Emergency Application — Phillip Leiser, Applicant v. Cleo Powell, et al.

Supreme Court, |

FILED

JUN 2 2 2026

OFFICE OF THE CLERK

No.25A / 456

Sn the

Supreme Court of the United States

PHILLIP B. LEISER,

Applicant,

v.

CLEO E. POWELL,

(sub. nom. S. Bernard Goodwyn)

In her official capacity as Chief Justice of the Commonwealth of Virginia

et. al.,

Respondents.

To the Honorable John G. Roberts, Jr., in his official capacity as Chief Justice of

the United States and Circuit Justice for the Fourth Circuit

On Application from the United States Court of Appeals for the Fourth Circuit

(No. 25-2450)

EMERGENCY APPLICATION FOR AN INJUNCTION

PENDING APPELLATE REVIEW

Immediate Relief is Requested

Phillip B. Leiser, pro se (VSB No. 41032) Dated: 6/22/26

The Leiser Law Firm

1750 Tysons Boulevard, Suite 1500

Tysons Corner, Virginia 22102

TEL: (703) 489-5610

FAX: (703) 734-6000

EM: _ pbleiser@leiserlaw.com

TABLE OF CONTENTS

Table of Contents..........ccccccsscecsececeeeeceeeeeeeseesseseeeeceeeeceececeeceseueeseuseueereeenvecees irl

‘Fable GPA tHOT1 166 rec:seaccoonmncanansaneennanamecueemascasiasmanesacpscneunamaeessnesaiemercesaecmucacen ili-vi

lL Questions Presented wiisiewsoosvaccercrsmacccrsencsseisaseuaabndcasnbssvneduswaseiieses vil

Il. Parties issupatanssnannaiagausaseaaxenersunCineaisanaiiSeakcesdsadsewessusseneecwosnnssoeppornesers vill

III. Proceedings Below and Related Proceedings..........:scccceeceeeescessereces vill-1x

IV. Corporate Disclosure Statement.............ccccecceceececseceeceecececenccuceeceusenes 1x

V. Relevant Constitutional and Statutory Provisions..........ccssccssecsseeeeeececs 1x

VI. Surisdictionissisisccccecssecswesersnevsiwsssavessereersnnsnsvaunanncecccecewmestaaswsscaeies 1

VII. Statement of the Case........cccceccccecceeceececececeeceecesesceueeeuecuseecuecucess 1-3

VII. Summary of Argument. sissesssnsvswicascsecenaascescwasuasananeasaseaseasueusnes 3-6

TX. Argument—Reasons to Grant this Application...............cccccecsueeesouees 6-40

A. Factors to consider in deciding whether to award preliminary

Injunctive relief ............ccecseeenecececceceeceeeeceeeeceecseeeeeeeeececeuseeueeeeens 6-8

B. To the extent Younger would otherwise apply, each of its judicial

exceptions renders its application inappYropriate.........sccceceecseceeeeeeee 8-9

C. Relevant 1s* Amendment principles...............sccscecsecesecuceecesececceens 9-12

D. Rule 8.2 is subject to “strict scrutiny” under the 15* Amendment...12-13

E. SCOTUS must construe VRPC 8.2 precisely as SCV has

interpreted it ssvswuranesncerswiwsssseouseredlnbeccseverroceeseeceneoememevenenenns +s 13-14

F. Rule 8.2 is patently and flagrantly unconstitutional.................... 14-22

G. Rule 8.2 is unconstitutionally overbroad and Vague........cecceecceeees 22-25

TABLE OF CONTENTS (cont’d.)

H. The state court proceedings will not afford Leiser an adequate

opportunity to raise his constitutional challenges.............:.ccsee00 25°27

1. SCV eliminated the demurrer as a procedural device in

attorney disciplinary hearings, rendering a respondent

unable to challenge his “prosecution” on constitutional

2. Inits Pilliand Anthony opinions, SCV tacitly rejected,

without ever directly addressing, some of Leiser’s 1st Amend.

challenges to Rule 8.2..........cccccscececececeeeeneeneseneeseaeneeesenenass 26-27

I. Rule 8.2 has been enforced in bad faith and in a harassing

MATINICL. oo. eee eee cc eee c ence ence nee e nee ee eee e eee eee seen teense seen ees e eet eb eee eenee ees 27-28

J. There exist other unusual or extraordinary circumstances

that render application of the Younger abstention doctrine

INAPPLOPLlAate........ccececeececeeceescesenecenesteeeneaeeensestaseseeeeeseeteenen ses 28-34

1. Members of the judiciary are the direct—and on/y—beneficiaries

of the enactment, enforcement, and upholding of the

constitutionality of Rule 8.2.... .csvswissssanewasecsneswanasssweessssaseeees 28-30

2. The enactment, enforcement, interpretation and analysis

for constitutional infirmity, of typical legislation or

administrative regulations, involve a diffusion of power

among different branches of government............ccececeeseeeeeeees 30-31

3. The one-dimensional process for enacting, interpreting and

enforcing Rule 8.2 stands in sharp contrast to those usual

GEMOCLAtIC PLOCESSES........ececescecesceceeceeceeeseeseeseseesenseseneeneees 32°34

K. In support of its decision to invoke Younger, EDVA cited

INAPPOSItE CASES.......... sssamennuersesewewesserwwrsesewesseasuserneswseweeeeeiss 34-35

L. The cases relied upon by EDVA to support its conclusion that Rule 8.2

survives strict scrutiny under the 1st Amendment are inapposite..35-40

TABLE OF AUTHORITIES

I. FEDERAL CONSTITUTIONAL PROVISIONS AND STATUTES

1st Amend ment..........ccccccececencetececeetseeeeeeeususseesceeseccvususecuseeneucs Vli, viii, ix, 1, 2, 4,

5, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 33, 34, 35, 36, 38, 39, 40

14th Amendment..........cccceceececececeeceseceeussusecseuecusesunsesaes Vil, vill, 1x, 4, 19, 22, 34

Der RSnC: (SoC) a. 8 RPO Be 1

28 U.S.C. § 1291... ceccccccccsscceeeeessseeeeseceesnssseececessseeeceseeesseeeesseseaaceeeeeceeseseeens 1

28 U.S.C. § 1292(a)(1). ..... sessmsasessvessvesssrensaancennrrrcntnanaavinaseeeensscouassiesannsaiaass 1

2B U.S.C, §1B31........sscsscccsseccvesseseses soe 0» SOBSSRDREGTS GSS ipiESE ten RSSeaNNas cateetecaenttemmonene 1

