Criticism Inside Litigation

Rule 8.2(a) has no courtroom exception. A lawyer may not make a statement that the lawyer knows to be false, or makes with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer.¹ The ban reaches a sentence in a brief, a recusal motion, a letter to opposing counsel, or a deposition remark exactly as it reaches a sentence in a press release. The harm the rule guards against does not depend on the forum: 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.²

Because the text is the same in every setting, the questions from earlier in this chapter remain the starting point. Does the statement assert something checkable that is false? Did the lawyer know it was false, or recklessly disregard its truth? The drafters of the rule apparently meant to adopt the actual malice standard of New York Times v. Sullivan.³ What changes inside litigation is how much room the lawyer has to argue that free speech, or the nature of advocacy itself, forbids punishment.

A lawyer who speaks in a pending proceeding stands differently from a lawyer who addresses the public. The forum is non-public, the court supervises it, and the lawyer speaks as a party's representative. A lawyer's claim to the same freedom of speech as other citizens is strongest when the lawyer is not acting as a party's representative in a particular case.⁴ Reasonable regulation of lawyer speech in litigation is therefore permitted, and the First Amendment protects a lawyer's statements there less than the same lawyer's remarks to the public. An accusation of bias or corruption filed in a pending case also enters the record and forces the judge to answer a charge that may have been invented.

Advocacy pulls the other way. Litigation is adversarial, and a client is sometimes best served by a lawyer who argues that a ruling is wrong, that the judge is biased, or that the judge should step aside. A lawyer who makes such an argument in good faith is doing the job. If every strident or offensive phrase drew a sanction, lawyers would soften or withhold challenges that their clients' interests require. Courts and disciplinary authorities therefore hesitate to discipline strident advocacy lightly, even though the setting allows more regulation than a public one.

The first subsection below explains the room the rule leaves for good-faith challenges and the record-based limit on that room. The second works from disciplinary decisions to find the point at which a filing stops being advocacy and becomes the unsupported accusation the rule forbids.

Latitude for Good-Faith Advocacy

Rule 8.2(a) presses least firmly on one kind of speech: criticism of a judge that a lawyer makes in good faith while advocating for a client in a pending proceeding. The latitude is a matter of degree. A proceeding is a non-public forum, and a lawyer's speech at trial, in depositions, in pretrial letters, and in court filings may be reasonably regulated, so no exemption exists.⁵ But some advocacy cannot be done without criticizing the judge, and the regulation has to leave room for it.

A motion to recuse shows why. It asks the judge to step aside because the judge's impartiality is in doubt, and impartiality is part of the integrity the rule protects, so the motion cannot be written without asserting something inside the rule's subject matter. A lawyer who believes the tribunal is tilted against the client has to say so, and has to say so before the judge rules, on whatever the lawyer knows at that moment. Courts have therefore recognized that a lawyer challenging a judge's impartiality must assert bias as an element of the request, and that the lawyer should be allowed reasonable breathing room to do so when a plausible basis exists, even if the assertion proves mistaken.⁶ The reason is a chain of incentives. If a judge's denial of an unsuccessful motion proved that the assertion was a sanctionable falsehood, a careful lawyer would weigh the client's interest in an impartial judge against the risk of a disciplinary file, and many would conclude that silence is safer. Clients would then lose a remedy that exists only when somebody invokes it, and invoking it is the lawyer's job.

Two decisions state both the latitude and its limit. In United States v. Brown, the Fifth Circuit said that attorneys should be free to challenge, in appropriate legal proceedings, a court's perceived partiality without the court misconstruing the challenge as an assault on its integrity, but that such challenges should be made only when substantiated by the trial record.⁷ The Indiana Supreme Court addressed the wider category in In re Dixon. It said that attorneys need “wide latitude in engaging in robust and effective advocacy on behalf of their clients,” particularly on issues that require criticism of a judge or a judge's ruling, and it read Rule 8.2(a) as “least restrictive” of critical speech “when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge's decision.”⁸ Brown speaks to accusations of partiality and attaches the record condition. Dixon speaks to criticism of rulings and defines the protected category by function. A recusal motion fits both, so it enjoys the breadth of Dixon and carries the discipline of Brown.

