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).