Essay

By Mike Ozekhom, SAN

Introduction

LAST week, we dealt with foreign positions on critiquing Judges (with the USA as a case study) in the previous episode, today’s focus is on instances where lawyers were sanctioned for wrongly critiquing Judges and others where they escaped or were spared from such misbehavior.

CASES IN WHICH LAWYERS ESCAPED SANCTION

Frankfurt Kurnit Klein & Selz PC, a boutique law firm knowledgeable in Media, Entertainment, Advertising and Intellectual Property law, has, in a brilliant piece titled, “Professional Responsibility Law- Lawyers Beware: Criticising Judges Can be Hazardous to your Professional Health” (Professional responsibility.ffks.com), given several instances when lawyers escaped the noose of Judges after criticising them, while others were caught in the web. They warned that: “For lawyers, the message is inescapable.  Publicly opining on the character, integrity, competence or motivation of a Judge is perilous, and all the more so when a lawyer accuses a Judge of bias, corruption or playing politics.  Although most states hinge discipline on a finding that a lawyer’s comments about a Judge are knowingly false or made with reckless disregard for the truth, many recent decisions seem to focus more on lack of decorum than knowing falsity, and many appear to place the burden on lawyers to prove the truth of their statements. Regrettably, because the line is blurred between when a lawyer can safely criticize a Judge and when that criticism exposes the speaker to professional discipline, lawyers may choose to remain silent even in the face of actual judicial malfeasance or conflict of interest.” They gave instances in some scenarios as follows:

BENJAMIN PAVONE

A California lawyer, Benjamin Pavone, filed an appeal in a client’s case in which he described a judicial hearing officer as “disgraceful”. He referenced her ruling as a “succubustic adoption of the defense position”; and claimed the Judge was determined to evade appellate review.  In 2019, the California Bar charged Pavone with “impugning the honesty, motivation, integrity, or competence” of the judge by accusing her of intentionally refusing to follow the law.  He was also accused of “gender bias” because the dictionary defines “succubus” to mean “a demon assuming female form to have sexual intercourse with men in their sleep” and a “strumpet.” These allegations allegedly violated California Bus & Prof Code § 6068(b), which states that it is an Attorney’s duty to “maintain the respect due to the courts of justice and judicial officers.”

Challenging the complaint, Pavone claimed he “used a colourful (or caustic, depending on one’s viewpoint) metaphor to criticize a court ruling.” He asserted his First Amendment rights of advocacy and freedom of thought and speech.  He described the “succubus charge” as “textbook hyperbole” and “lusty and imaginative criticism” protected by the First Amendment that could not conceivably have been viewed as a statement of fact.  Pavone also argued that Section 6068(b) is unconstitutional as applied to rhetorical criticism of Judges.  On 19th of November, 2021, the California court declined to use the Bar proceeding to discipline Pavone.  See Pavone v. Cardona, 3:2021 cv 01743 (S.D. Cal. Nov. 19, 2021).

FRESHUB V. AMAZON

On December 17, 2021, a federal Judge in Texas sanctioned three lawyers from the Kramer Levin law firm who represented an Israeli company, Freshub, in an action against Amazon.  After losing at trial, the lawyers filed a motion for judgment N.O.V., asserting that Amazon “played on the stereotype of greedy Jewish executives of an Israeli company allegedly taking advantage of U.S. companies, to trigger religious biases and deepen the ‘us vs. them’ nationalistic divide in the minds of the Jurors.”  They further claimed that Amazon used a “Jewish stereotype dog whistle” to win the case.

Although the attacks were directed against Amazon, the Judge took them as implicit criticism that he had willfully ignored prejudicial statements.  “The court did not turn a blind eye to any racist or anti-Semitic conduct because indeed there was none,” the Judge wrote.  The Judge added that, in the absence of concrete evidence that Amazon intentionally played up its adversary’s Israeli ties or any witness’ race, heritage or religion, “Freshub’s inflammatory allegations are nothing but baseless attacks on the integrity of this Court and the reputation of Defendants’ counsel.”   The Judge ordered the lawyers to complete 30 hours of ethics-related continuing legal education.  Freshub, Inc.  v. Amazon, Inc. No. 6:21-CV-00511-ADA (W.D. Texas, December 17, 2021).

The high-water mark for tolerating lawyer’s criticism of Judges arose probably from the Standing Committee v. Yagman, 55 F.3d 1439 (9th Cir. 1995).  Dissatisfied with his appearance before a Federal Judge, Washington Attorney Stephen Yagman, assailed the Judge as “ignorant,” “a buffoon,” and a “right-wing fanatic.” He added that the Judge “has a penchant for sanctioning Jewish lawyers … I find this to be evidence of anti-semitism.”  Yagman was brought up on disciplinary charges for conduct that “degrades or impugns the integrity of the Court” and interferes with the administration of justice.  Applying the “actual malice” standard from Sullivan, the lower court found that Yagman had made statements with either knowledge of their falsity or reckless disregard for their truth.

