Board of Professional Responsibility of the Supreme Court of Tennessee v. Slavin

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 11, 2004 Session

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME

COURT OF TENNESSEE v. EDWARD A. SLAVIN, JR.

Appeal from the Chancery Court for Knox County

No. 154861-3 Richard E. Ladd, Chancellor, by designation

No. M2003-00845-SC-R3-BP – Filed August 27, 2004

We have this case on direct appeal pursuant to Tennessee Supreme Court Rule 9, section 1.3, from

an order of the Chancery Court suspending Edward A. Slavin, Jr., Esq., from the practice of law for

three years. Slavin appeals, raising the following issues: (1) whether Chancellor Richard E. Ladd

erred in refusing to recuse himself; (2) whether Slavin’s in-court speech is protected by the First

Amendment; and (3) whether the sanctions imposed by the Chancellor are excessive.

Upon careful review of the record and applicable authority, we conclude that Chancellor Ladd did

not abuse his discretion in refusing to recuse himself and that the speech at issue does not fall within

the protective ambit of the First Amendment. After a thorough examination of the sanctions, we

impose a two-year suspension. Slavin may, however, apply for reinstatement pursuant to Tennessee

Supreme Court Rule 9, section 19.3, at the expiration of one year from date of this opinion.

Tenn. Sup. Ct. R. 9 § 1.3; Judgment of the Chancery Court Affirmed as Modified

ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,

C.J., and E. RILEY ANDERSON and JANICE M. HOLDER , JJ., joined. WILLIAM M. BARKER, J., not

participating.

Edward A. Slavin, Jr., St. Augustine, Florida, and David A. Stuart, Clinton, Tennessee, for the

appellant, Edward A. Slavin, Jr.

Laura L. Chastain, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

Opinion

I. Facts and Procedural History

Edward A. Slavin, Jr., Esq., (“Slavin”) was licensed to practice law in Tennessee in 1987,

and he has represented many “whistle-blower” clients before federal agencies. Three judicial

officers lodged complaints against Slavin with the Board of Professional Responsibility (“BPR”).

The complaints, as summarized, are as follows: Dale Workman (“Workman”), Chancellor for the

Sixth Judicial District, alleged that Slavin filed a motion for a new trial and for recusal. In these

pleadings, Workman stated that Slavin accused him of rushing his consideration of the case on a day

when he appeared to be preoccupied, taking a two-hour lunch for personal business, unfairly

restricting the amount of time for cross-examination of the defendant’s witness, refusing to allow

a rebuttal witness to be called, taking an inadequate amount of time for a rushed reading of portions

of the record, mocking and trivializing the medical treatment provided to the plaintiff, showing bias

and prejudice by making pejorative remarks about “press releases,” and being rude. According to

Workman, Slavin stated that Workman “is apparently a chain smoker, who’s [sic] smoke filled

chambers Mrs. Campbell and the parties’ counsel were obliged to enter” causing Mrs. Campbell

restricted breathing in court. According to Workman, Slavin also stated that “[t]he trial court’s

lifestyle choice and personal opinions should not be permitted to deny Ms. Campbell a fair trial.”

Additionally, Curtis L. Collier (“Collier”), Judge of the United States District Court (Eastern

District, Tennessee), complained to the BPR about Slavin’s conduct and speech during the trial of

Lockheed Martin Energy Systems, Inc. v. Slavin, 190 F.R.D. 449 (E.D. Tenn. 1999). According to

Collier, Lockheed Martin Energy Systems (“Lockheed”) brought suit against Slavin to compel him

to comply with a Department of Labor order to repay attorney’s fees and expenses. In that case,

Slavin filed a seventeen-page response “replete with unnecessary, baseless, irrelevant, and frivolous

claims, defenses, and legal contentions.” Lockheed’s counsel, Wilson Horde, Esq., (“Horde”) filed

a petition for sanctions pursuant to Federal Rule of Civil Procedure 11. In response to the Rule 11

petition, Slavin repeated the substance of what he had included in his previous answer and “added

more irrelevant allegations.” As an attachment to the response, Slavin included a nine-page

“declaration” from District Attorney General James Ramsey executed on April 27, 1994, in which

Ramsey stated that he believed that his (Ramsey’s) law license had been suspended by the Tennessee

Supreme Court because of actions taken by Horde. Collier viewed this assertion as a further attack

on Horde and Lockheed.

