Appendix — In re Westfall
Supreme Court brief1991
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Pupreme mcoyet, US
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91-4297
No. 91-
In THE
Supreme Court of the Anited States
OcTOBER TERM, 1991
In Re GEORGE R. WESTFALL,
Petitioner.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF MISSOURI
RICHARD J. LAZARUS GEorGE E. SCHAAF”
Washington University GERALD P. GREIMAN
School of Law GREEN, HOFFMANN & DANKENBRING
St. Louis, Missouri 63130 7733 Forsyth Blvd., Suite 800
St. Louis, Missouri 63105
Of Counsel (314) 862-6800
Counsel for Petitioner
“Counsel of Record
St. Louis Law Printing,Inc. 13307ManchesterRd. St. Louis,MO 63131 314-231-4477
TABLE OF CONTENTS
Page
APPENDIX A - Missouri Supreme Court Opinions
Original Disciplinary Proceeding
Itt cecccskcuitapetcinestiionhattinincnniniaicininieniniees A-1
Concurring Opinion (Seiler, Sr. J.) ..........ceeseseeees A-19
Dissenting Opinion (Blackmar, C. J.) 20.0.2... A-21
APPENDIX B - Report of Special Master ................... A-42
Fe a © i incccnsrercsdisisesienctenticntastainimene A-102
APPENDIX D - Denial of Rehearing ................:scceeeeeee A-103
APPPENDIX E -
Examples of Negative Commentary ................0006 A-104
APPENDIX A
Supreme Court of Missouri
en banc
No. 72022
In The Matter of:
GEORGE E. (BUZZ) WESTFALL,
Respondent.
Filed: May 3, 1991
ORIGINAL DISCIPLINARY PROCEEDING
This is an original disciplinary proceeding instituted by the
Advisory Committee of the Missouri Bar pursuant to Rule 5
against respondent George R. (Buzz) Westfall. The information
charged respondent with violation of Rules 8.2(a) and 8.4(a) and
(d) of Rule 4, Rules of Professional Conduct, and requested that
respondent be disbarred from the practice of law. The Court
appointed as Master to hear the proceedings the Honorable
Bruce Normile, Judge of the 2nd Judicial Circuit. Judge Normile
made findings and recommended that respondent be suspended
from the practice of law for one year and that the order of
suspension be stayed subject to certain conditions. In adisciplin-
ary proceeding the Master’s findings, conclusions and recom-
mendations are advisory in nature. This Court reviews the
evidence de novo, determines independently the crediblity,
weight and value of the testimony of the witnesses, and draws its
own conclusions of law. Jn re Waldron, 790 S.W.2d 456, 457
(Mo. banc 1990).
At all times relevant respondent served as prosecuting attor-
ney of St. Louis County and as such was involved in 2 series of
prosecutions of Dennis Bulloch forcrimes committed in connec-
tion with the death of Bulloch’s wife, Julia. Respondent first led
the prosecution of Bulloch for murderin the firstdegree. Bulloch
pe, spam
was acquitted of that charge and found guilty of involuntary
manslaughter. He was subsequently indicted on charges of
armed criminal action and destroying physical evidence. The
trial court denied Bulloch’s motion to dismiss the indictment on
grounds of prosecutorial vindictiveness and double jeopardy.
Bulloch then filed petition for a writ of prohibition in the
Missouri Court of Appeals, Eastern District, seeking to bar
further prosecution of these charges. The court of appeals issued
a preliminary rule in prohibition and subsequently made the writ
absolute.
The court of appeals’ opinion in the matter, the unanimous
opinion of a three-judge panel of the court, was authored by the
Honorable Kent E. Karohl. The court held first that the question
of prosecutorial vindictiveness involved disputed facts, a matter
to be considered on direct appeal if required. Relying on
Missouri v. Hunter, 459 U.S. 359 (1983), the court also held that
a subsequent trial of Bulloch for armed criminal action would
constitute a violation of Bulloch’s protection under the Double
Jeopardy Clause of the Fifth Amendment of the Constitution of
the United States.' Missouri v. Hunter held that where the
legislature specifically authorizes cumulative punishment under
two Statutes, regardless of whether these two statutes proscribe
the “same” conduct, it does not violate double jeopardy to
impose cumulative punishment under such statutes in a single
trial. /d. at 679.
On the day the opinion was issued, respondent made remarks
that constitute the basis of the information filed in this case.
KSDK-TV, Channel 5, an NBC affiliate in St. Louis, broadcast
' This Court granted transfer and made the preliminary rule absolute. State
ex rel. Buiioch v. Seier, 771 S.W.2d 71 (Mo. banc 1989). The United States
Supreme Court denied certiorari. Missouri v. Bulloch, 493 U.S.__, 110S.
Ct. 718 (1990).
a = poe
videotaped portions of an interview with respondent on the 6:00
p.m. and 10:00 p.m. news programs. Respondent’s statement
was broadcast as follows:
... The Supreme Court of the land has said twice that our
armed criminal statute is constitutional and that it does not
constitute Double Jeopardy.
... but for reasons that I find somewhat illogical, and I think
even alittle bit less than honest, Judge Karohl has said today
that we cannot pursue armed criminal action. He has really
distorted the statute and I think convoluted logic to arrive at
a decision that he personally likes.
The decision today will have a negative impact on all
murder one cases pending in Missouri, in the future in
Missouri, and some that are already on appeal with inmates
in prison. So it’s a real distressing opinion from that point
of view.
But if it’s murder first degree and we’re asking for death,
which, of course, is the most serious of all crimes, Judge
Karohl’s decision today says we cannot pursue both. And
that, to me, really means that he made up his mind before he
wrote the decision, and just reached the conclusion that he
wanted to reach.
The information filed by the Advisory Committee charges
respondent with violating Rules 8.2(a) and 8.4(a) and (d), of
Supreme Court Rule 4, Rules of Professional Conduct. Rule
8.2(a) provides:
= om
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,
adjudicatory officer or public legal officer, or of a candidate
for election or appointment to judicial or legal office.
Rule 8.4 provides in pertinent part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of Professional
Conduct ....
(d) engage in conduct that is prejudicial to the administra-
tion of justice ....
The Advisory Committee submits that respondent reacted to
Judge Karohl’s opinion in utter disregard of the truth, of the
integrity of the judicial process, and of respondent’s obligations
with respect thereto. The Committee further submits that re-
spondent engaged in this conduct without investigation of the
facts and without factual basis for his statements. The Commit-
tee briefed and argued additional violations not contained in the
information. This Court will consider only those charges con-
tained in the original information. See Matter of Smith, 749
S.W.2d 408, 414 (Mo. banc 1988).
S.
In defense respondent contends that his statements were
directed to the court of appeals’ opinion and not to the qualifica-
- tions or integrity of Judge Karohl and thus did not concern the
qualifications or integrity of a judge. Respondent also asserts
that the statements in question were merely the expression of
opinion and, because opinion cannot be false, the statements are
not proscribed by Rule 8.2(a).
a |
This Court first addresses respondent’s protestations that his
Statements were merely expressions concerning the soundness
of the court of appeals’ decision, not statements of actual and
provable facts about the judge’s integrity. His contentions are
not well taken. First, respondent stated that “the Supreme Court
of the Land has twice said our armed criminal action statute is
constitutional and that it does not constitute Double Jeopardy.”
Immediately following, respondent stated:
... but for reasons that I find somewhat illogical, and I think
even a little bit less than honest, Judge Karohl has said
today that we cannot pursue armed criminal action. He has
really distorted the statute and I think convoluted logic to
arrive at a decision that he personally likes.
(Emphasis added). Later followed this personalized language:
But if it’s murder in the first degree and we’re asking for
death which, of course, is the most serious of all crimes,
Judge Karohl’ s decision today says we cannot pursue both.
And that, to me, really means that he made up his mind
before he wrote the decision, and just reached the conclu-
sion that he wanted to reach.
(Emphasis added.) The statements personalize the judge’s
conduct and specifically refer to him, his motivation, and his
integrity as it relates to his participation in the appellate judicial
process.
Respondent contends that his statements plainly reflect sub-
jective opinion and not verifiable factual assertions. Because
opinion cannot be “false,” he argues, his comments are not
proscribed by Rule 8.2(a). Insupport of this position, respondent
would have this Court microscopically examine the subject
phrases independent of each other. He also would have this
Court accept his after-the-fact characterization that his words, in
sum, simply meant that the court of appeals opinion was “‘intel-
lectually dishonest.”
—
Respondent seeks to obfuscate the issue. He merely creates an
“artificial dichotomy” between opinion and fact. Milkovich v.
Lorain Journal Co., 110 S. Ct. 2695 (1990). In Milkovich the
Court refused to recognize an artificial dichotomy between
opinion and fact, relying instead on whether there was an
assertion of objective fact:
If a speaker says, ‘In my opinion John Jones is a liar,’ he
implies a knowledge of facts which lead to the conclusion
that Jones told an untruth. Even if the speaker states the
facts upon which he bases his opinion, if those facts are
either incorrect or incomplete, or if his assessment of them
is erroneous, the statement may still imply a false assertion
of fact. Simply couching such statements in terms of
opinion does not dispel these implications; and the state-
ment, ‘In my opinion Jones is a liar,’ can cause as much
damage to reputation as the statement, ‘Jones is a liar.’
Id. at 2705-06.
Respondent’s statements clearly imply an assertion of objec-
tive fact regarding Judge Karohl’s judicial integrity. The Master
so found and this Court agrees. Respondent’s language at the
very least implies that the judge’s conduct exhibited dishonesty
and lack of integrity and is sufficiently factual to be susceptible
of being proved true or false.
Respondent’s continued assertion that the statement “a little
bit less than honest” was simply another way of saying “intellec-
tually dishonest” is not well taken. This Court acknowledges but
does not condone the all too frequent and often imprecise,
rhetorical use of the term “intellectually dishonest.” In any
event, in his attack on the judge respondent does not support his
assignment of “dishonesty” by anything other than pointing to
the long and tortuous history of armed criminal action in Mis-
souri and expressing his assumption that a Missouri court was
again in error. Respondent does not elucidate by suggesting, for
example, precedent or logic that he believes would constitute an
“honest” opinion on the subject. He merely points to similar
language and comments by other attorneys, including language
used by some judges in dissenting opinions. Itis notrespondent’s
function, but the appropriate disciplinary committees’, to initiate
enforcement of the Professional Rules.
Il.
Respondent contends that construction of Rule 8.2 or 8.4 so as
to prohibit the comments made would violate both his right to
free speech and his listeners’ right to know as guaranteed by the
First Amendment to the United States Constitution.
It is important to note at the outset that there are no bright lines
to guide courts and lawyers in determining standards to impose
when balancing the state’s right and need to maintain public
confidence in the administration of justice with a lawyer’s first
amendmentrights. It is clear, however, that attribution of honest
error to the judiciary is not cause for professional discipline. in
re Sawyer, 360 U.S. 622, 635 (1959). Itis also clear that lawyers
who make derogatory statements about judges are protected by
the First and Fourteenth Amendments to the United States
Constitution from imposition of civil and criminal liability
unless the statement is made “with knowledge of its falsity or in
reckless disregard of whether it was false or true.” Garrison v.
State of Louisiana, 379 U.S. 64, 74 (1964).
What is not clear is whether the same degree of constitutional
protection afforded in the civil and criminal arenas is required in
professional disciplinary proceedings. The United States Su-
preme Court has not directly addressed this issue, and the state
courts are in disagreement. Many cogrts disregard a claim of first
amendment protection in disciplinary proceedings, holding that
free speech does not give a lawyer the right openly to denigrate
the court in the eyes of the public. See, e.g., Inre Raggio, 87 Nev.
_—
369, 487 P.2d 499, 500 (1971). Other courts reject first amend-
ment arguments in holding that an attorney’s voluntary entrance
to the bar acts as a voluntary waiver of the right to criticize the
judiciary. See, e.g., 1n re Woodward, 300 S.W.2d 385, 393-94
(Mo. banc 1957) (“A layman may, perhaps, pursue his theories
of free speech or political activities until he runs afoul of the
penalties of libel or slander, or into some infraction of our
statutory law. A member of the bar can, and will, be stopped at
the point where he infringes our Canon of Ethics; and if he wishes
to remain a member of the bar he will conduct himself in
accordance therewith.”’); State v. Nelson, 210 Kan. 637, 504 P.2d
211, 214 (1972). A smaller number of courts hold that lawyers,
even as participants in the administration of justice, are entitled
to the full protection of the first amendment. See, e.g., /n re
Hinds, 90 N.J. 604, 449 A.2d 483, 489 (1982).
While the Supreme Court has not spoken decisively on the
subject, there are several decisions by the Court that provide
some guidance in determining standards by which to judge the
proper role of the first amendment in disciplinary proceedings.
