Free Speech, False Allegation
By
William J. Wernz, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (December
1990)
. . . when a citizen
petitions the government for redress of grievances, in a peaceable manner,
according to legal custom or a statutory procedure, using proper language, he
enjoys, not a qualified freedom, but an absolute privilege for whatever
he may say, and he enjoys an absolute immunity against any and all forms
of criminal or civil prosecution against him.
So argued Minnesota
attorney John Remington Graham, who was accused of unprofessional conduct for
falsely alleging “of his own certain knowledge” that two judges, two attorneys,
and unnamed “others” had conspired to fix a case he was trying.
The Minnesota Supreme
Court rejected Graham’s argument and suspended him for 60 days. In re Graham, 453 N.W.2d 313 (Minn.
1990). On October 1, the U.S. Supreme
Court denied Graham’s petition for writ of certiorari. That court had previously held that the
Petition Clause of the First Amendment “does not grant absolute immunity from
liability for libel.” McDonald v. Smith, 472 U.S. 479 (1985).
The legal principles
in Graham’s case are both ancient and novel, and the Court’s balancing of them is
important for Minnesota attorneys.
Attorneys’ rights to free speech and to petition the government for
redress of grievances were examined by the Minnesota Supreme Court under the
light of its own duty to certify competent and trustworthy attorneys to the
public.
The Court found an
objective standard for interpreting Rule of Professional Conduct 8.2(a):
A lawyer shall not make a
statement that the lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications of integrity of a judge,
adjudicatory officer or public legal officer. . . .
The
Court noted that, contrary to Graham’s assertions, “On its face, Rule 8.2(a)
rejects an absolute privilege for false statements made by attorneys with
reckless disregard for their falsity.”
The Court concluded that the subjective standard used in certain
defamation cases for applying a “reckless disregard” test was inappropriate in
attorney discipline cases:
Because of the interest in
protecting the public, the administration of justice and the profession, a
purely subjective standard is inappropriate.
The standard applied must reflect that level of confidence, of sense of
responsibility to the legal system, of understanding of legal rights and of
legal procedures to be used only for legitimate purposes and not to harass or
intimidate others, that is essential to the character of an attorney practicing
in Minnesota.
Just as a “pure heart,
empty head” defense is no longer effective in Rule 11 civil proceedings, so
also is an objective standard appropriate in professional responsibility
cases. Rule 3.1, Rules of Professional
Conduct, which Graham’s baseless allegations also violated, forbids taking
litigation positions that have no basis or only a frivolous basis. If an attorney in litigation alleges a lack
of integrity by a judge, without any objective basis for the allegation, Rules
3.1 and 8.2(a) are thereby violated.
Important principles
were at stake in Graham.
History, most recently the lamentable Greylord cases in Chicago,
has shown that judges and other public legal officers have, from time to time,
lacked integrity. An attorney who has
evidence of corruption should not be afraid of discipline for speaking out. Even if the attorney is mistaken, or the
allegations of corruption simply cannot be proven, discipline should not
necessarily follow.
Why, then, was Graham
disciplined? Because his very specific
allegations, that he knew of a conspiracy, came from fevered
speculations rather than evidence and reason.
Graham’s main evidence
of conspiracy was a snip of holiday bar association cocktail party talk about
his adversary’s case being “in the bag.” The person who reported this
conversation also told Graham that as far as he was concerned the judge Graham
believed was involved in exerting influence, was not involved. Graham inferred the involvement of two
purported conspirators (whose names no one had given him) because he “… was
motivated by malice and a desire to retaliate against imagined wrongs.”Ftn 1 Moreover, the underlying case that Graham
claimed was fixed, was so obviously lacking in merit that it needed no fixing.
Because Graham’s
allegations were so serious and so definite, an exhaustive investigation,
including examination of voluminous travel and telephone records, was
undertaken to determine whether a conspiracy did in fact occur. Because the alleged conspirators resided in
different cities, and Graham alleged that they conspired within a definite
period of time, it was possible to show beyond any reasonable doubt that no
conspiracy occurred.
Reviewing the evidence
and findings is important for assuring attorneys of sound judgment that making
reasonable charges of corruption and the like will not result in
discipline. On the other hand, the
invented charge of a vast conspiracy, by an attorney with purported certain
knowledge, will shake public confidence in the administration of justice. In a publicly filed affidavit, Graham swore
that “others” besides the two judges and two attorneys were involved in the
conspiracy. At trial, he admitted that
he had no knowledge of any such “others.”
At trial, his “certain knowledge” became mere “belief” and purported “political”
connections became “old boy” ties.
As the judge who tried
the case noted, if Graham had merely reported to the proper authorities the
information he actually had, as opposed to swearing that he knew of
corruption, he could have exercised his rights of free speech and to petition
without being disciplined.
“Whenever there is
proper ground for serious complaint against a judge, it is the right and duty
of a lawyer to submit his grievances to the proper authorities.” Owen v.
Carr, 497 N.E.2d 1145, 1149 (Ill. 1986).
Whenever such allegations are made frivolously and without any rational
basis, it is the duty of the court licensing the attorney to question whether
the lawyer can remain certified to the public as a professional of sound
judgment.
The history of
attorney discipline proceedings unfortunately is not free of the taint of
punishing those with unpopular, or sharply worded, things to say — for example,
see Black, “Attorney Discipline for ‘Offensive Personality’ in
California, “ 31 Hastings L.J. 1097 (1980); In re Snyder, 105
S.Ct. 2874 (1985). The rights of
attorneys to bear unwelcome news, to challenge public officials, and to be
mistaken from time to time should not be pinched by a disciplinary system that
identifies with those in power. On the
other hand, the attorney who baselessly and publicly charges judicial corruption,
and who then in discipline proceedings recklessly multiplies his extravagant
allegations, cannot continue to be certified as a trustworthy
professional. The courts carefully
balanced these competing, great principles in the case of John Remington Graham.
NOTES