Friday, February 9, 2024

Cert Sought For Judicial Criticism Sanctions

A petition for writ of certiorari has been filed in the United State Supreme Court seeking review of sanctions imposed on two Maryland lawyers for their criticism of judges

Within a two week span in August of last year, the Supreme Court of Maryland decided Attorney Grievance Comm’n v. Pierre, 485 Md. 56, 300 A.3d 201 (2023), and Attorney Grievance Comm’n v. Weinberg, 485 Md. 504, 301 A.3d 142 (2023). In each case, the justices sanctioned lawyers for impugning the integrity of their colleagues in violation of the Rules of Professional Conduct. See MD. RULES 8.2(a), 8.4(d).

Enacted in all but two jurisdictions, Rule 8.2(a) of the Model Rules of Professional Conduct was designed to preserve, rather than curtail, the First Amendment rights of lawyers. Replacing the strictures of older disciplinary rules, the drafters lifted its language directly from [New York Times v.] Sullivan. Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567, 1587 (2009).

Importing Sullivan‘s “actual malice” test, the rule only punishes speech which the lawyer knows to be false, or which was uttered with serious doubts as to the truth. Like Sullivan, the drafters refused to impose more restrictive standards which would punish lawyers for errors committed during robust debate. Rather than punish the expression of sincere beliefs, the drafters cited Sullivan to explain that “[t]he Supreme Court has held that false statements about public officials may be punished only if the speaker acts with knowledge that the statement is ‘false or with reckless disregard of whether it is false or not.’” Tarkington, infra, at 1587, quoting MODEL RULES OF PROF’L CONDUCT R. 8.2 Legal Background at 206 (Proposed Final Draft 1981). By reciting this language verbatim, “Rule 8.2 is consistent with that limitation.” Id.

This has not stopped states from exceeding this constitutional limitation. Placing the reputations of their colleagues above the First Amendment rights of those appearing before them, a majority have abandoned this Court’s “subjective” test in favor of an “objective” standard which punishes their haste. Sanctioning lawyers for negligence alone, these judges expect them to conduct “reasonable investigations” before engaging in debate.

Faced with conflicting tests employed in various state and federal courts, the Supreme Court of Maryland declined to endorse either. By failing to apply Sullivan’s actual malice test, Maryland has abandoned this Court’s First Amendment principles to the same extent as those courts which have done so expressly.

Without clear standards for punishing such criticism, lawyers in Maryland and in most other states must guess about their constitutional freedoms. Subjected to vague, inconsistent, and non-existent standards, lawyers who dare to criticize judges must risk their careers for speaking truth to power.

As this Court watched in silence, judges have silenced their critics by deviating from its First Amendment principles. After 40 years of errant case law, the time has come for this Court to establish national uniformity and reaffirm the principles set forth in Sullivan. Arising both within and outside of the election context, Pierre and Weinberg provide this Court with ideal opportunities to clarify the First Amendment rights of all lawyers in all situations.

The First Amendment Lawyers Association filed an amicus brief in support of Supreme Court review.

I certainly agree that Rule 8.2 is over-prosecuted against those who "speak truth to power." I am pleased to note that the District of Columbia Court of Appeals declined to adopt Rule 8.2. (Mike Frisch)

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