28 U.S.C. § 1348(a)(3), (a)(4)...cecccccccsseeeccssseeecceceuuereeeeuuvseeeeeecsteuneeeeeuaueceesuaanes 1

28 U.S.C. § 1651 (a)... ccccccccseececesececceeeceueeceesuueccecuueseusueeeceeveseeceneeeunecesuuceeeanas 1

28 UIS.C..§.21011(6). ... .. :. :..«0nnamsmanswansnssnnneeassssanasuacamaaremmnner ss yaRE ELLEN eeaeasNaeubioNstts 1

42 U.S.C. § 1983. . svasssssssancasicasieanaatawousssvassaueasseapssvussecivanecsbiaiesiapasian bbisesstessereeeereeonens viii

S. Ct. Rule 10(a), (0).....cccccecseecceecvecenccenceeseusceuceceuceuseeuceseuccuueceuesauenecenecueeeeeees vi

S. Ct. Rule 22........ wzeeauwsswrsereececusievsuuacacoonsasaaasaaseasscasjassasaannnsrannnns soesstueabuaeanns 1

S. Ct. Rule 29.6.2... .c.ccccsecssusrscrscevcccescnscausresunsensececos sbuuseaeuunumusousewcernanecauesce... 1x

S. Ct. Rule 35(8).........cccccccceeceecesssseneeeeeeccceeeeusueueeseeeesesseeeeeeaesuseueessessuuuenesenss vili

FRAP 43(c)(2) sssssssscceassnaas sansseasannausnsnpsusenue eirsesasusunsueaseeeseanNeenesaRinGe eines viii

121340120 2) (0) | 0D ee nn 2

12121 @) 521512) (=) ae ee rec OS BeBe crn Oe 1, 3, 6

FRCP 62... wxesssssassuneecaeesresscscscayaunidamessssaoezasnssncnsussaausussssccorecccsupnsateccecass 3, 4

III. VIRGINIA STATUTES AND RULES OF COURT

VA. CODE ANN. § 54.1 -39 3S sccsssncsesssssnsnasnasscmuasaasawanaanneereearncommeeeerenNeuaasane- 2

III. VIRGINIA STATUTES AND RULES OF COURT (cont’d).

VRPC 8.2.....ccccccsscccceccecccseeestssseneseeeeseees a ee! vii, viii, ix, 1, 2, 3, 4, 5, 7, 9,

10, 12, 18, 14, 15, 17, 18, 20, 21, 22, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 39, 40

VRPC 8.4 b sccvssescecevaccousepuvesscissveazescccveganasnanesseesseannaananinciesaam@ as 1, 3, 40

IV. CASES

ACLU v. Bozardt, 589 F.2d 340 (CA4 1976)......cccccccccssseeseeseteueecsseeuesssseenseeesees 40

Am. Trucking Ass’ns, Inc. v. Gray, 483 U.S. 1806 (1987). ......cccccccecccseccuseceusecsssees 7

Anthony v. VSB, 270 Va. 601 (2005)......ecceesesseeees 15, 16, 17, 18, 20, 25, 26, 27, 38

Barrett v. VSB, 272 Va. 260 (2006)......ccccccsseseccecseseeceseeeeeeeeeeeaeeueeeeesesseuenanes 25, 26

Bradley v. Fisher, 18 Wall. 835 (1872).......cccccsecccccssseeeeccceeeseesesceueeecceeeeseeseseees 28

Brown v. United States, 356 U.S. 148 (1958)......ccccccccccessseeesssesesececeseeeesaaaneeeeens 37

Cobb v. Green, 574 F.Supp. 256 (W.D. MI 1983) (Cobb D....ccccccecceveccuveceueecenesseees 27

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ......cccccscccccesssseeeecesseeeeeeueeseseees 35, 40

EVO Vx BOTS SA QMS ASAT (QIOTG) ns. cercomamamen «.+.+<+e0+++. ++» SARNNSRESRINNSE ero 7

Garrison v. State of Louisiana, 879 U.S. 64 (1964)........c.ccceecescecsseeseese 10, 11, 17, 39

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)...........00ecceeee 10, 12, 18, 37, 38

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).....cccsccsssssecscescsetenseseseseesesesesssnseeses 17

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (CA4 2002).......cccceececcuccuecueceuceees 8

Gooding v. Wilson, 405 U.S. 518 (1972).........ccccecccsecssssseccueecceeeseeeceeeecsueeseusesens 13

Hicks v. Miranda, 422 U.S. 882 (1975).....ccccssescccccscceseeessesseeseeceeececseueuneeeeeeesnes 35

In Re Evans, 801 F.3d 703 (CA4 1986).............0cccses-seaeusuvbassenssssaamannanevensce.. 39, 40

In re Little, 404 U.S. 553 (1972).......ccccecsecscccescs cues sigisiiseissieasasieisseeb Se ebb eebeyeebed ss 37

In Re Sawyer, 360 U.S. 622 (1959).......cccccccccsecseceesecccuuessuueecauseeaeesaueceuneccecs 37, 38

In Re Snyder, 472 U.S. 684 (1985).....cccccccccccscessesseeesseeeeceeeeeeeeeeesuueaueeeseeeeeeeeens 35

Jenkins v. VSB, 303 Va. 332 (2024)......cccccccceccucseccuseceeecceseceuecuecessuseauceusseeeas 20, 25

IV. CASES (cont’d).

Jonathan R. by Dixon v. Justice, 41 F.4* 316 (CA4 2022).........ccccccceecceseeeeeseeeeaes 27

Kugler v. Helfant, 421 U.S. 117 (1975)...... wzicsasanauasavevevexcwucwscceauarercevesensmaassaasns 28

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)........ vil, 18, 18, 19

Lux v. Rodrigues, 561 U.S. 13806 (2010)..........:ssccceseeceeecescceveceesceeeceeeveceseneceenerss 7

Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D. OH 1981)...........cccccecseeseueceesseeseees 27

Members of City Council for City of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984)... eeessccceeeecnneescesseeesseesaserseaseessateeesaeeessaeessneesnesaes 21, 24

Middlesex Cty. Ethics. Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)......9,

27, 34, 35, 37, 38

Moore v. City of Asheville, N.C., 396 F.3d 385 (CA4 2005).........cceccceecceesseeeseessssees 8

Moore v. Sima, 442 U.S. 415 (1979) ssaxnssasscsmmocunnsansmoceMnEMNUeRERNnaTEnCeIOR 27

Moseley v. VSB, 280 Va. 1 (2010)... cc ceeesseceseseeeeesseeeeeeeseesesesieeeenenatens 18, 20, 25

NAACP v. Button, 371 U.S. 415 (1968)... ccc ceee eee ecenteeeeeeeneees vii, 22, 23, 24, 25

New York Times, Co. v. Sullivan, 376 U.S. 254 (1964)....... 4, 10, 11, 15, 16, 17, 20, 39

Nken v. Holder, 556 U.S. 418 (2009).........sseceessseeesesseeeeeessnneeeeseeeeeenueeeenaaeeenneees 7

