreme Court’s decision in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), was concerned about the fair-trial impact of lawyers’ comments to the press. On that basis, the Yagman court interpreted Gentile to impose the clear and present danger test where no case was pending, but a lesser “substantial likelihood” test where a case was pending. As applied to a completed appeal, it is not clear which test should apply, although the Florida Supreme Court applied the latter in 5-H Corp. v. Padovano 708 So. 2d 244, 248 (Fla. 1997).

Other courts are less clinically analytical and less tolerant of tirades. Lawyers who bad-mouth judges, whether to reporters or in their court filings, are at risk of bar discipline. “Lawyers are officers of the courts and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise would be constitutionally protected speech.”22 A lawyer is not only an advocate for his client but also an officer of the court and must therefore refrain from hostile utterances that might well pass constitutional muster in other circumstances. Accordingly, counsel must refrain from “undignified or discourteous conduct which is degrading to a tribunal.”23 Derogatory remarks by counsel are therefore likely to get a lawyer in trouble, even though the Model Rules deleted the Model Code24 requirement of EC 1-5 that the lawyer be “temperate and dignified.” Cases from many states, including Florida, have put lawyers on notice.

Things Not to Write or Say
Motions for rehearing are one especially troublesome area of appellate practice; apparently, the sting of an adverse panel opinion may drive some lawyers to use harsh language. In an instance in which counsel for the appellant characterized the panel’s decision as a “bad lawyer joke” in his motion for rehearing, the court struck an entire section of the motion as offensive; it also admonished counsel that “such impertinent argument is both a disservice to his client and demeaning to the judiciary and the legal profession.”25

In a similar case in Florida, the losing lawyer was more aggressive in his motion for rehearing, calling opposing counsel’s arguments “ridiculous,” “a joke” and “total b [—] s[—].”26 He also wondered whether it was possible for a Miami lawyer to get “a fair shake up North” and raised innuendos about possible court bias against one of his clients and in favor of opposing counsel.27 The appellate court referred a copy of the motion to The Florida Bar, which instituted disciplinary proceedings against the attorney, although the Bar ultimately dismissed its complaint for want of probable cause. Still, the Florida Supreme Court thought that the district court had acted properly because the attorney’s conduct “showed at the very least a ‘substantial likelihood’ that he had compromised the integrity of the legal profession, engaged in professional misconduct, or violated one or more of the Rules Regulating The Florida Bar.” Like the Ninth Circuit Court of Appeals in Yagman, the Florida Supreme Court saw Rule 4-3.5(c), proscribing “conduct intended to disrupt a tribunal,” as bearing on the analysis.28

In an Indiana appeal, the intemperate criticism came in a motion to transfer the case to the state supreme court. The appellant argued to the panel that its opinion “misapplies controlling case law” and “does not even bother to discuss relevant cases that are directly on point.”29 That language alone would not have gotten the attorney into trouble because, as the court noted, there was some factual basis for it. Rather, as the Supreme Court of Indiana concluded, the “offending language” consisted of footnote 2 to his Supreme Court brief stating that the panel opinion was “so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee Sports, Inc., and then said whatever was necessary to reach that conclusion.30 The court drew a line between “sound advocacy and defamation. Lawyers are completely free to criticize the decisions of judges. As licensed professionals, they are not free to make recklessly false claims about a judge’s integrity.”31 The court construed footnote 2 of the brief, which had been written by out-of-state co-counsel, as falling into the latter category because it “ascribes bias and favoritism to the judges authoring and concurring in the majority opinion” and “it implies that these judges manufactured a false rationale in an attempt to justify their preconceived desired outcome. These aspersions transgress the wide latitude given appellate argument, and clearly impugn the integrity of a judge in violation of Professional Conduct Rule 8.2(a).”32

The court held that the First Amendment did not protect these “offending remarks,” and it imposed a 30-day suspension from the practice of law, mitigated on petition for rehearing to a public reprimand. Two justices thought that counsel’s conduct was protected by the First Amendment and therefore not subject to any sanction at all.33 One of them observed that the attorney’s remarks were similar to criticisms that Justice Scalia and other jurists have leveled against one another.34

The content of appellate briefs may also give offense. For example, where appellate counsel had argued in his brief that the trial court had decided the case “on the basis of conjecture,” the appellate court termed the language an unfounded accusation of judicial misconduct and admonished counsel not to do so in the future.35 Similarly, a government lawyer drew a rebuke for scribbling the word “wrong” beside several findings of the trial court’s order and including that order in an appendix. The court did not impose sanctions but deemed the conduct “indecorous and unprofessional.”36 A Florida appellate court, however, referred appellate counsel to the state bar because he made “unsubstantiated charges of collusion” against the trial judge and argued in his appellate brief that the judge’s ruling was “cockeyed and absurd” and demonstrated a “most startling absence of legal knowledge and irrational decision.”37 The court quoted from the oath of admission to the Bar requiring attorneys to “maintain the respect due to courts of justice and judicial officers” and to “abstain from all offensive personality.”38

