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When Does Criticizing a Judge Become an Ethics Violation?

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By William Vogeler, Esq. on December 06, 2016 9:56 AM

Some things are best left unsaid.

At least attorney Christine M. Mire should have kept her criticism of a judge to herself, according to the Louisiana Supreme Court. In appellate pleadings, Mire had accused a trial judge of tampering with a court recording that allegedly obscured the judge's connection to a litigant in the case. Based on those pleadings, the state disciplinary council accused her of ethics violations.

The Louisiana Supreme Court, in a split decision, suspended Mire's license to practice for one year and one day with six months deferred and two years of probation. Justice Jefferson D. Hughes III wrote one of the dissenting opinions.

"Alteration of the transcript of a recorded judicial proceeding is a serious, perhaps criminal, matter," he wrote. "This court does justice no favor by punishing the whistleblower."

Whistleblowing and Negligent Statements

Justice John L. Weimer also dissented. He said the court should not "create an environment in which an attorney, who is duty-bound to report concern about our judicial system, will become too timid in lodging a concern due to fear of being disciplined."

The case raised the ethical limits of Rule of Professional Responsibility Rule 8.2, which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge ..."

Legal experts contend that the Louisiana court went too far. Dane S. Ciolino, who represented Mire, said Louisiana and other jurisdictions have suggested that Rule 8.2(a) permits a lawyer to be disciplined for merely negligent statements under an objective "knew-or-should-have-known" standard.

The Plain Meaning of Rule 8.2(a)

"That is not what the plain language of what Rule 8.2(a) says, nor is it consistent with the standard of Times v. Sullivan," said Ciolino, who teaches professional responsibility at Loyola University in New Orleans. Ciolino is convinced that the court "ignored the plain language of Rule 8.2(a)," which only requires discipline when a statement criticizing a judge is known to be false (or is made with a reckless disregard for the truth).

Erwin Chemerinsky, dean of the School of Law at the University of California in Irvine, agreed: "Rule 8.2(a) is adopting the New York Times v. Sullivan standard, which requires that the statement be false, and that the speaker knew the statement was false or acted with reckless disregard of the truth. The Supreme Court has said that this requires a subjective awareness of probable falsity. This is not the standard followed by the Louisiana Supreme Court."

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