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Tuesday, October 08, 2013
Ind. Decisions - Supreme Court decides one today, a disciplinary action re attorney statements about judges [Updated]
In In the Matter of: Thomas M. Dixon, a 16-page, per curiam, 4-1 opinion, the Court examines attorney statements about judges. The case relates back to the Notre Dame protests over Obama in 2009 - see these ILB entries. Here Dixon had asked for a change of judge:
Respondent sought Judge Manier's recusal based on her husband's alleged advocacy in favor of pro-choice causes and academic freedom for Notre Dame, along with Judge Manier's failure to disclose this alleged advocacy. Respondent argued that his clients were arrested because they acted on beliefs about abortion and academic freedom for Notre Dame that were directly contrary to the beliefs allegedly advocated by Professor Manier during his career. Judge Manier also made statements that Respondent believed were inaccurate about her husband's writings at the hearing on the Motion for Change of Judge. In addition, Respondent cited Judge Manier's allegedly erroneous rulings in Kendall as a basis for recusal.The alleged offending statements are highlighted on p. 4.
On October 8, 2009, Respondent filed a Motion for Certification of an Interlocutory Appeal requesting to appeal the recusal issue. Judge Manier certified the issue for appeal, but before the issue reached the Court of Appeals, Judge Manier filed a grievance against Respondent with the Commission and recused herself from the case.
From p. 9:
C. Indiana's Standard for Determining Rule 8.2(a) ViolationsSee the Court's analyis of why the statements on p. 4 are not sanctionable on pp. 13-14. The Court concludes on pp. 14-15:
The prohibition against making a statement about a judge that the lawyer knows to be false is fairly straightforward, even though such actual knowledge might be difficult to prove in many cases. Not surprisingly, it is the prohibition against making a statement about a judge with reckless disregard as to its truth or falsity—as charged in this case—that is more often disputed. For such cases, we are now persuaded to join the majority view of other jurisdictions and expressly adopt an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a). In formulating that standard, we are guided by the following considerations.
First, the limits on professional speech by attorneys are not coextensive with the limits of the First Amendment. This Court has distinguished between the societal interests protected by the First Amendment and by rules governing professional conduct. See Terry, 394 N.E.2d at 95-96. The First Amendment protects the societal interest of enabling robust public discourse on issues of public concern, and its protections are therefore necessarily very broad. However, this interest must be balanced against the societal interest in the public's confidence in an impartial adjudicatory process, which unwarranted public accusations by an attorney against a judicial officer do nothing but weaken and erode. See Terry, 394 N.E.2d at 96. We conclude that the latter societal interest is not sufficiently protected by the New York Times subjective test, under which an attorney could be sanctioned only if he or she subjectively entertained serious doubts as to the truth of the statement at issue and actually had a high degree of awareness of its probable falsity.
Second, attorneys are expected to exercise reasonable objectivity in their statements about judicial officers. We expect those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process. This, we note, also has the incidental benefit of fostering effective advocacy for their clients. An objective test is most consistent with that expectation, and with attorney discipline precedent in Indiana and other jurisdictions.
We therefore adopt an objective test for attorney statements under Rule 8.2(a): Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made? [ILB emphasis] See Yagman, 55 F.3d at 1437; Sandlin, 12 F.3d at 867. The extent to which the attorney discloses accurate facts to support the statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity. See Yagman, 55 F.3d at 1439.
The Court concludes that none of the statements at issue, which Respondent made in support of his Motion for Change of Judge, violated Indiana Professional Conduct Rule 8.2(a), considering the entire context in which the statements were made, including Respondent's supporting facts. We therefore enter judgment in favor of Respondent. * * *ILB: No mention is made in the opinion as to who is responsible for the costs of the proceeding.
All Justices concur., except Justice Rucker, who concurs in part and dissents in part.
Rucker, Justice, concurring in part and dissenting in part:
I concur in that portion of the Court’s opinion adopting an objective standard for determining when a statement made by an Indiana attorney about a judicial officer violates Rule 8.2(a). However, I disagree with the Court’s conclusion that Respondent did not violate the Rule in this case. There is little to no daylight between the highlighted portions of Statements C and D and the statements a majority of this Court found sanctionable in Matter of Wilkins. I agree with the hearing officer that Respondent’s “comments went beyond legal argument, they became personal, and violate current professional standards”. In my view Respondent violated Rule 8.2(a) and should be sanctioned accordingly.
[Updated at 5 PM] An alert reader has pointed out that although the opinion was file stamped at 11:00 AM today, Oct. 8, the opinion is dated Oct. 9.
Posted by Marcia Oddi on October 8, 2013 02:08 PM
Posted to Ind. Sup.Ct. Decisions