In Bradley v. Fisher, 80 U.S. 335 (1872), the Court announced
severe restrictions on the right of attorneys to criticize the
judiciary: “[T]he obligation which attorneys impliedly assume
... when they are admitted to the bar, [is to] maintain at all times
the respect due to courts of justice and judicial officers. This
obligation . . . includes abstaining out of court from all insulting
language and offensive conduct toward the judges personally for
their judicial acts.” Jd. at 355. The states reacted by codifying
legal ethics, culminating in the American Bar Association’s
issuing the Canons of Professional Responsibility in 1908.
Although the Canons demanded an attitude of respect toward the
courts, they also recognized the importance of and encouraged
attorney criticism of the judiciary. Most judicial decisions under
the Canons, however, prohibited attorney criticism without
regard to the actual effect of the statement on the public’s
|
=>
confidence in the legal profession. Note, Restrictions on Attor-
ney Criticism of the Judiciary: A Denial of First Amendment
Rights, 56 Notre Dame L. Rev. 489, 491-92 (1981).
The Supreme Court next addressed sanctions against attor-
neys for allegedly disrespectful remarks about the judiciary in/n
re Sawyer, 360 U.S. 622 (1959). Sawyer was a defense attorney
in a Honolulu trial of several people charged with conspiracy
under the Smith Act. Six weeks after trial began Sawyer spoke
at a meeting sponsored by the International Longshoremen’s and
Warehousemen’s Union. Her speech was critical of the proceed-
ings in Smith Act cases: “There is no such thing as a fair trial in
a Smith Act case. All rules of evidence have to be scrapped or
the Government can’t make a case.” Upon recommendation of
the Bar Association of Hawaii, the Supreme Court of the territory
of Hawaii suspended Sawyer from the practice of law for one
year for impugning the integrity of the trial judge. /d. at626. The
Ninth Circuit affirmed, 260 F.2d 189 (9th Cir. 1958), and the
Supreme Court granted certiorari, 358 U.S. 892 (1958).
Justice Brennan wrote the four-judge plurality opinion revers-
ing the Hawaii court. He began by noting that “lawyers are free
to criticize the state of the law.” Sawyer, 360 U.S. at 631. The
freedom, however, does not include the right to “suggest any
unseemly complicity by the judiciary in the practice.” /d. at 633.
The public attribution of honest error to the judiciary, wrote
Justice Brennan, is no cause for professional discipline absent a
tendency to obstruct the administration of justice. /d. at 635-36.
The opinion delivered by Justice Brennan would prohibit only
statements that tend to obstruct the administration of justice or
impugn the integrity of a judge .
In a separate opinion Justice Stewart concurred in the result
only because he found insufficient evidence in the record to
support the charge that Sawyer impugned the integrity of the
presiding judge. He emphasized, however, that he disagreed
en
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with any intimation in the principal opinion that an attorney may
invoke the constitutional right of free speech to immunize
himself from even handed discipline for proven unethical con-
duct. /d. at 646 (Stewart, J., concurring). Justice Stewart
adhered to the traditional notions of ethical considerations over
freedom of speech: “Obedience to ethical precepts may require
abstention from what in other circumstances might be constitu-
tionally protected speech.” /d at 646-47.
Justice Frankfurter, joined by -three other justices, dissented,
finding that the record was replete with evidence to support the
charge. He went on to address the “strong intimation”’ of the
principal opinion that Sawyer’s speech was protected by the first
amendment. While Justice Frankfurter recognized that attor-
neys have certain first amendment rights to criticize judges, he
maintained, however, that these rights did not extend to attor-
neys actively involved in pending litigation:
Of course, a lawyer is a person and he too has a constitu-
tional freedom of utterance and may exercise it to castigate
courts and their administration of justice. But a lawyer
actively participating in a trial, particularly an emotionally
charged criminal prosecution, is not merely a person and
not even merely a lawyer.
Id. at 666, (Frankfurter, J., dissenting). Focusing on the potential
effect of such speech, Justice Frankfurter’s opinion apparently
wouid ban ail critical speech by attorneys relating to pending
litigation. Comment The First Amendment and Attorney Disci-
pline for Criticism of the Judiciary: Let the Law ~ Beware, 15
N. Ky. L. Rev. 129, 136 (1988).
The Court shed further light in Garrison v. State of Louisiana,
379 U.S. 64 (1964). Garrison, district attorney of Orleans Parish,
Louisiana, was convicted of criminal defamation for statements
made at a press conference which disparaged the judicial con-
duct of eight judges of the Criminal District Court of the parish.
The Court first held that the New York Times rule applied in
criminal as well as civil actions. This rule provides that critics
of public officials may not be subjected to civil sanctions unless
the statement was made with knowledge that it was false or with
reckless disregard of whether it was false or not. New York Times
Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The Garrison
court held that “only those false statements made with the high
degree of awareness of their probable falsity demanded by New
York Times may be the subject of either civil or criminal
sanctions.” Garrison, 379 U.S. at 74.
These cases and others make clear that speech concerning
public officials, including judges, may be protected speech,
“(flor speech concerning public affairs is more than self-expres-
sion; it is the essence of self-government.” /d. at 74-75. See also
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838-
39 (1978) (A primary purpose of the first amendmentis to protect
the free discussion of governmental affairs, including the opera-
tions of the courts and the judicial conduct of judges.). The
principle that “debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on govern-
ment and public officials” is no less important when the judiciary
is involved. Garrison, 379 U.S. at 75, quoting New York Times,
376 US. at 270.
There are limitations, however, to first amendment protec-
tion. Even protected speech may be regulated. Where unbridled
speech amounts to misconduct that threatens a significant state
interest, the state may restrict a lawyer’s exercise of personal
rights guaranteed by the Constitution. See NAACP v. Button, 371
U.S. 415, 438 (1963). Restrictions on free speech, however, will
survive judicial scrutiny only if the limitation furthers an impor-
tant or substantial governmental interest and is no greater than
necessary or essential to the protection of the particular govern-
mental interest involved. Sable Communications of California,
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iat aia ain iia eis
— A-12 —
Inc. v. F.C.C.,492 U.S. 115 (1989). A determination of whether
the conditions have been met necessarily requires a balancing
process. See L. Tribe, American Constitutional Law § 12-2, at
792-93 (2d ed. 1988). The Court balances the competing
considerations of the individual’s interest in expressing certain
ideas against the government’s interests in and justifications for
restricting such expression. See Bates v. State Bar of Arizona,
433 U.S. 350, 363-65, reh’g denied, 434 U.S. 881 (1977).
In undertaking the weighing process, it is necessary to evalu-
ate the nature and importance of the interest of the state sought
to be advanced through the restriction of expression. It is clear
that the state has a substantial interest in maintaining public
confidence in the administration of justice. The interest is not
only the litigant’s but also the public’s. The interest is in the
administration of justice by a fair and impartial judiciary. The
right to remedy by appeal is part of this system. Consequently,
the public’s confidence in the appellate process is vital.
Lawyers are an integral part of and essential to the administra-
tion of justice. As officers of the court, lawyers do not stand in
the shoes of ordinary citizens. See Middlesex County Ethics
Committee v. Garden State Bar Ass’ n, 457 U.S. 423, 434 (1982)
(“The judiciary as well as the public is dependent upon profes-
sionally ethical conduct of attorneys and thus has a significant
interest in assuring and maintaining high standards of conduct of
attorneys engaged in practice.””); Goldfarb v. Virginia State Bar,
421 U.S. 773, 792 (1975) (“We recognize that the States have a
compelling interest in the practice of professions within their
boundaries .... The interest of the States in regulating lawyers
is especially great since lawyers are essential to the primary
governmental function of administering justice, and have his-
torically been ‘officers of the courts.’ ””). Lawyers must execute
their professional responsibilities ethically and pursuant torules,
carefully considered, in order to ensure the confidence of both
litigants and the public. Statements by a lawyer impugning the
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integrity and qualifications of a judge, made with knowledge of
the statements’ falsity or in reckless disregard of their truth or
falsity, can undermine public confidence in the administration
and integrity of the judiciary, thus in the fair and impartial
administration of justice.
Rule 8.2(a) contemplates and seeks to effect the substantial
government interest in administration of justice through a fair
and impartial judiciary. It is this substantial state interest that
guides this Court in its interpretation of Rule 8.2(a). The
comments to the rule also recognize, however, that the public’s
interest in the proper administration of justice may be served
through criticism of the process. The rule, then, is sensitive to the
possibility of its chilling effect and will not be interpreted to
silence all lawyer criticism of the judicial system. Discipline, if
imposed, is imposed not as punishment against the offender, but
in protection of the public. /n re Hardge, 713 S.W.2d 503, 505
(Mo. banc 1986).
Further construction of Rule 8.2(a) requires that the term
“false or with reckless disregard as to its truth or falsity” be
defined. The cases have consistently required subjective knowl-
edge of the falsity of one’s statement before sanctions were
imposed. There is no one infallible definition of “reckless
disregard.” St. Amant v. Thompson, 390 U.S. 727, 730 (1968).
The standard has often been defined as an awareness of the
likelihood of the circulation of false information or a high degree
of awareness of probable falsity. See, e.g., id. at 731. In
defamation actions the standard has consistently been a subjec-
tive one — the test not being whether a reasonably prudent
person would have had serious doubts as to the truth of the
publication, but whether the defendant in fact entertained such
doubts. /d.
It is not clear, however, whether the “with knowledge or in
reckless disregard” standard used in defamation cases must be
—
strictly apr "ied in disciplinary proceedings. But see Garrison,
379 US. at 73 (“Moreover, even where the utterance is false, the
great principles of the Constitution which secure freedom of
expression in this area preclude attaching adverse consequences
to any except the knowing or reckless falsehood.’’). Some courts
have simply refused to apply the New York Times test, holding
that it was inapplicable to a disciplinary proceeding. See Matter
of Johnson, 240 Kan. 334, 729 P.2d 1175, 1180-81 (1986);
Matter of Terry, 271 Ind. 499, 394 N.E.2d 94, 95 (1979), cert.
denied sub nom., Terry v. Indiana Supreme Court Disciplinary
Comm'n, 444 U.S. 1077 (1980). Other courts have in dicta
indicated that the New York Times test is applicable in disciplin-
ary proceedings. See Eisenberg v. Boardman, 302 F. Supp.
1360, 1362 (W.D. Wis. 1969); State Bar v. Semaan, 508 S.W.2d
429, 432-33 (Tex. App. 1974). Some courts appear to apply the
New York Times test, but it is unclear whether they are applying
the same subjective “with knowledge or in reckless disregard”
standard. See, e.g., Ramirez v. State Bar of California, 28 Cal.3d
402, 169 Cal.Rptr. 206, 619 P.2d 399, 404 (1980).
At least one court has directly addressed the question and
concluded that an objective rather than subjective standard
should be used. /n re Disciplinary Action Against Graham, 453
N.W.2d 313 (Minn.), cert. denied sub nom. Graham v. Wernz,
1118. Ct. 67 (1990). See also Louisiana State Bar Ass‘ nv. Karst,
428 So.2d 406, 409 (La. 1983). In Graham the Supreme Court
of Minnesota held that the proper standard in attorney discipline
cases “must be an objective one dependent on what the reason-
able attorney, considered in light of all his professional func-
tions, would do in the same or similar circumstances. /d. at 322.
Minnesota’s rule is identical to this Court’s Rule 8.2(a), and also
identical to Rule 8.2, American Bar Association Model Rules of
Professional Conduct. The Graham court noted that Rule 8.2(a),
on its face, rejects an absolute privilege for false statements made
by a lawyer with reckless disregard for the falsity. The court
noted that the rule’s language itself is consistent with the consti-
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tutional limitations placed on defamation actions by the United
States Supreme Court cases of New York Times and Garrison.
Id. at 321. The court concluded, however, that because of the
interest in protecting the public, the administration of justice,
and the profession, a purely subjective standard is inappropriate.
Id. at 322. Citing the differences between defamation (a personal
wrong with a personal redress) and professional discipline
(redress of a public wrong) the court decided that attorneys
should be held to a higher standard when leveling criticism that
may adversely affect the administration of justice.
This court certifies attorneys for practice to protect the
public and the administration of justice. That certification
implies that the individual admitted to practice law exhibits
a sound capacity for judgment. Where an attorney criticizes
the bench and bar, the issue is not simply whether the
criticized individual has been harmed, but rather whether
the criticism impugning the integrity of judge or legal
officer adversely affects the administration of justice and
adversely reflects on the accuser’s capacity for sound
judgment. An attorney who makes critical statements
regarding judges and legal officers with reckless disregard
as to their truth or falsity . . . exhibits a lack of judgment that
conflicts with his or her position as “an officer of the legal
system anda public citizen having special responsibility for
the quality of justice.” Minn. R. Prof. Conduct, Preamble.