Pierson v. Ray, 386 U.S. 547 (1967)......cccccsssccccceeseeccuseceausessvesceseuesesauensessaness 28

Pill v. VSB, 269 Va. 391 (2005)...........sssessssesveeeesovseesesennesenens 14, 15, 20, 25, 26, 38

Reed v. Town of Gilbert, 576 U.S. 155 (2015).....ccccscsscecsscescccsccsccsceccscsscssescosaecs 12

Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).........cccceeseeeeseeeeees 7

Rosenblatt v. Baer, 383 U.S. 75 (1966)......cccsceesseeeeesesseeeeesssseeeesseeeeeeeeeensrseeeseaes 22

Sacher v. United States, 343 U.S. 1 (1952).......ccccccccseccuesecececececusccuueeesseneess 35, 36

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).....ccceeecseeeeseeeeseteesseserseeeeenanens 12

Supreme Court of Virginia v. Consumers Union, 446 U.S. 719 (1980)..........c..0008 32

Timmerman v. Brown, 528 F.2d 811 (CA4 1975)...ccccccccccscccsessesescuseeeesceuecessvenses 28

Vv

IV. CASES (cont’d).

United States v. Cooper, 872 F.2d 1 (CAI 1989).........ccccccssccesssessseeceecensseussseeuns 36

Wainwright v. Stone, 414 U.S. 21 (1978) csusrswsrssanisvenccccvaswacsaneewaweeeivaisieassvens 18

Widmar v. Vincent, 454 U.S. 263 (1981).......ccccccessccsessssesessseeceseseessseeseeesennees 13

Winter v. National Resources Defense Council (VRDC), 555 U.S. 7 (2008)........0..068 7

Wood v. Georgia, 370 U.S. 375 (1962).......cccsseeeecccccsueeecesseveccecessusueseseeenessseseeees 21

Younger v. Harris, 401 U.S. 37 (1971)...vii, 2, 3, 4, 5, 6, 8, 9, 27, 28, 30, 31, 33, 34, 38

vi

I. QUESTIONS PRESENTED

. Whether Virginia Rule of Professional Conduct (““VRPC”) or (“Rule”) 8.2 is

patently and flagrantly unconstitutional on its face because it is overbroad

and vague, in violation of the 1st and 14th Amendments, thereby creating an

exception to application of the Younger abstention doctrine?

. Whether this Court’s reversals of the Supreme Court of Virginia (“SCV”),

itself, in both NAACP v. Button and Landmark Communications, Inc. v.

Virginia, lead ineluctably to the conclusion that Rule 8.2 is patently and

flagrantly unconstitutional on its face, thereby rendering SCV’s continued

efforts to enforce the rule “in bad faith” and “in a harassing manner” asa

matter of law, because those efforts merely serve to intimidate into silence

lawyers who are critical of the judiciary, but cannot reasonably be expected to

result in valid “convictions,” thereby rendering application of the Younger

abstention doctrine inappropriate?

. Whether there exist “other extraordinary circumstances” surrounding SCV’s

enactment, enforcement, and assessment of the constitutionality of Rule 8.2,

which render application of the Younger abstention doctrine inappropriate?

. Whether SCV’s repeated rejections in other cases, of some of the same 15

Amendment challenges to Rule 8.2 advanced by Applicant in his federal

complaint, render futile his state-court challenges to the rule’s

constitutionality, thereby effectively depriving him of an adequate

opportunity to raise his constitutional challenges in the state-court

proceedings and rendering Younger abstention inappropriate?

. Whether the lower federal courts (“LFCs”) erred, as a matter of law, when the

U.S. District Court for the Eastern District of Virginia (Alexandria Division)

(“EDVA”) dismissed Applicant’s First Amended Complaint (“FAC”) and

denied his motions for a preliminary injunction (“P.I.”) and for

reconsideration of those decisions, based upon its conclusion that Younger

deprived the court of subject matter jurisdiction (““SMJ”) over the case, and

similarly, when the U.S. Court of Appeals for the 4% Circuit (““CA4”) exercised

its discretion to deny Applicant’s motion for an Injunction Pending Appeal

(“I.P.A.”) and his petition for panel rehearing (“PRH”)?

. Whether Applicant is entitled to a preliminary injunction pending appeal of

the dismissal of his FAC?

vii

II. PARTIES

1. Applicant, Phillip B. Leiser, pro se Plaintiff and Appellant below, is a VA-

licensed attorney who filed a federal complaint in EDVA under 42 U.S.C. §

1983, seeking a declaratory judgment that VRPC 8.2 is unconstitutional both

on its face and as applied to him, in violation of the 1st Amendment, made

applicable to the States through the 14th Amendment. (App. 19, 110).

Applicant also sought both permanent and preliminary injunctive relief

prohibiting enforcement of the Rule against him, along with an I.P.A., all of

which relief was denied by the LFCs. (App. 7, 15-17).

Respondents—Defendants and Appellees below:

2. Cleo E. Powell (hereafter, “SCV”) is sued in her official capacity as Chief

Justice of the Commonwealth of Virginia.! (App. 19-20, [ 4, 5).

3. Virginia State Bar (“VSB”) is a state administrative agency of SCV,

responsible for enforcing disciplinary rules including VRPC 8.2. (App. 20, 96).

4. Renu Brennan, Esq. is Bar Counsel to VSB who twice prosecuted Leiser for

violating Rule 8.2. (App. 20, § 7).

III. PROCEEDINGS BELOW AND RELATED PROCEEDINGS

1. Leiser v. S. Bernard Goodwyn, et. al., 1:25-cv-405 (EDVA 2025); 9/17/25

order denying motion for P.I. and dismissing FAC (2025 WL 3567869) (slip

1 Upon the 12/31/25 retirement of Chief Justice S. Bernard Goodwyn, Chief Justice Powell was

substituted in by operation of law pursuant to FRAP 43(c)(2). See also, Sup. Ct. Rule 35(3); 2/12/26

CA4 Order substituting Powell for Goodwyn. (Dkt. No. 15).

viii

copy) (App.1-7); 12/4/25 order denying motion for reconsideration. (App. 8-15)

(unpublished).

2. Leiser v. Powell (sub. nom. S. Bernard Goodwyn) Case No. 25-2450 (CA4

2025); appeal pending; 2/24/26 order denying motion for I.P.A. (App. 16)

(unpublished); 3/31/26 order denying Petition for Panel Rhrng (“PRH”)

(unpublished). (App. 17).

3. Leiser v. VSB (Record No. 251120) (SCV 2025), a related proceeding, is his

currently pending appeal before SCV, of a three-judge panel’s 9/26/25 final

order suspending his law license for three years, in VSB v. Leiser, CL-2025-

6240 (Fairfax County 2025). (App. 188-141) (9/22/25 Summary Order).

