By Edward J. McIntyre
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is recommending to the Board of Trustees that the Board recommend to the Supreme Court a change in Rule 8.2 (Judicial Officials), by the addition of a new Comment [1]. The California Judges Association requested the change in response to increased public criticism of judges resulting in threats and violence against judges due to their rulings. This endangers judicial independence, public trust in the legal system, and ultimately the rule of law.
Rule 8.2(a) prohibits making a statement of fact that a lawyer knows to be false or with reckless disregard of its truth or falsity concerning the qualifications or integrity of a judge or judicial officer, or of a candidate for election or appointment to judicial office. Rules 8.2(b) and 8.2(c) address the conduct of lawyers who are candidates for judicial office or who are seeking appointment to judicial office.
The proposed rule change is in Comment [1] to the Rule. If adopted, it reads:
A statement that is asserted as opinion may be the basis for discipline if the “statement implies actual facts that are capable of objective verification.” (See In re Yagman (9th Cir. 1995) 55 F.3d 1430, 1441.)
So, who is Yagman and what did he do to bring about this proposed rule change—even if only by adding a new comment?
The plaintiff in that case was the Standing Committee on Discipline of the District Court for the Central District; Stephen Yagman, the defendant and appellant.
A three-judge panel of District Court judges had suspended Mr. Yagman, an “outspoken civil rights lawyer,” for two years finding that he had committed sanctionable conduct for impugning the integrity of the court and interfering with the random selection of judges by making disparaging remarks about a judge of the court.
The saga began in 1991, when Mr. Yagman filed a pro se lawsuit against several insurance companies. The case was randomly assigned to the then chief Judge, Manuel Real, whom Mr. Yagman sought to disqualify. Judge Keller heard and denied the disqualification motion, sanctioning Mr. Yagman for pursuing the matter in an “improper and frivolous manner.”
A few days later, Mr. Yagman was quoted as saying that Judge Keller “has a penchant for sanctioning Jewish lawyers” identifying himself and two others. “I find this to be evidence of anti-semitism.” He was also quoted as saying Judge Keller was drunk on the bench.
Then Prentice Hall, in its lawyer-submitted review of federal judges, published Mr. Yagman’s comments about Judge Keller:
It is outrageous that the Judge wants his profile redone because he thinks it to be inaccurately harsh in portraying him in a poor light. It is an understatement to characterize the Judge as “the worst judge in the central district.” It would be fairer to say that he is ignorant, dishonest, ill-tempered, and a bully, and probably is one of the worst judges in the United States. If television cameras ever were permitted in his courtroom, the other federal judges in the Country would be so embarrassed by this buffoon that they would run for cover. One might believe that some of the reason for this sub-standard human is the recent acrimonious divorce through which he recently went: but talking to attorneys who knew him years ago indicates that, if anything, he has mellowed. One other comment: his girlfriend …, like the Judge, is a right-wing fanatic.
The Central District had a discipline mechanism by which judges aware of lawyer misconduct could refer the matter to the Standing Committee, a body of 12 lawyers of the Central District bar, who investigate. If it determines the lawyer deserves discipline it issues a complaint, and the case is assigned to a randomly selected panel of judges who hold a hearing with the committee prosecuting.
The Ninth Circuit, in a two-to-one panel decision, reversed the District Court.
Mr. Yagman had raised First Amendment defenses both at the District Court hearing and raised them again in the Ninth Circuit. Mr. Yagman pressed for the New York Times subjective standard; the court, however, applied the standard it articulated in United States Dist. Ct. v. Sandlin; it held that proceedings involving a lawyer’s comments are governed by an objective standard, pursuant to which the court must determine “what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” The inquiry focuses on whether the lawyer has a reasonable factual basis for making the statements, considering their nature and the context in which they were made. Hence, lawyers may freely voice criticisms supported by a reasonable factual basis even if they turn out to be mistaken. Thus, such statements must be false; statement of opinion are also protected “unless they imply a false assertion of fact.’”
In considering Mr. Yagman’s statements, the court found his statement that Judge Keller was anti-Semitic a statement of opinion in which he stated the facts on which he based it—hence protected. Similarly, the court found his statement that Judge Keller was “dishonest,” which the court took to mean “intellectually dishonest,” was subjective opinion because it “does not imply facts capable of objective verification;” hence constitutionally immune. Finally, the Committee had failed to offer any proof about Mr. Yagman’s statement that Judge Keller was “drunk on the bench” where it had the burden of proof.
Yagman deserves reading. If the proposed rule change is adopted and becomes a potential discipline standard, a question remains. Will the State Bar Court, which with the Supreme Court has jurisdiction in discipline matters, adhere to the Ninth Circuit’s rigorous analysis in Yagman? Stay tuned!