How do you define "reckless" if you are criticizing a judge of:
1) a conflict of interest;
2) appearance of corruption;
3) bias or appearance of bias?
Is it "reckless" to even consider such a sacrilege?
This document came as a tip from my reader.
It shows that the American Bar Association, in its "analysis" of its members' 1st Amendment rights to criticize a judge - as part of their jobs no less - does not consider the main court precedent prohibiting ANY sanctions to be imposed for such criticism, at least without using the strict scrutiny test, which is never used in attorney disciplinary proceedings.
The ABA manual of "professionalism" for attorneys does not touch on the slippery topic (slippery for judges who sanction lawyers for criticism of judges) that content-based regulation in general, and especially content-based regulation of protected speech, and criticism of ANY public official for misconduct is protected speech, is presumptively unconstitutional.
Here is the masterpiece of the American Bar Association's advice to its members on "reckless criticism of judges".
I will analyze this piece at length and will publish more posts about it.
At this time, I would like to point out five things.
The ABA points out to the use of the so-called "New York Times v Sullivan" DEFAMATION standard applied to criticism of public officials - applied to attorney disciplinary proceedings, thus EQUATING attorney disciplinary proceedings with a PRIVATE ACTION by judges that judges do not make against lawyers - because such actions will run into 1. truth as an absolute defense, 2. discovery against the judge that may reveal that the judge is, in fact, corrupt, and the extent of the judge's conflicts of interest and misconduct and 3. that judge's lawsuit is barred under the 1st Amendment.
So, when a judge cannot win a defamation lawsuit, attorney disciplinary proceedings are, instead, used as a substitute of a defamation lawsuit on behalf of a judge that is never filed because it cannot succeed and can reveal in discovery more than the judge wants to reveal, to suit the judge's rage - and to strip consumers of legal services of their most courageous providers.
Since the judge is not a party in attorney disciplinary proceedings, and in many states attorneys in such proceedings do not have a right to discovery, the claims that the attorney must be sanctioned for the lack of "investigation" are hypocritical.
I was actually sanctioned - by the then-judge Carl F. Becker - for my efforts to investigate Carl F. Becker through available means, Freedom of Information requests as to his semi-annual financial disclosures, which were also stalled from disclosure by the New York State Court Administration.
Christine Mire, an attorney from the state of Louisiana, was sanctioned because of her extremely thorough and diligent investigation against a judge which turned up PROOF in form of SWORN TESTIMONY of witnesses that not only transcripts, but even audiotapes of judge's alleged disclosure of conflicts of interest, were cooked, and the only person with an interest to cook those audiotapes and transcripts was the criticized judge.
Instead of taking the side of an attorney and castigate judicial corruption in how Christine Mire's - and, I am sure, many other attorney disciplinary sanctions - were imposed, the ABA "manual" authors had the audacity to quote Christine Mire's case as a case of "reckless disregard to truth or falsity" of Christine Mire's statements:
See my blogs about Christine Mire's case here, and here.
Since Christine Mire could not sue the judge because of absolute judicial immunity, and the judge did not sue Christine Mire for defamation, instead using the disciplinary process to avenge on the judge's behalf, the judge was not called to depositions, and no discovery against the judge was possible, as I understand.
Another bright example of attorney discipline used against an attorney for investigations of judicial misconduct is Pennsylvania Attorney General Kathleen Kane - whose law license was suspended by a panel where a criticized judge was part of - because of her investigations, in her capacity as an Attorney General, of judicial misconduct.
Ms. Kane's law license was suspended not because she did not do a thorough investigation, but, on the opposite, because she DID do a thorough investigation, uncovered many instances of judicial misconduct, Judge Eakin and many other public officials in Pennsylvania lost their positions because of what Ms. Kane uncovered - but attorney regulation was used against her to punish her as a whistleblower.
It was not the disciplined attorney's "subjective belief is not enough", the actual rule is that - NOTHING IS ENOUGH, no level of evidence, is enough to save an attorney from losing her license if the attorney dares to criticize a judge.
So, claiming that "subjective belief is not enough", and that thorough "investigation" needs to be done is pure hypocrisy of the ABA.
There is no Reed analysis of constitutionality of content-based regulation, and no application of the Reed strict-scrutiny test - not by the ABA, not by courts imposing discipline after Reed (Reed was decided in June of 2015).
In other words, courts and attorney associations continue to adamantly defy the U.S. Supreme Court precedent.
The root of the matter is that attorney regulation is declared to be done for purposes of protecting the public from bad providers of legal services.
All cases of attorney discipline for criticism of judges is cases where GOOD and COURAGEOUS providers of legal services were sanctioned - for doing their jobs for their clients, for trying to ensure for their clients their constitutional right for impartial judicial review.
If the legal provider did not do any harm to his or her clients, criticism of a judge must not be part of any disciplinary rules or subject of any disciplinary proceedings, since it has nothing to do with the declared SINGLE purpose of attorney regulation - protecting consumers from bad providers of legal services.
Attorneys-critics of judicial misconduct are GOOD providers of legal services, trying to ensure constitutional rights for their clients, to impartial judicial review and access to court.
V. Courts imposing attorney discipline and the ABA makes no attempt to comply (for ABA - address non-compliance) with the U.S. Supreme Court precedent regarding antitrust activities in occupational regulation
When attorney discipline is imposed by competitors of the attorney, without any supervision from a neutral state body, that constitutes an antitrust violation, a criminal activity in this country.
In February of 2015 the U.S. Supreme Court has stripped disciplinary bodies imposing discipline in regulated professions, of their "state" antitrust immunity if their markets, run by competitors of disciplined professionals, are not supervised by neutral bodies.
Attorney regulation is not supervised by a neutral body, as described in the U.S. Federal Trade Commission's "Guidelines to Staff".
See how markets regulated by active market participants are defined by FTC.
See how the necessary neutral active state supervision of such market player-regulated professions is defined by FTC:
See where the "active state supervision" requirement is not satisfied:
Courts that preside over attorney disciplinary cases and that legislate the rules and appoint members of disciplinary commissions, are not neutral bodies for purposes of such supervision, because they themselves consist of licensed attorneys (judges).
The State Attorney General is him/herself a licensed attorney, and what has been done to Pennsylvania Attorney General Kathleen Kane (her license was suspended for investigation and criticism of judicial misconduct) shows that AGs are themselves not "neutral" in supervising the process upon which their own licenses, livelihood and positions depend.
Even federal courts where judges are allegedly "sit during good behavior" for life, are state-licensed attorneys, and revocation of their law licenses will result in their impeachment and removal from office, and revocation of their law licenses can be done by attorneys who are not happy because of a federal judge's ruling, so there is no real judicial independence in federal judiciary either.
The ABA manual does not even mention the impact of the 2015 U.S. Supreme Court's antitrust precedent upon attorney regulation and attorney discipline - because it does not serve the purposes of this PRIVATE professional organization (American Bar Association) to perpetuate itself, its business run as an antitrust cartel, and its favors and privileges from the judiciary if their members "are good".
So, "to be good" - DO NOT CRITICIZE JUDGES.
ABA did not have to run such a long manual, with so many cases incorrectly cited (like it did Christine Mire) and so many key cases on point avoided.
Just say - "YOU WILL NOT SURVIVE AS A PROFESSIONAL IF YOU CRITICIZE A JUDGE", no matter how right you are and how wrong the judge is.
That's the law.