By David C. Carr
Introduction
The First Amendment guarantees free speech, which is one of our most cherished freedoms. Yet, as we all know, it is not absolute. Recently, the First Amendment has played a more significant role in the jurisprudence of lawyer discipline. Lawyers, after all, are speech warriors. Fueled by new and more effective modes of communication and the breakdown in norms of restraint, First Amendment issues are coming to the surface more often in State Bar Court. This leads to different results as the nuances of the First Amendment collide with the professional obligations of the lawyers. This edition of “Ethics in Brief” briefly examines three recent decisions of the State Bar Court where the First Amendment was raised as a defense.
In the Matter of Marla Brown, State Bar Court case no. SBC-23-O-30270[1]. The recent Hearing Department decision filed on Oct. 23, 2023, resulted in a relatively rare result in State Bar Court: a complete exoneration of the respondent and a dismissal of all charges.
The State Bar’s discipline prosecutor Office of Chief Trial Counsel (OCTC), alleged that the respondent committed four acts of professional misconduct in using her X account (formerly known as Twitter) over three days in May 2020. The alleged misconduct arose during civil unrest in Los Angeles in the wake of the death of George Floyd. OCTC alleged: (1) moral turpitude[2] by making a misrepresentation on the respondent’s X biography that she was an “LAPD Union attorney”; (2) moral turpitude[3] by directing others to commit acts of violence by tweeting, among other things, “Can’t wait. At last, a reason to shoot them”; (3) committing a criminal act that reflects adversely on her fitness as a lawyer[4] by violating 18 USC section 2101 (incitement to riot); and (4) committing a criminal act that reflects adversely on her fitness[5] as a lawyer by violating Cal. Penal Code, §404.6(a) (urging violence).
The hearing judge found that OCTC failed to prove its case by the requisite burden of clear and convincing evidence. The lynchpin of its analysis was the seminal U.S. Supreme Court case Brandenburg v. Ohio (1969) 395 US 444: “In finding that the Ohio statute violated the First Amendment, the Court distinguished mere advocacy (protected speech) from incitement to imminent lawless action (not protected speech) — the latter involving intent to provoke lawless action and circumstances that would suggest that such action is imminent and likely to occur.” The hearing judge found that, under all the circumstances, the evidence did not support a finding that the offensive tweets were meant to incite imminent lawless action. As to Count One, the hearing judge said that the evidence did not clearly and convincingly show an intent to misrepresent the respondent as a current LAPD Union attorney. After the decision was filed, OCTC stated it intended to appeal to the Review Dept. but later chose not to.
In the Matter of Benjamin Pavone, State Bar Court case no. SBC-20-O-30496, Review Dept. decision filed Feb. 21, 2023. The respondent was charged with four counts of failing to maintain the respect due to judicial officers[6] based on statements made in the notice of appeal and subsequent opening and reply briefs he filed in an underlying civil matter.
Count One was based on language in the notice of appeal characterizing the judge’s ruling as “disgraceful” and a “succubustic adoption of the defense position and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt[ing] one to entertain reverse peristalsis unto its four corners.” Count Two alleged a violation in the following language in the notice of appeal: “Plaintiff never actually received a copy of a signed judgment, though a stipulated judgment was prepared for the commission court’s signature, as it apparently cynically attempted to suppress notice of the judgment in order to thwart review.”
The hearing judge dismissed both of these counts. She found the “disgraceful” language in Count One, “succubistic,” was protected under the First Amendment as a statement of opinion rather than fact. She also found that the OCTC failed to prove that the factual assertion was false. Neither the respondent nor OCTC appealed these dismissals.
Count Three and Count Four alleged a violation in the respondent’s statements, accusing the trial judge in the underlying civil case of engaging in judicial advocacy and intentionally refusing to follow the law due to bias against the respondent or his client. The hearing judge found these to be mixed statements of fact and opinion, to have been made with reckless disregard of the truth, and not entitled to First Amendment protection. The Review Dept. agreed. It found the respondent’s argument that the holding in Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430 that Yagman’s statement about Judge Real’s dishonesty to be a subjective opinion about “intellectual dishonesty” (and thus protected speech) to be inapposite; the nature and context of respondent’s statement made it reasonable to understand it as being about facts susceptible of proof, as opposed to protected opinion.
The Review Dept. recommended a 30-day suspension. The respondent filed a petition for review with the California Supreme Court, which was denied.
In the Matter of John Eastman SBC-23-O-30029, Hearing Department decision filed March 27, 2024. The respondent’s counsel stated it will be appealed to the Review Dept. The respondent was charged with and found culpable of two counts of violating Bus. & Prof. Code § 6068(d) by making misrepresentations to a court and six counts of violating section 6106 by intentional or reckless misrepresentations regarding election fraud in 2020 while serving as former President Trump’s lawyer. Culpability was also found for violating Bus. & Prof. Code §6068(a) (duty to support the law), the “gateway” statute that allows discipline for violations of law, not specifically providing for discipline. That count was based on alleged violations of (1) 3 USC § 15 (the Electoral Count Act); (2) Article II, Section 1, Clause 2 and the Twelfth Amendment of the United States Constitution; and (3) 18 USC § 371 (conspiracy to obstruct a lawful function of the government). The hearing judge found that the respondent violated § 371. The respondent was found not culpable on one count, Count Eleven, which charged a violation of §6106, moral turpitude, for statements made at the “Stop the Steal” rally on the Ellipse on Jan. 6, 2021: “OCTC failed to provide any evidence that Eastman’s statements “contributed to provoking the crowd to assault and breach the Capitol . . . when such harm was foreseeable…” as charged.
The Hearing Judge did not find the respondent’s First Amendment defense viable. The Hearing Judge cited Standing Committee v. Yagman for the proposition that “speech otherwise entitled to full constitutional protection may nonetheless be sanctioned if it obstructs or prejudices the administration of justice.” The Hearing Judge found that the respondent’s false statements were not protected under the First Amendment because they were made with gross negligence or reckless disregard of their truth while the respondent was representing a client.[7]
“Ethics in Brief” can do little more than summarize this 128-page decision. Whatever the result in the Review Dept., it is almost sure to result in a published opinion. Review by the California Supreme Court and perhaps even the United States Supreme Court is possible.
Conclusion
The application of the First Amendment in lawyer discipline cases involves a balancing of interests—the need for lawyers to make new and sometimes novel arguments for unpopular clients with the need to preserve the integrity of the justice system, especially where the truth is at stake. These issues will appear with greater frequency as the discipline system wrestles with political litigation and decreasing civility in the process of advocacy.
[1] State Bar Court Hearing Department decision and unpublished decisions of the State Bar Court Review Department are not citable as precedent. All State Bar Court decisions discussed in this article are not citable, except as noted.
[2] Bus. & Prof. Code §6106: “commission of an act or dishonesty, corruption or moral turpitude… is a cause for disbarment or suspension.”
[3] Section 6106
[4] Cal. Rule Prof. Conduct 8.4(b): “it is professional misconduct to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer…”
[5] Rule 8.4(b).
[6] Bus. & Prof. Code §6068(b).
[7] The hearing judge cited a reported Review Dept. decision holding that OCTC bears the burden of proving the falsehood of any statement that serves as basis for culpability (In the Matter of Anderson, 3 Cal. State Bar Ct. Rptr. (1997) 3 Cal. State Bar Ct. Rptr. 775, 778.)