Collier included in his complaint that on the date of the scheduled Rule 11 hearing in the

Lockheed case, Slavin requested a continuance. Then, on the date of the rescheduled hearing, Slavin

failed to appear. Slavin’s attorney offered no tenable explanation for Slavin’s absence. The court

found that “[i]t was faced with not just an attorney who has filed baseless, frivolous and

unprofessional pleadings and responses to motions, but an attorney who has done so repeatedly,

flagrantly, and in a manner which reflects a callous disregard for the proper and efficient functioning

of the Court and also reflects a sense of disrespect for the authority of a judicial system and the

obligations of the legal community.” Also, the court ordered Slavin to provide additional

-2-

information–an order with which Slavin did not comply. The court stated, “Thus, it appears even

in the face of very serious sanctions and a direct order from the Court, Mr. Slavin continues to

demonstrate a lack of respect for the Court and its authority.”

The complaint of John M. Vittone (“Vittone”), Administrative Law Judge for the United

States Department of Labor, alleged that Slavin had been unprofessional in appearances before the

court and had used the peer review process to harass the judges. He stated that several judges had

invoked their authority to permanently prevent Slavin from representing clients in cases in which

they preside. Vittone cited instances in which Slavin asserted that the Administrative Review Board

(“ARB”)1 decision in a matter “ranks with the Dred Scott decision among the injustices in American

History” and is a “disgrace to the human race.” He also stated that Slavin left voicemail messages

calling opposing counsel a “red neck peckerwood” and describing counsel collectively as “Nazis.”

Vittone claimed that Slavin’s activities went beyond criticism of the judiciary and were “transparent

attempts to use the legal process to harass and/or punish judges who issued adverse rulings.”

The above complaints provided the basis for a petition filed by the BPR against Slavin on

August 4, 2000. On May 22, 2001, the BPR filed a “Supplemental Petition for Discipline” based

on the complaint of Rudolf L. Jansen (“Jansen”), an Administrative Law Judge for the United States

Department of Labor. According to the complaint, Jansen issued a recommended decision and order

granting summary judgment in a matter in which Slavin had represented two persons. On March 16,

1999, Slavin appealed to the ARB, and his pleading contained comments which Jansen found to be

offensive. Those comments included: referring to Jansen as “[p]etty, barbarous and cruel”;

“Recommended Decision is a stench in the nostrils of the Nation”; “Shows complete contempt for

First Amendment Values”; “Jansen . . . is no better than Respondents–he is a retaliator”; and

“Disgraces his judicial office.” In its decision, the ARB noted that Slavin “has again engaged in

personal and vitriolic attacks on a Department of Labor Administrative Law Judge.” Slavin then

requested that the Inspector General investigate Jansen’s conduct in the case.

On August 30, 2001, the BPR filed a “Second Supplemental Petition for Discipline.” This

petition was based on complaints made by four clients Slavin had represented in a suit against their

employer, the U.S. Department of Energy. The clients alleged that Slavin had been unprepared and

had hindered their cases by failing to provide effective assistance of counsel. In addition, they

alleged that Slavin had been antagonistic toward the judge in their case to the extent that the judge

had barred him from appearing in cases before her. Moreover, they charged that Slavin filed an

appeal for one client even though he had been instructed not to, had given false information to a

judge about a client’s health, had failed to return documents as requested, and had refused to follow

the clients’ directions regarding settlement.

The second supplemental petition included also the complaint of Debra Thompson, Esq.,

(“Thompson”), who stated that Slavin had made disparaging comments about her. She alleged that

1

The Administrative Review Board of the United States Department of Labor has the authority of the Secretary

of Labor and other deciding officials to issue final agency decisions under a broad range of federal labor laws.

-3-

Slavin had called her a “harridan”2 in the presence of her client and the court reporter. Thompson

also alleged that Slavin had called her “condescending, hierarchical, uncivil, unkind, and

uncooperative.”