The record condition tests a lawyer's good faith against something outside the lawyer's head. A court can see for itself whether a transcript, an order, or a docket entry supports an assertion of bias. That fits the objective test most states apply in discipline, which asks whether a reasonable attorney could have made the statement after reasonable inquiry: a plausible, record-based challenge passes, and a bare assertion of bias does not. Under the subjective actual malice model, a lawyer with a documented basis will seldom be shown to have known the assertion was false or to have recklessly disregarded its truth.⁹

The latitude ends at the knowing lie. A lawyer who invents a charge of judicial corruption, knowing it is false, has no plausible basis to protect, and Sullivan permits punishing a statement that is both false and made with actual malice.¹⁰ The latitude also rests on the lawyer's function as an advocate, not on the lawyer's rights as a citizen, which are strongest when the lawyer is not speaking for a party.¹¹

Two recusal motions can look alike on the page. What separates them is what each lawyer held in hand when filing.

Hypothetical Illustration

Two lawyers each move to recuse the judge in an unrelated case. The first points to a hearing transcript in which the judge, before any evidence was received, told the parties the claim was not worth the court's time. The judge denies the motion and explains that the remark concerned scheduling. The assertion of apparent prejudgment was mistaken, but the transcript gave it a plausible basis, so the lawyer is within the breathing room. The second lawyer lost a discovery motion the week before and now moves to recuse, asserting that the judge is secretly allied with opposing counsel. Nothing in the record supports the claim, the lawyer has no outside information, and the motion's aim is to move the case to another judge before the next ruling. The assertion is unsubstantiated, so the record-support condition fails, and discipline is available under the objective test most states apply because no reasonable inquiry produced a basis for it.

The fate of each motion is beside the point. The first lost and is protected; the second is exposed however the judge rules. What decides each case is whether a plausible, record-supported basis existed when the lawyer filed, and whether the lawyer knew the assertion was false. Even strident or offensive wording in a filing should not lightly be sanctioned, and context matters, but that generosity assumes the criticism has a foundation.¹² The disciplinary decisions in the next subsection show what happens when it does not.

Where Advocacy Goes Too Far

The latitude has an outer edge, and the disciplinary decisions show where it falls. Rule 8.2(a) governs speech inside a pending case just as it governs speech outside one,¹⁴ so breathing room for criticism with a plausible record basis gives no cover to an accusation that rests on nothing. In ordinary advocacy, the lawyer argues that a court got the law or the facts wrong. The decisions below involve a letter, a recusal motion, a brief, and a rehearing motion, and they show what happens when the language moves from the ruling to the people who made it.

The Florida Bar v. Norkin shows the edge on facts where the lawyer had a real grievance and acted on it. Norkin had vigorously opposed a trial judge's decision to appoint Tobin, a senior circuit judge, as provisional director of a corporation involved in the litigation. When one of the two directors left half of Tobin's fee unpaid, Tobin had to hire counsel to collect it, and a writ of garnishment was served on Norkin.¹⁵ Norkin wrote to Tobin demanding that the writ be withdrawn, threatened suit, and asserted that Tobin had a conspiratorial relationship with one of the parties or that party's counsel. The referee found that there was no conspiracy, that Norkin had asserted one without supporting facts and with reckless disregard for the truth, that Norkin had passed the accusation to third parties, and that its sole purpose was to berate Tobin into dissolving the writ.¹⁶ The opinion also addresses a motion to recuse Judge Dresnick in the Ferguson v. Beem litigation, in which Norkin made disparaging comments about Judge Dresnick and Tobin.¹⁷ A recusal motion is the vehicle in which the preceding subsection found the most room for criticism, so the lesson here is that disciplinary review reached the filing as well as the letter. A court filing earns no automatic immunity.