IV. CORPORATE DISCLOSURE STATEMENT PURSUANT TO RULE 29.6

None of the parties is a corporation; all are either private individuals or

government officials sued in their official capacities, as well as the VSB—a

government agency of SCV. Therefore, none of the parties has a parent entity or

issues stock. |[s/ Phillip B. Leiser

V. RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const., Amend I, cl. 2

“Congress shall make no law . . . abridging the freedom of speech, or of the press...”

U.S. Const., Amend XIV, § 1, cl. 3

“ _.[Nlor shall any State deprive any person of life, liberty, or property, without

due process of law... .”

VRPC 8.2 “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 or integrity of a judge or other judicial officer.”

VI. JURISDICTION

EDVA exercised subject matter jurisdiction (““SMJ”) over this action pursuant to

28 U.S.C. §§ 1331 (“federal question” jurisdiction), 1343(a)(3) and (a)(4), and denied

Applicant’s motion for a P.I. and his FRCP 59(e) motion seeking reconsideration

thereof. (App. 1-7, 8-15). He timely appealed to CA4 which exercised appellate

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1) and denied his motion for

an I.P.A. and also denied his subsequent petition for panel rehearing (““PRH”),

which it treated as a motion to reconsider. (App. 16, 17). Since this Court will

ultimately have jurisdiction under 28 U.S.C. § 1254(1) to grant certiorari to review

the final decision of CA4, it has the authority to grant an injunction pending

appellate review under 28 U.S.C. § 1651(a), the “All Writs Act.” Such an I.P.A.

would be in aid of the future jurisdiction of this Court, to review decisions below

that permit the ongoing irreparable harm consisting of, znter alia, the deprivation of

Applicant’s 1s* Amendment right to engage in political speech that is critical of the

judiciary. This Court also possesses jurisdiction to award an I.P.A. pursuant to S.

Ct. Rule 22. This appeal is timely under 28 U.S.C. § 2101(c).

VII. STATEMENT OF THE CASE

Leiser respectfully requests that this Honorable Court issue an I.P.A.,

prohibiting Respondents from enforcing VRPC 8.2 against him during the pendency

of appellate proceedings, whether directly, or indirectly—through application of

VRPC 8.4(b). On 6/18/24 Associate SCV Justice Thomas P. Mann submitted a

“Complaint Form” to VSB, (App. 22, JJ 22-23; 112-116), opining that a pleading

Leiser had filed with SCV violated VRPC 8.2 which provides,

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 or integrity of a judge

or other judicial officer. Jd.1

On 3/5/25, while VSB “investigated” the bar complaint, Leiser filed in EDVA a

complaint, later supplanted by his FAC as the operative initial pleading (App. 18-

111), challenging on 1s: Amendment grounds the constitutionality of VRPC 8.2 both

on its face as overbroad and vague, and as applied to his statements at issue. He

sought both a declaratory judgment and a permanent injunction prohibiting its

enforcement. (App. 19, 110). On 3/12/25, before any proceedings on the merits had

occurred in the federal action, VSB issued a Certification (App. 117-137),

demarcating the formal initiation of state disciplinary proceedings against Leiser,

who subsequently filed a motion for a P.I., which EDVA denied in its 9/17/25 final

order, (App. 1-7), as a necessary by-product of its decision to dismiss his FAC for

lack of SMJ under FRCP 12(b)(1), after erroneously concluding that abstention was

required under the doctrine enunciated by Younger v. Harris, 401 U.S. 37 (1971).

On 9/18/25 Leiser was tried by a three-judge state disciplinary panel (“tribunal”)

convened pursuant to VA. CODE ANN. § 54.1-3935, which determined that he

1 Justice Mann’s “Complaint Form” (App. 114-115) did not identify any particular statement

contained within Leiser’s pleading that he deemed in violation of Rule 8.2. (App. 22, J 24). Neither

he nor VSB identified any jurist who was the supposed target or victim of Leiser’s criticisms. (App.

23, J 25). Leiser’s statements at issue are set out in VSB’s Certification at (App. 120-137).

2

violated VRCP 8.2 and 8.4(b) (App. 137-141).2 Leiser’s appeal of that decision is

now pending before SCV and awaiting its decision. After his state “conviction” for

violating those disciplinary rules, Leiser filed in EDVA a motion under FRCP 59(e)

requesting the court reconsider its decision dismissing his FAC and denying his

motion for a P.I. EDVA denied that motion on 12/4/25. (App. 8-15). On 10/8/25 he

timely appealed to CA4 EDVA’s 9/17/25 dismissal of his FAC and denial of his

motion for a P.I., and on 12/22/25 he timely appealed EDVA’s order denying his

FRCP 59(e) motion. On 2/9/26 he filed a motion for an I.P.A., which CA4 denied on

2/24/26. (App. 16). On 3/10/26 he filed a Petition for Panel Rehearing (“PRH”)

which CA4 treated as a motion to reconsider and subsequently denied on 3/31/26,

(App. 17), leading to his filing this Application.

VII. SUMMARY OF ARGUMENT

Because EDVA erroneously concluded that the Younger abstention doctrine

deprived it of SMJ over Leiser’s case, its decisions dismissing his FAC without

prejudice, denying his motion for a P.J., and denying his subsequent FRCP 59(e)

motion constituted abuses of its discretion as a matter of law. CA4 provided no

explanations for its decisions denying his motion for an I.P.A. and his PRH.? Those

decisions, too, constituted abuses of discretion as a matter of law, as follows.

2 VRPC 8.4(b) provides, “It is professional misconduct for a lawyer to: .. . (b) commit a criminal or

deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness

to practice law....” Leiser’s purported violation of Rule 8.2 served as the sole underlying predicate

for a finding that he also violated Rule 8.4(b), which the tribunal asserted as the justification for its

imposition of a three-year suspension of his license to practice law. This Court’s determination that

Rule 8.2 is unconstitutional on its face would necessarily deprive the disciplinary tribunal of any

legitimate basis for finding Leiser in violation of Rule 8.4(b).

