Don't Insult the Judge

By John W. Amberg

John W. Amberg is a partner in Bryan Cave Leighton Paisner LLP, and is a member and former chair of LACBA's Professional Responsibility and Ethics Committee. The views expressed here are his own.

Many in the public have become inured to the barrage of personal insults from the White House, whose occupant freely shares his disdain for our institutions, including the press, Department of Justice, intelligence agencies, FBI, and Federal Reserve, to name but a few. But when his tweets maligned another recurring target, the federal courts, Chief Justice John Roberts publicly rebuked the president.[1] Unlike politicians, lawyers who call judges names risk more than alienating the decision maker. They show disrespect for the judicial system and can be held in contempt or sanctioned by the court, and disciplined by the State Bar.

In Martinez v. O'Hara,[2] filed on February 28, 2019, the Fourth District Court of Appeal ruled that plaintiff's lawyer Benjamin Pavone's offensive criticism of the female trial judge in his notice of appeal was subject to Business and Professions Code section 6068(b) which says it is the duty of an attorney to "maintain the respect due to the courts of justice and judicial officers."[3] Referring to the superior court's "disgraceful" order, the lawyer wrote:  "The ruling's succubustic adoption of the defense position, and resulting validation of the defendant's pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners."[4]

The appellate court helpfully explained that a "succubus" was "a demon assuming female form to have sexual intercourse with men in their sleep, a demon, fiend, or a strumpet, whore," and held the words demonstrated bias, prejudice, or harassment based on gender, which was reportable misconduct under Canons 3B(6) and 3D(2) of the Code of Judicial Ethics. It wondered why the lawyer thought "it wise, much less persuasive," to include them.[5] The opinion attracted attention for the lawyer's recondite and sexist vocabulary, but the court also focused on his statements that the trial court had intentionally refused to follow and apply the law, and had suppressed notice of the judgment to thwart review, for which there was no support in the record. It refused to excuse these statements as mere zealous advocacy, and reported Pavone to the State Bar for appropriate discipline.[6]

California courts and the State Bar take a stern view of attacks on the integrity of judges. In a seminal 1973 case, In re Buckley, the California Supreme Court distinguished between permissible aggressive advocacy and contemptuous language that reflected on the integrity of the court.[7] During a jury trial, public defender Lawrence Buckley sought to put the prosecutor on the witness stand, but when he made no offer of proof, the court refused to let him call the witness. Buckley responded, "This Court obviously doesn't want to apply the law." The lawyer was held in contempt for accusing the judge of a lack of integrity, and sentenced to five days in the Orange County jail and a fine of $500.[8] The supreme court denied Buckley's petition for a writ of habeas corpus, holding that the statement was contemptuous on its face. "In our view the statement goes beyond one reflecting a mere mental outlook or predilection and makes a charge of deliberate judicial dishonesty."[9] The court contrasted this with aggressive but respectful advocacy which is protected activity, and concluded, "[W]hen petitioner's argument turned from advocacy to insult, the trial court was acting properly in holding him in contempt."[10]

Martinez cited Ramirez v. State Bar,[11] in which the California Supreme Court adopted the State Bar Disciplinary Board's recommendation to suspend attorney Glenn D. Ramirez for one month and place him on probation for one year for "falsely maligning" justices of the Third District Court of Appeal. After his victory in the trial court was reversed by the Third District, Ramirez sued the individual appellate justices in federal court, and when the case was dismissed, appealed to the Ninth Circuit, arguing the state judges had been induced by an "invidious alliance" with the opposing party to "unlawfully" deprive his clients of their property without due process of law. He wrote, "Money is king and some judges feel they are there to see that it doesn't lose."[12] In his unsuccessful petition for certiorari to the United States Supreme Court, Ramirez asserted that the judicial officers had "falsified the record" and their unblemished reputation was "undeserved."[13] The California Supreme Court found no support in the record for these demeaning statements, and imposed discipline "for the protection of the public and preservation of respect for the courts and the legal profession."[14]

More recently, in In re Koven,[15] the Second District Court of Appeal held lawyer Debra L. Koven in contempt for impugning the integrity of the appellate court by accusing the panel of "deliberate judicial dishonesty" when it ruled against her client.  Koven falsely accused the panel of "conspiring" with the opposing party to "fix" the appeal, and of ignoring the law and misrepresenting the evidence to "manipulate the result."[16] Though the court accepted her apology, it declined to purge the contempt which it found was "patently outrageous" and part of a pattern of abuse that also impugned the integrity of the trial judge, opposing counsel, and expert witnesses.[17] The court did not impose any jail time "in view of her apology," but fined Koven $2,000 and reported her to the State Bar.[18]

Sexist comments and insulting criticism of judges are not invariably punished, however, and the Ninth Circuit has sometimes taken a more restrained view. In United States v. Wunsch, attorney Frank L. Swan was disqualified as defense counsel in a criminal tax prosecution against his three clients after Assistant United States Attorney Elana Artson argued that he had a conflict of interest. He sent Artson a letter complaining about his disqualification, and enclosed a sheet reading:  MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER.

District Judge Alicemarie H. Stotler sanctioned Swan for gender-based discrimination, citing former Business and Professions Code section 6068(f), which was incorporated by reference in the local rules.[19] Subsection (f) stated: "It is the duty of an attorney . . . [t]o abstain from all offensive personality."

