Many litigation lawyers know about the “litigation privilege” (sometimes called the “judicial privilege”). The doctrine operates to immunize lawyers from liability for statements made during the litigation process that are related to the litigation, even if they injure an opposing party. (Here’s a 2015 Hofstra Law Review article that provides an overview.)

But lawyers might not be as familiar with limitations on what you can say about judges — limitations rooted in the rules of ethics. In a recent Ohio disciplinary case, a lawyer received a stayed six-month suspension for impugning the integrity of three judges on the state court of appeals.

Judicial qualifications and integrity

Model Rule 8.2(a) prohibits statements “that the lawyer knows to be false” or makes “with reckless disregard as to [the statement’s] truth or falsity concerning the qualifications or integrity of a judge” or other judicial or public legal official, including a candidate.

In the Ohio disciplinary case, the lawyer had won a default judgment on behalf of his client, the plaintiff in an assault case. The judgment lay dormant for a long time, until the defendant received an inheritance. At that point, the lawyer tried to revive the judgment under Ohio statute. Unfortunately, a court of appeals found he had waited too long to do so and dismissed the revived case.

Then the defendant in the assault case turned the tables and sued the lawyer and the lawyer’s client for malicious prosecution and other torts. That’s when things started to go off the rails.

The lawyer’s answer to the complaint said that the appellate judges who had decided against reviving the default judgment had “contrived” their rationale “to justify a decision favoring [the assault defendant] premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.”

The lawyer also filed a disciplinary complaint against the three appellate judges, and later, in opposition to the assault defendant’s motion to disqualify him, the lawyer referred to and attached portions of the complaint, even though Ohio bar rules require that all disciplinary documents and proceedings be held confidential up to the time the disciplinary board determines there is probable cause.

In the disciplinary complaint against the judges, the lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”

“No reasonable factual basis”

The state supreme court in 2003 had adopted an objective standard for determining whether a lawyer’s statements about a judicial officer have been made with knowledge or reckless disregard for their falsity — and the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations.

The Board noted the lawyer’s testimony admitting that he failed to conduct “any investigation” before making his allegations, that they were based “solely on his reading of the court of appeals’ opinion,” and that he “did not actually know why the judges ruled as they did.” The board recommended that the lawyer be suspended for a year, with six months stayed.

The state supreme court acknowledged the lawyer’s misconduct, but by a 5-2 vote imposed a six-month suspension, entirely stayed, citing similar cases and noting as a mitigating factor the lawyer’s otherwise-unblemished 51-year career.

Watch what you say…

Other lawyers have also gotten into hot water based on state versions of Model Rule 8.2. For instance, last year, a Texas lawyer was referred to the state bar’s office of general counsel when he filed a motion to recuse two court of appeals justices, suggesting that campaign contributions affected the assignment of the panel that overturned a large jury award in favor of his clients. According to the court of appeals order, the recusal motion alluded to assignments occurring behind a “veil of secrecy” and to the lack of credibility “in the face of a long string of statistically impossible coincidences” leading to the adverse appellate outcome.

That was apparently enough for the en banc appeals court to deem the comments as “direct attacks on the integrity of the justices” and on “this Court as a whole.” However, the Texas State Bar’s site does not reflect any discipline against the lawyer to date.

You might think that you have an untrammeled right to make statements about a judge in connection with litigation, but be aware that the ethics rules provide a brake. (Of course, as always, check your own jurisdiction’s professional conduct rules and regulations — they control your professional obligations, not the Model Rules.)