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Tuesday, August 05, 2008
Courts - "A Primer on What Lawyers Can Say About Judges"
Bruce A. Campbell of the Texas Lawyer has this article. A quote:
What happens when an attorney makes a false statement about a member of the judiciary? Will the offending attorney be disciplined? Perhaps, but not necessarily.In 1964's Garrison v. State of Louisiana, the U.S. Supreme Court held that the First and 14th Amendments to the U.S. Constitution protect lawyers who make false statements about judges from imposition of civil, criminal and disciplinary sanctions unless the statement is made "with knowledge of its falsity or in reckless disregard of whether it was false or true."
Indeed, the Colorado Supreme Court noted in 2000's In the Matter of Green that "if an attorney's activity or speech is protected by the First Amendment, the disciplinary rules governing the legal profession cannot punish the attorney's conduct."
But attorneys should not view the First Amendment as a license to disparage the judiciary. The test that has been uniformly applied to challenged lawyer statements about judges is a version of that set out in the U.S. Supreme Court's 1964 decision in The New York Times Co. v. Sullivan, et al. First, did the disciplinary authority prove that the statement was a false statement of fact or a statement of opinion that necessarily implies an undisclosed false assertion of fact? Second, did the attorney utter the statement with actual malice -- that is, with knowledge that it was false or with reckless disregard as to its truth?
Posted by Marcia Oddi on August 5, 2008 09:15 AM
Posted to Courts in general