The First Amendment does not protect a lawyer who disparages the integrity of a judicial officer without an “objectively reasonable factual basis,” the West Virginia Supreme Court of Appeals recently held in Lawyer Disciplinary Board v. Hall.

The lawyer was an officer in his mother’s beauty academy business; he defended the company against a charge of racial discrimination before the West Virginia Human Rights Commission. The complainants alleged, among other things, that the company steered white customers away from the African American students at the beauty academy. The administrative law judge who presided over the proceedings was African American.

Beauty academy administrative appeal

After losing at the first administrative level, the lawyer filed a 122-page appeals brief with the Human Rights Commission, with a large part devoted to the ALJ’s supposed racial bias and predisposition toward the complainants. The brief included accusations that:

the ALJ’s decision could only be explained by her “most heinous … racial bigotry…” the ALJ was “deluded into thinking that this is a Communist country where companies are forced to perform services for others …” and she should “seek professional psychiatric help, or be required to attend a forced reeducation camp …” she lied, misrepresented, misstated, and fabricated facts about the history of the case; and she personally knew that the allegations of discrimination were false.

The Human Rights Commission, the county Circuit Court and the state Supreme Court of Appeals each affirmed the ALJ’s decision in favor of the complainants.

Disciplinary action: three-month suspension

In 2013, the state Office of Disciplinary Counsel charged the lawyer with ethics violations based on the statements in the appeals brief. The Supreme Court of Appeals affirmed the hearing panel’s determinations and suspended the lawyer for three months, ordered him to take an extra three hours of CLE and ordered him to pay the costs of the disciplinary proceeding.

False statements impugning judicial integrity

Like the analogous Model Rule, Rule 8.2(a) of the West Virginia Rules of Professional Conduct bars statements concerning “the integrity of a judge [or] adjudicatory officer” that a lawyer knows to be false or that are made with reckless disregard as to their falsity.

The lawyer argued that the statements he made in the appeals brief were opinions protected by the First Amendment. The court disagreed, citing its holding in previous cases that the Free Speech Clause does not immunize a “lawyer’s speech that presents a serious and imminent threat to the fairness and integrity of the judicial system.”

But the court took the opportunity to further specify what standard should apply in determining whether a lawyer’s statements about a judicial officer enjoy constitutional protection.

Some states have applied the actual-malice standard found in the defamation context and enunciated in New York Times Co. v. Sullivan. But the majority of states, including Ohio, have determined that “‘the standard is whether the attorney had an objectively reasonable basis for making the statements.’”

“Objectively reasonable factual basis” required

Applying that standard, the high court ruled that the disciplinary panel had exhaustively assessed each of the lawyer’s statements and properly found by clear and convincing evidence that he lacked any objectively reasonable factual basis for making them.

Rather, the statements were unsubstantiated and made with reckless disregard as to their truth or falsity, the court said.

Take-away lesson from Hall

Your license to practice law comes with some restrictions on your right to free speech, and this disciplinary case illustrates them. Slandering a judicial officer, as this lawyer did, is not protected by the Constitution, and is not advocacy that comports with the ethics rules.