3 To the extent it was because Leiser filed his request for relief in EDVA pursuant to FRCP 59(e)

rather than FRCP 62, Leiser explained to CA4 in his PRH that he selected the former because re-

3

First, Rule 8.2 is patently and flagrantly unconstitutional on its face, as violative

of the 1s: Amendment, made applicable to the States through the 14 Amendment,

because it is overbroad and vague. Its constitutional infirmities consist of the

following: G) it does not confine the statements subject to its penalties to statements

of fact—the only type of statement that is susceptible to objective proof of its truth

or falsity; Gi) it does not require proof that the statement at issue is false; (iii)

instead, it shifts the burden of proof (“BoP”) to the respondent; (iv) to prove that he

published his statement in good faith and had an objectively reasonable basis for

doing so, thereby rejecting this Court’s decision in New York Times, Co. v. Sullivan,

376 U.S. 254 (1964) (“NYT”), requiring that the plaintiff/government prove the

publisher of the statement either knew or else subjectively believed that his

statement was probably false; (v) since under Rule 8.2, establishment of the falsity

of the statement at issue is not required, a tribunal cannot ascertain whether the

statement was published with NYT malice—knowledge of its falsity or reckless

disregard for its truth or falsity; instead, it necessarily presumes the existence of

NYT malice; and (vi) it does not require an assessment of the particular statement

at issue, either as a matter of law or as a matter of fact, to ascertain whether it

could and whether it ultimately did in fact create a substantial likelihood of

material prejudice to the fair administration of justice. Instead, SCV has

arguing the merits of his motion for an I.P.A. under Rule 62 would have been futile, unless he could

first persuade EDVA that it had erroneously applied Younger abstention and therefore wrongly

concluded that it lacked SMJ over his FAC. Absent EDVA’s reversal of its erroneous decision

concerning its lack of SMJ, it could not and therefore would not have reached the merits of the fourfactor test employed to determine entitlement to an I.P.A.

4

interpreted Rule 8.2 such that any public statement, about a judge’s qualifications

(to include his competence)‘ or integrity, is not protected speech under the 1s

Amendment because it creates a substantial likelihood of material prejudice to the

fair administration of justice as a matter of law.

In addition to being patently and flagrantly unconstitutional on its face, Rule 8.2

has been twice enforced against Leiser in bad faith and in a harassing manner,

(App. 6) since the government’s enforcement of a law it knows or reasonably should

know—and has no excuse not to know—is patently and flagrantly unconstitutional

on its face, deprives the government of any reasonable expectation that its

enforcement efforts will lead to a valid “conviction,” and therefore, those efforts to

enforce are pursued in bad faith and in a harassing manner as a matter of law.

Moreover, there are other unusual or extraordinary circumstances that render

application of Youngerinappropriate. On its face, Rule 8.2 was enacted to protect

judges from criticism of their official conduct. Therefore, the judiciary possesses a

strong self-interest and tribal interest in enacting and enforcing the rule and

upholding its constitutionality. That self-interest, combined with the fact that SCV

has eliminated the demurrer—the procedural device by which to challenge the

constitutionality of a disciplinary rule at the trial level—means that SCV has

retained the exclusive authority (other than SCOTUS) to assess the

constitutionality of a rule 1t enacted for the purpose of protecting the judiciary’s self-

interest in insulating itself from unwanted scrutiny and unwelcome criticism of its

4 Although the text of the rule does not expressly refer to a judge’s “competence,” it seems clear, in

view of SCV’s opinions interpreting the rule, that it is subsumed within the word, “qualifications.”

5

decisions. That coupled with the fact that a tiny group consisting of the majority

(four out of seven) of SCV Justices possesses the sole authority to enact and

determine the constitutionality of such a rule, as well as enforce it, create unusual

circumstances that warrant an exception to application of Younger abstention.

Finally, the third step in the Younger analysis requires a determination that the

pending state court proceedings will afford the respondent an adequate opportunity

to raise his constitutional challenges. SCV eliminated the availability of the

demurrer and failed to identify any alternative procedural mechanism by which to

raise constitutional challenges to disciplinary rules at the trial level, reserving to

itself the exclusive authority to assess a rule’s constitutionality on appeal of an

adverse disciplinary decision. That, along with SCV’s previous rejections, in other

cases, of some of the same constitutional challenges asserted by Leiser below,

render his attempts to raise them in the state court proceedings an exercise in

futility. For the foregoing reasons, Leiser has been and will almost certainly

continue to be deprived of an adequate opportunity to raise his constitutional claims

in the state-court proceedings. Therefore, EDVA’s application of Younger was

inappropriate and its denials of Leiser’s motion for a P.I. and his FRCP 59(e)

motion, along with CA4’s denials of Leiser’s motion for an I.P.A. and his PRH,

constituted abuses of discretion as a matter of law.

IX. ARGUMENT—REASONS TO GRANT THIS APPLICATION

A. Factors to consider in deciding whether to award preliminary injunctive relief

An applicant clearly establishes his entitlement to relief pending appellate

review when he demonstrates: (1) his 1s* Amendment claims are likely to prevail; (2)

denying him relief would lead to irreparable injury; and (3) granting relief would

not harm the public interest. Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S.

14, 16 (2020), citing Winter v. NRDC, 555 U.S. 7, 20 (2008).5 Several factors govern

a single Justice’s consideration of an application. Namely, “[ilf there is a ‘significant

possibility’ that the Court would note probable jurisdiction of an appeal of the

underlying suit and reverse, and if there is a likelihood that irreparable injury will

result if relief is not granted, the Justice may issue an injunction.” Am. Trucking

Ass‘ns, Inc. v. Gray, 483 U.S. 1306, 1308 (1987).6

As to the 2=¢ factor, SCOTUS has recognized that “loss of [1st] Amendment

rights, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Leiser’s law license was

suspended for three years on the basis of the content of his statements that were

critical of the judiciary, resulting in not only the continuing infringement of his 1st

5 In Winter v. NRDC, 555 U.S. 7 (2008), this Court articulated what a petitioner must establish to

justify the issuance of a P.I.: (1) his likelihood of success on the merits; (2) his likelihood of suffering

irreparable harm that is both great and immediate in the absence of preliminary relief; (3) the

balance of equities tips in his favor; and (4) an injunction is in the public interest. Jd. at 20. But

“when the Government is the opposing party,” the “harm to the opposing party” and “the public

interest” factors “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009).

6 Under S. Ct. Rule 10(a) and (c), Leiser is likely to obtain certiorari review leading to a reversal of

the decisions below, especially in view of the fact that many states have adopted disciplinary rules

identical to or virtually so with Rule 8.2, including: CT, DE, FL, ID, IN, KY, MA, MD, MN, MO, MS,

NE, NY, OH, RI and TN. Leiser’s legal rights are “indisputably clear” as is Respondents’ patent and

flagrant violation of those rights, and injunctive relief is “necessary or appropriate in aid of the

Court’s jurisdiction.” Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J., in chambers).

7

Amendment rights, but also the concomitant loss of valuable business opportunities

and severe economic and reputational harm, among other deleterious consequences.

As to the 3'¢ and 4th factors, SCV and VSB are “in no way harmed by issuance of a

preliminary injunction preventing the state from enforcing restrictions likely to be

found unconstitutional. If anything, the system is improved by such an injunction .

