Statements of Fact, Not Opinion

Statements of Fact, Not Opinion

Rule 8.2(a) bars a lawyer from making a statement that the lawyer knows to be false, or makes with reckless disregard of its truth or falsity, about the qualifications or integrity of a judge, adjudicatory officer, public legal officer, or candidate for such an office.¹ The drafters apparently meant to adopt the standard of New York Times v. Sullivan, under which a statement about a public official may be punished only if it is both false and made with actual malice.² That standard carries its own limit. A factual assertion can be false, but an opinion, however ridiculous or pernicious, cannot.³ The rule therefore reaches claims that an impartial factfinder could test against the world. It leaves alone harsh words that assert nothing checkable, however much they sting the judge who hears them.

The line sits where the rule's purposes put it. A lawyer who impugns a judge's credentials or character with reckless disregard for the truth can undermine public confidence in the administration of justice. A lawyer who levels false accusations of past misconduct at a candidate can make people of good character unwilling to be considered for office.⁴ Only a claim about what an official did or is can do that damage. A listener told that a judge took money from a litigant has received a fact the listener may not be able to verify. A listener told that a ruling was indefensible has received an evaluation and can weigh it against the ruling itself. The line also protects the critics. Disciplinary authorities are judges and legal officials, the same people who may be the targets of criticism, so public debate should neither be chilled nor channeled into an official orthodoxy about acceptable views of the bench. For that reason disciplinary authorities must be quite restrained when they consider discipline for a lawyer's public speech.⁵

A disciplinary referee's findings about one lawyer's letter show the fact pole. The letter to Tobin threatened a legal action against Tobin personally and, without supporting facts, asserted that Tobin was involved in a conspiracy. After hearing the evidence, including Tobin's credible testimony, the referee concluded that Tobin had no cozy, conspiratorial relationship with Ferguson or his attorney.⁶ A conspiracy is a fact. Either Tobin had an arrangement with one side or he did not, and testimony could settle the question, as it did at the hearing. Other accusations of the same checkable kind can support discipline: an unfounded charge of past misconduct, an unfounded allegation that a judge colluded with a party's representatives, or a false account of an official's or candidate's credentials.⁷ Each can be compared with a record.

The opposite pole is evaluation that asserts no checkable fact. A lawyer who fills a court submission with generalized, hyperbolic attacks on a decision will probably pay at once in credibility, because the tribunal discounts an advocate who overstates. Formal discipline is not the usual cost.⁸ In Berry v. Schmidt, a lawyer protested that a state legislative ethics commission had closed its proceedings to the public and media while the legislator under investigation was allowed to stay, and said the arrangement gave “grave cause for some to speculate that the deck was stacked.”⁹ The bar's inquiry commission issued a warning letter finding a violation of Kentucky's version of Rule 8.2(a) “by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.” The Sixth Circuit held the rule unconstitutional as applied, because a statement conveying the public's belief that the deck was stacked is protected opinion.¹⁰

Set Berry beside the letter to Tobin. The Tobin letter asserted a conspiracy and offered no supporting facts. The Berry lawyer disclosed the fact behind the speculation, the closed proceeding, and offered an inference about how it looked. The Sixth Circuit reached its result even on the assumption that a standard less demanding than Sullivan's governed, so whether a statement is opinion is a question separate from the speaker's state of mind.¹¹ The court took no position on how its analysis would change for a lawyer speaking inside a judicial proceeding, a setting taken up later in this chapter.¹²

Calling a statement an opinion does not settle the matter. In defamation law, a supposed opinion that reasonably implies the existence of false and defamatory facts is treated as a factual assertion, and courts will not let a speaker disguise an assertion of fact as an opinion.¹³ The same logic keeps a lawyer from escaping the rule by prefacing a smear with “I think” or “in my opinion.”

Enforcement does not always honor this line. In In re Atanga, a criminal defense lawyer was held in contempt for missing a hearing that had been rescheduled on the prosecutor's ex parte request, even though the judge knew the lawyer had a conflicting appearance in another county. The judge then had the lawyer arrested at his office, jailed, and brought into an auxiliary jail courtroom in jail clothing to answer the contempt and argue a pending motion before prosecutors and reporters.¹⁴ Afterward the lawyer told a civil liberties newsletter that the judge was “ignorant, insecure, and racist.”¹⁵ The Indiana Supreme Court suspended the lawyer for a month under Rule 8.2, reasoning that the remarks had greatly impaired the judicial institution, while its own comment on the judge's treatment of the lawyer was mild, calling it a questionable practice.¹⁶ Critics have objected that the labels were blunt evaluations that followed the judge's own conduct, and that the lawyer received a heavier sanction for speaking about the abuse than the judge received for committing it.¹⁷ The case shows that courts draw the fact-opinion line unevenly. It is a poor model of correct application, because a label that asserts no checkable fact falls outside the rule's text even where a court has disciplined it.