Proposal Targets Lawyers Who Impugn Judges
Stung by recent criticism from attorneys, some judges in the nation’s largest federal court district are fighting back with a controversial proposal to punish lawyers who make disparaging remarks about them.
A new disciplinary rule being pushed by a committee of federal judges in Southern California would disbar, suspend or fine attorneys who make remarks that “impugn the character or integrity of any judicial officer.”
If the disciplinary rule is approved, it could suppress criticism of the 75 judges in the federal court system’s Central District of California, which stretches across seven counties from San Luis Obispo to Orange County.
Under the proposal, any attorney who accuses a federal judge of dishonesty, illegal activity or discrimination could be hauled before the discipline committee. Attorneys charged with offenses cannot claim, as other citizens can, that they were merely expressing an opinion.
The proposed rule would create a discipline committee composed of 12 attorneys who would investigate charges submitted by federal judges and others. The committee would make recommendations to a three-judge panel, which would decide on the punishment.
Terry J. Hatter, the chief federal judge in Los Angeles--who is not among the judges proposing the rule--said judges are not interested in muzzling attorneys but want to ensure that “reckless kinds of statements do not interfere with the administration of justice.”
But civil libertarians, law professors and even other judges have roundly criticized the proposal. It is, they argue, a violation of the 1st Amendment rights of lawyers to free speech.
Even more troubling, some attorneys say, is that lawyers who castigate judges would be required to prove that their statements are true. It’s akin, they say, to making a defendant in a criminal case prove his or her innocence.
Ronald Talmo, a Santa Ana attorney and former dean of Western State University College of Law in Fullerton, called the judges’ proposal “crazy.”
“Judges should know better,” Talmo said. “To pass a regulation to protect themselves from criticism is disgusting. This is a good example of why people hate government.”
New York University law professor Stephen Gillers, who specializes in legal ethics and lawyer discipline issues, said he believes the proposed rule would be unconstitutional.
“It’s terrible,’ Gillers said. “One of the prices you pay for being a public official is that you’ll be subject to public criticism--including criticism that is wrong. It’s just part of our democracy and tradition of free speech.”
Attorneys said the judges’ proposal is an “overreaction” to recent attacks on the federal judiciary, including calls by some conservatives to impose specific terms of office on federal district judges, who are appointed for life and can be removed only through difficult impeachment proceedings.
In Southern California, courthouse wags call the judges’ proposal “the Yag rule” because they believe it was directed in part at local civil rights lawyer Stephen Yagman, who has been openly critical of some federal judges.
A special panel of federal trial judges suspended Yagman from practicing in the Los Angeles federal District Court for two years after he called U.S. District Judge William D. Keller anti-Semitic, “dishonest . . . a bully and one of the worst judges in the United States.”
A federal appeals court in San Francisco overturned Yagman’s suspension.
In a 1995 opinion, Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals wrote that Yagman’s remarks were protected by the 1st Amendment as “rhetorical hyperbole"--even though they were “harsh and intemperate and in no way to be condoned.”
But other appellate courts across the nation have since disagreed with Kozinski’s 1995 opinion, holding that it was too protective of attorneys’ free speech, Gillers said.
Hatter, the chief federal judge in Los Angeles, said an ad hoc committee of judges who proposed the disciplinary rule probably thought that Kozinski’s decision “does not appear to be on all fours” with rulings from other appellate courts.
Hatter said he did not know which judge initially proposed the rule, “but the important thing to understand is that it’s not a rule yet.”
That decision could come within the next two months, Hatter said. The judges who proposed the rule will gauge public reaction before deciding whether to drop the idea or recommend its adoption, he said. The judges will then report to an executive committee headed by Hatter, which will have the final say on whether to adopt the proposal.
“I’m certain that our judges are not thin-skinned,” Hatter said. “But they are concerned, as I am, about how attorneys, who are officers of the court, comport themselves, which can reflect on the administration of justice.”
Hatter said the proposal was part of a general overhaul of the district’s local rules.
Gillers, the NYU law professor, said he believes judges have a legitimate interest in maintaining order in their courtrooms, but their proposal simply goes too far.
“It’s hard to see how they could shift the burden for the attorney to prove what he said is true,” Gillers said. “Courts have traditionally held that lawyers have more protection than this when they criticize judges. This rule flies in the face of the appeals court decision” in the Yagman case.
Arthur Gilbert, a state appeals court judge in Ventura, said he believes federal judges, who enjoy life tenure, already have disciplinary powers in the specific cases they hear, because they can sanction attorneys or hold them in contempt of court for making outrageous statements about judges.
In addition, civil libertarians point out, the State Bar of California has the authority to discipline attorneys who improperly attack judges.
Paul Hoffman, a former ACLU legal director in Los Angeles, said he was among a group of civil rights attorneys who asked the judges to withdraw the proposal.
“This rule sends a bad message about the 1st Amendment,” Hoffman said. “Judges, of all people, should be the most conscious about protecting everybody’s 1st Amendment rights.”
Los Angeles civil rights attorney Douglas E. Mirell, who is also opposing the rule, agreed.
“These judges can read, and upon reading the Yagman decision they cannot help but come to the conclusion that this rule cannot pass constitutional scrutiny,” Mirell said. “Hopefully, cooler heads will prevail, and the folly of this rule will be recognized.”
Yagman, who practices from an office in Venice, called the proposed rule “moot” because it is not consistent with Kozinski’s opinion.
“It’s a blatant violation of the 1st Amendment,” Yagman said. “It’s not going to fly.”