Id. This Court agrees with the reasoning and holding of the
Graham court. The objective standard survives first amendment
scrutiny in light of the compelling state interests served.
It remains to determine whether respondent violated the rule.
The findings and conclusions of the Master stated that respon-
dent did in fact act with reckless disregard as to the truth or falsity
of the statements made regarding Judge Karohl. This Court
agrees. When asked about the statement that the judge “made up
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his mind before he wrote the decision,” respondent testified that
he meant “that he’d made up his mind before he got the case,” and
that his intent was to convey the message that he felt Judge
Karohl’s opinion was a foregone conclusion. As stated above,
respondent asserted that he meant that the opinion was “intellec-
tually dishonest” but when asked to explain how the opinion was
dishonest, respondent merely referred again to his view that the
“Missouri appellate system has been intellectually dishonest
concerning armed criminal action from day one, in that they
steadfastly refuse to follow the directives of the highest court in
the land . . . and I anticipated the same thing would happen
again.” Before making these statements about Judge Karohl,
respondent failed to investigate to determine whether Judge
Karohl had participated in any cases involving the armed crimi-
nal action issue, authored any opinions on the subject, or ex-
pressed any personal opinions about it. -
Without any corroborative evidence, respondent accused Judge
Karohl of deliberate dishonesty. He accused the judge of
purposefully ignoring the law to achieve his personal ends. His
was not an implication of carelessness or negligence but of a
deliberate, dishonest, conscious design on the part of the judge
to serve his own interests. That respondent now seeks to negate
the Master’s findings and conclusions by saying that respondent
meant only to characterize the court of appeals opinion as being
“intellectually dishonest” refutes neither the actual language
used by respondent at the press conference nor respondent’s
failure legitimately to criticize the reasoning and the holding of
the court of appeals opinion. Without investigation, however,
and knowing the court’s inability to respond to accusations of
unspoken motive, respondent proceeded to make a publicly
televised statement alleging purposefully dishonest conduct.
Respondent’s conduct reflects a reckless disregard for the truth
or falsity of the statements made. This Court has already
concluded, supra, that respondent’s statements imputed lack of
integrity and misconduct in the judge’s professional work. His
— A-17 —
Statements were without basis; the court of appeals opinion
relied on the teaching of Missouri v. Hunter. Respondent’s
conduct was prejudicial to the administration of justice and
reflects adversely on respondent’s fitness to practice law. Ac-
cordingly, this Court now finds that by reason of this conduct, the
respondent violated Rule 8.2(a) of the Rules of Professional
Conduct.
This Court must now assess an appropriate disciplinary sanc-
tion by reason of the misconduct found in this case. Respondent
argues that as an elected public official, he was using the only
practicable means of communicating with his constituents. It is
true that public figures and those speaking on public matters
should not be held in fear of retribution for their every word.
Respondent is nevertheless subject to the Rules of Professional
Conduct and does not enjoy a privilege recklessly to impugn
before the public the integrity of the judiciary. While deference
is given to the needs of public officials to be free from a chilling
effect, the mere holding of public office does not exempt a
lawyer from the operation of the Rules of Professional Conduct.
Respondent notes that he did not engage in bribery of jurors,
subornation of perjury, misrepresentation to a court, or any
similar kind of conduct. This is correct. Furthermore, this Court
independently notes that respondent did not accuse the judge of
criminal conduct or of being subject to inappropriate influence.
The Master noted that respondent has privately stated his
belief in the judge’s personal integrity and that at the committee
hearing respondent reported that he had privately apologized to
Judge Karohl before the hearing. The Master found this to be a
mitigating circumstance but noted as an aggravating circum-
stance respondent’s failure to make similar public apology and
thereby alleviate the damage caused to the court of appeals and
the judge. There are other aggravating circumstances. At the
time respondent made the statements, the case remained pend-
ing. See Nelson, 210 Kan. 637, 504 P.2d 211, 215 (1972).
— A-18 —
Avenues for complaint were available in the form of a motion for
rehearing as well as through the filing of a complaint with the
Commission on Retirement, Removal and Discipline. See
Matter of Riley, 691 P.2d 695, 705 (Ariz. banc 1984); Jn re
Lacey, 283 N.W.2d 250, 252 (S.D. 1979). To date, respondent
has continuously and steadfastly refused to deviate from his
original position, even in the light of subsequent legal proceed-
ings, none of which disturbed either the holding or the reasoning
of the courtof appeals opinion. As the Masternoted, respondent’s
twenty years’ experience as a prosecutor “belies any suggestion
that he may have acted inadvertently or mistakenly, but rather
that he did so knowingly or recklessly of the damage he would
cause. The only apparent conclusion is that the very unusual and
sensational aspects of the case afforded him an opportunity of
personal publicity and self-aggrandizement which he utilized
without reflection upon the serious consequences entailed.”
This Court recognizes that it is possible for a lawyer to charge
a judge with misconduct more egregious than that charged in the
present case. This Court also recognizes that this case involves
a matter of first impression and initial construction of Rule 8.2(a)
and that the purpose of the rule is to protect the public. Under
these circumstances, a public reprimand is appropriate.
The charges brought under Rule 8.4 are encompassed within
the violation of Rule 8.2(a) in this case and, for purposes of
imposition of discipline, cannot be distinguished.
Respondent is reprimanded and directed to pay the costs of
these proceedings.
/s/ Ann K. Covington, Judge
Robertson, Rendlen, Higgins, and
Holstein, JJ., concur; Seiler, Sr. J.,
concurs in separate opinion filed;
Blackmar, C. J., dissents in separate
opinion filed. Billings, Jr., not sitting.
— A-19 —
SUPREME COURT OF MISSOURI
en banc
No. 72022
In the Matter of:
GEORGE E. (BUZZ) WESTFALL,
Respondent.
Filed: May 3, 1991
CONCURRING OPINION
In my opinion, there is no question but that Mr. Westfall in his
television interview maliciously or recklessly made a false
statement that Judge Karohl wrote his Bulloch opinion to satisfy
his own personal views, using less than honest reasons to do so
(which opinion, incidentally, in its result necessarily exposed
Mr. Westfall’s ignorance of the law of double jeopardy, no doubt
thereby arousing his pique).
Mr. Westfall’s self-serving protestations that he had “respect
for Judge Karohl”, did not question his personal integrity “in the
least” and had never intended to “impugn or question Judge
Karohl’s personal integrity,” made months later, only after
disciplinary charges had been filed against him, in no way
change the spirit behind what he said about Judge Karohl in the
television interview.
Clearly, under any test, Mr. Westfall’s conduct is a violation
of Rule 8.2(a) for which he deserves discipline. None of the
many cases cited in the opinions herein would require otherwise.
My belief is that it is not necessary or desirable to reach any
conclusion in this case as to whether the same degree of consti-
tutional protection afforded speech in civil and criminal cases is
required in lawyer disciplinary cases.
— A-20 —
I concur in the judgment of discipline by reprimand.
/s/ROBERT E. SEILER, Senior Judge
— A-21 —
SUPREME COURT OF MISSOURI
en banc
No. 72022
In the Matter of:
GEORGE E-(BUZZ) WESTFALL,
Respondent.
Filed: May 3, 1991
DISSENTING OPINION
We should proceed very carefully when we are asked to
censor or to censure political speech. Words spoken about an
opinion by a judge who is subject to the periodic scrutiny of the
voters, by an elected prosecuting attorney and potential candi-
date, relating to an important criminal matter, epitomize political
expression.
The words were spoken during an interview with a television
reporter. These reporters fire streams of questions, using the
responses they deem most newsworthy. These are often the most
vivid.' Such give and take is a part of the political process, and
should not be discouraged by the threat of hypercritical scrutiny.
The interview came the day the criticized opinion was handed
down. The respondent was entitied to share his overview of the
course of decisions, without detailed legal research, before he
spoke with the reporter. Nor was he required to withhold
comment until the motion for rehearing was disposed of. An
opinion is news when it is handed down. Motions for rehearing
' The principal opinion faults the respondent for asking us to “microscopi-
cally examine the subject phrases independent of each other,” even though the
broadcast consisted of disjointed segments selected by the editors rather than
a coniinuous discourse.
— A-22 —
are usually formalities, often sought but seldom successful.’
There is absolutely nothing in the record indicating that the
respondent was trying to bring public pressure on the author of
the opinion, or the other judges of his court, to grant a rehearing.
He rather assumed a martyred pose in suggesting that the bench
was not sympathetic to his aims.
In State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972) the
Supreme Court of Kansas declined a request for discipline of an
attorney who had criticized a decision of that court, disciplining
him, when he was approached by an interviewer shortly after the
handdown. The court perceived a “situation replete with emo-
tion and acrimony,” and noted “the fact that the statements
attributed to the respondent, were generally in broad terms.” /d.
at 217. It took the very practical course of dismissing the
petition. It would be wise for us to do likewise.
I do not argue that a prosecuting attorney enjoys superior
privileges with regard to political speech. His office simply
demonstrates the political nature of his speech. Like rights are
necessarily available to his critics. Nor do we have to speculate
at this point as to whether a lawyer’s privilege of comment is
greater in a case involving important public interests than in
matters of purely private concern.
At the formal hearing before the Advisory Committee the
respondent testified as follows:
MR. SCULLY: Mr. Westfall, do you think in this
particular instance that you could have criticized the opin-
ion of the Appellate Court in a different fashion?
2 The motion for rehearing, of course, is a condition precedent to further
review. Rules 84.17, 83.03.
— A-23 —
A. Sure. I told Judge Karohl this before we came in here,
I saw him and I did something I’ve been wantirg to do but
I don’t see him often, I went over to say good morning to
him and if he seemed okay to shake his hand. I said Judge,
I want to say to you face-to-face, not to influence the
outcome of this hearing but we’re here, I did not mean to
impune [sic] or toquestion your personal integrity and I feel
badly if that’s the inference you drew or your family or
some of your friends or colleagues have drawn. My
purpose was to criticize the opinion, I still feel it was wrong,
I still feel I have the right and obligation to my constituents
to say those things and I'll again given a similar situation I
may be a bit more cautious to not reflect upon one’s
personal integrity but that’s a tough thing to do and he sort
of made it clear that he understood that dealing with the
media is tough because they put on what they want to put on
so I made that clear to him.
The disposition of this case is solely our responsibility. We
owe no deference to any other tribunal. We are the fact finder.
There are no significant credibility calls in the master’s report,
and I find no indication that he did not consider the respondent
to be a credible witness. We must also eschew forbidden
intrusions on the field of free expression. Bose Corp. v. Consum-
ers Union of U.S., Inc., 466 U.S. 485, 499 (1984).
A. public reprimand is a substantial sanction, which must be
administered only in accordance with due process of law. In re
Voorhees, 739 S.W.2d 178, 180 (Mo. banc 1987), citing Zauderer
v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471
U.S. 626, 636-37 (1985). The reprimand is a scar on the lawyer’s
record and, in a case impacting the First Amendment, has an
obvious chilling effect on further expression. We are not at
liberty to give a lawyer a “chewing” forrudeness or insolence not
committed in the presence of the court.
— A-24 —
The judgment of reprimand is faulty, first because no violation
of Rule 8.2 has been established; second, because the respondent’s
speech is protected under the First Amendment and Art. I, Sec.
8, of the Missouri Constitution; and, third, because of the
oppressive conduct of the Advisory Committee.
1. There is no Rule Violation
Rule 8.2 is narrowly drafted, virtually in terms of the standard
of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). There
may be no discipline except for a
statement that the lawyer knows to be false or with reckless
disregard of its truth or falsity concerning the qualifications
or integrity of a judge.
The rule pointedly makes no reference to disrespect, discour-
tesy, or similar impropriety. It is directed at calumny; not at
indiscreet or extravagant expression. See Seested v. Post Print-
ing & Pub. Co.,, 326 Mo. 559, 31 S.W.2d 1045, 1052 (1930);
Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6,9
(1911); Williams v. Gulf Coast Collection Agency Co., 493
S.W.2d 367, 369 (Mo. App. 1973). The evidence does not
demonstrate knowing or reckless falsehood as the rule requires.
The most offensive part of the interview states, “for reasons
that I find somewhat illogical, and I think even a little bit less than
honest, Judge Karohl . . .” Elementary grammar teaches that
what the respondent suggested were “a little bit less than honest”
were the reasons, not the judg’ Any contrary conclusion is a
distortion of his language. The coupling of the offensive phrase
with “illogical” is a further demonstration that the respondent is
commenting on the reasons.
The principal opinion seeks to bolster its construction by at
least six unsupportable paraphrases of the respondent’s actual
words. He did not “specifically refer to [the judge’s] . . . integrity
— A-25 —
as it relates to his participation in the appellate judicial process.”