The referee's findings show what separates the letter from advocacy that deserves latitude. The conspiracy charge had no supporting facts, it was circulated to people outside the dispute, and its only aim was to pressure a private party into giving up a collection remedy. A recusal motion with a record basis asks the court to rule on its own impartiality. The letter asked the court for nothing: it demanded that a private party withdraw a writ and threatened suit if the demand was refused. Each of the three facts removes a feature that justified the latitude, namely a basis, an audience that can act on the complaint, and a purpose connected to the client's case.

Language need not be harsh to cross the line. In re Wilkins, local counsel signed a brief containing a footnote suggesting that the trial court had reached a conclusion without regard to the facts and law and then reasoned backwards to support that illegitimate conclusion, and the lawyer was sanctioned with a brief suspension.¹⁸ The footnote was mild compared with some of the harsh language in dissents of the United States Supreme Court, but that is not the yardstick for evaluating what is permissible for advocates.¹⁹ A Justice writing a dissent speaks as a member of the court about a colleague's reasoning, while the disciplinary rules govern lawyers who appear before courts. The footnote's substance explains the sanction better than its tone does. It describes the judge's method of deciding, result first and justification afterward, which amounts to a charge that the judge did not decide in good faith on the law and the record. A reviewing court can test a claim of legal error against the statute and the record without deciding why the trial judge erred, so the added accusation contributes nothing to the case for reversal and spends the lawyer's credibility with the tribunal.

The safe approach follows from what the two cases share. An advocate may allege and argue that a trial court made an error without saying or implying that the judge was dumb, lacked integrity, or was otherwise mendacious.²⁰ An argument of error carries everything the client needs, because a reviewing court asks whether the ruling was wrong and gives no weight to why it was made. An accusation of bad faith adds risk for the lawyer and no force for the client. It also has a practical cost. Appellate judges and trial judges are usually familiar, and often friendly, with one another through bar associations, circuit conferences, and sometimes a trial judge's service by designation on the appellate court, and the same caution applies to ascribing ill intent to an opposing lawyer.²¹

A lawyer who actually holds a belief of partiality that the trial record supports has a proper vehicle, the challenge in the proceeding described in the preceding subsection, and the record keeps that challenge on the protected side of the line. An argument about a ruling has no need to carry that belief, because the error can be shown without it.

Rule 8.2(a) is not the only provision a lawyer must watch when criticizing a court. Rule 8.4(d) makes it professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.²² Its text says nothing about falsity and contains no mental-state clause, so a lawyer whose insulting language asserts nothing checkable, and therefore falls outside Rule 8.2(a) under the fact-versus-opinion analysis, cannot assume the inquiry has ended. Disciplinary authorities have a second route, and the elements of falsity and mental state that limit Rule 8.2(a) do not appear in the text of Rule 8.4(d). How far the First Amendment limits the use of Rule 8.4(d) against speech inside a pending case is a separate question, and the constitutional layer taught earlier sits on top of whichever rule a disciplinary body chooses. An exam stem that quotes harsh but unprovable language about a judge therefore deserves a two-step answer: Rule 8.2(a) is a poor fit for pure opinion and hyperbole, and Rule 8.4(d) remains available as an independent basis.

Courts do not always wait for a disciplinary agency to act. In Merrell Dow Pharmaceuticals, Inc. v. Havner, the Texas Supreme Court responded to a motion for rehearing by quoting Rule 8.02(a) of the Texas disciplinary rules, which forbids a statement the lawyer knows to be false or makes with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official, or public legal officer. It then identified specific portions of the motion, including its statement of the case, parts of its argument, and its prayer for relief, as raising particular concerns.²³ The court gave three lawyers an opportunity to explain why it should not refer them to the disciplinary authorities, prohibit one of them, a nonresident, from practicing in Texas courts, and impose monetary penalties. It also noted a statutory mechanism that lets courts sanction counsel for pleadings presented for an improper purpose or to harass.²⁴ The order is a show-cause order, so it records what the court was prepared to consider and finds no violation. Its value is as an illustration: a lawyer whose language in a post-decision motion troubles the court may face the court itself, with consequences that range from a disciplinary referral to a bar on practicing before that court, in addition to anything the bar's own process produces.