A hearing pursuant to Tennessee Supreme Court Rule 9, section 8, was conducted on

February 12, 2002. The Hearing Committee sustained the complaint of Collier alleging that Slavin

had failed to follow orders of the court as violations of Tennessee Supreme Court Rule 8,

Disciplinary Rule3 (“DR”) 1-102(A)(1), DR 1-102(A)(5), DR 7-102(A)(8), DR 7-106(A), and DR

7-106(C)(6) (2002). Regarding DR 7-106(C)(6), the Hearing Committee found that Slavin, “by

ignoring the Orders of Judge Collier engaged in undignified and discourteous conduct which is

degrading to a tribunal.”

The Hearing Committee also sustained allegations that Slavin had made false statements

regarding a client’s illness, had made false statements during a deposition with regard to a client’s

identity as an investigator, and had failed to communicate with clients and return their records.

Consequently, Slavin was found to have violated DR 1-102(A)(1), DR 1-102(A)(4), DR 1-

102(A)(5), DR 7-101(A)(2), and DR 7-102(A)(8). The Hearing Committee, however, dismissed the

charge under DR 7-106(C)(6) because Slavin’s expressions were protected by the right to free

speech.

The Hearing Committee dismissed the complaints of Vittone, Workman, and Jansen in their

entireties. Regarding the dismissal of the charges under DR 7-106(C)(6), the Hearing Committee

found that while Slavin’s actions were “undignified and discourteous,” the Board did not carry its

burden of proving false statements, and thus, Slavin’s expressions were protected by the First

Amendment. Ramsey v. Bd. of Prof’l Responsibility, 771 S.W.2d 116 (Tenn. 1989).

The Hearing Committee also dismissed Thompson’s complaint in its entirety. Regarding the

alleged violation of DR 7-106(C)(6), the Hearing Committee found that Slavin’s expressions were

protected by the First Amendment.

The Hearing Committee found as a mitigating factor that Slavin did not have a record of prior

disciplinary action. It found as an aggravating factor that his violations of the Disciplinary Rules

were multiple. The Hearing Committee concluded: “For violations of the provisions addressed

above, the Hearing [Committee] finds that Respondent should be given a public censure.”

On May 31, 2002, the BPR filed a “Petition for Writ of Certiorari” in the Chancery Court for

Knox County pursuant to Tennessee Supreme Court Rule 9, section 1.3. The Chief Justice of this

2

A shrewish woman. W ebster’s II New College Dictionary 506 (2001).

3

The proceedings in this case are governed by the Code of Professional Responsibility previously set forth in

Rule 8 of the T ennessee Supreme Court Rules (2002). The Code was replaced on March 1, 2003, by the Rules of

Professional Conduct.

-4-

Court assigned Richard E. Ladd, Chancellor, Second Judicial District, to hear the case as required

by Tennessee Supreme Court Rule 9, section 1.5. A hearing was conducted on December 10, 2002;

Slavin did not attend the hearing but was represented by counsel. After a brief colloquy between

Ladd and Slavin’s attorney, David Stuart, Esq., (“Stuart”), the remainder of the hearing was

consumed by discussion and the introduction of exhibits. No testimony was adduced during this

hearing.

Following the hearing, Ladd issued a memorandum opinion. It appears that although Ladd

agreed with the Hearing Committee’s findings of facts, he disagreed with the Hearing Committee’s

legal conclusions drawn from those facts. He stated, “I find that the acts of Mr. Slavin are not

protected by the First Amendment in this case.”

Ladd disagreed with the Hearing Committee also with regard to the complaint of Jansen,

finding “by a clear preponderance of the evidence, in fact uncontested evidence, a violation of

Disciplinary Rules.” Ladd stated that in the case underlying Jansen’s complaint, the opposing side

filed a motion for summary decision. Slavin filed nothing in response in that case, and Jansen

granted a summary decision. According to Ladd, Slavin then filed “a 27 page document entitled:

Complainant’s Petition for Review, Motion for Summary Reversal, Motion for Oral Argument, with

Motion to File 45 Page Opening Brief; Investigative Request, Disqualification Appeal by Today to

the Administrative Review Board, with copies to many others, including the Inspector General, the

Secretary of Labor, the Honorable John M. Vittone, Chief Administrative Law Judge.” The ARB

concluded that the case was frivolous.

