Tuesday, August 14, 2018

Statements About Judge Not Protected

A six-month suspension was affirmed by the Tennessee Supreme Court for his derogatory comments about a judge, such as

Many authors, among them Alfred Lord Tennyson, have observed that the half-truth is the most sinister of all deception. The point is that sprinkling into deception particles of truth, misused and taken out of context, makes it much harder to detect deception than a straight out misstatement of objective fact. Judge Farmer has used the half-truth in constructing Judge Farmer’s Memorandum Opinion. Judge Farmer’s Memorandum Opinion is a patchwork of snippets of truth glued together by adhesive design to close to Estate access to controlling organic law...

Otherwise stated, although there is no evidence that Judge Farmer received a bribe to do what he is doing, Judge Farmer is doing what a bribe-taking judge would do to victimize a litigant who was targeted by a bribe. To a litigant who is targeted, it is totally immaterial what caused the judge to victimize the litigant.

The court's summary

The Tennessee Supreme Court has affirmed the suspension of Memphis attorney Larry Edward Parrish from the practice of law for six months, with 30 days to be served on active suspension and the remainder on probation.

Mr. Parrish’s suspension was based on derogatory statements he made regarding three appellate judges in motions filed in court. The motions included such statements as “This is not about miscalling balls and strikes; this is about rigging the game”; “The repeated statements in [the judge’s] Memorandum Opinion … [are] a convenient and illegitimately purposeful fabrication”; and “… although there is no evidence that [the judge] received a bribe to do what he is doing, [the judge] is doing what a bribe-taking judge would do to victimize a litigant.…” Mr. Parrish did not deny that he had written these statements, but claimed that he should not be subject to discipline because his statements were protected speech under the First Amendment of the United States Constitution and Article 1, Section 19 of the Tennessee Constitution.

A Tennessee Board of Professional Responsibility hearing panel found that Mr. Parrish’s statements violated his ethical duties under Rules of Professional Conduct 3.5(e) (conduct intended to disrupt a tribunal), 8.2(a)(1) (false statements about the integrity of a judge), 8.4(a) (violation of Rules of Professional Conduct), and 8.4(d) (conduct prejudicial to the administration of justice). The hearing panel recommended that Mr. Parrish be publicly censured. On appeal, the Shelby County Circuit Court agreed that Mr. Parrish was guilty of misconduct, but modified the hearing panel’s decision, determining that the appropriate sanction was a six-month suspension, with 30 days to be served on active suspension and the remainder on probation. The Board of Professional Responsibility appealed to the Tennessee Supreme Court.

The Supreme Court held that Mr. Parrish’s statements were not protected speech under the First Amendment of the United States Constitution or Article 1, Section 19 of the Tennessee Constitution and that there was material and substantial evidence of noncompliance with the Rules of Professional Conduct. In reviewing the hearing panel’s decision, the Court examined the applicable American Bar Association Standards for Imposing Lawyer Sanctions, aggravating and mitigating factors present, and sanctions imposed in similar cases. The Court held that the hearing panel’s decision to impose a public censure rather than suspension was arbitrary and capricious. The Court, therefore, affirmed the circuit court’s judgment modifying the sanction and affirmed the six-month suspension of Mr. Parrish from the practice of law, with 30 days to be served on active suspension and the remainder on probation.

To read the unanimous opinion of the Court in Board of Professional Responsibility of the Supreme Court of Tennessee v. Larry Edward Parrish, authored by Justice Sharon G. Lee, please visit the Opinions section of TNCourts.gov.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/08/statements-about-judge-not-protected.html

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