Do Lawyers Have First Amendment Rights To Criticize Judges?

Louisiana attorney Christine M. Mire wanted to report what she believed was wrongdoing on the part of a district court judge, but instead wound up having her own license suspended. Mire represented a client in a family dispute case presided over by Phyllis Keaty, now a state appeals judge. Mire believed Keaty had failed to disclose the extent of her family’s relationship with a litigant, and when Mire requested a copy of the hearing record, she received a recording that contained a statement she believed was not actually made at the hearing. Mire believed the recording had been altered intentionally. But when she filed an appeal with allegations of misconduct against Keaty, the Office of Disciplinary Counsel found that Mire was in violation of Rule 8.2(a) of the Model Rules, which states that a lawyer should not make knowingly false statements against a judge. When Mire contended that her statements were protected by the First Amendment – under a reading of libel law established by New York Times Co. v. Sullivan, which requires display of “actual malice” – the Louisiana Supreme Court determined that Mire should have known her statements were false. Her license was suspended for a year and one day.

Two of the court’s seven justices wrote dissenting opinions, with Justice John L. Weimer warning that the court should not “create an environment in which an attorney, who is duty-bound to report concern about our judicial system, will become too timid in lodging a concern due to fear of being disciplined.” Justice Jefferson D. Hughes III agreed, noting that Mire had justifiable reason to believe her claims were true. Mire’s lawyer, Loyola University law professor Dane S. Violino, said, “Ultimately, the U.S. Supreme Court will have to resolve whether courts can diverge from the Times v. Sullivan standard and the plain language of Rule 8.2(a), to discipline a lawyer for a merely negligent misstatement about a judge.”