Ladd referred to the ARB’s Final Decision and Order in which the ARB “lists 18 examples

of personal insults which Mr. Slavin used against Judge Jansen in his motion.” Ladd stated,

“Without even considering whether these representations are truthful or not, the so-called motion

and brief . . . to this Court, is a clear violation of DR 1-102(A)(5), engaging in conduct that is

prejudicial to the administration of justice, and DR 7-106(C)(6), engaging in undignified or

discourteous conduct which is degrading to a tribunal.” Thus, Ladd concluded that “the acts of Mr.

Slavin are not protected by the First Amendment in this case.”

Regarding Vittone’s complaint, Chancellor Ladd stated the following:

Judge Vittone testified that four or five Administrative Law Judges had

barred Mr. Slavin from appearing before them due to his conduct in various cases.

Judge Vittone stated that Mr. Slavin in four to five instances has requested a Peer

Review for Judge misconduct, similar to the Tennessee Court of Judiciary.

Judge Vittone advised Mr. Slavin twice that the conduct–that his conduct was

impermissible in using the Peer Review procedure to try to get a reversal on a

question of law, an appealable issue. This is corroborated by Mr. Slavin’s expert

witness and good friend, Retired Judge Nahum Litt, who testified that he had told

Mr. Slavin that he was improperly using the Peer Review process on appealable

-5-

matters.

And yet being advised by the Chief Judge and his good friend who was a

retired Chief Judge, he continued to do so. I find that Mr. Slavin, by using the Peer

Review process in the manner in which he did, was systematically harassing and

attempting to intimidate judges by his action. And in fact he was successful in that

four or five judges barred him from appearing before them, which, apparently,

Administrative Law Judges have the power to do, which resulted in getting rid of

those judges on hearing any of his, Mr. Slavin’s, cases.

The Court finds that the acts of Mr. Slavin violate Disciplinary Rule 1-

102(A)5, engaging in conduct that is prejudicial to the administration of justice.

Ladd found by a preponderance of the evidence that the Hearing Committee erred in

dismissing Workman’s complaint. He stated that Slavin’s conduct with regard to Workman violated

DR 7-106(C)(6), engaging in undignified and discourteous conduct which is degrading to a tribunal,

and is not protected free speech. He noted that Slavin’s Corrected Motion for a New Trial in that

case “pretty well speaks for itself on the Court’s finding.”

Regarding Thompson’s complaint, Ladd found that Slavin violated DR 7-102(A)(1) because

“his actions would serve merely to harass another person or a fellow lawyer.” He agreed with the

hearing panel’s findings regarding Slavin’s clients. He found that Slavin’s most serious violation

was that of DR 7-101(A)(4)(c) which provides that lawyers shall not prejudice or damage the client

during the course of the professional relationship. He also referred to DR 1-102(A)(5) which

provides that a lawyer shall not engage in conduct that is prejudicial to the administration of justice.

He stated that “by [Slavin’s] actions, he is stealing from the client.” Ladd noted the testimony of

Judge Nahum Litt (“Litt”) who “described how Mr. Slavin takes cases with major elements missing.”

He referred to additional testimony by Litt in which he stated, “The Peer Review was to cover

matters not appealable; however, in his opinion, most of what Mr. Slavin filed in Peer Review were

appealable issues.”

Ladd ordered that Slavin be suspended from the practice of law for three years and that before

he applies to the Supreme Court for readmittance, he must “submit some kind of proof to the

Supreme Court of a knowledge of how to properly represent a client and subordinate his own

feelings in the practice of his law.” He stated that Slavin’s actions “could be grounds for

disbarment,” but he found “a glimmer of hope” in Slavin because he is industrious and has a good

mind. However, he questioned Slavin’s judgment.

II. Standard of Review

Slavin is before this Court as a matter of right pursuant to Tennessee Supreme Court Rule

9, section 1.3, which provides the following:

-6-

Either party dissatisfied with the decree of the circuit or chancery court may

prosecute an appeal direct to the Supreme Court where the cause shall be heard upon

the transcript of the record from the circuit or chancery court, which shall include the

evidence before the hearing committee.

In addition, “our review of this cause is de novo on the record of the trial court, and to the findings

of the trial court there is attached a presumption of correctness unless the evidence preponderates

against those findings.” Sneed v. Bd. of Prof’l Responsibility, 37 S.W.3d 886, 890 (Tenn. 2000).4

III. Analysis

In this appeal, Slavin contends the following: (1) that Ladd erred by refusing to recuse

himself; (2) that Slavin’s in-court statements were protected by free speech; and (3) that Ladd erred

by increasing the sanction imposed by the Hearing Committee.