Suspension was imposed in a case where the plaintiff’s attorney, on losing his verdict in the appellate court, filed a federal civil rights suit accusing the state appellate judges of having acted “illegally” in reversing the trial court’s judgment. The federal district court dismissed the lawsuit, and the attorney appealed to the Ninth Circuit. In his reply brief, he argued that the state appellate judges, acting under color of law, had become “parties to the theft” of his clients’ property. “Money is King, and some judges feel that they are there to see that it does not lose.”39 The state bar began disciplinary proceedings against the offending lawyer. The attorney, who wrote a letter of apology to the panel, received a brief suspension and a year’s probation. Notably, two justices dissented, one seeing only “forceful advocacy” expressed “inelegantly” while the other thought discipline to be “rather dangerous.”40

In a comparable case where the attorney was arguably more offensive, although less persistent, her insults caused her to be referred to the state bar for investigation.41 In that case, the attorney had also won a verdict for money damages and lost it on appeal. She attacked the appellate court’s reasoning as “specious” and accused the court of making “some rather outlandish representations which are not supported by the record, the transcript, or by any other matter before the court.”42 Her petition for rehearing further attacked the court for “writing new law to assist the insurance companies of a sleazy nursing home that happened to be represented by an insurance defense firm” and wrote that “it must be embarrassing to take such a pro-rapist, pro-big insurance defense firm position with so appallingly nonexistent legal or logical basis.”43

The attorney in the above case was apparently provoked by the loss of her jury verdict for both compensatory and punitive damages. When the state supreme court denied the motion for rehearing, it made a point of reinforcing the lower court’s assessment of the conduct of the appellants’ attorney.44 Recognizing the “inherent power [of judges] to discipline an attorney’s behavior,” the court noted that “[a] distinction must be drawn between respectful advocacy and judicial denigration.”45 In addition, the court cited the disciplinary rules governing the conduct of a lawyer: “[A] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”46

The court concluded by ordering the attorneys to show cause why they should not be referred to the state bar for disciplinary investigation and subjected to other sanctions.

Out-of-court statements have also been sanctioned. An appellate court disbarred an attorney because he wrote an insulting letter to the lower court judge while the case was on appeal. The attorney had sent a letter to a magistrate of the district court accusing him of incompetence and religious and racial bias in a case that was on appeal.47 The court of appeals noted that sending the letter while the case was on appeal constituted an attempt to prejudice the administration of justice in the course of the litigation. In addition, the accusations were repeated on appeal even after the appellate court affirmed the decision of the district court. The attorney’s lack of remorse appeared to be “a factor. . . in deciding the severity of the sanction imposed and in choosing between disbarment or some lesser form of discipline.”48

Conclusion
Appellate advocacy should never be ad hominem. For one thing, it is ineffective; it violates the principles of persuasion posited by classical rhetoricians: logos, pathos, and ethos. Wild accusations of corruption, ethnic prejudice, or home-town favoritism violate all three: They are not reasonable, not sympathetic and not indicative of the good character or credibility of the accuser.49 Thus, whatever momentary psychological gratification may be realized by the flailing attorney or client is ultimately self-destructive: “Trial judges as well as appellate judges can make mistakes and misstate the law without being collusive or corrupt. Attorneys should limit their pleadings and briefs to addressing the legal errors. It is unprofessional to make or imply such charges, no matter how clearly wrong the ruling.”50

Appellate lawyers who resort to invective do their clients no good and put themselves at risk of discipline or other sanctions. Their reputations will also suffer among the very judges they need for relief in future cases. Incivility in appellate practice is not only bad advocacy, it is also bad for career development. Conversely, effective advocacy arises from concentrating fire on the record and arguing professionally and civilly according to the principles of persuasion.

