Judicial Criticism Will Lead to Bar Discipline Absent ‘Objectively Reasonable’ Factual Basis

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By Samson Habte

Oct. 24 — A lawyer may be disciplined for remarks impugning an administrative agency judge unless the challenged statements were “supported by an objectively reasonable factual basis,” the West Virginia Supreme Court of Appeals held Oct. 23.

Addressing the issue for the first time, the court rejected the minority view that the subjective “actual malice” standard applied in defamation cases should be used to assess violations of the ethics rule that prohibits disparaging statements about judges and public legal officers.

Justice Margaret L. Workman said “the interests sought to be protected by the attorney disciplinary system require a less stringent standard than the actual malice standard.”

The court also made clear that the ethics rule applies to remarks about administrative law judges, and that statements an attorney makes in pleadings are subject to the rule's restrictions.

‘Heinous … Racial Bigotry.'

The statements in question were made by attorney Stephen L. Hall, arising out of a proceeding before the West Virginia Human Rights Commission. Hall represented a beauty school, owned by his mother, that was accused of discriminating against blacks.

After Administrative Law Judge Phyllis H. Carter ruled for the complainants, Hall filed an appellate brief that accused Carter of “engaging in the most heinous of racial bigotry,” exhibiting “an outlandish display of tyrannical inclination” and making “seemingly perpetual lies and misrepresentations [about] the actual evidence” in the case.

Three Threshold Questions

A disciplinary hearing panel found that Hall violated Rule 8.2(a) of the West Virginia Rules of Professional Conduct, which forbids a lawyer to make statements knowingly or recklessly that falsely impugn “the qualifications or integrity of a judge, adjudicatory officer or public legal officer.”

The panel also found that Hall violated Rules 8.4(c) and (d), which forbid dishonesty and conduct prejudicial to the administration of justice.

Hall said Rule 8.2(a) was inapplicable because:

• an administrative law judge is not an “adjudicatory officer” as contemplated by Rule 8.2(a);

• the rule does not apply to statements made in a written legal appeal; and

• the First Amendment protects his opinions.

The court rejected all three arguments and affirmed the panel's findings and recommended sanction: a three-month suspension from practice and a requirement that Hall complete three extra hours of ethics classes.

All Kinds of Judges

The court rejected Hall's contention that an ALJ is not an “adjudicatory officer” as that term is used in Rule 8.2(a).

“He presents no legal authority for his assertions, and his perception that only elected or appointed judicial officers are entitled to the protections of Rule 8.2 is unfounded,” Workman said.

“While there is no direct precedent in this state, other jurisdictions have disciplined attorneys for violations of rules concerning statements made by attorneys about administrative law judges,” she added, citing Fla. Bar v. Ray, 797 So. 2d 556, 17 Law. Man. Prof. Conduct 530 (Fla. 2001).

Briefs Included

The court also said Hall “failed to cite to any authority” supporting his contention that Rule 8.2(a) should not apply to statements “made in the context of a written legal appeal.”

Workman pointed to Lawyer Disciplinary Bd. v. Turgeon, 557 S.E.2d 235 (W. Va. 2000), which found a violation of Rule 8.2(a) for statements made in a motion to recuse.

She also cited supporting opinions from other jurisdictions, including Bd. of Prof'l Responsibility v. Davidson, 205 P.3d 1008, 25 Law. Man. Prof. Conduct 221 (Wyo. 2009), and In re Cobb, 838 N.E.2d 1197, 21 Law. Man. Prof. Conduct 656 (Mass. 2005).

Permeable Shield

Finally, the court rejected Hall's free speech defense, noting that “although the First Amendment permits criticism of judges, such protection is not absolute.”

The court acknowledged that it had not previously considered “the appropriate standard for determining whether statements by an attorney regarding a judicial officer enjoy constitutional protection.”

Workman further noted that “at least three states have held that an actual malice standard, such as that utilized in a defamation action regarding a public official, should be employed in the attorney discipline setting.”

But the court said it agreed with the majority view that the First Amendment protects accusations about judges only when they are “supported by an objectively reasonable factual basis.”

“The State's interest in protecting the public, the administration of justice, and the legal profession supports use of the objectively reasonable standard in attorney discipline proceedings involving disparagement of the credibility of the aforementioned judicial officers,” Workman wrote.

Hall could not meet that standard, the court concluded. “Mr. Hall's vitriolic tirade was replete with accusations that had no objectively reasonable basis,” Workman said, “and his comments reflected poorly upon the entire legal profession.”

Hall, of Huntington, W. Va., appeared pro se. The Office of Disciplinary Counsel was represented by Renée N. Frymyer, Charleston, W. Va.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

Full text at http://www.bloomberglaw.com/public/document/Lawyer_Disciplinary_Bd_v_Hall_No_130180_2014_BL_299061_W_Va_Oct_2.

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