A. Recusal

Concerning the recusal issue, whether recusal is warranted is left to the discretion of the trial

judge, and such decision will not be reversed absent a clear abuse of discretion on the face of the

record. Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001). The record in this case

contains an exchange which occurred at the beginning of the hearing held on December 10, 2002,

a hearing at which Slavin was not present.5 The exchange, between Ladd and Slavin’s attorney, was

as follows:

THE COURT: And you are Mr. Stuart?

MR. STUART: Yes, Your Honor, David Stuart from the Anderson County

Bar.

THE COURT: All right. Born and raised in Anderson County, Mr. Stuart

. . . I was.

MR. STUART: Oh, you were. Really? Oh, okay.

THE COURT: Born in Oliver Springs, grew up in Norris.

MR. STUART: Is that right? Well, it is very nice to meet you.

THE COURT: My father was Purchasing Agent for a period of time.

MR. STUART: Oh, really?

4

As noted in Sneed v. Board of Professional Responsibility, 37 S.W .3d 886, 890 n.14 (Tenn. 2000), “Tennessee

Supreme Court Rule 9, Section 1.3, does not explicitly provide for de novo review upon the record of the trial court, with

a presumption of correctness unless the preponderance of the evidence is contrary to the findings.” According to Sneed,

this standard is inferred from the following sources: Tenn. R. App. P. 13(d); Murphy v. Bd. of Prof’l Responsibility, 924

S.W .2d 643, 647 (Tenn. 1996); Gillock v. Bd. of Prof’l Responsibility of Supreme Court, 656 S.W .2d 365, 367 (Tenn.

1983); and Scruggs v. Bracy, 619 S.W .2d 101, 103 (Tenn. 1981). Essentially, we are reviewing the record of the

Hearing Committee in that no testimony was adduced in the trial court.

5

This hearing was, apparently, the appeal of right from the judgment of the hearing committee.

-7-

THE COURT: In Anderson County.

MR. STUART: I met him. I was County Attorney for a long time, and he

testified–He had just left Purchasing Agent when I became County Attorney, and he

testified. I thought you looked familiar. That must be the reason why.

On December 16, 2002, six days after the hearing, Stuart sent Ladd a letter stating that Slavin

intended to file a motion for Ladd’s recusal. The letter suggested that Ladd may have residual bias

because of Stuart’s efforts to impeach Ladd’s father in a case tried in 1983.6 The suggestion is based

on Stuart’s statement that Slavin had supplied documents to Stuart to be used in an effort to impeach

Ladd’s father, a witness in the case. Additionally, Stuart suggests in his letter that Ladd’s

impartiality may reasonably be questioned.

On December 30, 2002, Ladd filed an affidavit7 in which he denied any personal knowledge

of Slavin or of Stuart. Additionally, he stated that he had never heard of the Clinton Bus Co. case.

He said, “In summary, prior to receiving the letter of December 16th, I had no knowledge whatsoever

of anything mentioned about the case in Mr. Stuart’s letter.” Moreover, Ladd explained that his

father was eighty-nine years old and due to a series of strokes and dementia could not recall any case

in which he may have testified. Finally, he stated that prior to reading the letter of December 16,

2002, he had no knowledge of ever having seen or heard of a local weekly tabloid entitled the

“Appalachian Observer” edited by Slavin.

On January 3, 2003, Slavin filed a motion requesting that Ladd recuse himself in this case.8

He also filed a motion for a new trial. On February 28, 2003, Ladd entered an order denying the

motion for a new trial and the motion for recusal.

6

Clinton Bus Co., et al. v. Anderson County Bd. of Educ., Anderson County Docket No. E-8362.

7

The affidavit stated the following:

I. I had no personal knowledge of the respondent, Edward A. Slavin, Jr., Esquire or his

counsel, David A. Stuart, Esquire, until I received the order appointing me to hear this case signed by

Chief Justice Frank F. Drowota, III, that was entered on the 19 th day of July, 2002.

