Wednesday, March 31, 2010

Limits Of Free Speech

The Illinois Review Board has recommended a suspension of two years and until futher order ("UFO" in disciplinary parlance) for a variety of ethics violations that included frivilous litigation and baseless accusations against judges. The United States Court of Appeals for the Seventh Circuit has disbarred the attorney for misconduct found in litigation initiated by the attorney after her discharge from an assistant corporation counsel position with the City of Chicago.

 The board notes:

While attorneys can legitimately criticize a judge or disagree with his or her rulings, an attorney cannot unjustly impugn the character or integrity of a judge without having any basis for doing so. Kozel, 96 CH 50. While judges are not exempt from just criticism, the public interest and the administration of the law demand that the courts should have the confidence and respect of the people; therefore, attorneys cannot engage in baseless and unjust criticism, insulting language and offensive conduct toward judges. People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919).

Significantly, the accusations about which the Administrator introduced evidence occurred in the context of pleadings filed in court. This is not a situation involving purely political speech, as [the attorney] seeks to suggest. An attorney acting in the capacity of an officer of the court cannot make scurrilous charges against judges. In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973). Orderly conduct of legal proceedings and public confidence in those proceedings require that attorneys not make false and baseless accusations against the integrity of judges. Palmisano, 92 CH 109 (Review Board) pp. 5-7. Where those statements are made with the requisite mental state, see e.g., Rules 3.3(a)(1) and 8.2(a), an attorney can be disciplined for those statements.

The Hearing Board majority found that [the attorney] made her statements with the requisite intent. State of mind is an issue of fact, within the province of the Hearing Board. In re Ingersoll, 186 Ill. 2d 163, 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); Palmisano, 92 CH 109 (Review Board) p. 3.

The circumstances as a whole support the Hearing Board majority's finding.

Circumstantial evidence can be considered in proving state of mind, and the record as a whole can be used in assessing a respondent's good faith, or lack thereof. Jafree, 93 Ill. 2d at 458, 444 N.E.2d 143, 67 Ill. Dec. 104. An inference of a lack of good faith can be drawn where it appears that a respondent's statements are made in retaliation for rulings adverse to the respondent or where there is a pattern of such statements. See Palmisano, 92 CH 109 (Review Board) pp. 1-2. Both are clearly present here. The point here is not whether any isolated individual statement is or is not protected by the First Amendment, but whether [the attorney] has demonstrated a pattern of making false accusations against members of the judiciary without any legitimate basis for doing so. The evidence demonstrates such a pattern, even if certain statements might, in and of themselves, constitute matters of opinion or hyperbole that would not, if considered on their own, warrant discipline.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2010/03/the-illinois-review-board-has-recommended-a-suspension-of-two-years-and-until-futher-order-ufo-in-disciplinary-parlance-for.html

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