There is no “assertion of objective fact regarding Judge Karohl’s
judicial integrity.” There is no implication “that the judge’s
conduct exhibited dishonesty and lack of integrity ....” The
statements that respondent “accused the judge of purposefully
ignoring the law to achieve his personal ends” or implied “a
deliberate, dishonest, conscious design on the part of the judge
to serve his own interests,” or that his statements “imputed lack
of integrity and misconduct in the judge’s professional work,”
are the words of the writer, not the words of the respondent. This
treatment of his words highlights the danger in seeking disci-
pline for expressions about public matters and will give great
concern to any lawyer, whether holding office or not, or to any
law professor who values a law license, about any criticism of a
judge or a judicial opinion. “(S]peech concerning public affairs
is more than self-expression; it is the essence of self-govern-
ment.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). The
United States Supreme Court has frequently reiterated its hold-
ing that speech on matte s of public concern occupies the
“highest rung of the hierarchy of First Amendment values, and
is entitled to special protection.” Connick v. Myers, 461 U.S.
138, 145 (1983) (quotation omitted). See also Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
Judge Karohl himself apparently did not think that he had been
accused of dishonesty. He testified as follows:
In my present opinion of his words this is a criticism of our
opinion. :
“_* *
Q. Well, you know from talking to Mr. Westfall that he
certainly meant to criticize your opinion; isn’t that correct?
A. I haven’t any doubt he was criticizing the opinion
from taking all of the words he used.
—
The principal opinion makes much of the use of “Judge
Karohl” rather than “the court.” This is hardly a significant or
substantial distinction, in view of our practice, along with almost
all American collegial courts, of speaking through opinions
prepared by one member and bearing the author’s name. The
later use of the name and of the singular personal pronouns does
not, by any reasonable construction, convert a statement about
the reasons in an opinion to a statement about a judge’s integrity.
Other portions of the interview simply charge that the opinion
is result oriented. This assertion is frequently made about
judicial opinions, and cannot be found to be a statement of fact.
As Justice Holmes was fond of pointing out, judicial opinions are
impacted by the judges’ inarticulate major premises. Members
of the public have the right to comment about their perception of
these premises. Some judges may be branded “plaintiff minded,”
others are “tools of the insurance companies.” Some are “law
and order’ to one segment of the public but “hanging judges” to
others. Some are said to be “tyrants;” others “wimps.” Charac-
terizations such as these are not the subject of discipline. Nor is
there vice in the statement about what the judge “personally
likes.” All judges have notions about the shape the law should
take and hope that their views find favor with their colleagues.
Least supportive of all of the discipline imposed is the state-
ment that “he made up his mind before he wrote the decision, and
just reached the conclusion he wanted to reach.” Judge Karohl
testified that he was one of the members of a writ division which
voted to issue a preliminary order in prohibition. Extraordinary
writs are grudgingly issued in Missouri, and a judge who votes
to issue a preliminary order very likely has a rather strong feeling
that relief should be granted. Tentative views are subject to
further briefing and oral argument, but writs to stop criminal
> Lochner v. People of State of New York, 198 U.S. 45, 76 (1905).
| heat
cases are so rare that, when one is issued, the prosecutor has
reason for apprehension. The respondent’s realistic analysis of
the decisional process does not demonstrate a knowing or
reckless falsehood.
The historical development of the Missouri law of libel is
helpful in demonstrating how allegedly defamatory words should
be construed. In many cases over the years it is said that a
plaintiff will not be allowed to place a strained and unnatural
construction on language in order to support a claim of libel.
Diener v. Star-Chronicle Pub. Co.,232 Mo. 416, 135 S.W. 6, 9
(1911); Thomson v. The Kansas City Star Co., 387 S.W.2d 493,
498 (Mo. banc 1965) and Jacobs v. Transcontinental & Western
Air, 358 Mo. 674, 216 S.W.2d 523, 525 (1948). Innuendo is
permissible only if it is fairly supported by the actual words.
Langworthy v. Pulitzer Pub. Co., 368 S.W.2d 388, 389 (Mo.
1963); Swafford v. Miller, 711 S.W.2d 211, 213-14 (Mo. App. .
1986). The principal opinion uses phrases such as “respondent’s
statements clearly imply” and “respondent’s language at the
very least implies.” To speak in this manner is to concede that
the respondent’s words do not say what the prosecution would
have them say. There is no reason why defamation cases, even
though serving a somewhat different purpose, should not be
helpful when problems of construction are presented in a disci-
plinary case.‘
Missouri, furthermore, has always recognized the distinction
between defamatory statements of fact and statements of opin-
ion, not grounded in objective fact. Henry v. Halliburton, 690
S.W.2d 775, 786-87 (Mo. banc 1985); Willman v. Dooner, 770
S.W.2d 275, 278 (Mo. App. 1989). We respect people’s right to
express their views, especially on matters of public concern.
Henry v. Halliburton, 690 S.W.2d at 784-85 (published column
* See Swafford v. Miller, 711 S.W.2d 211, 213 (Mo. App. 1986).
a
— A-28 —
and subsequent copy calling life insurance agent, identified in
broad terms, “fraud” or “twister” an expression of opinion and
not actionable); Anton v. St. Louis Suburban Newspapers, Inc..,
598 S.W.2d 493, 499 (Mo. App. 1980) (remark that lawyer
engaged in “sleazy” dealings an expression of opinion and not
actionable); Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6
(1970) (use of term “blackmail” in characterizing negotiating
position of public figure securing zoning variancés was neither
slander nor libel). The principal opinion asserts that the respon-
dent “seeks to obfuscate the issue” by suggesting a distinction
between fact and opinion, quoting from the case of Milkovich v.
Lorain Journal Co.,_ __U.S.__, 110 S§. Ct. 2695 (1990). With
due respect, the obfuscation comes from the principal opinion.
In Milkovich, a newspaper published an editorial in which it
was strongly intimated that the plaintiff and others had perjured
themselves at a public hearing. The Supreme Court said simply
that defamatory statements of fact might support a judgment for
libel, even though they were prefaced by a phrase such as “in my
opinion,” if the speaker suggests personal knowledge of the
defamatory facts stated. This case is entirely different, for lack
of tangible statements of fact. Milkovich is consistent with
Restatement (Second) of Toris, § 566 (1965), with the general
principles of Missouri Law as exemplified by our decisions, and
with prior Supreme Court cases, which it cites at length. It
certainly does not require this Court to abandon the historic
distinction between statements of fact and statements of opinion.
“{A] statement of opinion relating to matters of public concern
which does not contain a provably false factual connotation will
receive full constitutional protection.” Milkovich, 110 S. Ct. at
2706 (citation omitted). If we were to abandon the historic
distinction we would reject the wisdom of decades.
The proof is also deficient in the required showing that the
statement was one which “the lawyer knows to be false or [was
made] with reckless disregard of its truth or falsity.” Rule 8.2
— A-29 —
requires a purpose to cause harm through defamation. See New
York Times, 376 U.S. at 279-83, and Part 2, infra. There is no
support for a finding that the respondent had any purpose other
than to denounce the opinion. Counsel for the informants, in
response to my question at oral argument, said that their stron-
gest case is In re Sawyer, 360 U.S. 622 (1959), which the
principal opinion discusses at length. For reasons that follow in
Part 2, infra, the case does not give any support to the result.
Nor is there support for the claim that the statement was
“knowingly or recklessly made.” “Recklessness” as applied to
speech is not the equivalent of “popping off.” There must be an
intent to injure before there is occasion for the determination of
recklessness. There is no showing here of “false statements
made with the high degree of awareness of their probable falsity”
required by Garrison v. Louisiana, 379 U.S. 64, 74 (1964),
discussed in Part 2, infra.
Because we are the fact finder, we should not disregard the
respondent’s testimony. He agreed that he should have spoken
more carefully, and said that other portions of the interview
which the newspeople did not see fit to air made his purpose
clearer. He stated positively that he had no purpose of question-
ing the judge’s integrity and that he should have phrased his
comments in a different way. Distinctions based on whether he
said “the court” rather than “Judge Karohl,” or “intellectually
dishonest” rather than “a little bit less than honest,” show no
more than negligence, and do not establish recklessness by the
standard the law requires. Garrison v. Louisiana, 379 U.S. at79.
Nocase cited in the principal opinion involves facts even close
to this one. Several of the cases cited have assessed discipline
when a lawyer has made unequivocal statements charging one or
more judges, or judges acting in concert with others, of fraud,
corruption or conspiracy in the disposition of particular cases.
Matter of Terry,27' 1.499, 394N.E.2d 94 (1979); Ramirez v.
3
S
7
—
State Bar of California, 28 Cal.3d 402, 169 Cal. Rptr. 206, 619
P.2d 399 (1980); Louisiana State Bar Ass’ nv. Karst, 428 So.2d
406 (La. 1983); In re Disciplinary Action Against Graham, 453
N.W.2d 313 (Minn.) cert. denied sub nom. Graham v. Wernz,
__U.S.__, 111 S. Ct. 67 (1990). These cases are similar to our
own opinion in Matter of Alexander, __ S.W.2d_____ (Mo. banc
1991) (No. 73107, decided April9, 1991), which properly points
to the need for protecting the public from a lawyer who makes
unfounded accusations for which no support is furnished, even
though the lawyer, out of paranoia or other eccentricity, may
believe the charges to be true. All involved unsupportable false
charges of crimina! or conspiratorial conduct, and do not support
the holding of this case.
I would commend the approach of such cases as State v.
Nelson, 210 Kan. 637, 504 P.2d 211 (1972); StateBar v. Semaan,
508 S.W.2d 429 (Tex. Civ. App. 1974); State ex rel. Oklahoma
Bar Ass’n. v. Porter, 766 P.2d 958 (Okl. 1988); Jn re Hinds, 90
N.J. 604, 449 A.2d 483 (1982); and Matter of Keller, 213 Mont.
196, 693 P.2d 1211 (1984), in which the courts have recognized
that discipline for speech should not lightly be decreed.
I do not admire the respondent for speaking as he did. His
remarks could be described as intemperate, disrespectful, dis-
courteous, poorly informed, and with a plethora of similar
adjectives. He is an ambitious politician with a penchant for
publicity. Perhaps he had a defense reaction to the disappointing
verdict in a major case. The informants must still demonstrate
violation of a narrowly drawn rule.
— So
2. The First Amendment Issue
The respondent places prime reliance on the landmark case of
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which held
that even false statements are subject to constitutional protection
in defamation actions if they concern public issues and public
figures. The defamation plaintiff must show malice, which may
be found if a false and defamatory statement is wilfully or
recklessly made. /d. at 279-80. This holding introduces a new
element into the law when it is sought to impose sanctions on
expression. The holding was made applicable to criminal cases
in Garrison v. Louisiana, 379 U.S. at 67, 74, demonstrating that
the rationale and holding of New York Times apply with no less
force when the remedy is criminal.
The principal opinion suggests, however, that
What is not clear is whether the same degree of constitu-
tional protection afforded in civil and criminal arenas is
required in professional disciplinary proceedings.
The answer, I submit, is quite clear. Lawyers do not surrender
their First Amendment rights when they accept their licenses.
See Bates v. State Bar of Arizona, 433 U.S. 350 (1977); In re
R.M.J., 455 U.S. 191 (1982); reversing Matter of RM.J., 609
S.W.2d 411 (Mo. banc 1980). NAACP v. Button, 371 U.S. 415
(1963); In re Primus, 436 U.S. 412 (1978). These cases demon-
strate that First Amendment rights must be respected in disci-
plinary actions, and puta substantial burden on the states to show
compelling public interest in order to support limitations on
freedom of expression. There must be narrowly drawn rules to
protect a compelling public interest. The principal opinion
suggests that the public interest involved in disciplinary actions
supports stricter controls over freedom of expression. Garrison
refutes this claim, because it too involved the vindication of
public rights rather than private rights. Professional discipline
—< wo
can be fully as chilling of expression as can criminai prosecu-
tion.°
The principal opinion adduces scanty and obsolescent author-
ity for the proposition that the First Amendment does not apply
to, or has limited application to, lawyer discipline cases. Some
of the cases are pre-New York Times and most are pre-Bates. The
more recent and better considered cases recognize that First
Amendment protection applies with full force.6 The quotation
from our case of In re Woodward, 300 S.W.2d 385, 393-94 (Mo.
banc 1957) must be read in the light of the numerous intervening
Supreme Court decisions demonstrating that courts are seriously
limited in sanctioning lawyers for what they say, and that
disciplinary rules must consist with the First Amendment.
Bradley v. Fisher, 80 U.S. 335 (1871), decided in interesting
historical context, is of no help at all in our present inquiry
because it dealt with a personal confrontation between a lawyer
and a judge during a recess ina trial. The case involved a damage
suit by a lawyer against a judge and presented several issues,
none germane to the present inquiry.