II. My father, A. B. Ladd, was at one time purchasing agent for Anderson County, Tennessee

and retired over 25 years ago. I have lived and practiced law or presided as Chancellor in Sullivan

County since December 1963. I had never heard of the case Clinton Bus Company, et al, vs. Anderson

County Board of Education, Anderson County Chancery Court Docket No. E8352 prior to Mr. Stuart’s

letter to me dated December 16, 2002. I have no memory of my father A. B. Ladd ever mentioning

the case nor the fact that he testified in the case, nor the nature of his testimony, nor the fact that he

was cross-examined by Mr. Stuart. In summary, prior to receiving the letter of December 16 th, I had

no knowledge whatsoever of anything mentioned about the case in Mr. Stuart’s letter.

III. My father, A. B. Ladd is now 89 years of age and due to a series of strokes and dementia,

[he] cannot even tell me what year he retired, let alone recall any case in which he may have testified.

Thus, I have not been able to determine from him whether he ever told me about the case.

IV. I have no knowledge of ever seeing or hearing of a local weekly tabloid entitled the

“Appalachian Observer” edited by Mr. Slavin until the letter of December 16, 2002.

8

As stated, this motion was filed after Ladd had heard the appeal.

-8-

On appeal, Slavin contends that Ladd erred in refusing to recuse himself. In response, the

BPR contends that Slavin’s failure to seek recusal in a timely manner has foreclosed this issue.

Indeed, the BPR suggests that Slavin has attempted to manipulate the recusal issue to gain procedural

advantage.

“Parties may lose the right to question a judge’s impartiality if they attempt to manipulate

the impartiality issue to gain procedural advantage.” Davis v. Tenn. Dep’t of Employment Sec., 23

S.W.3d 304, 313 (Tenn. Ct. App. 1999). “[T]he failure to seek recusal in a timely manner results

in a waiver of a party’s right to question a judge’s impartiality.” Id. Even though there is evidence

to support a finding that the recusal issue was waived for failure to raise it in a timely manner, we

nevertheless prefer to address the issue.

“The right to a fair trial before an impartial tribunal is a fundamental constitutional right.”

State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002). Moreover,

Article VI, § 11 of the Tennessee Constitution provides that “no Judge of the

Supreme or Inferior Courts shall preside on the trial of any cause in the event of

which he may be interested.” The purpose of this constitutional provision is to guard

against the prejudgment of the rights of litigants and to avoid situations in which the

litigants might have cause to conclude that the court had reached a prejudged

conclusion because of interest, partiality or favor. Chumbley v. People's Bank &

Trust Co., 165 Tenn. 655, 659, 57 S.W.2d 787, 788. (1933).

State v. Benson, 973 S.W.2d 202, 205 (Tenn. 1998).

Tennessee has also recognized that “the preservation of the public’s confidence in judicial

neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived

to be impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). Thus, recusal is

also appropriate “when a person of ordinary prudence in the judge’s position, knowing all of the facts

known to the judge, would find a reasonable basis for questioning the judge’s impartiality.” Davis

v. Liberty Mut. Ins. Co., 38 S.W.3d at 564-65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.

Crim. App. 1994)). “Hence, the test is ultimately an objective one since the appearance of bias is

as injurious to the integrity of the judicial system as actual bias.” Id. We note, however, that the

mere fact that a judge has ruled adversely to a party or witness in a prior proceeding is not grounds

for recusal. Id.

Ladd has included in the record an affidavit outlining the basis for his refusal to recuse

himself. It is entirely adequate and, we think, dispositive of the issue. Accordingly, this issue is

without merit.

B. First Amendment

Slavin next contends that the BPR, Department of Labor, and Department of Energy have

-9-

sought sanctions against him for speech protected by the First Amendment. The Hearing Committee

found that the in-court statements complained of, while “undignified and discourteous,” were

protected speech under First Amendment principles. The trial court, however, reached the opposite

conclusion, ruling that Slavin’s statements were not protected by the First Amendment.

Specifically, Ladd concluded that Slavin’s speech with regard to Workman violated DR 7-

106(C)(6) by Slavin’s having engaged in undignified and discourteous conduct degrading to a

tribunal. He concluded, as to Slavin’s speech toward Jansen, that Slavin had violated DR 1-

102(A)(5) and DR 7-106(C)(6). With regard to Vittone, Ladd concluded that Slavin had

manipulated the Peer Review process to “systematically harass[] and attempt[] to intimidate judges”

and by so doing, had violated DR 1-102(A)(5). Finally, Ladd found that Slavin’s conduct toward

Thompson constituted a violation of DR 7-102(A)(1) by his having engaged in conduct “when it is

obvious that such action would serve merely to harass or maliciously injure another.”

