Monthly Archives: November 2012

Standing up for Hope

Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.

— Robert F. Kennedy, speaking at the University of Cape Town, South Africa, June 6, 1966

What is Judicial Reform? Part 2: Boiling it down

Part 1 of ‘What is Judicial Reform’ explored the roots of our nation, the Federalist Papers, the “tyranny of the majority.”  (Part 1 here).

That post reviewed that Madison (Publius) cautioned that we should never ration liberty.  The solution is to protect liberty by controlling tyranny.

As we assess what can be changed for the better in our courts, it’s important to remember our roots.

This post boils down what I think the judicial reform movement is all about.

1.     A judge cannot be a king.  The founders of this country affirmatively rejected monarchy as a form of government.  They sought to remove the “king” from the system. They were tired of the reason for government actions being, “because I said so.”  We need to remember that, and make sure it’s applied to the judiciary, and not just the executive branch.

Judges were not meant to be the “kings” of their courtroom.  The founders did not envision that judges would do whatever they wanted, merely beause they are a judge.

It is antithetical to our form of government to let any man be a king.

2.  The reasons for judicial decisions cannot be secret.

Kings make up laws as they go along.  They change the law when they want to.  Dictators keep the law secret.  They keep their subjects off balance by preventing them from knowing the rules (he who makes the rules wins).

In a democracy, we decided long ago that the law would be public.  There is no point in the law otherwise.  It’s by making laws public that we give people the chance to conform their conduct.

Secret laws keep the public off balance, they give power to those who create them, and who change them at will.  Secret laws make people kings.

(And we know from #1 – judges cannot be kings.)

3.  If it’s not about applying the law, the system makes no sense.

Judges are given authority and power so they can apply the law.  If we waver from this, if we let judges make decisions based on secret criteria, the system makes no sense.

Secret laws aren’t always written on paper – hidden in the back room somewhere (although sometimes they are!).  When I speak of hidden rules, I also mean the culture of how judges decide among themselves how they will rule.  I am also referring to the “back room deals” that do exist in our system.

Because none of that is about the law.

We can’t keep the culture because it’s comfortable.  If we need to make big change to get back to our roots – so be it.  That’s what reform is all about.

Judicial reformists say, “why should we (the public) pay lots of tax money for a system that does not make sense?”

4.  Applying the law also means following the law.

I try as much as possible to credit those judges who do follow the law.  I acknowledge them here.

But there are judges who either decide to do it, or who drift unconsciously into a place where they act like they are above the law.

If they think people don’t notice – judicial reformists are here to say they do.

Judges who act like they are above the law is a hot issue for judicial reformists.

Those who are charged with enforcing the law must obey the law.

A system that does not require its judges to obey the law sends the message that it’s not about the law, it’s about status, or who has friends in the system, or who has money.  That does not encourage self-compliance.

And without self-compliance, the system falls apart.

5.  The judicial branch is supposed to be the watchdog.

The courts are not just “one more” branch of government.  The judicial branch was created to help protect the public from the tyranny of government and the tyranny of the majority.

  • Keeping the executive in check.  This is easily seen in the courts’ watchdog role over the exeucutive branch.  For example, if the city government won’t give you public documents, you can sue in court to enforce sunshine laws.
  • Keeping the legislature in check.  Since Marbury v. Madison, courts have kept the legislature in check by assessing the constitutionality of statutes.  If if the ‘majority’ wants a statute, the statute might still offend the constitution – usually an issue of the courts protecting individual rights.

If courts give up this role, if they “side” with goverment, if they “protect” government workers from other branches from being accountable under the law, instead of forcing them to obey the law, we have lost our way.

6.    It’s about equal rights.

The majority opinion should not automatically prevail in court.

The court is the place the individual who goes against the grain, who believes something different, who does not acede to the majority – has an equal chance of winning.

The courts are the place the ‘little guy’ should be able to come, feel safe, feel confident that the law will be applied – not some popularity contest.

That’s what is means to put the law above politics, to put it above gossip and junior high vendettas.

Judges who are worried about “what their friends will think” if they rule in favor of the “unpopular” person or belief, or whether they will get an angry phone call from the sheriff, or what other judges will say at the Friday morning breakfast, probably don’t belong in the job.  That’s not the rule of law – that’s the rule of men.  And it’s killing this great institution.