.. land] upholding constitutional rights surely serves the public interest.” Giovani

Carandola, Ltd. v. Bason at 303 F.3d 507, 520-21 (CA4 2002). As to the 1° factor,

because the “irreparable harm” that Leiser has alleged is “inseparably linked to

[his] claim of violation of [1st] Amendment rights [the] [dletermination of

irreparable harm requires analysis of [his] likelihood of success on the merits.” Id.

at 511. But before proceeding with the analysis, a threshold question must be

considered—was Leiser’s FAC improperly dismissed for lack of SMJ based upon the

LFCs’ erroneous application of Younger abstention?

B. To the extent Younger would otherwise apply, each of its judicial exceptions

renders its application inappropriate

Under the Younger abstention doctrine, a federal court should abstain from

hearing a case over which it otherwise has jurisdiction

if there is (1) an ongoing state judicial proceeding,

instituted prior to any substantial progress in the federal

proceeding; that (2) implicates important, substantial, or

vital state interests; and (3) provides an adequate

opportunity for the plaintiff to raise the federal

constitutional claim advanced in the federal lawsuit.

Moore v. City of Asheville, 396 F.3d 385, 390 (CA4 2005)

(internal citations omitted).

The disciplinary proceeding initiated against Leiser meets the first two Younger

criteria. Middlesex County Ethics Committee v. Garden State Bar Ass‘n, 457 U.S.

423, 482-37 (1982). However, as will be addressed infra., at § [X(H) at pp. 25-27, the

state court proceedings do not provide Leiser with an adequate opportunity to raise

his constitutional questions at issue in his pending federal action.

But even assuming, arguendo, the state courts would provide Leiser with an

adequate forum in which to litigate his constitutional claims, abstention was

nevertheless inappropriate because each of the judicial exceptions to application of

Younger is relevant here. First, Rule 8.2 is flagrantly and patently unconstitutional

on its face. Second, if the state court proceedings are allowed to continue Leiser will

suffer irreparable injury that is both great and immediate, to include the loss of his

1st Amendment rights as well as severe reputational and economic harm that

naturally flow from the suspension of his license to practice law. Third, Rule 8.2

has been twice enforced against Leiser in bad faith and in a harassing manner.

Fourth, there are additional “unusual circumstances” in this case that call for

equitable relief. See generally, Younger v. Harris, 401 U.S. 37, 45, 53-54 (1971).

Since the establishment of: (i) the inapplicability of Younger; (ii) the existence of

irreparable harm that is both great and immediate: and (iii) the likelihood of

success on the merits; are all dependent, to a significant degree, upon

demonstrating the unconstitutionality of VRPC 8.2, Leiser now turns to that issue.

C. Relevant 1s* Amendment principles

Importantly, the speech that Rule 8.2 purports to regulate involves criticism of

government officials and their official conduct, and is therefore political speech

which is entitled to the highest level of 1st Amendment protection. Gentile v. State

Bar of Nevada, 501 U.S. 1030, 1034-35 (1991). In its seminal decisions in both NYT

and Garrison v. State of Louisiana, 379 U.S. 64 (1964), SCOTUS articulated the

prerequisites the government must establish before it can impose either civil or

criminal sanctions against a person based purely upon the content of his political

speech, without any accompanying disruptive conduct. Those requirements are:

first, a court must determine, as a question of law, that the statement at issue is a

statement of fact—the only type of statement that is susceptible to objective proof of

its truth or falsity; second, the court must determine, as a question of law, that the

statement under consideration could be actionable. At issue here is an attorney

disciplinary rule which prohibits criticism of the qualifications, competence or

integrity of judicial officials. In the context of attorney disciplinary proceedings, the

“actionability” of a statement requires a determination by the court, as a question of

law, that it is capable of creating a substantial likelihood of material prejudice to

the fair administration of justice. Gentile at 1036-37.

If and only if a court answers both legal inquiries in the affirmative, then and

only then is the fact-finder permitted to proceed to ascertain, first, considering all of

the competent evidence and testimony admitted during the proceeding, whether the

statement at issue is in fact false. Through its NYT and Garrison decisions,

SCOTUS clarified that, as a matter of federal constitutional law, and in particular,

10

as dictated by the 1st Amendment, and whether in a civil or criminal case, a true

statement of fact can never serve as the predicate for the imposition of either civil or

criminal sanctions, based purely upon its content, without any accompanying

disruptive behavior. It necessarily follows, before the government can impose civil

or criminal sanctions, the statement’s falsity must be affirmatively established and

the burden of proving its falsity is upon the shoulders of the plaintiff/government

seeking to impose those sanctions.

Second, if and only if the factfinder concludes that the statement is false, does it

next proceed to ascertain whether the evidence established MY7 malice—that the

publisher either knew it was false or else held a high degree of subjective awareness

that the statement was probably false—the very definition of reckless disregard for

truth or falsity necessary for a finding of either criminal culpability or civil liability

based strictly upon the content of speech. If and only if that second factual inquiry

is answered in the affirmative does the factfinder next proceed to consider all of the

circumstances surrounding the publication of the statement, to answer the third

factual inquiry—whether the statement did in fact create a substantial likelihood of

material prejudice to the fair administration of justice. If and only if all three

factual inquiries are answered in the affirmative, then and only then can the

publisher of the statement be subjected to sanctions either criminal or civil in

nature. NYT at 376 U.S. 254, 271-73, 279-80; Garrison at 379 U.S. 64, 74-75. The

government bears the burden of proof as to each of the three factual inquiries by

clear and convincing evidence. These bedrock 1s: Amendment principles have been

11

settled law for many decades; yet, SCV has repeatedly rejected and ignored them in

the context of attorney disciplinary proceedings involving Rule 8.2.7

The overarching principles behind the 1s* Amendment free speech guarantee are

first, that political speech, alternatively characterized as speech about matters of

public concern—that which is critical of government: policies, officials, decisions, or

reasoning offered in support of those decisions—is afforded the highest level of 1st

Amendment protection—greater than that afforded artistic expression or

commercial speech. Second, 1st Amendment free speech guarantees are delicate and

need “breathing room” to survive.

D. Rule 8.2 is subject to “strict scrutiny” under the 1st Amendment

“(Sltrict scrutiny applies either when a law is content based on its face or when

the purpose and justification for the law are content based....” Reed v. Town of

Gilbert, 576 U.S. 155, 166 (2015). A law “... imposes more than an incidental

burden on protected expression” when, “. . . on its face and in its practical

operation,” it “imposes a burden based on the content of speech and the identity of

the speaker.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). Under Rule 8.2

speech that is critical of the judiciary is prohibited and lawyers are singled out from

the population at large, for government-imposed sanctions based upon the content

7 Although SCOTUS has given its imprimatur to the application of a less demanding standard

governing the regulation of attorney speech in disciplinary as opposed to criminal proceedings,

Gentile at 1074-75, (adopting the substantial likelihood of material prejudice versus the clear and

present danger standard), there has been no indication, in SCOTUS’s implementation of that less

demanding standard, that it has tacitly approved of abandoning fundamental principles of its own 1*¢

Amendment jurisprudence, by which, regarding political speech, only statements of fact that are

proven to be false, and proven to have been published with either knowledge of or reckless disregard

for their truth or falsity, can be the subject of adverse governmental action—whether civil Gncluding

disciplinary sanctions) or criminal.

