I’m Mad. I’m Right. That Judge is Wrong. The First Amendment…But How Far Can I Go?

In Ohio, lawyers have been subjected to professional discipline for making statements later held to be “accusations of judicial impropriety that a reasonable attorney would believe are false,” in violation of Rule 8.2(a) of the Ohio Rules of Professional Conduct.1 Rule 3.5(a)(6) punishes lawyers found to have “engage[d] in undignified or discourteous conduct that is degrading to a tribunal.”

Consider these two cases.

Many of us are familiar with the recent criminal proceedings against Harvey Weinstein. Weinstein was convicted of third degree rape and the commission of a criminal sex act (a Class E felony under New York law) in February of 2020. Facing a minimum sentence of five years in prison and a maximum of 29, Weinstein was sentenced by New York Supreme Court Justice James A. Burke to a period of 23 years imprisonment on March 11, 2020.

Weinstein’s lawyer, Donna Rotunno, was interviewed by members of the media on the New York Criminal Courthouse steps immediately following Weinstein’s sentencing proceedings. With at least one camera and 20 microphones in front of her, Rotunno provided the following statement: “That number was obnoxious. There are murderers who will get out of court faster than Harvey Weinstein will. That number spoke to the pressure of movements and the public. That number did not speak to the evidence that came out in trial. That number did not speak to the testimony that we heard. That number did not speak to evidence, nor did it speak to justice. I am overcome with anger at that number. I think that number is a cowardly number to give. I think the judge caved, just as I believe the jury caved, and I am not happy.”

Lawyers cannot afford the luxury of recreational anger.

The week before Weinstein’s sentencing hearing, a 35-page article — the Roberts Court’s Assault on Democracy — was published in the Harvard Law and Policy Review.

The article’s premise is that the United States Supreme Court — specifically in recent times under the presiding Chief Justice John Roberts — “is substantially contributing to” the “erosion” of democracy in two specific ways: 1) by “virtually eviscerat[ing] the landmark Voting Rights Act,” and 2) “by reinforcing the enormous imbalance in wealth and political power that has developed in recent decades.”2

The article opens by quoting Chief Justice Roberts’ statement to the Senate Judiciary Committee that “a Supreme Court justice’s role is the passive one of a neutral baseball ‘umpire who [merely] calls the balls and strikes.’” — characterized by the author as a “masterpiece of disingenuousness.”

“The judge caved,” “obnoxious,” “masterpiece of disingenuousness.”

These events beg the question — where is the line?

Rotunno’s statements were made to the general public from the courthouse steps. The latter example is a law review Article published by the Harvard Law and Policy Review. Both involve inflammatory comments aimed directly at a particular judge. These are considerations that are key to the analysis.

Do you think that either of the above professionals will ever be disciplined? More important, should they be?

Does it affect your analysis to know that the Article attacking democracy under the Roberts Court was authored by District Judge Lynn Adelman of the Federal District Court for the Eastern District of Wisconsin?

Lawyers are governed by the rules of ethical conduct. Quite often, these rules involve an underlying respect for the courts — the judges — with whom we work. That respect is right — and it is necessary.

But, it is a lawyer’s duty to engage in civilized confrontation, not only with their adversaries but also with the judge. And isn’t it is a civic duty to offer well-considered opinions on issues important to the public?

We all have opinions. But when is it appropriate — or inappropriate — to share them? And how far can you go?

I suggest you take these as rules:

  • It is not appropriate to make derogatory comments about a judge on the courthouse steps strictly to benefit your legal practice — to pursue a self-fulfilling vanity show.
  • It is not appropriate to make inflammatory comments premised solely upon your personal anger.
  • It is not appropriate to make statements aimed at swaying a tribunal.

But if your point is one of advocacy — if you are speaking on a topic in order to inform the public — if it is well thought-out and you have examined all sides of the issue, then can you assume a duty to speak?

Hard questions.

Approach the line with great caution — edging closer as you are more firm in your convictions. But understand that you might be wrong. If you are, and the balance tips towards recklessness and disrespect, there will be consequences. And if you cross the line — if you break the rule-intentionally to make a point — understand that you will pay a price. Weigh your choices carefully — be prudent — act with integrity. Sometimes, not often but sometimes — it just might be the right thing to do.

For those readers viewing this story in print, the links at which to view the cited material are copied below:

1 See Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018); see also Disciplinary Counsel v. Shimko, 134 Ohio St.3d 544 (2012).

2 Adelman, Lynn, The Roberts Court’s Assault on Democracy (February 18, 2020). Harvard Law & Policy Review, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3540318, at Abstract.

This post first appeared as an “Ethics Perspective” column at clevemetbar.org.

Posted in How to Lawyer.