7.  It takes effort to do the real work of judging.

I’ve seen judges favor police, favor prosecutors.  I’d go so far as to say that some bench cultures give prosecutors everything they want.  I’ve observed judges refuse even to consider that police engaged in bad conduct.

That’s a refusal to follow the law.

Judicial reformists have a pretty good idea how so many innocent people end up in prison.

I’ve also observed judges protecting the “budget” of another branch.

I’ve watched judges insert language in their order that is obviously designed to protect some government worker.  I’ve seen this happen when that wasn’t even an issue raised by the parties.

If judges so identify with public workers that they are willing to disregard the facts and the law to protect these people from being held accountable, the system falls apart.

Judges are supposed to protect the public.  Nowhere is it written that they should worry about how much it will cost the executive branch if a social worker is found to have engaged in bad conduct.  Nowhere is it written that judges should protect criminal prosecutors from every Brady motion, because that is also an ethics violation for them.  Writing this type of policy into the case, without opening discussing it in case law, is a type of secret law.

8.  Don’t do what’s natural, do what’s right.

This misuse of power by judges might be natural.  Because they are themselves employees of government, they may drift into a place where they want to protect people like them.  Those thoughts are natural.  But that instinct must be overcome to do the real work of judging.

People who come to court are often emotional about their own story.  That’s natural; it’s instinct.  Judges ask those people to put the emotion aside while interacting with the court.

Judges ask people to be thoughtful about their responses.  To quantify the damage.  To intellectualize the harm.

What’s good for the goose is good for the gander.

Judicial reformists ask judges to put aside instinct, stop doing just what’s natural or easy.  We (the public) need you to make a conscious effort not to drift into tyranny.

Our liberty depends on it.

Literally.

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A day of Thanks

On this day of Thanksgiving, consider this timely quote:

What a huge debt this nation owes to its “troublemakers.” From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply … troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protesters a fair amount of slack.

Garcia v. Bloomberg, 2012 U.S. Dist. LEXIS 79296 (S.D.N.Y. June 7, 2012) (scan in cloud here).

Enough of the “old ways” – Part 1 – Not Slinking Away

The “old way” was for lawyers to suffer in silence and slink away.

I’ve used the phrase in prior posts, the “old ways” or the “way thing used to be.”   (Example Link).

This series defines that phrase.

I am certainly not the first lawyer to be mistreated by judges.

I am not claiming I am the first lawyer put out of business by judges, I am not claiming to be the first lawyer who had the Lawyers Board used against her to stop her from speaking the truth about the justice system.  I believe I follow in a long line of lawyers, who, before me, lived by their convictions, had the courage to speak out, experienced being shut down by those in power.

But in the past when a lawyer was targeted for destruction by judges, they mostly slunk away in shame.

I am trying to stay in the ring as the punches come.

If I go down on the mat, I am trying to get up before the count of 10.

Lawyers have been the serfs of the system for far too long.  We have been expected to take all kinds of mistreatment by judges.  And, we have not been able to complain about it (that is, unless you wanted bad things to befall you).  Traditionally, we haven’t even been able to say anything about it in public.  Not in the coutroom in the moment, not later.

Be quiet, keep it to yourself.  Walk away.

That was the “old way.”

But the old way has been questioned.

Back when I was active with the Minnesota State Bar Association, I remember being shocked to learn that lawyers had the highest rate of depression of any field of work.  I believed then, and I’ll say now, this comes from the requirement that we repress our feelings.

The requirement that we put our clients before ourselves, in the context of inhibiting lawyers from speaking out to protect themselves, has a significant downside – for us.  It’s time we gave that due consideration.

If a private person abuses you, professionals will tell you it’s important to assert yourself, draw a boundary – tell them to stop.  But as lawyers, we have not been permitted to do that – when it comes to mistreatment by judges.

Because we fear that the client might be harmed if we speak our own personal truth (such as, “stop abusing me!”), or because we fear retaliation by the judges, we have stuffed the feelings deep inside.

And we’ve done it year after year.

Now, of course, there are plenty of mature judges who don’t harass and abuse lawyers.  I am not sweeping all judges into one lump here.  But there are still enough judges who do it, that it is still a significant issue in the life of a litigator.

The more so because we have not been permitted to assert ourselves and becuase as a community, we have not talked much on this issue.