The Ninth Circuit reversed the lower court. It stressed that statements impugning the integrity of a Judge “may not be punished unless they are capable of being proved true or false.”  It added that statements of “rhetorical hyperbole” are not sanctionable, nor are statements that use language in a “loose, figurative sense.” The references to ignorance, right-wing fanaticism and similar accusations “all speak to competence and temperament rather than corruption” (or criminal acts such as bribery). Together, they conveyed “nothing more substantive than Yagman’s contempt” for the Judge.  As to the allegation of anti-Semitism, the court found the remark protected opinion under the First Amendment given that Yagman disclosed the factual basis for his views. 

The court also rejected the claim that Yagman’s allegations obstructed or prejudiced the administration of justice. It found that Yagman’s statement did not pose a “clear and present danger” or a “substantial likelihood” of disruption. While Yagman’s criticism of the Judge was “harsh and intemperate” and apparently intended to precipitate the Judge’s recusal, the court noted that “a party cannot force a Judge to recuse himself by engaging in personal attacks” – especially given that federal recusal statutes generally require a showing that the Judge “is (or appears to be) biased or prejudiced against a party, not counsel.”  The mere possibility that Judges would remove themselves based on harsh criticism from Attorneys did not rise to the high level required for obstruction of justice.

Yagman applied the Sullivan test based not on the lawyer’s subjective knowledge and belief, but based instead on the viewpoint of a reasonable, objective lawyer. Kurnit Klein & Selz recalls that there are, in the US, many published cases from around the country where courts have not sanctioned lawyers who disparaged Judges. Most of those cases, they note, date back many years. They gave some examples thus:

In re Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 441, 301 N.E.2d 426, 427 (1973), an Attorney who criticized trial Judges in a magazine article for not following the law; and appellate Judges for being “the whores who became madams”), had his sanction reversed.

In State Bar v. Semaan, 508 S.W.2d 429, 431-32 (Tex. Civ. App. 1974), it was held that a remark that a Judge was “a midget among giants” was not sanctionable because it could not be proved true or false); 

In Oklahoma Bar Ass’n v. Porter, 766 P.2d 958 (Sup. Ct. Oklahoma 1988)(an Attorney’s statement that a Judge “showed all the signs of being a racist” and never gave him “an impartial trial”, were held not sanctionable based on the Attorney’s subjective belief;  while remarks were disrespectful and “extremely bad form,” they were protected).

In re Kuby, (D. Conn. Aug. 18, 1993) it was held that remarks that judicial decision reflected “overt racism” and that defendants had no more chance of a fair hearing before the Judge as before the Ku Klux Klan, though “intemperate, incivil and immature,” did not constitute a basis for disciplining the Attorney.

In re Green, 11 P.3d 1078, 1084 n.4 (Colo. 2000) (en banc) a statement that the trial Judge was a “racist and bigot” with a “bent of mind”, were held to be mere opinions not subject to disciplinary action under the First Amendment.

CASES IN WHICH LAWYERS HAVE BEEN SANCTIONED

However, in Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165, 166 (Ky. 1980); 449 U.S. 1101 (1981) an Attorney was reprimanded for calling a Judge “highly unethical and grossly unfair” at a press conference. Similarly, in Matter of Kuntsler, 194 A.D.3d 233 (N.Y. 1st Dep’t 1993), an Attorney in the highly-charged Central Park Jogger case was publicly censured after being held in contempt for calling, a Judge partisan and a “disgrace to the Bench;”. The contempt was upheld because his words disrupted the courtroom and undermined the “dignity and authority of the court”.

In Matter of Atanga, 636 N.E.2d 1253, 1258 (Ind.1994) an Attorney who referred to a Judge as “ignorant, insecure, and a racist,” was held to have violated Rule 8.2(a), because “there was no basis upon which to conclude that those comments were anything else but reckless”.

In Matter of Reed, 716 N.E.2d 426, 427 (Ind. 1999), an Attorney was publicly reprimanded for stating in interview in local press that a trial Judge’s “arrogance is exceeded only by her ignorance”.

Indeed, in Matter of Wisehart, 281 A.D.2d 23 (N.Y. 1st Dep‘t 2001), an Attorney was suspended for seeking Judge’s recusal based on her “draconian and bizarre decision and demeanor”; and alleged political cronyism. The court found that Attorneys who make “false, scandalous or other improper attacks” against Judges are subject to disciplinary measures.

Debra Cassens Weiss, “Lawyer Makes Amends for ‘French Fries’ Remark,” ABA Journal (June 21, 2007), is a case in which a lawyer was ordered to take on-line ethics classes after stating to a Judge, “I suggest with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place”.

Debra Cassens Weiss “Lawyer Agrees to Reprimand for Blog Tirade About Judge,” (ABA Journal (June 11, 2008), is a case in which a Florida Attorney, Sean Conway was reprimanded for describing a Judge’s “ugly, condescending attitude,” saying further that she was “clearly unfit for her position”; and was an “evil, unfair witch.” The court described the comments as “arrogant, discourteous and impatient speech”. (To be continued).

THOUGHT FOR WEEK

“Criticism, like rain, should be gentle enough to nourish a man’s growth without destroying his roots”. (Frank A. Clark).

A.

Tags: Mike Ozekhom