12

of their speech. Because what is at issue is purely political speech, which Rule 8.2

targets in order to repress disfavored viewpoints, the rule is subject to strict

scrutiny. That necessarily requires a determination that the rule promotes a

compelling state interest and is narrowly tailored to ensure the least restrictive

means of promoting that interest. Widmar v. Vincent, 454 U.S. 2638, 269-70 (1981).

But on its face, a rule such as VRPC 8.2, that declares any public statement about a

judge’s qualifications, (competence) or integrity is not protected speech because it

creates a substantial likelihood of material prejudice to the fair administration of

justice, fails, as a matter of law, the “narrowly tailored” and “least restrictive

means’ tests required under a “strict scrutiny” analysis.

E. SCOTUS must construe VRPC 8.2 precisely as SCV has interpreted it

The federal courts considering the constitutionality of a state statute or rule of

court must read its text precisely as it has been authoritatively interpreted by the

highest state appellate court to have reached that issue. As noted by SCOTUS in

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), “It is not our

function to construe a state statute contrary to the construction given it by the

highest court of a State.” Jd. at n.9 (internal citations omitted). In Gooding v.

Wilson, 405 U.S. 518 (1972), SCOTUS held federal courts must follow authoritative

state court holdings, explaining, “{o]nly the [State] courts can supply the requisite

construction [of a State statutel, ‘since .. . [SCOTUS] lack[s] jurisdiction

authoritatively to construe state legislation.” Jd. at 520 Gnternal citations omitted).

Accord, Wainwright v. Stone, 414 U.S. 21 (1978) (holding that “[flor the purpose of

13

determining whether a state statute is too vague and indefinite to constitute valid

legislation ‘we must take the statute as though it read precisely as the highest court

of the State has interpreted it.” Jd. at 21-23 (internal citations omitted).

F. Rule 8.2 is patently and flagrantly unconstitutional

The omissions, from both the text of Rule 8.2 (see pp. ix and 2, supra.) and the

authoritative SCV decisions interpreting it, of both the adjective, “false,” and the

prepositional phrase, “of fact,” as modifiers of the “statement’ at issue, render the

rule unconstitutionally overbroad and vague on its face. In the seminal case of Pill

v. VSB, 269 Va. 391 (2005) SCV held, in order to prove a violation of Rule 8.2, VSB

must first establish that the respondent made a statement about a judge or other

judicial officer involving his or her qualifications or integrity; second, it must prove

the statement was made with knowledge of its falsity or with reckless disregard of

its truth or falsity. Jd. at 396. Neither the text of Rule 8.2 nor SCV’s decisions

construing it require either a judicial determination that the statement at issue is

one of fact, or that it be proven false. SCV’s only mention of the alleged falsity of

the statement is its oblique reference in the second prong of its prescribed

analysis—establishment of the publisher’s knowledge of his statement’s falsity.

However, SCV fails to explain how the state of a respondent’s knowledge of the

supposed falsity of his statement can be discerned, without first—or indeed, ever—

establishing the statement’s falsity—a logically necessary prerequisite to

determining whether the statement was published with either knowledge of or with

reckless disregard for its truth or falsity.

14

Yet, SCV conveniently sweeps those threshold requirements under the rug and

either ignores those constitutional imperatives or else effectively presumes the

statement is one of fact; presumes its falsity; and presumes the attorney published

it with NYT malice. SCV has effectively staked out the position that any statement

that a judge finds demeaning, derogatory or disparaging, of his decision, his

reasoning, or even critical of the judiciary writ large, is ipso facto and per se false,

as a matter of law. The Pillicourt stated, “[t]he very content of these accusations

refutes Pilli’s argument that he made objectively reasonable statements concerning

Judge Cassidy’s integrity or qualifications.” Jd. at 397. In other words, according to

SCV, the statements, themselves, establish their own falsity—or at least, the lack of

good faith and objective reasonableness in publishing them. Both the text of Rule

8.2 and SCV’s authoritative construction thereof compel the conclusion that it is the

mere publication of statements critical of or insulting to a judge, that is without

more, sufficient to find an attorney in violation of Rule 8.2.

About six months after issuing its Pil/i opinion, SCV decided Anthony v. VSB,

270 Va. 601 (2005), in which Anthony argued, in order to establish a violation of

Rule 8.2, VSB had the BoP as to whether his various statements concerning the

judges were in fact false. SCV, relying on its then-recent Pi// decision, disagreed,

echoing the Pill court’s holding (see p.14, supra.). Anthony at 608. Like the Pill

court, the Anthony court declined to address the truth or falsity of the statements at

issue, and, as a threshold matter, declined to characterize them as statements of

fact, or otherwise. However, it demanded to know what “factual basis” Anthony had

15

for his statements, /d., thereby effectively presuming his statements were “of fact,”

and then shifting the BoP to Anthony, to prove his statements were, if not true, at

least, “objectively reasonable.” Jd. In so doing, SCV ignored settled law, that,

Authoritative interpretations of the [1st] Amendment

guarantees have consistently refused to recognize an

exception for any test of truth—whether administered by

judges, juries, or administrative officials—and especially

one that puts the burden of proving truth on the speaker. .

.. The constitutional protection does not turn upon ‘the

truth, popularity, or social utility of the ideas and beliefs

which are offered. NYT at 376 U.S. 254, 271 Gnternal

citations omitted).

The court that tried Anthony’s disciplinary violation “found, by clear and

convincing evidence, indeed by unrefuted evidence, that Anthony had made

statements about a number of judges involving their qualifications and integrity

and he made those statements with reckless disregard for their truth or falsity.”

Anthony at 609 (emphasis added). Announcing a heightened standard of protection

afforded to Virginia’s judges, to insulate them from the harsh winds of criticism

which other public officials are routinely expected to endure, the Anthony court

held,

... [A] derogatory statement concerning the qualifications

or integrity of a judge, made by a lawyer with knowing

falsity or with reckless disregard of its truth or falsity,

tends to diminish the public perception of the qualifications

or integrity of the judge. Such a statement creates a

substantial likelihood of material prejudice to the

administration of justice as a matter of Jaw and is not,

therefore, constitutionally protected speech. Jd. at 610

(emphases added).