I remember hearing the story several years ago about a lawyer who appeared before a judge who verbally abused him, railed on him.  As the story goes, a short time later (like about an hour – not even a day) the attorney had a massive heart attack and died.  When I heard the story it was complete with the name of the lawyer, the name of the judge, the jurisdiction.  It was credible to me.  Some of those in the Twin Cities area might recall it.  But the names are not important for my point, so they are not included here.

My point is that I heard that story in a hushed whisper.  Surely a verbal lashing that results in such extreme harm should have been scrutinized.  I am not saying it caused the harm – I don’t know.  I’m saying we should have been able to talk openly about it, and investigated whether the judge’s conduct had an impact on the lawyer’s health.

From what I heard, there was no investigation.

That was the “old way.”

The “old way” was for lawyers to go away, ‘not with a bang but a whimper.’

In the “old way,” if judges put a lawyer out of business because of his politics, he was to slink away in shame.  If the abuse got bad, if the judges intentionally prevented the lawyer from winning cases, if the lawyer’s health started to fail and it all slid downhill, then the lawyer was the problem – right?

Aha, strike now – take the license.

Out of sight out of mind.

Right?

Never look at why.  Just blame the lawyer.

That was the old way.

The “old way” is changing.

I certainly am not going down in a hushed whisper.

That’s one of the reasons I started this blog.  I wanted people to be able to watch what happened to me.

And they are watching; I get hits from around the globe.  I know judicial reformists are watching.  I know others are as well.

I had no idea things would get so vicious.

I’ll be posting documents soon that will tell you ust how vicious it has gotten.

I always knew I could not control what happened.  that’s why the lawyer discipinary process is a closed system (no jury) – so judges can control the outcome (often dispensing with that pesky need to consider the law or the facts.)

But I also knew that no matter what happened, I was going to point out the problems with the system as I saw them.

I was silenced at first, then deluged, then traumatized (down on the mat for a while…count getting close to 10!), and now coming back – gaining strength.

I have no interest in slinking away.

I do have an interest in focusing on what is wrong, but also what is changing, how we can do better.  I do so hope another lawyer doesn’t have to go through what I have gone through.

Lawyers are tired of being second class citizens.  We are tired of judges who think they are the “kings” of their coutroom, treat lawyers as slaves.

We are tired of having fewer rights than the rest of America.

We are tired of living in fear.

No matter what happens, me talking about it, blogging about it, is a sign of change.

***

I’ll continue to discuss apsects of the “old ways,” which I hope are giving way.

Pennsylvania Judge charged over retention election “recommendation”

The Philadelphia Judicial Conduct Board filed disciplinary charges in late October against Common Pleas Judge Thomas M. Nocella.  The charges alleged he violated the state’s code of judicial conduct.  (Philly.com stories here an here).

The Pennsylvania Judicial Conduct Board press release is here.  The complaint is attached.

In November, he was suspended, and according to his lawyer, that was before he had any opportunity to respond to the charges.  (Story here).

Here’s the interesting part.  According to Philly.com, Judge Nocello is accused of misrepresenting his qualifications to win a city bar association recommendation for judicial election.  He is alleged to have omitted certain lawsuits involving him from the list.

Nocella is alleged to have violated Canons 7B(1)(c), and 2A.

2A is:

CANON 2: Judges should avoid impropriety and the appearance of impropriety in all their activities.

A. Judges should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

In essence, Nocella is accused of not respecting the law and his obligations.

Under CANON 7: “Judges should refrain from political activity inappropriate to their judicial office.”  Canon 7B(1)(c) appears to be new, and requires judges for judicial officer, including incumbent judges, should not misrepresent their qualifications.

It would be interesting to know when this was added (it is not in the version of the judicial code that is still on the Board’s website), and whether it was added so these charges could be brought against Nocella.

Those of you interested in process will note that he has only 30 days to file an “omnibus” motion (there is no acknowledged process for an omnibus motion in Minnesota disciplinary matters, so acknowledgement of one is good, but preparing one in 30 days seems like a rush).

The judge has the right to an evidentiary hearing.  If clear and convincing evidence is found, he has a right to a separate “sanctions” (like a sentencing) hearing to decide what discipline should be levied.  This is important for due process.  In Minnesota, the lawyers get only one hearing, which has led to impermissible melding of accusations (and denials of same) with sentencing (and the notion the lawyer should receive greater sanctions because of the denials to the accusations).

Philly.com mentioned Nocella being close to U.S. Rep. Bob Brady.  Brady’s website says he “has been a leading advocate for election reform.”  There’s nothing about Brady in the formal charges, and it’s hard to know what role that plays, if any.

