Free speech. It is a right that we Americans take for granted, especially when it comes to criticizing the work of elected officials. Judges in Indiana are elected officials. At the trial level, they are selected via partisan election. While at the appellate level, they are appointed, they nevertheless sit for periodic retention votes by the electorate.
For non-attorneys what is the best source of information on how those judges are performing? One would think that attorneys, the very people who deal everyday with those judges, would be an excellent resource. But what is not well understood is that an overzealous Disciplinary Commission seeking to stamp out any criticism of judges is restraining attorneys' First Amendment rights to free speech.
The main weapon in the commission's campaign against attorney free speech is Rule 8.2 of the Indiana Rules of Professional Conduct. That rule is designed to ensure the public's respect for the judiciary is not undermined. While comments to Rule 8.2 indicate that we attorneys have a duty to speak out about the performance of judges, we are nonetheless subject to sanctions if we do speak out and the content of our speech is deemed to be false or reckless.
The Disciplinary Commission insists that Rule 8.2 not only applies to factual assertions, but also to statements of opinions. An example of an opinion statement might be that a judge does not have a good demeanor on the bench or seems biased against certain individuals, let's say women in divorce proceedings. The commission's position is that if those opinions cannot be proven true, then the attorney is subject to sanctions under Rule 8.2. Worse yet, the commission insists that the burden is on the attorney to prove the statement to be true, and if it turns out to be false, that the statement was not recklessly made.
The chill on attorney free speech created by Rule 8.2 enforcement actions has been substantial. Attorneys know they risk their legal careers if they dare to criticize a judge, even in the midst of a judicial re-election campaign.
As I am currently being prosecuted for a Rule 8.2 violation, I know this all too well. However, my disciplinary case takes the commission's assault on attorney free speech to a new level. I was charged with violating Rule 8.2 because I sent a private email (just to the estate's attorney and others involved in the case) criticizing the former judge on the case who I believe had grossly mishandled an estate case costing my client hundreds of thousands of dollars.
For what I believe is unprecedented anywhere in the country, the commission is applying Rule 8.2 to private communications. According to the commission, even an attorney out to lunch who dares criticize a judge is subject to Rule 8.2 sanctions for criticizing a judge.
In recent filings, the Disciplinary Commission has asked that I be sanctioned by a one-year suspension without right of readmission, which is effectively disbarment.
Most Rule 8.2 violations net an attorney a public reprimand or 30 days tops. Sixty days would be extremely severe. Why do I, an attorney who has never been disciplined in 26 years, merit such harsh punishment? Well, according to the commission's filings I should be harshly penalized because I publicly criticized the commission.
Indeed, I am undoubtedly the leading attorney critic of the commission. I wrote critically of the commission on my blog in January of 2011, pointing out that, over a three-year period, 397 of 400 published disciplinary cases involved small firm attorneys or sole practitioners. I called for an investigation. Within a few months of that article being published I began to get disciplinary grievances filed against me by Michael Witte, the executive secretary of the commission.
My First Amendment rights certainly include the right to criticize the commission and judges. The U.S. Supreme Court has declared that attorneys have free speech rights just like non-attorneys and disciplinary rules cannot be used to deprive attorneys of the right to speak out. The only exception carved out by the Supreme Court is when the attorney's public speech is actively interfering with the administration of a pending case.
Unfortunately, in a misguided effort to protect overly sensitive judges from criticism by using the disciplinary rules, many states are not following Supreme Court precedent. That is unfortunate because the right of attorneys to speak freely about the judiciary is an essential element of the democratic process that puts those judges on the bench. This assault on the First Amendment rights of attorneys cannot continue as long as we are going to ask voters to cast ballots on judges.