1 See generally J. Michael Medina, Ethical Concerns in Civil Appellate Advocacy, 43 Sw. L.J. 677 (1989).
2 Judge John Godbold, Twenty Pages and Twenty Minutes Revisited, 2 The Record: Journal of the Fla. Bar App. Prac. and Advoc. Sec. 801 (Mar. 1994).
3 Both the rule and the comment are unchanged in the current version of the Model Rules, adopted in 2002 and superseding the 1983 Model Rules based on the work of the Kutak Commission. See www. abanet.org. The Florida counterpart, Rule 4-8.2(a), is substantially similar but adds jurors and members of the venire to the list of those whose integrity may not be impugned by counsel.
4 One lawyer accused a court of both. See Matter of Reed, 716 N.E.2d 426, 427 (Ind. 1999) (public reprimand for stating in interview published in local press that trial judge’s “arrogance is exceeded only by her ignorance”).
5 In re Westfall, 808 S.W.2d 829, 832 (Mo. 1991) (en banc).
6 Id.
7 Id. at 833.
8 Id. at 841 (Blackmar, C.J., dissenting).
9 Id. at 842. The dissent went further in allowing a wide latitude for attorneys to call judges names such as “wimps,” “hanging judges,” “tyrants,” and “tools of the insurance companies.” Id. (“Characterizations such as these are not the subject of discipline.”).
10 See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
11 Ray, 797 So. 2d 556, 558 (Fla. 2001).
12 Id.at 559.
13 Id.
14 Yagman, 55 F.3d at 1437.
15 Id. at 1437–48.
16 Id. at 1438 (internal quotations omitted).
17 Id.
18 Id. at 1438 n.4, 1440.
19 Id. at 1440.
20 Id. at 1442. This result is similar in spirit to the ruling that “vulgar and insulting words or other incivility, uttered, written, or committed outside the precincts of a court are not subject to professional discipline.” In re Justices of the App. Div. V. Erdmann, 301 N.E. 2d 426, 427 (N.Y. 1973).
21 Id.
22 Gentile, 501 U.S. at 1081 (O’Connor, J., concurring). Accord, In re Snyder, 474 U.S. 634 (1985)); In re Sawyer, 360 U.S. 622, 646–47 (1959) (Stewart, J., concurring).
23 Greene v. Virginia State Bar Ass’n, 411 F. Supp. 512, 515 (E.D. Va. 1976) (citing Virginia Code of Prof’l Responsibility DR 7-106 (C)(6)).
24 In 1983, the Model Rules of Professional Conduct replaced the Model Code of Professional Responsibility (1969).
25 B & L Appliances and Servs., Inc. v. McFerran, 712 N.E. 2d 1033, 1035, 1038 (Ind. Ct. App.1999).
26 5-H Corp. v. Padovano, 708 So. 2d 244, 245 (Fla. 1997).
27 Id. at n.3.
28 Id. at 246. The court also cited the Preamble to the Rules of Professional Conduct: “[A] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.” Id. at 246–47. Identical language appears in the ABA Preamble. See www.abanet.org.
29 In re Wilkins, 777 N.E. 2d 714, 715 (Ind. 2002).
30 In re Wilkins, 782 N.E. 2d 985, 986 (Ind. 2003).
31 Id.
32 Id.
33 Id. At 987 (Boehm, J., concurring in result; Sullivan, J., dissenting).
34 Wilkins, 777 N.E. 2d at 720 (citing examples of harsh language by Justice Scalia).
35 Vacation Vill., Inc. V. Hitachi Am., Ltd., 901 P. 2d 706, 707 (Nev. 1995) (warning that such conduct “may be in violation of the rules of ethical behavior”).
36 Allen v. Seidman, 881 F. 2d 375, 381 (7th Cir. 1989 (publicly noting misconduct “in the hope it will not recur”).
37 Shortes v. Hill, 860 So. 2d 1, 2-3 (Fla. 5th D.C.A. 2003).
38 Id. at 3.
39 Ramirez v. State Bar, 619 P.2d 399, 400, 401 & n.4 (1980).
40 Id. at 410, 414 (J., Newman and Bird, C. J., dissenting separately).
41 In re Maloney, 949 S.W. 2d 385, 388 (Tex. App. 1997) (en banc) (per curiam).
42 Id. at 386.
43 Id.
44 Merrill Dow Pharms., Inc. v. Havner, 953 S.W. 2d 706, 732 (Tex. 1997).
45 Id. (quoting In re Maloney 949 S.W. 2d 385, 388 (Tex. App. 1997)).
46 Id. at 733 (quoting Tex. Disciplinary R. Prof’l Conduct Preamble ¶4).
47 In re Evans, 801 F.2d 703, 706 (4th Cir. 1986).
48 Id. at 707 n.1.
49 Of course, to the extent genuine indicia of judicial bias or conflict of interest are supportable, counsel may seek recusal or assignment to a different judge on remand, and in the event of a
breach of judicial ethics, a complaint may be filed with an established judicial disciplinary body.
50 Shortes, 860 So. 2d at 4 (Sharp, J., concurring specially).

Steven Wisotsky has been a professor of law at Nova Southeastern University Law Center since 1975 and serves as special counsel to Zuckerman Spaeder LLP in Miami for appellate matters. He graduated with honors from the University of Pennsylvania and is a cum laude graduate of the University of Miami Law School, where he served as an editor of the Law Review. Mr. Wisotsky earned an LL.M. from the Yale Law School in 1971. He has presented cases in the U.S. Supreme Court, the Fourth, Fifth and Eleventh circuit courts of appeals, and the Florida Supreme Court.
This column is submitted on behalf of the Appellate Practice Section, John G. Crabtree, chair, and Jacqueline E. Shapiro, editor.

Appellate Practice