16

Once again, SCV ignored settled 1st Amendment principles established through

various SCOTUS precedents, including NYT, Garrison, and Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974). For example, the NY7'court held,

Criticism of official conduct of government officials does not

lose its constitutional protections for speech and press

merely because it is effective criticism and hence

diminishes their official reputations. If neither factual

error nor defamatory content suffices to remove the

constitutional shield from criticism of official conduct, the

combination of the two elements is no less inadequate... .

Id. at 278.

Similarly, the Gertz court held,

An individual who decides to seek governmental office

must accept certain necessary consequences of that

involvement in public affairs. He runs the risk of closer

public scrutiny than might otherwise be the case. And

society’s interest in the officers of government is not strictly

limited to the formal discharge of official duties. .. . [Tlhe

public’s interest extends to ‘anything which might touch on

an official’s fitness for office. ... Few personal attributes

are more germane to fitness for office than dishonesty,

malfeasance, or improper motivation... . Gertz at 344-45,

quoting Garrison at 77.

Finally, the Garrison court held, “The [NY7] ‘public official’ rule protects the

paramount public interest in a free flow of information to the people concerning

public officials, their servants.” Id. at 77 (emphasis added).

The Anthony court also eschewed SCOTUS’s repeatedly emphasized imperative

that a civil or criminal tribunal adjudicating an action predicated on the content of

speech must, in the first instance, analyze the statements to determine whether

they are actionable. SCV has rejected that command and has decided, as a blanket

rule of law, that any derogatory statement about a judge’s qualifications,

competence or integrity is per se actionable under Rule 8.2. The Anthony court

17

declined to explain generally, how statements which are critical of a judge, his

decision or his reasoning, and which are contained within a pleading filed with the

clerk’s office of a court, could be expected to pose a “substantial likelihood of

material prejudice to the [fair] administration of justice,” and how the attorney who

files such a pleading could be construed as having breached his “obligation to

abstain from public debate that will obstruct the administration of justice.”

Anthony at 609 (emphases added) (quoting Gentile at 1074). Nor did the court

explain, specifically, how Anthony and his particular statements had done so.

In 2010 SCV decided Moseley v. VSB, 280 Va. 1 (2010), in which it upheld a sixmonth suspension of Moseley’s law license for violating Rule 8.2. The Moseley court

held, “public statements by attorneys, concerning the integrity of judges and judicial

officers are not protected speech because they create a ‘substantial likelihood of

material prejudice’ to the administration of justice.” (Moseley at 3, quoting Gentile

at 1074) (emphases added). Thus, an attorney’s license to practice law can be

suspended or revoked, for making any public statement, whatsoever, about a judge’s

integrity—whether of pure opinion or even a true statement of fact. In adopting

that blanket rule, SCV ignored its reversal by this Court in Landmark

Communications, 435 U.S. 829, which held,

Deference to a legislative finding cannot limit judicial

inquiry when [1st] Amendment rights are at stake... .

[Instead, SCOTUS] is compelled to examine for [itself] the

statements in issue and the circumstances under which

they were made to see whether or not they do carry a threat

of clear and present danger to the impartiality and good

order of the courts or whether they are of a character which

the principles of the [1st] Amendment, as adopted by the

18

Due Process Clause of the [14th] Amendment, protect... .

It was thus incumbent upon [SCV] to go behind the

legislative determination and examine for itself ‘the

particular utterancle] here in question and _ the

circumstances of [its] publication to determine to what

extent the substantive evil of unfair administration of

justice was a likely consequence, and whether the degree

of likelihood was sufficient to justify [subsequent]

punishment.’ ... Whenever the fundamental rights of free

speech . .. are alleged to have been invaded, it must remain

open to a defendant to present the issue whether there

actually did exist at the time a clear danger; whether the

danger, if any, was imminent; and whether the evil

apprehended was one so substantial as to justify the

stringent restriction interposed by the legislature. Jd. at

843-44, ... [T]he law gives ‘judges as persons or courts as

institutions ... no greater immunity from criticism than

other persons or institutions.’ . . . The operations of the

courts and the judicial conduct of judges are matters of

utmost public concern. Jd. at 839... .[Slpeech cannot be

punished when the purpose is simply ‘to protect the court

as a mystical entity or the judges as individuals or as

anointed priests set apart from the community and spared

the criticism to which in a democracy other public servants

are exposed.’ Jd. at 842. ‘... [A] major purpose of [the 1%]

Amendment was to protect the free discussion of

governmental affairsl,! . . . [and this includes] the

operation of the courts and the judicial conduct of judges .

.. Id. at 838-39... . [Nleither the Commonwealth’s interest

in protecting the reputation of its judges, nor its interest in

maintaining the institutional integrity of its courts, is

sufficient to justify the subsequent punishment of speech. .

.. Wnjury to official reputation is an insufficient reason ‘for

repressing speech that would otherwise be free.’ . . . [T]he

clear-and-present-danger testl,] .. . [plroperly applied, .. .

requires a court to make its own inquiry into the

imminence and magnitude of the danger said to flow from

the particular utterance and then to balance the character

of the evil, as well as its likelihood, against the need for free

and unfettered expression. The possibility that other

measures will serve the State’s interests should also be

weighed. Jd. at 841-43 Gnternal citations omitted).

19

Most recently, in Jenkins v. VSB, 308 Va. 332 (2024), Jenkins was charged with

making statements that were alleged to be not only false, but also “insulting” and

“offensive,” Jd. at 335. SCV found Jenkins’ “... many scurrilous statements

impugning the integrity of the judge” violated Rule 8.2. Jd. at 339. The Jenkins

court noted, “.. . the disciplinary proceeding was based on the statements and the

method that [Jenkins] used to communicate the dissent that [he] had with the

Judge and the language that [he] used... .” Jd. at 337-38. The opinion did not

discuss the truth or falsity of the statements at issue, echoing the absence of such

discussion or analysis in the Prlli, Anthony and Moseley opinions. Instead, the

Jenkins court emphasized, “[Ilitigation is to be conducted . . . with civility and

courtesy. Baseless insults and accusations are the antithesis of the decorum

necessary for effective representation. Zealous representation can and should

proceed with dignity and respect towards opposing counsel and the court... .” Jd. at

338.

SCV’s decisions interpreting and applying Rule 8.2 have uniformly rejected this

Court’s 1s* Amendment guardrails, and have instead insisted that the statement

under consideration need not be evaluated for its susceptibility to proof of truth or

falsity, and its falsity need not be proven. Since the attorney’s statement: (i) need

not be a statement of fact; (ii) need not be proven false, and (iii) therefore cannot be

proven to have been published with either knowledge of its falsity or with NYT

malice; (iv) need not be evaluated, on a case-by-case basis, to assess whether it does

in fact create a substantial likelihood of material prejudice to the fair

20

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