The free speech clause of the First Amendment to the United States Constitution is applicable

to the states through the Fourteenth Amendment and provides that “Congress shall make no law .

. . abridging the freedom of speech.” Article I, section 19, of the Tennessee Constitution similarly

provides that “[t]he free communication of thoughts and opinions, is one of the invaluable rights of

man, and every citizen may freely speak, write, and print on any subject, being responsible for the

abuse of that liberty.”

In the context of judicial proceedings,9 an attorney’s First Amendment rights are not without

limits. Although litigants and lawyers do not check their First Amendment rights at the courthouse

door, those rights are often subordinated to other interests inherent in the judicial setting. See

Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991); United States Dist. Court v. Sandlin, 12

F.3d 861, 866 (9th Cir. 1993); Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 476 (S.D.N.Y.

1982); State v. Carruthers, 35 S.W.3d 516, 560-61 (Tenn. 2000). Thus, while we find that legitimate

criticism of judicial officers is tolerable, “an attorney must follow the Rules of Professional Conduct

when so doing.” Shortes v. Hill, 860 So. 2d 1, 3 (Fla. Dist. Ct. App. 2003). A lawyer is not free to

“seek refuge within his own First Amendment right of free speech to fill a courtroom with a litany

of speculative accusations and insults.” United States v. Cooper, 872 F.2d 1, 3 (1st Cir. 1989).

The United States Supreme Court stated:

It is unquestionable that in the courtroom itself, during a judicial proceeding,

whatever right to “free speech” an attorney has is extremely circumscribed. An

attorney may not, by speech or other conduct, resist a ruling of the trial court beyond

the point necessary to preserve a claim for appeal.

9

W e note that our Court held in Ramsey v. Board of Professional Responsibility, 771 S.W .2d 116, 122 (Tenn.

1989) that an attorney who made out-of-court statements to the media regarding judicial proceedings was not subject

to discipline, and the statements were protected by the First Amendment. That case, however, is distinguishable. In the

case under submission, the statements at issue were made during in-court judicial proceedings.

-10-

Gentile, 501 U.S. at 1071.

“The First Amendment does not preclude sanctioning a lawyer for intemperate speech during

a courtroom proceeding.” Jacobson v. Garaas (In re Garaas), 652 N.W.2d 918, 925 (N.D. 2002)

(emphasis added). Commenting on Gentile in a disciplinary proceeding, the Supreme Court of

Missouri concluded:

An attorney's free speech rights do not authorize unnecessary resistance to an adverse

ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the

ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the

ruling, or insult the judge.

In re Coe, 903 S.W.2d 916, 917 (Mo. 1995).

In Kentucky Bar Association v. Waller, 929 S.W.2d 181, 183 (Ky. 1996), the Supreme Court

of Kentucky observed that the statements need not be false to pursue disciplinary action:

Respondent appears to believe that truth or some concept akin to truth, such as

accuracy or correctness, is a defense to the charge against him. In this respect he has

totally missed the point. There can never be a justification for a lawyer to use such

scurrilous language with respect to a judge in pleadings or in open court. The reason

is not that the judge is of such delicate sensibilities as to be unable to withstand the

comment, but rather that such language promotes disrespect for the law and for the

judicial system. Officers of the court are obligated to uphold the dignity of the Court

of Justice and, at a minimum, this requires them to refrain from conduct of the type

at issue here.

Thus, an attorney’s speech may be sanctioned if it is highly likely to obstruct or prejudice the

administration of justice. “These narrow restrictions are justified by the integral role that attorneys

play in the judicial system, which requires them to refrain from speech or conduct that may obstruct

the fair administration of justice.” Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 428-

29 (Ohio 2003).

Accordingly, we conclude that Slavin’s in-court remarks were not protected by the First

Amendment. By this holding we intend to limit an attorney’s criticisms of the judicial system and

its officers to those criticisms which are consistent in every way with the sweep and the spirit of the

Rules of Professional Conduct. See Fla. Bar v. Ray, 797 So. 2d 556, 560 (Fla. 2001).

