by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association 

A recent decision of a divided Supreme Court of Ohio in Cleveland Metro. Bar Ass’n. v. Morton illuminates the line between politically protected speech and the kind of “undignified and discourteous statements degrading a tribunal” that violate the Rules of Professional Conduct.

The trouble started when attorney Morton sought relief for his client on the tax valuation of real property. After the client lost during the administrative process, he appealed to the Ohio Court of Appeals. The issues were mundane—burden shifting in disputes with the Cuyahoga County Board of Revision. The client lost at the appellate court based upon a 2017 decision of the Supreme Court of Ohio called Moskowitz.

The client appealed to the Supreme Court of Ohio. Then things went south. In the petition for discretionary review, Morton accused the Moskowitz court of “intentionally misstating the holding of each of the cases it cited,” accused the Court of Appeals of “fabricating” Ohio precedent and opined that “only politicians committed to maximizing the revenue of their political cronies could reach such a conclusion.” And just in case the Supreme Court of Ohio was not clear about how Morton felt, he named the justices who he believed to be advancing their own political interests rather than honestly interpreting the law. In short, Morton told the Supreme Court of Ohio that it should accept jurisdiction because the court itself and the Court of Appeals were corrupt and pursuing a political agenda. Professor Martin in my law school civil procedure class did not cover this technique for persuading a court to assume discretionary jurisdiction.

The Cleveland Bar Association filed a complaint against Morton. A hearing panel found he had no reasonable factual basis for the allegations he made and that he had engaged in undignified and discourteous conduct in violation of ER 3.5 (impartiality and decorum of the tribunal) and ER 8.2 (prohibiting false statements about judges impugning their qualifications or integrity). Readers should note Ohio’s ER 3.5 expressly prohibits lawyers from acting “discourteously” to the court, and Arizona does not have a similar provision.

The thing about attorney disciplinary proceedings arising out of insults hurled at a state supreme court is that those proceedings end up in front of the same judges that the attorney insulted in the first place. And this case was no exception.

On appeal to the Supreme Court of Ohio, Morton argued that his statements constituted constitutionally protected free speech and that the objective standard Ohio adopted for determining whether a lawyer’s statement about a judicial officer is made with knowing or reckless disregard of the statement’s falsity impermissibly punishes false statements that are negligently made. The court rejected that argument, which was premised on defamation case law from the United States Supreme Court rather than disciplinary proceedings arising from the in-court speech of a lawyer. The difference, the court explained, is that defamation actions seek to remedy an essentially private wrong by compensating individuals for harm caused to their reputation and standing in the community. By contrast, ethical rules that prohibit false statements impugning the integrity of judges are not designed to shield judges from unpleasant or offensive criticism, but rather to preserve public confidence in the fairness and impartiality of the justice system.

A concurring justice noted that practicing law is a privilege that comes with the burden of conditions. Among those conditions is the lawyer’s oath to conduct himself with “dignity
and civility” in compliance with ethical rules. Moreover, “there are professional consequences for failing to fulfill these duties.”

Two justices dissented, including Justice Sharon Kennedy, whom Morton named as being one of the allegedly corrupt justices. Justice Kennedy held that lawyers should only be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false. On the record before the court, there was no evidence that Morton did not honestly believe that the court was corrupt or that his opinions were demonstrably untrue. Moreover, Justice Kennedy wrote, the need to protect the appearance of judicial integrity was not a compelling interest sufficient to abridge a lawyer’s First Amendment right to criticize a judicial officer.

Justice Pat Dewine’s dissent called the majority “thin skinned” and agreed with Justice Kennedy that there was no evidence that what Morton said about the court was untrue. Moreover, the United States Supreme Court has held that judges do not have a special dispensation to punish attorney speech they dislike; instead, judges are no more immune from criticism than anyone else. In fact, according to Justice Dewine, because judges are public officials, criticism of their actions as judges is entitled to robust First Amendment protections.

The crux of the dispute is whether the United States Supreme Court cases of New York Times v. Sullivan (under First Amendment principles requiring actual malice for defamation of public figures) and Garrison v. Louisiana (overturning conviction of a district attorney for stating that he attributed “a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations” of particular judges and mused about possible “racketeer influences on our eight vacation-minded judges”) apply to attorney criticism of judicial officers.

After Garrison, the ABA expressly adopted the Sullivan standard for Model Rule 8.2 for regulating lawyer speech regarding the judiciary, and therefore the rule requires that lawyers are only prohibited from making statements that the lawyer knows to be false or with reckless disregard to the truth of the qualifications or integrity of the judge. But despite the ABA expressly adopting those decisions, the courts (i.e., the ones having their integrity or qualifications impugned) have not followed the ABA’s lead and have instead read Sullivan/Garrison out of ER 8.2 and allowed punishment of speech that impugns the integrity of the judiciary without a showing of knowledge of or reckless disregard to falsity.

The Morton dissent had the better argument. The notion that if a lawyer expresses a negative opinion about a judge, then the legitimacy of the judiciary in the eyes of the public is somehow threatened, is farfetched. After all, the American experiment has survived 245 years with substantial portions of the public believing (with some justification) that the executive and legislative branches are populated exclusively by all manner of scoundrels, thieves and reprobates. Moreover, the Morton court did not appear to consider whether and to what extent the judiciary is brought into disrepute by punishing those who dare to criticize them. Punishing criticism from lawyers, who are in the best position to assess the integrity and qualifications of a judge, may suggest to the public that the lawyers are being punished not because they are wrong but because they are right.

Justice Hugo Black put it eloquently when he wrote: “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

This is not to say that Morton is a martyr to be honored. He lost his client’s case and the name calling in this petition to the Ohio Supreme Court could not have helped, and likely put the justices in the position of feeling that if Morton were not sanctioned they would be tacitly conceding the truth of his allegations. But while it is critical for the courts to be respected as an institution, it is doubtful that suspending Morton’s license for a year improved the Ohio court’s standing with anyone.

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About Joseph. A. Brophy

Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jhkmlaw.com.

The original article appeared in the May 2022 issue of Maricopa Lawyer and can be viewed here:

https://jhkmlaw.com/wp-content/uploads/2022/05/220517-ML.pdf.