The principal opinion finds solace in a Minnesota case, /n re
Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn.),
cert. den. sub nom Graham v. Wernz,__U.S.__, 111 S. Ct. 67
(1990), which is said to present an “objective” rather than a
>In Gentile v. State Bar of Nevada, 106 Nev. 60, 787 P.2d 386 (1991), the
Supreme Court of Nevada tried to one-line the First Amendment issue in a
disciplinary action involving a lawyer’s public statement of his client’s
innocence of pending charges. The Supreme Court granted certiorari and the
case has been argued.
® State ex rel. Oklahoma Bar Ass'n v. Porter, 766 P.2d 958 (Ok. 1988);
Matter of Keller,213 Mont. 196, 693 P.2d 1211 (1984); In re Hinds, 90 NJ.
604, 449 A.2d 483 (1982); State v. Nelson, 210 Kan. 637, 504 P.2d 211
(1972); State Bar v. Semaan, 508 $.W.2d 429 (Tex. Civ. App. 1974).
—*
“subjective” test for the element of knowing and reckless false-
hood in disciplinary cases. There a lawyer who lost a case
charged the presiding judge with conspiring with others to
deprive his client of his rights. At his disciplinary hearing he
offered no evidence in support of the charges, but sought to
defend on the basis that he believed the charges to be true. The
court held that his professed belief could not refute the charge of
recklessness. The case is in line with cases cited in Part 1, above,
in which lawyers have been disciplined for charging judges with
criminal or conspiratorial conduct, and with our recent case of /n
re Alexander, supra, but bears not the slightest similarity to this
case.
Lawyers possess First Amendment rights. Before a court can
legitimately impose discipline, chilling the First Amendment,
the state must articulate a compelling interest. This the Advisory
Committee has not done.
In Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
838-39 (1978), the Court held that the state’s interest in main-
taining the confidentiality of judicial disciplinary proceedings
did not justify a sanction against a newspaper which published
an article about pending proceedings. This also emphasizes that
lawyer and judicial discipline must be exercised in a manner
consistent with the First Amendment.
Pertinent alsois the trilogy of Bridges v. State of Cal.,314U.S.
252 (1941); Pennekamp v. State of Fla., 328 U.S. 331 (1946);
and Craig v. Harney, 331 U.S. 367 (1947), in which the Court
established a rule that a purpose of maintaining respect for the
courts does not justify contempt sanctions such as have been
fairly common in the past for criticism of a judge’s conduct in a
pending case. The Court explained that the right of freedom of
speech includes the right to criticize courts. The trilogy suggests
that judges must have thick skins and do not require protection
from criticism unless there is malicious defamation. First
EE ae
~iit—
Amendment interests far outweigh a purpose of “maintaining
respect for the courts.” See also Cohen v. California, 403 U.S.
15, 22-26 (1971).
The Advisory Committee failed to prove that the statement
was one which “the lawyer knows to be false or [was made] with
reckless disregard of its truth or falsity.” Rule 8.2 is embodied
in the New York Times standard for proving defamation. New
York Times, 376 U.S. at279-80. Actual malice denotes a purpose
to cause harm through defamation. /d. at 279-83.
The principal opinion points out that the respondent testified
at the formal hearing that he did not mean to impugn the integrity
of Judge Karohl, and that he did not believe, and did not mean to
suggest, that the judge was not honest. The informants, incred-
ibly, use this testimony as evidence that he knowingly spoke
falsehoods when only a loose tongue is indicated. The principal
opinion does not appear to go this far, but seizes on his admis-
sions as indication that he acted “with reckless disregard as to the
truth or falsity of the statements... .” In so holding, the opinion
misses the point of the requirement of scienter.
Contrary to the Committee’s position, /n re Sawyer, 360 U.S.
622 (1959), provides no support for the principal opinion’s
remarkable conclusion that respondent spoke knowing false-
hoods. A majority of the justices found that Sawyer was not
charged with and could not be found to have attempted to
obstruct the proceedings in an ongoing trial. The majority went
on to conclude that her statements, which are much more
disparaging and inflammatory than anything in this case, could
not properly be construed as a personal attack on the single judge
who was hearing the case. The four dissenters called for more
deference to the findings of the two lower courts, and suggested
that counsel in a pending trial had special responsibilities. The
case, far from supporting the discipline imposed here, is at war
with the present result.
— A-35 —
The principal opinion struggles to find “recklessness,” say-
ing:
It is not clear, however, whether the “with knowledge or
in reckless disregard” standard used in defamation cases
must be strictly applied in disciplinary proceedings.
Garrison and St. Amant v. Thompson, 390 U.S. 727 (1968),
provide the answer. Lawyers may not be disadvantaged in their
political speech except for compelling reasons.
“.
Respondent’s “recklessness” is apparently found in his failure
to think things through or to study the case law. But recklessness
in First Amendment law is a term of art, not to be casually
attributed. In Garrison, the Court said, “it is essential that the
First Amendment protect some erroneous publications.” Garri-
son v. Louisiana, 379 U.S. at 74. “Moreover, even where the
utterance is false, the great prigciples of the Constitution which
secure freedom of expression in this area preclude attaching
adverse consequences to any except the knowing or reckless
falsehood.” Jd. at 73. The United States Supreme Court has
explained that in cases concerning public figures and matters of
public interest
reckless conduct is not measured by whether a reasonably
prudent man would have published, or would have investi-
gated before publishing. There must be sufficient evidence
to permit the conclusion that the defendant in fact enter-
tained serious doubts as to the truth of his publication.
Publishing with such doubts shows reckless disregard for
truth or falsity and demonstrates actual malice. (Emphasis
supplied).
St. Amant v. Thompson, 390 U.S. <a (1968). That case also
teaches the negligent failure to investigate does not establish
recklessness. St. Amant v. Thompson, 390 U.S. at 733. See also
Cervantes v. Time, Inc., 330 F. Supp. 936, 938 (E.D. Mo. 1971).
eS ae ae
— A-36 —
The principal opinion fails to demonstrate that the respondent’s
utterances meet the standards of St. Amant and Garrison.’
Our own jurisprudence also teaches that recklessness is not
lightly to be found. Glover v. Herald Co., 549 S.W.2d 858 (Mo.
banc 1977), Seiler, C. J. There a St. Louis alderwoman stated at
a meeting of the Board that she had had two abortions. Her name
was correctly telephoned to the city desk by a reporter, but the
rewrite editor substituted the name of another alderwoman while
“working on a deadline.” This Court set aside a verdict for the
plaintiff, holding that the jury could not properly find reckless
conduct under the evidence in the case and because there was no
“high degree of awareness on [the editor’s] part of probable
falsity in what he wrote.” /d. at 861.
Today this Court fails to heed the federal decisions defining
recklessness. In assigning an unwarranted construction to Rule
8.2, the Court commits the classic First Amendment sin of
overbreadth. If lawyers are subjected to the whims of particular
tribunals, and are unable to determine the limits of their freedom
of expression, their protected expressions will be seriously
impeded.*
7] find astounding the intimation that the respondent should have made any
kind of report to the Committee on Retirement, Removal and Discipline,
when he stated emphatically that he did not assert or imply any suggestion of
judicial misconduct.
* See Board of Airport Commissioners of Los Angeles v. Jews for Jesus,
Inc.,___U.S.__, 107 S. Ct. 2568 (1987) (invalidating rule which proscribed
all First Amendment activities in airport terminal); Marsh v. Alabama, 326
U.S. 501 (1946) (trespass statute held not enforceable against distribution of
religious literature on streets of company town).
Traditionally, it is the function of courts to define the constitutional and
permissible contours of a rule, reguiation or statute. Today, however, it is the
judiciary, painting with a broad brush, that intrudes on the narrow boundary
of a rule already defined through years of Supreme Court jurisprudence.
som
The New York Times principle and the cases applying it
represent good law and good policy. Our bill of rights embodies
the same values as does the First Amendment. We should not
strive for minuscule distinctions in order to discipline a lawyer
for speech. The New York Times-Garrison principles amply
protect the public from defamatory statements by lawyers about
judges. We should proceed in the tradition of free speech, which
our courts have honored so long.
3. The Actions of the Advisory Committee
There is another reason why the proceeding should be termi-
nated without discipline. The Advisory Committee sought to
bring the matter to an end after the formal hearing by tendering
the respondent a written admonition pursuant to Rule 5.13. This
tender necessarily indicated that the Committee was of the
opinion that his conduct did not require either suspension or
disbarment. Had it concluded that a temporary or permanent
separation from the practice was required in the public interest,
its offer of amere admonition would be manifestly irresponsible.
The respondent refused the admonition in a courteous letter
stating that “I. . . feel strongly that my conduct was not only
professional, but appropriate.” This he had the perfect right to
do.? An admonition is not a trivial matter. It could be used in
future disciplinary proceedings.’® The respondent might believe
that, if he accepted the admonition, he would be considered a
“prior offender” whose every utterance respecting the judicial
system and its personnel would be scrutinized by the bar disci-
plinary authorities. He should not, at the very least, be subjected
*It is of interest that the admonition in this case was not designed to be
strictly private, as is ordinarily the case, but was conditioned on Judge
Karohl’s being advised about it.
© In Re Kopf, 767 S.W.2d 20, 22 (Mo. banc 1989).
— A-38 —
to additional sanctions for refusing it. The most that he should
risk is a formalization of the charges, with no sanction in excess
of a public reprimand. An admonition is not an invitation to plea
bargain, designed in part to cut down on the burdens of the
prosecutor. Its sole purpose is advisory and remedial, in a case
in which the respondent’s fitness to practice is not questioned.
After the admonition was refused the Committee filed an
information praying that the respondent “be disbarred, that his
right and license to practice law be canceled and terminated, and
that his name be stricken from the roll of attorneys in this state.”
The message was loud and clear. If a lawyer doesn’t say “uncle”
when the Advisory Committee offers an admonition, then they’!1
throw the book. Many accused lawyers would accept admoni-
tions they consider unwarranted rather than subjecting them-
selves to public prayers for disbarment.
Next, at the hearing before the master, the informants made a
highly publicized recommendation for a suspension of three
years. This recommendation was confirmed in their brief, and,
in oral argument, they asked for a “substantial” suspension. The
Committee’s recommendation can only be regarded as further
attempt at punishment for rejecting the admonition."'
But this is not all. The informants argued in their brief, and
also before us, that the Court could consider additional charges
of rule violation, of which the respondent had no notice, in
support of the enhanced sanction they sought. It was then
asserted that the respondent’s criticism of the original Bullock
' Based on our cases, a recommendation either of disbarment or substan-
tial suspension for this single offense is patently ridiculous, whether or nota
reprimand was previously tendered.
— A-39 —
jury after the verdict violated Rules 3.6(a) and 3.8(e).'* Neither
of these rules was mentioned in the information. This approach
is not only in conflict with our rules; it violates the elementary
principles of due process of law. The principal opinion properly
states that these additional charges are not being considered, but
we should go further. We should tell the Advisory Committee
in no uncertain terms that an information in a disciplinary action
must set out all of the rule violatic .s the Committee relies on in
support of the discipline it seeks. If additional charges are sought
an amended information should be tendered. This attempt to
proffer additional charges is a furtherexample of chilling tactics.
The tactics of the Committee are appropriate for comment in
this case, in which the respondent is being charged for what he
said. The principal opinion suggests that the relationship be-
tween the First Amendmentand lawyer disciplinary proceedings
has not been well defined in the case law. If this is so, we should
respect those who invoke the First Amendment when they are
drawn into court because of what they say. We should not forget
the blood that has been shed in defense of free speech. Some
defenders may turn out to be wrong and may ultimately suffer
sanctions, but they should not be placed in additional jeopardy
for seeking judicial determination of their rights as they view
them. The Advisory Committee’s conduct has a strong potential
for chilling freedom of expression. The Court should abate the
proceedings, drawing an analogy from findings of prosecutorial
misconduct in criminal cases.
There is a further chilling in the intimation in the master’s
report and in the principal opinion that the respondent should
have made some sort of apology on the record, after the filing of
'2 I am rather shocked by the intimation that a prosecutor might be
disciplined because he criticized a jury which returned a full or partial
acquittal.
—_ >
the information. The opinion refers to his “private” statement of
confidence in the judge’s integrity and his apology at the formal
hearing, but then asserts that he has “continually and steadfastly
refused to deviate from his original position.” I do not under-
stand this at all. After the formal hearing his license was in
jeopardy. He should be entitled to make his defense, and public
statements outside of the proceedings should surely be discour-
aged. He explained that he meant no criticism of the judge’s
integrity. Is the Court suggesting that he should have announced
a change in his view of the court of appeals opinion? We have
no right to browbeat him in this manner.
