Thursday, December 08, 2005

Mass. lawyer's jab at judge not protected speech

Massachusetts' highest court ruled today that the First Amendment does not protect a lawyer from discipline or disbarment for criticizing a judge in a pending case unless the lawyer has "an objectively reasonable basis" for the criticism.

In so ruling, the Supreme Judicial Court for the first time set out the standard to be applied in Massachusetts lawyer disciplinary proceedings when the lawyer invokes the First Amendment in defending against charges that he impugned the integrity of a judge without basis during a pending case.

The standard it adopted, the court said, is the one applied in the majority of states that have considered the issue. The SJC rejected the standard adopted by a minority of states, the "actual malice" defamation standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Writing for the court, Justice Francis X. Spina explained:
"Judges are not above criticism or immune from review of their court room conduct. ... Under the objective knowledge standard, an attorney does not lose his right to free speech. He may make statements critical of a judge in a pending case in which the attorney is a participant. He may even be mistaken. What is required by the rules of professional conduct is that he have a reasonable factual basis for making such statements before he makes them."
The case before the court involved lawyer Matthew Cobb, who had been ordered disbarred for multiple ethical violations. Among the claims against him was that he filed papers with the state Appeals Court alleging that a trial judge had been improperly influenced by the opposing counsel. In an affidavit he filed with the Appeals Court, he alleged that the opposing counsel "must have some particular power or influence with the trial court judge." A single justice of the Appeals Court found that his allegation was "scandalous" and "devoid of any rational or supportable basis in fact or law."

After Cobb was ordered disbarred for this and other infranctions, he appealed to the SJC, arguing that his statements about the judge, even if unfounded, were protected by the First Amendment. The SJC disagreed:
"The respondent has demonstrated rather convincingly by his quick and ready disparagement of judges, his disdain for his fellow attorneys, and his lack of concern for and betrayal of his clients, that he is utterly unfit to practice law. The only appropriate sanction is disbarment."
The case is: In the Matter of Cobb, SJC-09333 (Dec. 8, 2005).

7 comments:

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Jamie Young said...

As human beings, we sometimes vent our frustrations about work and while I understand the issue at hand is that Mr. Cobb made a comment about a judge in which he was arguing a case in front of I feel his being disbarred is unfair.
Let's look at this situation in a different way. For example, let's say I am a teacher at a small community college. Upon finding out I am paid $10,000 less a year than a high school teacher I make a statement, in anger or frustration, to a fellow professor about the president of the college. After the president gets wind of the statement I am fired and my certification to teach is taken away from me. Does this seem fair?
One of the benefits of living in the United States is that we are free to say what we feel and be whomever we chose to be.
I feel this is an unfair decision. When we, as humans, get upset we often say things that could e considered scandalous" and "devoid of any rational or supportable basis in fact or law."

Anonymous said...

In response to Ms. Young... You should read the court's decision. Mr. Cobb had engaged in a number of activities that violated the professional rules of responsibility. Although humans are allowed to get upset and say things that could be considered scandalous and devoid of any rational or supportable basis in fact or law, lawyers are held to a much higher standard especially when appearing before a tribunal. Making false or misleading representations to the court in order to bolster one's position (not to mention filing frivolous suits and charging your own clients for sanctions they were not responsible for) is an atrocity that should not be tolerated. Disbarment was an appropriate remedy in this case.

Anonymous said...

In response to Ms. Young... You should read the court's decision. Mr. Cobb had engaged in a number of activities that violated the professional rules of responsibility. Although humans are allowed to get upset and say things that could be considered scandalous and devoid of any rational or supportable basis in fact or law, lawyers are held to a much higher standard especially when appearing before a tribunal. Making false or misleading representations to the court in order to bolster one's position (not to mention filing frivolous suits and charging your own clients for sanctions they were not responsible for) is an atrocity that should not be tolerated. Disbarment was an appropriate remedy in this case.

Anonymous said...

It's kind of ironic that this all started with the Nutter attorneys sending a letter to Cobb (and his clients) accusing Cobb of sending a defamatory and actionable letter to their client. Cobb in turn took the position that the letter sent by Nutter to his client was also actionable (on other grounds) and filed suit. Nutter then took the position that the letter (presumably like Cobb's original letter to its Nutter's client) was not actionable because of an absolute privilege acccorded to attorneys when communicating preliminary to litigation. By this logic, neither letter was actionable. The fact that Cobb was disbarred does seem extreme, but there were other violations discussed which appear more serious (than the frivolous suit) concerning conversion of client's funds and dishonesty toward the client. If attorneys were regularly disbarred for filing frivolous suits and pleadings, there wouldn't be many of them left I would think.

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