The Breyer Committee solution: the way judges make decisions is fair game

In my view, too many complaints about judges are dismissed without investigation because they are characterized as being about the merits of the decision – which can only be pursued on appeal.

I believe this is a real (but easilty remedied) problem with Minnesota’s Board on Judicial Standards – and the form letter it sends to complainants, telling them it will not investigate if the issue should have been appealed.

In September 2006, the Judicial Conduct and Disability Act Study Committee, appointed in 2004 by Chief Justice Rehnquist and known as the “Breyer Committee,” presented a report, known as the “Breyer Committee Report,” 239 F.R.D. 116 (Sept. 2006), to Chief Justice Roberts that evaluated implementation of the Judicial Conduct and Disability Act of 1980, 28 U.S.C.§§ 351-364. The Breyer Committee had been formed in response to criticism from the public and the Congress regarding the effectiveness of the Act’s implementation. The Executive Committee of the Judicial Conference directed the Judicial Conference Committee on Judicial Conduct and Disability to consider the recommendations made by the Breyer Committee and to report on their implementation to the Conference.

(JUDICIAL CONFERENCE OF THE UNITED STATES: Rules for Judicial-Conduct and Judicial-Disability Proceedings, p. 2, ln. 11).

The result was a new set of rules for complaining about federal judges.  (Rules for Judicial-Conduct and Judicial-Disability Proceedings here).

I think the most important aspect of the Breyer Committee report is its discussion of  what is about the ‘merits’ of a decision (and therefore can only be pursued on appeal), and what is proper content for a complaint about a federal judge.  After setting forth a number of examples of the ‘merits,’ the Rules now provide,

Conversely, an allegation — however unsupported — that a judge conspired with a prosecutor to make a particular ruling is not merits-related, even though it “relates” to a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with the prosecutor andgoes beyond a challenge to the correctness — “the merits” — of the ruling itself. An allegationthat a judge ruled against the complainant because the complainant is a member of a particularracial or ethnic group, or because the judge dislikes the complainant personally, is also notmerits-related. Such an allegation attacks the propriety of arriving at rulings with an illicit or improper motive. Similarly, an allegation that a judge used an inappropriate term to refer to aclass of people is not merits-related even if the judge used it on the bench or in an opinion; thecorrectness of the judge’s rulings is not at stake. An allegation that a judge treated litigants orattorneys in a demonstrably egregious and hostile manner while on the bench is also notmerits-related.

 

(Id. at 11, ln. 21; emphasis added).  This is helpful.  It clarifies that the way in which the decision was arrived at – is fair game.  And, it emphasizes that even when it is unsupported, it is proper to complain that the judge conspired with someone else in making the decision.  This is a big step forward for Americans, and it makes sense.

First, even when a complainant truly believes (based on what they have observed) that the judge conspired with someone regarding the decision, the parties almost never have access to evidence that would prove that.  It’s not fair to hold the complainant to a standard that would require them to have phone records, emails, courthouse video, when those are nearly impossible for most people to get.

Second, the Breyer Committee studied the issue in response to public criticism that the federal courts were not doing enough to hold their judges accountable.  That Committee’s decision to specifically authorize complaint for that reason, even without supporting evience, in my view, gets to the heart of what the public wanted when it demanded the courts do more.

The Rules now clarify that it is only the “correctness” of the decision (the outcome itself) that is off limits – pursuable only on appeal.  (Id.).

I am suggesting the Minnesota Board of Judicial Standards adopt the Breyer Committee descriptions of merits versus the way in which a decision was arrived at, and that it implement them when it receives complaints.

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Berry v. Schmitt – Progress for Lawyer Speech

The Sixth Circuit Opinion in Berry v. Schmitt.

On July 27, 2012, the Sixth Circuit issued an opinion in appeal 11-5456/5515.  Link here:

6th Circuit opinion in Berry v Schmitt

The Sixth Circuit held that Kentucky ethics rule 8.2(a) was unconstitutional as applied to Attorney John M. Berry.

Background on the dispute.

Berry had attended a public session of the Kentucky Legislative Ethics Commission  regarding allegations of fundraising violations by a Senator.  The Commission closed the session to the public, and Berry wrote a letter stating the Commission’s procedures could cause the public to think the “deck was stacked.”