The opinion presents a further problem by its repeated sugges-
tions that the respondent has not laid an adequate research
foundation for his criticisms of the Karohl opinion.’’ It faults
him for pointing only to “the long and tortuous history of armed
criminal action in Missouri,” and for his not “suggesting prece-
dent or logic that he believes would constitute an ‘honest’
opinion... .” It says that he “failed to investigate to determine
whether Judge Karohl has participated in any cases involving the
armed criminal action rule,” overlooking his participation in the
issuance of the preliminary rule. These comments belie the
finding of false statement of fact.
Conclusion
Make no mistake about it. The principal opinion chills
lawyers’ speech about judicial decisions. It invites the speaker
to weigh every word. It invites political opponents to scan
statements for the least suspicion of a false statement of fact and
to publicize the filing of charges for any criticism of a court or a
'3 See, e.g., St. Amant v. Thompson, 390 U.S. at 733 (negligent failure to
investigate does not constitute recklessness).
— So
judge, or, for that matter, of any of the other persons protected by
Rule 8.2(a), which applies to statements about adjudicatory
officers, public legal officers and candidates for election or
appointment to judicial or legal office, as well as to judges. The
disadvantages of allowing these kinds of complaints far out-
weigh the advantages. See NAACP v. Button, 371 U.S. at 433,
warning of the danger inherent in censoring criticism of public
issues, as follows:
A rule compelling the critic of official conduct to guarantee
the truth of all his factual assertions leads to . . . ‘self-
censorship.’ ... Under such a rule, would-be critics of
official conduct may be deterred from voicing their criti-
cism, even though it is believed to be true and even though
it is in fact true, because of doubt whether it can be proved
in court or fear of the expense of having to do so.
The respondent adduced quite a few statements of other
lawyers and judges containing comments about judicial deci-
sions similar to the statements challenged here. The principal
opinion testily replies that “It is not respondent’s function, but
the appropriate disciplinary committees’, toinitiate enforcement
of the Professional Rules.” This language portends further
disciplinary proceedings against lawyers and judges who ex-
press themselves too freely. Many will conclude that it is wise
to keep quiet. Lawyers, who have contributed so much to public
discussion in the past, should not be severely disadvantaged as
compared to other members of the public.
On the whole record, Westfall should be fully discharged of
the information.
/s/ Charles B. Blackmar, Chief Justice
—~ poe
APPENDIX B
IN THE SUPREME COURT OF MISSOURI
EN BANC
No. 72022
In the Matter of:
GEORGE R. (“BUZZ”) WESTFALL
REPORT OF SPECIAL MASTER
Comes now the Special Master in this case and reports to the
Court as follows:
The Advisory Committee of the Missouri Bar Administration
has filed its information seeking disciplinary action against
Respondent, George R. Westfall. Respondent is a licensed
Missouri attorney and is currently the Prosecuting Attorney of
St. Louis County, Missouri. The information charges that
Respondent made a television press conference attack upon the
integrity of the Honorable Kent E. Karohl, a Judge of the
Missouri Court of Appeals. The Advisory Committee asserts
that Respondent’s statement was false or known to be false by the
Respondent, and that it constituted professional misconduct.
I.
MATTERS NOT IN ISSUE.
It may be immediately asserted that there are no issues
presented in this case concerning certain rnatters.
A. Both parties agree that there is no issue in this case
conceming either the integrity or the competency of Judge
Karohl. Respondent has testified that he does not question, and
did not intend to impugn in any way, the personal integrity of
Judge Karohl by the statements which he made. During these
proceedings, Respondent’s attorney has characterized Judge
Karohl as “a fine lawyer, and a fine judge”.
—
B. Both parties also agree on the following:
A citizen may criticize the government, its actions and poli-
cies. Likewise a lawyer is free to criticize the state of the law. /n
Re Sawyer, 360 U.S. 622 (1959). It imputes no disgrace to say
a judge is wrong on the law since appellate courts say so
regularly. “The public attribution of honest error to the judiciary
is no cause for professional discipline” /d. at p. 635. The
attorney for the Advisory Committee concedes that anyone has
the right to disagree with and criticize a court opinion.
A lawyer may even accurately and truthfully attack the integ-
rity or competence of a court or judge if done in a proper tone and
through appropriate channels. 7 C.J.S. Attorney and Client, Sec.
23, p. 752.
C. There is no issue presented here concerning “freedom of
the press” or the right of the television station to broadcast
Respondent’s statements. Under the “fair comment” doctrine,
the media “has the right fairly and honestly to comment upon a
matter of public interest.” Henry v. Halliburton, 690 S.W.2d
775, 780 (MO Banc 1985). A fair and accurate report by the
media of the statement of an officer of the government is
privileged. Restatement Second Torts, Sec. 611, Comment d;
Lami v. Pulitzer Pub. Co., 723 S.W.2d 458, 459-460 (1986);
Time, Inc. v. Pape, 401 U.S. 279; Edwards v. National Audubon
Society, Inc., 556 F.2d 113 (2nd Cir, 1977).
Since this was a videotaped television interview, there is no
question but that the media report was “a fair and accurate
account.”
ee
II.
THE UNDERLYING CASE
This case arises out of the much publicized prosecution of
Dennis Bulloch for crimes committed in connection with the
death of his wife, Julia. Respondent has referred to the Bulloch
case as “a sensational murder case, perhaps one of the four or five
most publicized cases in my twenty years of prosecuting in the
St. Louis area.” (MBA Ex. 1, p. 68)
In May 1986 Julia Bulloch’s bound and gagged body was
found in the burning garage of her home in Ballwin, Missouri.
An investigation revealed that Julia died not from the fire, but of
suffocation caused by two pieces of cloth which were jammed
into her mouth and held in place by tape wrapped around her face
and over her mouth.
In August 1986, Dennis Bulloch was indicted for first degree
murder. A month later, he also was indicted for arson. Bulloch’s
trial on the murder charge commenced in May 1987. At trial
Bulloch testified that his wife died during a drunken night of
consensual sexual bondage after he had passed out in the bath-
room. The jury evidently believed Mr. Bulloch, acquitted him of
murder in the first degree, and found him guilty of involuntary
manslaughter. The jury assessed a punishment of imprisonment
for a term of seven years.
On June 18, 1986, Bulloch was indicted on charges of armed
criminal action and destroying physical evidence. Thereafter
Defendant Bulloch, through his attorney, filed Motions to Dis-
miss, based first on prosecutorial vindictiveness, and second,
with respect to armed criminal action on the basis of Double
Jeopardy. These motions were denied by the trial court; and
Bulloch sought a writ of prohibition in the Court of Appeals
seeking to bar the further prosecution of these charges.
a i
On August 9th, 1988, the Court of Appeals issued a Opinion
prohibiting the trial court from proceeding with the armed
criminal action charge. (Mo. App. E.D. #54859, Aug. 9, 1988)
The opinion was written by Judge Kent E. Karohl, and joined by
Judges Kelly and Smith. The opinion held first that the question
of prosecutorial vindictiveness involved disputed facts and was
a matter for the trial courts discretion to be considered, if
necessary, on direct appeal; and second, that a subsequent trial
of Bulloch for armed criminal action would constitute Double
Jeopardy under the Fifth Amendment of the United States
Constitution.
On the day the opinion was issued, Respondent was inter-
viewed by the press and made remarks critical of Judge Karohl,
which are the basis of the information filed in this case. The
interview was videotaped, and portions of it were shown on the
Six p.m. news and ten p.m. news by KSDK-TV Channel 5, an
NBC affiliate television station in St. Louis.
The proceeding in prohibition was subsequently transferred to
the Missouri Supreme Court which arrived at the same result as
the Court of Appeals and prohibited the further prosecution of
the armed criminal action upon the basis of Double Jeopardy.
State ex rel Bulloch v. Seier, 771 S.W.2d 71 (MO Banc 1989).
Inthe opinion in Bulloch v. Seier, supra, the Missouri Supreme
Court held first, that the murder and armed criminal action
counts could have been joined and tried together where “‘the
charges arose from the same transaction and relate to acts
committed against the same victim”. Section 565.004.2 RSMo.
1986. It held secondly, that since “[a]n armed criminal action by
definition, incorporates all the elements of the underlying felony”,
“(t]he two offenses are therefore the same for purposes of
relators claim of successive prosecution.” Thus where the armed
criminal action was exactly the same crime as the underlying
felony of murder or involuntary manslaughter, and allowed only
—_
a
— A-46 —
to enhance punishment, a second trial on the same charge would
constitute Double Jeopardy under the Constitution. /Ilinois v.
Vitale, 447 U.S. 410 (1980), Brown v. Ohio, 432 U.S. 161
(1977). Thus the two charges had to be tried in a “single trial”.
Missouri v. Hunter, 459 U.S. 359 (1983).
Respondent did seek review of the Missouri Supreme Court
opinion by the Supreme Court of the United States, but review
was denied. Missouri v. Bulloch, 493 U.S. __, 110 S.C. 718,
107 L.Ed.2d 738 (1990).
Subsequently, Bulloch was convicted on the arson and tam-
pering charges. However, that conviction was reversed upon
appeal upon a finding of prosecutorial misconduct by way of
argument to the jury improperly referring to Bulloch’s failure to
testify in violation of his constitutional rights. State v. Bulloch
(Mo. App. E.D. #55705, Feb. 13, 1990).
Il
A. THE CHARGES OF PROFESSIONAL MISCONDUCT
IN THIS CASE
On January 31st, 1989, as a result of Respondent’s remarks,
the Advisory Committee of the Missouri Bar Association charged
Respondent with professional misconduct. A hearing was held
before the Eastern Division of the Advisory Committee on June
Ist, 1989, and the committee found probable cause to believe
that Respondent was guilty of misconduct.
Upon Respondent’s rejection of a “written admonition” on
August 31st, 1989, the general chairman filed an information in
the Supreme Court on behalf of the Advisory Committee of the
Missouri Bar, consisting of nine attorneys and two lay members.
(Only one attorney member and one lay member are from the St.
Louis area.)
—s a
The information filed by the Advisory Committee charges
Respondent with violating Disciplinary Rules 8.2(a) and 8.4(a)(d)
of Supreme Court Rule 4, Rules of Professional Conduct.
Disciplinary Rule 8.2(a) 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,
adjudicatory officer or public legal officer, or of a candidate
for election or appointment to judicial or legal office.
Rule 8.4 (a) and (d) provides:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of Professional
Conduct ....
(d) engage in conduct that is prejudicial to the administra-
tion of justice;
Respondent’s videotaped statement was broadcast on the St.
Louis NBC affiliate television statement on August 9, 1988, the
day Judge Karohl’s opinion was handed down. Respondent’s
statement was as follows:
... The Supreme Court of the land has said twice that our
armed criminal statute is constitutional and that it does not
constitute Double Jeopardy.
... but for reasons that I find somewhat illogical, and I think
even a little bit less than honest, Judge Karohl has said today
that we cannot pursue armed criminal action. He has really
distorted the statute and I think convoluted logic to arrive at
a decision that he personally likes.
— A-48 —
The decision today will have a negative impact on all
murder one cases pending in Missouri, in the future, and
some that are already on appeal with inmates in prison. So
it’s a real distressing opinion from that point of view.
but if it’s murder first degree and we’re asking for death,
which, of course, is the most serious of all crimes, Judge
Karohl’s decision today says we cannot pursue both. And
that, to me, really means that he made up his mind before he
wrote the decision, and just reached the conclusion that he
wanted to reach.
The Bar states that the Respondent’s statement made the
specific charges, first, that the judge made up his mind before he
wrote the decision; second, that the judge “just reached the
conclusion that he wanted to reach”; and third, that the reasons
for the opinion were “somewhat illogical”; that the reasons for
the opinion were “. . . a little bit less than honest’; that Judge
Karohl “has really distorted the statute”, and that Judge Karohl
“convoluted logic to arrive at a decision that he personally likes”.
The Bar submits that Respondent reacted to Judge Karohl’s
opinion in utter disregard of the truth, the integrity of the judicial
process, and of his obligations with respect thereto. And that he
did so without any investigation of the facts and without any
factual basis for his statements.
B. RESPONDENT’S DEFENSES.
Respondent admits making the statements in issue, but denies
that they violated Disciplinary Rules or that they were known to
be false or made with reckless disregard of their truth or falsity.
Respondent also raises three affirmative defenses.
— ae
1) The first affirmative defense properly points out that the
discipline in this case, if any, is within the discretion and
authority of the Supreme Court. That is correct and no further
discussion is required of this defense.
2) Respondent’s second affirmative defense asserts his rights
under the free speech clause of the First Amendment to the
Constitution of the United States, and under the Constitution of
Missouri, Art. I, Sec. 8, “to criticize an opinion of a judge if the
remarks are not knowingly false or untrue or otherwise contrary
to Rules 8.2 (a) and 8.4 (a)(e) of Rule 4 of the Missouri Rules of
Court of the Supreme Court of Missouri.”