The Ninth Circuit reversed the sanctions, holding that the statute was unconstitutionally vague.[20] After the State of California and California State Bar intervened, the court reheard the case, but reached the same result.[21] The court acutely explained, "As 'offensive personality' could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients' interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute."[22] While acknowledging that Swan displayed "a deplorable lack of sensitivity," it could not uphold the sanctions as a matter of law.[23] Five years later, the legislature amended Section 6068 to delete the duty to avoid offensive personality.[24]

Another Ninth Circuit panel addressed strident attacks on a Central District judge by the pugnacious civil rights lawyer Stephen G. Yagman in Standing Committee on Discipline of the United States District Court for the Central District of California v. Yagman.[25] In 1991, Yagman filed a case in the Central District that was assigned to District Judge Manuel Real, with whom Yagman had a contentious history. When Yagman sought to disqualify Judge Real on the ground of bias, District Judge William D. Keller denied the motion as frivolous and, characterizing Yagman's conduct as "pestiferous," imposed harsh sanctions, which the Ninth Circuit reversed. Yagman subsequently told a reporter for the Daily Journal that Judge Keller was anti-Semitic and drunk on the bench. He followed this with a letter to the Almanac of Federal Judiciary in which he described the judge as a "buffoon," "sub-standard human," and "right-wing fanatic," and wrote, "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.[26]

Yagman confided to another lawyer that by publicly criticizing Judge Keller, he hoped to get the judge to recuse himself in future cases. 

Judge Keller complained to the Standing Committee on Discipline that these insults challenged the integrity of the judicial system. Following a hearing, the committee held that Yagman had committed sanctionable misconduct, and suspended him from practice in the Central District for two years.[27] The Ninth Circuit reversed, holding that Yagman's speech was constitutionally protected and immune from sanctions. Judge Alex Kozinski wrote, "[S]tatements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they 'imply a false assertion of fact.'"[28]

The lawyer's assertion that the judge was anti-Semitic was protected opinion because Yagman disclosed the factual basis for his opinion, namely, that the judge had sanctioned three Jewish lawyers. The term dishonest did not accuse the judge of criminal misconduct, but rather described his competence and temperament. Yagman's statement that Judge Keller was drunk on the bench implied actual facts that were capable of verification, so was not mere rhetorical hyperbole, but the Standing Committee bore the burden to prove Yagman had made a statement "that falsely impugned the integrity of the court" and it failed to introduce any evidence on this point. Without proof of falsity, his statement could not support sanctions.[29]

The Ninth Circuit acknowledged that speech otherwise protected by the First Amendment may be sanctioned if it obstructs or prejudices the administration of justice. Similarly, judge-shopping disrupts the judicial system and may be disciplined.[30] However, while Yagman's criticism of Judge Keller was "harsh and intemperate, and in no way to be condoned," it did not obstruct the administration of justice because no one can force a judge to recuse himself by personal attacks. The court held that Yagman's statements did not pose a clear and present danger to the functioning of the court, so the sanctions were reversed.[31]

In today's climate of heightened attacks on our basic institutions, including the courts, it would be unwise to assume that similar attacks on judges by members of the bar will be excused.

[1] In His Own Words: The President's Attacks on the Courts, Brennan Center for Justice, available at https://www.brennancenter.org/analysis/his-own-words-presidents-attacks-courts; Adam Liptak, Chief Justice Defends Judicial Independence After Trump Attacks 'Obama Judge," N.Y. Times, Nov. 21, 2018. 

[2] Martinez v. O'Hara, __ Cal. App. 5th __, 19 Cal. Daily Op. Serv. 1966, 2019 WL 968304. The opinion was written by Associate Justice Richard D. Fybel, a former chair of LACBA's Professional Responsibility and Ethics Committee.

[3] 2019 WL 968304 at *10.

[4] Id.

[5] Id. at *11.

[6] Id. at *12.

[7] In re Buckley, 10 Cal. 3d 237 (1973).

[8] Id. at 243-45.

[9] Id. at 250.

[10] Id. at 255.

[11] Ramirez v. State Bar, 28 Cal. 3d 402 (1980).

[12] Id. at 406-07.

[13] Id. at 407.

[14] Id. at 414.

[15] In re Koven, 134 Cal. App. 4th 262 (2005).

[16] Id. at 272-73.

[17] Id. at 265.

[18] Id. at 277. Other State Bar disciplinary proceedings against lawyers who failed to maintain the respect due to the courts and judicial officers include Lebbos v. State Bar, 53 Cal.3d 37 (1991) (lawyer disbarred for "concerted assault" against Santa Clara bench including references to judges as "swine," "asshole," and "the four stooges," asserting a judge "deliberately set out to bankrupt me out of spite," and accusing judges of illegal and fraudulent orders and cover-ups), and In the Matter of William August Salzwedel, State Bar Court Case No. 15-O-15162, filed Oct. 13, 2017 (lawyer charged after filing federal suit alleging Ventura County Superior Court judge had an "animus and hatred" toward him, "sought to do [respondent] harm," and "conspired to 'retaliate'" against him).

[19] Matter of Swan, 833 F. Supp. 794 (C.D. Ca. 1993).

[20] United States v. Wunsch, 54 F.3d 579 (9th Cir. 1995).

[21] United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996).

[22] Id. at 1119.

[23] Id. at 1120.

[24] SB 352, eff. Jan. 1, 2002.

[25] Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995).

[26] Id. at 1433-34.

[27] 856 F. Supp. 1384 and 856 F. Supp. 1395 (C.D. Ca. 1994).

[28] 55 F.3d at 1438; citations omitted.

[29] Id. at 1441-42.

[30] Id. at 1442.

[31] Id. at 1444-45.