Tennessee Will Hear Judicial Criticism Bar Discipline Case

Oral argument before the Tennessee Supreme Court on April 4

• Board of Professional Responsibility v. Larry Edward Parrish–In this attorney-discipline matter, the Court will consider the parameters of constitutional free speech protection within the context of an attorney’s statements to a court in written filings.  Attorney Parrish was publicly censured following statements he made in motions to recuse three judges on a panel of the Court of Appeals.  Mr. Parrish argues that this discipline violates his First Amendment rights and his free speech rights guaranteed by Article 1 § 19 of the Tennessee Constitution because the Board of Professional Responsibility failed to prove by clear and convincing evidence that the speech was false.  The Board argues that the First Amendment of the United States Constitution and Article 1, Section 19 of the Tennessee Constitution do not protect Attorney Parrish’s speech within this context.

I explore this issue in my Professional Responsibility classes with this Indiana bar discipline case where the court found statements made in a motion to recuse did not violate Rule 8.2.

But even though Rule 8.2 holds attorneys to a higher disciplinary standard than New York Times does in defamation cases, we also recognize that attorneys need wide latitude in engaging robust and effective advocacy on behalf of their clients—particularly on issues, as here, that require criticism of a judge or a judge’s ruling. And as discussed above, in seeking a change of judge under Criminal Procedure Rule 12(B), a party must allege personal bias or prejudice on the part of the judge—and an attorney must therefore be allowed to assist the client in doing what the rule requires. A motion for a change of judge due to personal bias is inherently sensitive, but it implicates the client’s fundamental due process right to a neutral decision maker. Counsel’s advocacy on such matters must not be chilled by an overly restrictive interpretation of Rule 8.2(a).

We will therefore interpret Rule 8.2(a)’s limits to be the least restrictive when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision. In any other context, counsel’s advocacy would be limited only by Professional Conduct Rule 3.1, which requires only “a basis in law and fact . . . that is not frivolous,” and Indiana Trial Rule 11(a), under which an attorney’s signature “constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support it; and that it is not interposed for delay.” And while criticism of a judge necessarily implicates Rule 8.2(a), even in genuine professional advocacy, any further restrictions of counsel’s advocacy on that sensitive subject should be as minimal as possible.

…the test we apply is whether Respondent’s basis for making the statements at issue was objectively unreasonable considering their nature and context, including the extent to which Respondent supported the statements with accurate facts. And because Respondent was engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge, specifically, allegations of personal bias or prejudice required by Criminal Procedure Rule 12(B), we apply Rule 8.2’s limits in the least restrictive
manner.

Under those principles, we readily conclude that the Respondent’s statements were not sanctionable…

The Indiana case involved statements made in a recusal motion in cases where protesters were arrested when Notre Dame University conferred an honorary degree on President Obama. The recusal claims related to the fact that the judge’s spouse was a retired (and liberal) Notre Dame professor. (Mike Frisch)