Respondent also asserts under the free speech defense that his
statements were only the expression of opinion which cannot be
false or give rise to any issue of truth or falsity. He lastly asserts
that his expressed opinions were directed to the Court of Appeals
opinion and not to the qualifications or integrity of Judge Karohl;
and thus did not violate the Disciplinary Rules.
Your Master considers the “free speech” issues to be central
to the determination of this case. They wili be considered
hereafter in a general discussion and in the analysis made of the
specific disciplinary rules involved.
3) Respondent’s third affirmative defense asserts that: Re-
spondent represents St. Louis County, Missouri, and has the
right to publicly criticize a judge he believes is wrong, just as a
private practicing lawyer in the confines of his office has the
right to criticize a trial judge’s opinion and tell his client that the
opinion should be appealed.
In fact a Prosecutor does not represent a “county” or “all of the
people” of a county, but rather “. . . he represents the sovereign
power of the people of the state”. 27 C.J.S. Distnct and
Prosecuting Attorneys, Sec. 1, p. 622-23; and he acts in the name
of the “State of Missouri”. A prosecutors professional decisions
—_—T
must be based upon the facts of the case as he understands them
and upon the law which applies. Those decisions cannot be made
upon the basis of discussions with “all of the people”.
A prosecutor has “the ability to influence and ensure proper
governmental procedure without resort to public opinion”.
Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 253 (7th
Cir. 1975). “The judicial system has the right to expect that its
own Officers will not make public that which should not reach a
juror’. Id. at page 254.
A lawyer or a prosecutor must obey the law as provided in the
Disciplinary Rules or be subject to discipline for professional
misconduct. The third affirmative defense should be denied.
Iii
ANALYSIS OF FREE SPEECH
A. THE NATURE OF FREE SPEECH
The First Amendment to the Constitution of the United States
provides that: “Congress shall make no law . . . abridging the
Freedom of Speech.” Freedom of Speech is among the funda-
mental personal rights and liberties protected from impairment
by the states by the Due Process clause of the Fourteenth
Amendment. Gitlow v. New York, 268 U.S. 652 (1925).
Stromberg v. California, 283 U.S. 359. The Missouri Constitu-
tion also protects “Freedom of Speech, no matter by what means
communicated”. MO Const. Art. I, Sec. 8.
Justice Cardozo said that “Freedom of thought and speech . .
. is the matrix, the indispensable condition, of nearly every other
form of freedom.” Palko v. Connecticut, 302 U.S. 319 (1937).
Free speech is given a “preferred place” as one of the “great, the
indispensable democratic freedom secured by the First Amend-
ment.” Thomas v. Collins, 323 U.S. 516 (1945).
— A-51 —
In Whitney v. California, 274 U.S. 357 (1927) Justice Brandeis
described “freedom to think as you will, and to speak as you
think” as a “means indispensible [sic] to the discovery and
spread of political truth”, and as essential both to “stable govern-
ment” and to “political change”. Id., 375-377.
“At the heart of the First Amendment is the recognition of the
phenomenal importance of the free flow of ideas and opinions on
matters of public interest and concern.” Hustler Magazine v.
Falwell, 458 U.S. 46, 50 (1988). “[T]he freedom to speak one’s
mind is not only an aspect of individual liberty - and thus a good
unto itself - but also is essential to the common quest for truth and
the vitality of society as a whole.” Bose Corp. v. Consusner’s
Union of the United States, Inc., 466 U.S. 485, 503-504 (1984).
B. FREE SPEECH AND PUBLIC DEBATE.
The Supreme Court has recognized a profound national com-
mitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include
vehement, caustic, and sometime unpleasantly sharp attacks on
government and public officials. New York Times Company v. .
Sullivan, 376 U.S. 254, 270 (1964). “One of the prerogatives of
American citizenship is the right to criticize public men and
measures.” Baumgartner v. United States, 322 U.S. 665, 673
(1944). “The sort of robust political debate encouraged by the
First Amendment is bound to produce speech that is critical to
those who hold public office.” Associated Press v. Walker, 388
U.S. 130, 164.
In FCC v. Pacifica Foundation, 438 U.S. 726, 745-746, it was
stated:
{T]he fact that society may find speech offensive is not a
sufficient reason for suppressing it. Indeed if it is the
speaker’s opinion that gives offense, that consequence is a
reason for according a constitutional protection for it is a
— A-52 —
central tenant of the First Amendment that the government
must remain neutral in the marketplace of ideas.”
“The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the
character of American public opinion. For it is a prized Ameri-
can privilege to speak one’s mind, although not always with
perfect good taste on all public institutions.” Bridges v. Califor-
nia, 314 U.S. 252, 270 (1941).
Thus persons who make derogatory statements about public
officials, including judges, are protected by the First and Four-
teenth Amendments of the United States Constitution from
imposition of civil and criminal liability, unless the statement is
made with knowledge that it is false or with reckless disregard of
whether it is false or not. State Bar v. Semaan, 508 S.W.2d 429,
432 (TX 1974); New York Times Co. v. Sullivan, 376 U.S. 254
(1964).
C. GENERAL EXCEPTIONS TO FREE SPEECH RULES.
The Supreme Court recognizes however that “not all speech
is of equal First Amendment importance”, and that “‘[i]t is
‘matters of public concern’ that is at the heart of the First
Amendment’s protection.” Dunn and Bradstreet v.Green Moss
Builders, 472 U.S. 749, 759 (1984). The “majestic protection of
the First Amendment” does not extend to certain utterances
because they “are no essential part of any exposition of ideas and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the
social interest in order and morality. Chaplinsky v. New Hamp-
shire, 315 U.S. 568, 572 (1942).
Generally restrictions on free speech can survive judicial
scrutiny under the First Amendment only if certain fundamental
and stringent conditions are satisfied. First, the limitation must
“further an important or substantial governmental interest unre-
— A-53 —
lated to the suppression of expression.” Procunier v. Martinez,
416 U.S. 396, 413 (1974). Second, the restriction must be “no
greater than is necessary or essential to the protection of the
particular governmental interest involved.” Id.
Regulation of speech is generally unconstitutional unless it is
shown that the message constitutes a defamatory falsehood, or
poses a “clear and present danger” to important governmental
interest. Tribe, American Constitutional Law, Second Edition,
Sec. 12-2, p. 791-792 (1988). The Court applies the “most
exacting scrutiny” to regulations of speech based on its content,
and such restrictions are only valid if “necessary to serve a
compelling state interest and .. . narrowly drawn to thatend.” Id.
798-799.
Thus many exceptions have arisen to the blanket protection of
the First Amendment. For example, most Americans are famil-
iar with Justice Holmes statement that: “The most stringent
protection of free speech would not protect a man in falsely
shouting “fire” in a theater and causing a panic.” Schenck v.
United States, 249 U.S. 47, 52 (1919).
There are many other recognized limitations as well. Speech
that is “vulgar’’, “offensive”, and “shocking” is not entitled to
absolute constitutional protection under all circumstances.” FCC
v. Pacifica Foundation, 438 U.S. 726, 747 (1978). The state can
lawfully punish individuals for the use of insulting “fighting
words — those which by their very utterance inflict injury or tend
to incite an immediate breach of the peace.” Chaplinsky v. New
Hampshire, supra at page 572. Obscene materials offensive to
contemporary moral standards may be controlled. Roth v.
United States, 354 U.S. 476. Society can protect children from
materials available to adults. Ernoznik v. Jacksonville, 422 U.S.
205, 212 (1975). Prisoner mail may be censored for limited
purposes. Procunier v. Martinez, 416 U.S. 396. Publication of
troop ship sailings during wartime may be enjoined Near v.
—* on
Minnesota Ex Rel Olson, 283 U.S. 697, 716 (1931). Child
pornography is not protected. New York v. Ferber, 458 U.S. 747
(1982).
Although students in public schools do not “shed their consti-
tutional rights to freedom of speech or expression at the school-
house gate”, Tinker v. Des Moines Indep. School Dist., 393 U.S.
503, 506 (1969), “[a] school need not tolerate student speech that
is inconsistent with its basic educational mission.” Bethel
School Dist. #403 v. Fraser, 478 U.S. 675, 685 (1986); or that
would “substantially interfere with the work of the school or
impinge upon the rights of other students.” Hazelwood School
Dist. v. Kuhlmeyer, 484 U.S. 260, 271 (1988).
D. DISCUSSION OF OTHER “FREE SPEECH” ISSUES.
1) An important general exception for the purposes of this
case is that defamatory statements are outside the circle of
constitutionally protected speech. Beauharnais v. Illinois, 343
U.S. 250 (1952). This exception is critical to the alleged
violation of Disciplinary Rule 8.2 and will be discussed in
Section IV, Analysis of Disciplinary Rule 8.2
2. There are also general and specific limitations ona lawyer’s
“free speech”. These are related to the alleged violation of
Disciplinary Rule 8.4.
IV. ANALYSIS OF DISCIPLINARY RULE 8.2
A. NATURE OF RULE 8.2
As indicated this rule prohibits a lawyer from making 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. Essentially it forbids professional
misconduct by a lawyer by way of defamation of a judge.
me spon
However, The Rules of Professional Conduct encompass “‘a
much broader spectrum of protection” than defamation. Matter
of Terry, 394 N.E.2d 94, 95 (IN 1979). Although a defamatory
statement about a judge may directly affect an individual, it “is
not punished for the benefit of the affected person; the wrong is
against society as a whole, the preservation of a fair, impartial
judicial system, and the system of justice as it has evolved for
generations.” Id. Nonetheless an examination of the law of
defamation is necessary here to determine 1) if the statements
made were improper under Rule 8.2, and 2) if restrictions upon
the statements would violate Respondent’s constitutional rights
of free speech.
The law of defamation and the individual’s right to protection
of his own good name “reflects no more than our basic concept
of the essential dignity and worth of every human being — a
conceptat the root of any decent system of ordered liberty . . . the
right is entitled to . . . recognition . . . as a basic of our
constitutional system.” Rosenblatt v. Baer, 383 U.S. 75, 92 (
1966) (Stewart, J., concurring) “Indeed, the law of defamation
is rooted in our experience that the truth rarely catches up with
a lie.” Gertz v. Welch, 418 U.S. 323, 344 (1974).
There are also constitutional rights beyond freedom of speech
and press at work in this area. Both privacy and reputation
involve interests of constitutional dimension. When govern-
ment limits statements about an individual, it does inhibit speech;
“but it also vindicates the individual’s ability to control what
others are told about his or her life.” Tribe, American Constitu-
tional Law, Sec. 12-12, p. 861. These rights are breached “with
unmistakable force, when one’s good name is deliberately and
falsely besmirched, doing violence to one’s public identity. Not
surprisingly, therefore defamation has long been regarded as a
form of ‘psychic mayhem’ not very different in kind, and in some
ways more wounding than physical mutilation.” Id.
—s
Thus defamation has been classified as wholly outside the
scope of First Amendment free speech protection. Chaplinsky v.
New Hampshire, supra; Beauharnais, supra. Chief Justice
Rehnquist has observed that “False statements of fact are par-
ticularly valueless; they interfere with the truth seeking function
of the marketplace of ideas and they cause damage to an
individuals reputation that cannot easily be repaired by counter-
speech, however persuasive or effective.” Hustler Magazine v.
Falwell, Supra, p. 49. “There is no constitutional value in false
statements of fact. Neither the intentional lie nor the careless
error materially advances societies interest in “uninhibited,
robust and wide-open debate in public issues.” Gertz, supra, 418
U.S. at 340.
Free speech “values are not at all served by circulating false
statements of fact about public officials. On the contrary,
erroneous information frustrates these values. They are even
more disserved when the statements falsely impugn the honesty
of those men and women and hence lessen the confidence in
government.” White, J. concurring, Dunn & Bradstreetv. Green
Moss Builders, 472 U.S. 749, 767 (1984).
“The lie, knowingly and deliberately published about a public
_ Official” is simply beyond the constitutional pale. Garrison v.
Louisiana, supra, 379 U.S. at 75.
However to encourage the discussion of public issue, includ-
ing the conduct of publi¢ officials, and to remove the inhibitory
effect of the defamation law, the Supreme Court has created a
constitutional privilege for good faith critics of public officials.
This constitutional guarantee requires that government may not
restrict even defamatory falsehoods relating toa public official’s
conduct unless it is proved “that the statement was made with
‘actual malice’ — that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.”” New York
Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). Disciplin-
oO
— A-57 —
ary Rule 8.2 follows these constitutional requirements by requir-
ing that a lawyer’s statement about a judge must be known to be
false, or be made “with reckless disregard as to its truth or
falsity”.