The Commission complained to the Kentucky Bar’s ethics commission, which issued a “warning” letter to Attorney Berry, stating his conduct had violated ethics Rule 8.2(a) because his letter implied that “the Legislative Ethics Commission did not conduct its review appropriately.”

The ethics commission admonished Attorney Berry not to do anything similar in the future (“future speech [that is] substantially similar”) – not even to distribute the same letter again.

Attorney Berry sued in federal court.

Berry sued in federal court, contending Kentucky Rule 8.2(a) was unconstitutional on its face and as applied to him by the Kentucky commission.

The district court granted summary judgment for defendant.

District court reversed by Sixth Circuit Court of Appeals.

The Sixth Circuit, on appeal rejected a Rooker-Feldman analysis precluding federal review.  Commenting on the social policy at issue, the Court stated,

Sometimes [] the state applies the [attorney ethics] rules in a way that impinges on the free interchange of ideas that is vital to self-government.  This is especially problematic when the speech is made by attorneys, who are often the citizens best situated to criticize government.

In analyzing which standard to apply, the Sixth Circuit stated it did not need to reach the question of whether the New York Times v. Sullivan ‘defamation’ standard applied.  (The “defamation” standard requires a showing of actual malice if the statement was about a public official.  Judges are public officials, and actual malice means the speaker knew the statement was false.  The focus is on what the speaker knew or believed, not whether the ordinary person would have believed it.  This is a subjective standard.)

The malice question was not reached, because the speech of lawyer Berry passed muster under a lower standard developed by the Ninth Circuit in 1993.

The language the Sixth Circuit used in getting there is significant:

First, the Opinion included two quotes from prior cases, both important:

  • a lawyer has “a right to engage in speech involving ‘governmental affairs’ and ‘the manner in which government is operated or should be operated, and all such matters relating to political processes’ under Mills v. State of Alabama, 384 U.S. 214, 218–19 (1966)”; and
  • “[j]udges should hesitate to insulate themselves from the slings and arrows that they insist other public officials face,” Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995)….”

It is important to remember these maxims as we consider lawyer speech.

The Opinion continued,

The ethics rules do not compensate judges or insulate [them] from offensive or unpleasant criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice.

This is an interesting proclamation, which I’ll analyze below.  After stating this “difference,” the Opinion did not analyze it.  Instead, the Sixth Circuit reversed the federal district court, finding that Kentucky ethics rule 8.2(a) had been applied in an unconstitutional manner to Berry’s speech.

The Court applied the Ninth Circuit Yagman standard (“what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstance”).  It’s important to note that this is not a pure “objective” standard.  Although the word ‘reasonable’ is included, the focus is on the attorney’s point of view.

Notwithstanding the New-York-Times-malice issue, the Sixth Circuit does require that other aspects of First Amendment law developed in the context of defamation cases, be analyzed.

In doing so, the Sixth Circuit gets us to focus on the first part of defamation analysis, rather than awaiting a fact-finding hearing, when one is often not necessary.

These analytical precepts are par for the course in a defamation summary judgment analysis; they are laid out in our Eighth Circuit’s Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir.1986) (en banc), cert. denied, 479 U.S. 883 (1986).  These analytical points include:

  1. Have the precise words been plead?
  2. Is the statement one of fact, or opinion?
  3. Can the complainant show the statement is false?
  4. Is the statement defamatory (or in the parlance of 8.2(a), does it impugn integrity)?
  5. Was the statement privileged?

And if all the complainant can navigate through all of those, is the statement true?  (Truth is an absolute defense).

After acknowledging the speech was political, the Sixth Circuit Opinion pointedly evaluated whether the speech was fact or opinion.  The Sixth Circuit acknowledges (as did the Janklow case), that opinion is protected.

The Sixth Circuit Opinion specifically stated,

an attorney’s “statements about the integrity of a judge cannot be punished unless they are capable of being proven true or false” (citing to Yagman).

Holding that Attorney Berry’s statements were mixed fact and opinion, the Opinion nonetheless held that, “conveying the public’s belief that ‘the deck was stacked’ is opinion protected by the First Amendment.”

The Sixth Circuit went on to comment that alleging illegality by a tribunal is the staple of appellate briefs.

Finally, the Opinion reminds us that an attorney cannot be punished for advocating a change in the law.

We seek progress, not perfection.

There is an adage common in the program of Alcoholic Anonymous, we seek progress not perfection.  Although I have some issues with the Sixth Circuit Opinion, it shows great progress in the area of attorney speech, and in particular, expand what lawyers can say about a tribunal.