C. Sanctions

For his final issue, Slavin contends that Ladd erred by imposing a three-year suspension from

the privilege to practice law. Having concluded that the violations found by Ladd were proper, we

consider sanctions imposed in similar cases. In Farmer v. Board of Professional Responsibility, 660

-11-

S.W.2d 490, 491-93 (Tenn. 1983), this Court found that the attorney should be disciplined for using

“scurrilous and improper language in briefs which he himself filed.” In that case, we concluded that

the attorney “deliberately chose to use language and tactics which cannot be tolerated in the legal

profession” and affirmed the Hearing Committee’s decision to suspend the attorney for sixty days.

Id. at 493.

Although this Court concluded that the attorney was not subject to sanctions for his out-of-

court statements to the media in Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116,

122-23 (Tenn. 1989), we did conclude that the attorney acted in a manner prejudicial to the

administration of justice. In that case, the attorney failed to abide by court orders, failed to respond

to questions from the court while appearing before the court, and slammed courtroom doors during

hearings. Id. at 123. Thus, we imposed a sanction of 180 days, with all but 45 days suspended. Id.

In Galbreath v. Board of Professional Responsibility, 121 S.W.3d 660 (Tenn. 2003), we held

that a thirty-day suspension was warranted for an attorney’s misconduct that included attempts to

subvert the legal process. In that case, the attorney, dissatisfied with a judge’s rulings, began a

calculated campaign through threats and intimidation to force the judge’s recusal. Id. at 666.

Additionally, we note similar cases in other jurisdictions. In Kentucky Bar Association v.

Waller, 929 S.W.2d 181, 183 (Ky. 1996), the Supreme Court of Kentucky ordered a six-month

suspension for an attorney’s comments made in a written memorandum submitted to a trial court.

The Supreme Court of Kentucky described the memorandum as follows:

After the appointment of Judge Harris, Waller filed a motion to set aside the earlier

temporary injunction. On June 21, 1994, Waller filed a memorandum styled as

“Legal Authorities Supporting the Motion to Dismiss” which contained the following

introductory language: Comes defendant, by counsel, and respectfully moves the

Honorable Court, much better than that lying incompetent ass-hole it replaced if you

graduated from the eighth grade . . . .

Id. at 181.

The Supreme Court of Ohio, in Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425,

433 (Ohio 2003), imposed a six-month suspension on an attorney for comments made in a written

motion. The Court described the motion as follows:

In a motion seeking reconsideration or, in the alternative, certification of the case as

a conflict to this court, respondent accused the panel that decided his client’s appeal

of being dishonest and ignoring well-established law. He declared that the panel had

issued an opinion so “result driven” that “any fair-minded judge” would have been

“ashamed to attach his/her name” to it. He then added that the panel did not give “a

damn about how wrong, disingenuous, and biased its opinion is.”

-12-

Id. at 427. In upholding the six-month suspension, the Supreme Court of Ohio stated:

An attorney’s speech may be sanctioned if it is highly likely to obstruct or prejudice

the administration of justice . . . . These narrow restrictions are justified by the

integral role that attorneys play in the judicial system, which requires them to refrain

from speech or conduct that may obstruct the fair administration of justice.

Id. at 429.

As we continue our de novo consideration of the sanctions imposed, we note a dramatic

increase in the punishment imposed by the trial court beyond that imposed by the Hearing

Committee. We think this difference is easily explained by the fact that the trial court reinstated

several violations that had been dismissed by the Hearing Committee.

Although we are much impressed with Slavin’s intellect and legal skill, what does not

impress us is his apparent defiance in refusing to respect the line separating, in the judicial context,

tolerable criticism from unacceptable speech. He has trampled upon that line, and indeed by so

doing has propelled himself into the quagmire of unacceptable speech.

Accordingly, we hereby suspend Slavin from the practice of law for a period of two years

from date of this opinion. Slavin may petition for reinstatement under Supreme Court Rule 9,

section 19.3, at the expiration of one year from date of this opinion. It is further ordered that Slavin

shall comply in all respects with Tennessee Supreme Court Rule 9, and specifically with section 18

regarding the obligations and responsibilities of suspended attorneys. Costs of this review are taxed

to the appellant, Edward A. Slavin, Jr., for which execution may issue, if necessary.

___________________________________

ADOLPHO A. BIRCH, JR., JUSTICE

-13-