Nasty comments about judges may still invite discipline

An attorney's freedom to criticize members of the judiciary has become an issue in two discipline matters investigated by the State Bar. One investigation concluded without charges when the bar determined that an Internet message which denigrated a judge was meant to be confidential. The California Supreme Court declined to take a second case in which bar prosecutors sought relief from a State Bar Court ruling that in order to discipline an attorney for making disparaging remarks about a judge, prosecutors must prove that the statements themselves are false.

In both cases, although they are unrelated and dissimilar in most respects, the standard set by an appellate court in a 1995 ruling involving Venice civil rights attorney Stephen Yagman was invoked.

The Ninth Circuit of the U.S. Court of Appeals held in Standing Committee v. Yagman that attorneys who impugn the integrity of judges in out-of-court statements are entitled to certain First Amendment protections and may be subject to discipline only if the statements are false. The burden of proving the statements false falls on the prosecutor.

In a disciplinary case the bar brought against Costa Mesa attorney William Robert Anderson, the bar court hearing department recommended a 60-day actual suspension and a year of probation after finding Anderson failed to maintain respect due to the courts (Business & Professions Code 6068(b)).

In a civil suit over breach of an office lease, Anderson made numerous derogatory statements about judges of the Orange County Superior Court, including charges that they showed favoritism toward and conspired with the opposing attorney by concealing his alleged perjury and subornation of perjury. When Anderson appealed to the review department, it reversed the hearing judge:

"We hold that an attorney may be disciplined for making false statements that impugn the honesty or integrity of the court if those statements either are knowingly false or are made with reckless disregard for their truth or falsity," wrote Judge Kenneth Norian. "We further hold that [the Office of the Chief Trial Counsel] bears the burden of proving the falsity of those statements."

In petitioning the Supreme Court for "extraordinary relief" from the review department order sending the Anderson case back to the hearing department, the bar argued that Yagman addressed out-of-court statements and should not apply to Anderson's statements made in pleadings filed in court.

The bar also contended that requiring bar prosecutors to prove lawyers' unsubstantiated derogatory statements against judges poses an unfair burden on them and wastes the time of judges who are required to refute the statements.

"We believe Yagman was wrongly applied to in-court statements, which are different than out-of-court statements and have different constitutional standards," said Allen Blumenthal, the bar's deputy trial counsel handling Anderson's case.

The Supreme Court rejected the bar's petition without addressing its merits, indicating only that it did not have the authority to challenge interim bar court decisions.

Blumenthal said the case will be remanded to the hearing department. But the question of a lawyer's responsibility to properly investigate before attacking the integrity of judges "is a very important issue that we believe ultimately will have to be resolved by the Supreme Court," he said.

In the second case, the bar opened an investigation of Stephen G. Corris, an Irvine criminal defense attorney who wrote an Internet message describing San Bernardino County as a "cesspool of justice" and suggesting that local judges may be "in bed" with prosecutors.

Although the message was posted on a supposedly confidential criminal defense computer network, it was leaked to the judge presiding over a rape case involving Corris' client.

The bar dropped the investigation after concluding that Corris' comments "were never intended for any distribution beyond the limited private (computer) network."

Corris said the bar's action did not address his freedom of speech rights. "An attorney in the state of California has a First Amendment right to comment on anything and everything that is not prohibited by the Constitution," he said.