The Sixth Circuit’s Opinion includes points I have been making on this blog, such as:

1.           A system of self-government works when the citizenry is free to criticize how government has acted, or to say how it could be done better.  This point shows the importance the First Amendment plays in preserving our democracy.

2.           Lawyers are important as speakers, they are often in the best position to articulate the criticisms of judges.  We need to protect lawyer speech critical of government, and in particular criticism of judges.  Lawyers are in a unique position to observe judicial conduct, and they are trained to articulate the problems vis a vis the law.

3.           Nearly every appellate brief argues that the district court acted illegally (contrary to law).  Our appellate system is founded on the notion that a party must challenge the legality of a judge’s order.  Why, then, would we be so hard on lawyers who suggest that a judge did not follow the law, or did something illegal, or that the process was not fair?  That should be treated as usual fodder.

The Sixth Circuit specifically used the term “illegal” when discussing appellate briefs.  I have been publicly charged for alleging illegality by Judge Wieland – in a federal district court complaint.  I have pointed out taht that is what lawyers should be doing in a complaint.  This Opinion shows why that charge makes no sense.

Recommended reading.

This is one of those Opinions I wish every judge would read.   It’s a sign of the changing times.

I am aware of the Yagman opinion, and I know Gentile.  But they are both early 90’s (two decades ago), and much has occurred in the judicial reform movement since then.

But using the ‘reasonable lawyer’ standard from Yagman is still progress.  Instead of permitting judges to evaluate what is objective from their point of view, the emphasis is on what a lawyer should do, given professional obligations.

The “lower standard” did not harm Attorney Berry, he won even under the lower standard.  It’s quite possible the Sixth Circuit was suggesting that the debate has been focusing in the wrong area:  if the speech is protected, we never need to reach the issue of malice.

Focusing on factual support wastes resources.

Since 2006, I have tried to get the Minnesota OLPR to consider some of these points.  The charges did not focus on my precise words, I argued, and they were taken out of context.  And, I noted that some of my comments were opinion, and therefore protected.

I was blown off.  All Craig Klausing wanted to do was to focus on ‘factual basis.’  This puts the cart before the horse.

That caused an unnecessary PC hearing, and, because there was no finding of fact in that process, forced a public proceeding.  My reputation, my business suffered, because of that pubic proceeding.  And it was completely unnecessary (for this and other reasons).

Defamation precepts are important.

Although the malice standard was deemed immaterial to the Berry analysis, the Sixth Circuit acknowledged the impact of the First Amendment on defamation law.  No lawyer should be put through 6 years of investigation (like I was) or admonished and enjoined (like Berry was) if the government cannot be bothered to read the law to determine whether the speech is protected – and therefore not subject to any litigation.

Government officials who are sued get an early review of whether their conduct is “immune.”  The protections of the First Amendment should not receive anything less.

It has been 6 years now, and I have not been able to get anyone to consider that the case against me under 8.2(a) should never have been started.  And believe me, I have tried.

‘Reasonableness’ still a risky proposition.

I think we can do better than the 1990’s-era Yagman-formulated standard.  It’s good to focus on the lawyer’s point of view, and I agree that the lawyer’s obligations must be considered.  After all, our first duty is to our client, and if it’s necessary to bring a motion that challenges a judge’s integrity in order zealously to represent the client, that should be our highest duty.  But the ‘reasonableness’ standard still troubles me.

I must confess that my personal experience informs my opinion.

I have had an atypical career.  My cases have included numerous items of evidence about judicial conduct, and that evidence has informed my viewpoint.  Reasonableness tends to imply typical, and my experience has been uncharacteristic.

Further, as I see it, one of the biggest problems is that the ‘typical’ attorney is scared.  For reasons discussed on this blog, they fear making any negative statement about a judge; some of them would rather risk harming the client, than incur the risks that come when a lawyer communicates negative comments about a judge.

The ‘reasonable attorney’ standard does not get at that problem.

Berry’s win helps.

However, the Sixth Circuit opinion itself, does help.  Hopefully, attorneys will be less afraid to speak, in light of the win for Berry.

Berry won because it’s not only ok to criticize government, it’s vital.   Self-government doesn’t work unless the citizenry is free to criticize what government has done, or to suggest a better way.

Berry won because his speech was political, and because opinion is protected.

That should help.

It is most important to note that Berry’s phrase the ‘deck was stacked,’ was opinion.  In my experience, when the public says it wants judicial reform, it means it wants to put a stop to behind-the-scenes communications, deals and case-fixing.  And yet, in the past, when attorneys have even breathed the possibility of that, they have too often faced ethics charges.  (See my discussion of In re Graham, here).

After the Berry case, lawyers know they can imply (or even state) unfairness, bias, that the ‘desk was stacked.’

And that, in turn, will help to reform our system.

It’s a good thing that Berry pursued this issue.  Lawyers nationwide should thank him.  Each time a lawyer is brave enough to break the code of silence in our community, we all grow a bit.

Of course, lawyers need to be responsible with their speech.  But the rules that require lawyers to perform a reasonable investigation of the facts and law before making an argument in court, must be equally enforced (against public attorneys, and yes, against the ethics police) before we should consider suppressing lawyer speech.  I

Viewpoint matters.

I must close by parsing the Sixth Circuit statements that the defamation tort was created to compensate private individuals and, “[t]he ethics rules do not compensate judges or insulate [them] from offensive or unpleasant criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice.”

In my view, it’s risky to assume that all judges select the disciplinary process over a defamation lawsuit because they want to protect the public’s confidence in the justice system.  Too often, judges select the insider-controlled ethics process because:  a) they get system insiders who are pro-judge to go after the lawyer, and the lawyer gets no jury; and b) the judge avoids real discovery, which could allow the lawyer to prove the truth of the statement.

These all favor a win for the judge despite the facts and the law – what happened at the Kentucky commission is a great example of this.  It would be hard to find an American on the street who thinks Berry’s license should be threatened because he allegedly implied the legislative commission “did not conduct its review appropriately.” But the system insiders said exactly that.  The system insiders protected government, protected an “image” of judicial decision-making over reality, and gagged lawyer speech.

In my opinion, based on my experience, that is what judge-complainants want when they go after lawyers with the ethics police.  (Read other posts on this blog regarding my experience.)

And although I agree that defamation lawsuits and disciplinary matters are not identical, when it comes to criticizing judges as elected or public officials, they should be.  Let’s face it, the old way does not work.  It has caused lawyers to fear for their license if they ever criticize a judge.

And the ‘old way’ doesn’t work because it permits judges to cover up their own misconduct by attacking the lawyer using the insider-controlled system.

In my view, if a judge thinks s/he has been defamed, s/he should be forced to sue in open court for defamation, to ensure real discovery, and a jury of the lawyer’s peers, not system insiders.

Regardless of the overall reason we have ethics rules for attorneys, tt does not protect the public to cover up judicial misconduct, or to make lawyers too afraid to report it.

Let the public decide what enhances our confidence.

That leads us to my final point:  what protects the public’s confidence in the justice system?

In my view, confidence is enhanced by showing that judges will be held accountable for their conduct.

I am against the notion that perception is more important than reality.  I abhor the concept that the public should be fooled when they could be told the truth.

In this system of self-governance, the public must first know what is happening.  Only then can we intelligently comment on how we want our government to work.

               Let’s start the ugly phase now so we can get through it.

For a while, it might be ugly.  As we expose bad conduct of judges, we might, for a time, resemble the Catholic Church.  It may come out that certain types of misconduct (like fixing cases) have been going on for years, and that rather than dealing with those problems, those who complained have been ostracized, while those who did wrong were protected.

But emerge it must, if we are ever to get past this stage and move into a healthier one.

A fair and impartial system is indeed the goal.  But it should never be forgotten that we, the public, are the reason for the goal.   It’s supposed to be about us.  In this system of self-governance, we need to have a voice in what is best for us.

We as a society falter and fail if a small group of people are permitted to control the data, control the image, control the perception of the courts.

When it comes to determining what will enhance the public’s confidence, I don’t want a system-insider making the decision.  Until there is some method for listening to the public about what it wants, this standard will fail.

P.S.  The concurrence deserves a brief mention.  Judge Zouhary joined in the result but wrote separately to be able to say, “this case is more about stubborn Berry having the last word….”

This made me laugh.  Imagine if a lawyer had said that a judge was “stubborn.”   What do you think would have happened to the lawyer?  This feels tit for tat (you criticize a tribunal you will not get away without being criticized).  And, as it turns out, it was Judge Zouhary who got the “last word.”