One of the reasons for giving public officials less protection
than others from critical public comment is that they “. . . usually
enjoy significantly grea’er access to the channels of effective
communication and hence have a more realistic opportunity to
counteract false statements than private individuals normally
enjoy. Private individuals are therefore more vulnerable to
injury, and the state interest in protecting them is correspond-
ingly greater.” Gertz, supra, p. 344.
However, it may be noted that this rationale does not apply to
a judge because he is required to “abstain from public comment
about a pending or impending proceeding in any court.” Su-
preme Court Rule 2, Code of Judicial Conduct, Canon 3 A (6).
Thus Judge Karohl was not ethically allowed to make any
response to Respondent Westfall’s charges at the time they were
made, or to this date (since the second Bulloch case is still
pending in the trial court and may face further appellate review).
Part of the rationale for Disciplinary Rule 8.2 is that judges, “not
being wholly free to defend themselves, are entitled to receive
the support of the bar against unjust criticism.” (emphasis
added) Ethical Consideration 8-6 of prior Supreme Court Rule
4, Code of Professional Responsibility (effective Jan. 1, 1971-
Jan. 1, 1986).
Thus, in order to violate Disciplinary Rule 8.2, Respondent’s
Statements would have to be 1) defamatory, 2) false, and 3)
malicious under the New York Times Rule. Even so, Respon-
dent could not be disciplined if his statements were 4) a privi-
leged opinion under “free speech” rules.
— A-58 —
B. DEFAMATORY NATURE OF THE STATEMENTS.
1. A communication is defamatory if it tends so to harm the
reputation of another as to lower him in the estimation of the
community. Restatement of Torts Second, Sec. 559, Henry v.
Halliburton, 690 S.W.2d 775 (MO Banc 1985). “Communica-
tions are often defamatory because they tend to expose another
to hatred, ridicule, or contempt . . . [Or] may tend to disparage
another by reflecting unfavorably upon his personal morality or
integrity.” Restatement, supra, Sec. 559, Comment b.
It is not required that the communication “tend to prejudice the
other in the eyes of everyone in the community or of all of his
associates, noreven inthe eyes of amajority of them. Itis enough
that the communication would tend to prejudice him in the eyes
of a substantial and respectable minority of them, and that it is
made... ina manner that makes it proper to assume that it will
reach them.” Restatement, supra, Section 559, Comment e.
“This would normally be presumed if the communication was
made on television. Prosser and Keeton, The Law of Torts, Sec.
111, p. 772 (Fifth Edition 1984).
In determining whether a statement is defamatory, it is pre-
sumed that the persons who heard it understood the words in their
ordinary and natural import. 53 C.J.S., Libel and Slander, Sec.
165 a, p. 242. Where a statement is capable of two meanings, one
defamatory and one not, it must be determined which of the two
meanings would be attributed to it by those to whom it is
addressed. Washington Post Co. v. Chaloner, 250 U.S. 290
(1918). “The meaning of a communication is that which the
recipient correctly, or mistakenly but reasonably, understands
that ii was intended to express.” Restatement, supra, Sec. 563.
Where the alleged defamatory matter is published publicly to a
large number of recipients, it can be presumed that if the
publication was ambiguous on its face and could be construed
with two reasonable meanings, some recipients would give it a
—~
defamatory construction.” Prosser and Keeton, supra, Sec. 111,
p. 783.
In this case, Respondent’s televised communication stated or
implied: 1) That Judge Karohl failed to follow the “Supreme
Court of the land” which had held that the armed criminal action
statute was constitutional, and that it did not constitute Double
Jeopardy.; 2) That Judge Karohl “really distorted the statute . . .
to arrive ata decision that he personally likes.; 3) that this was for
reasons “‘a little bit less than honest’; 4) that Judge Karohl “made
up his mind before he wrote the decision”; and 5) that Judge
Karohl “just reached the conclusion he wanted to reach.”
These statements certainly convey to the average television
viewer, and to a lawyer viewer that a judge has done something
wrong. It certainly disparages a judge and reflects unfavorably
upon his morality and integrity. The average lay or lawyer
viewer would certainly think less of such a judge.
Because of the wide dissemination of television broadcasting
“together with the prestige and potential effect upon the public
mind of a standardized means of publication that many people
tend to automatically accept as conveying truth”, publication of .
defamatory matter by videotape statements broadcast on televi-
sion are actionable per se. Restatement, supra, Sec. 568 A,
Comment a, Sec. 569. In view of the fact that there are several
million people in the St. Louis metropolitan area, it can easily
been seen that thousands or hundreds of thousands of viewers
may have heard the Respondent’s televised statements on the
date in question. With resultant harm to him and to the admin-
istration of justice.
2. False words which prejudice the person spoken of in his
profession or office are actionable per se when they impute
fraud, want of integrity, or misconduct in his professional work.
Brown v. Kidderman, 443 S.W.2d 146, 154 (MO 1969); Anton
v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 496
—_—~
(Mo. App. 1980); Smith v. VAW-CIO Federal Credit Union, 728
S.W.2d 679, 682 (Mo. App. 1987). Swafford v. Miller, 711
S.W.2d 211 (Mo. App. 1986). 50 Am Jur 2d, Libel and Slander,
Sec. 122 (1970).
Under the Supremacy Clause the Constitution of the United
States is “the supreme law of the land; and the judges in every
state shall be bound thereby”. U.S. Const., Art. VI (2). It is also
required that judges be bound by oath to support the Constitu-
tion. Id. (3)
Supreme Court Rule 2, Code of Judicial Conduct, Canon |
finds that “‘an independent and honorable judiciary is indispens-
able to justice in our society” and requires that a judge “observe
high standards of conduct so that the integrity and independence
of the judiciary may be preserved.” Canon 2A requires a judge
to “respect and comply with the law and. . . conduct himself at
all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.” Canon 3A(1) re-
quires a judge to “be faithful to the law, and. . . be unswayed by
partisan interest, public clamor, or fear of criticism.”
The statements in issue here certainly imply an intentional
violation of the Supremacy Clause and the above canons for
“dishonest reasons”. They thus imply a lack of integrity and
misconduct in Judge Karohl’s professional work. There was
evidence that this was the inference drawn by many viewers of
the television report. Respondent testified that he and his
associates were contacted by various lawyers who asserted that
Respondent had characterized Judge Karohl as being “dishon-
est”. Judge Karohl testified that he received contacts from
twenty-five or so lay people, lawyers, and judges who were upset
by Respondent’s statements.
3. Another aspect of defamation law is implicated here. A
statement which falsely imputes criminal conduct to another
person is defamatory. Smith v. VAW-CIO Federal Credit Union,
all
A-61 —
728 S.W.2d 679, 682 (Mo App. 1987); Brown v. Kidderman, 443
S.W.2d 146, 153 (MO 1969); Hunt v. Gerlemann, 581 S.W.2d
913, 914 (Mo App. 1979); Sableman, The Courts Role in
Interpreting Language in Libel and Slander Cases, 45 Journal of
the Missouri Bar, 399, 400. Restatement, supra, Sec. 571. A
specific crime need not be charged if the conduct is imputed in
general terms. Restatement Torts Second, App., Sec. 571,
Comment c, p. 408. (1981).
A defamatory imputation may be made by innuendo, Restate-
ment (1977), supra, Commentc , or by inference, implication, or
insinuation. 53 C.J.S. Libel and Slander, Sec. 13, p.48. Evena
lay viewer could figure out and infer that it was unethical or
improper for a judge to “distort a Statute to arrive at a decision he
personally liked”, or to make up his mind before he got the case.
When the lay viewer is further told that the improper action was
done “for reasons that were a little less than honest”, there is then
an implication of even more sinister conduct. Since no facts
were given to support this conclusion, the ordinary viewer would
be left to infer that the dishonest reasons may have involved
bribery, coercion, or intimidation, or some personal connection
between the judge and some party in the case which led him to
reach an improper result. The suggestion that a judge may have
accepted some benefit to influence his official action in a
pending judicial proceeding implies the crime of “acceding to
corruption” under Sec. 575. 280 1.(1) RSMo. 1969. Also see
Sec. 576.020 RSMo. 1969.
Even if this was not the meaning that Respondent intended to
convey, asa member of a skilled calling, he is held to the standard
of his craft and assumes the risk of being misunderstood by the
ordinary hearer of his publications. Greenbelt Co-Op Pub. Assn.
v. Bresler, 398 U.S. 6, 23 (White J., concurring) (1970). Profes-
sionals must “guard against the possibility that words known to
Carry two meanings, one of which imputes commission of a
crime, might seriously damage the object of their commentin the
aa
—~ a
eyes of the average [viewer].” Id. In view of the size of the TV
audience here, it is evidence that many would infer criminal
misconduct from the statement.
4. It is not the intention of the speaker, but the understanding
of the hearer, by which defamation is to be determined. 53 C.J.S.
Libel and Slander, Sec. 14, p. 50. However the intention of the
speaker may, and in this case does, illuminate the defamatory
nature of the statements made. Although Respondent’s attorney
has asserted that the statements made were an attack on the
“court opinion” rather than on Judge Karohl personally,
Respondent’s televised statement and his subsequent testimony
are to the contrary.
In this respect it must first be observed that Respondent’s
statement was specifically addressed to Judge Karohl and not to
his “court opinion”. Respondent specifically stated that “Judge
Karohl . . . has really distorted the statute to arrive at a decision
that he personally likes,” ... that “‘means that he made up his mind
before he wrote the decision and just reached the conclusion he
wanted to reach.”
Secondly, Respondent’s subsequent testimony demonstrates
that his televised statement was not making reference to Judge
Karohl’s “court opinion”, but to Judge Karohl and his motiva-
tion.
’ “ec
a. Respondent testified that ic was Judge Karohl’s “reasons”
rather than his “reasoning” which were less than honest. When
asked how the “reasons” were less than honest, Respondent’s
reply was that he meant “the attitude of the appellate bench
historically toward armed criminal action. In my opinion it was
Judge Karohl’s judicial bent to begin with that is far too liberal
to suit me, that 1 wasn’t surprised at all by the result.” (T, p. 46).
b. When asked about the statement that the judge “made up his
mind before he wrote the decision”, Respondent stated that he
— A-63 —
meant “that he’d made up his mind before he got the case.” (T,
p. 34); and that his intent was to convey the message that he felt
Judge Karohl’s opinion was a foregone conclusion. (T, p. 43).
c. Inexplaining why he stated that Judge Karohl prejudged the
case to reach a result that he personally wanted, Respondent
stated that: “I was giving my opinion as to the decision of the
overall context historically and recently of the armed criminal
action statute, that the appellate judges of this state have repeat-
edly beat down the armed criminal action statute.” (T, p. 48).
d. Respondent also asserts that he meant that the “court
opinion” was “intellectually dishonest”. However, he did not
use that term in the televised interview. Nor did the television
reporter recall hearing the term used, or have any recollection
that the term was discussed. The reporter also testified that the
term was not used on the parts of the videotape which were not
used on the televised interview. (MBA Ex. 1, p. 47)
However, when asked to explain how the opinion was “‘intel-
lectually dishonest’, Respondent did not address the opinion at
all, but again referred to his view that the “Missouri Appellate
system has been intellectually dishonest concerning armed crimi-
nal action from day one, in that they steadfastly refuse to follow
the directives of the highest court in the land... and I anticipated
the same thing would happen again.” (T, p. 51-52).
5. The history of the armed criminal action cases which
frustrated Respondent Westfall is set out in the case of State Ex
Rel Bulloch v. Seier, supra. That opinion demonstrates that the
issues which had frustrated Respondent had been finally decided
in 1983 by the United States Supreme Court in Missouri v.
Hunter, 459 U.S. 359 (1983); and that the Missouri courts had
thereafter complied with the decisions of the United States
Supreme Court on armed criminal action.
=< aa
The only criticism that Respondent has made during these
proceedings attacking the “reasoning” of Judge Karohl’s opin-
ion concems 1) the result reached, and 2) the dictum that the
armed criminai action charge could not have been initially tried
with the murder charge.
As to the first criticism: the Fifth Amendment to the U. S.
Constitution provides that no one shall be “subject for the same
offense to be twice put in jeopardy of life or limb.” It is made
applicable to the states by the Fourteenth Amendment, Benton v.
Maryland, 395 U.S. 784, 795 (1969). In 1983 the United States
Supreme Court determined that an “armed criminal action” was
the “same offense as the associated felony and had to be tried
with it in a “single trial”. Missouri v. Hunter, supra. As noted
in Bulloch v. Seier, supra, the decisions of the United States
Supreme Court in /Ilinois v. Vitale, supra, and Brown v. Ohio,
supra, had previously determined the issues presented to Judge
Karohl.
As to criticism of the dictum, Respondent has since testified
that he had the same belief, i.e. that the armed criminal action
could not have been initially tried with a murder charge. How-
ever, both the dictum and Respondent’s view were corrected by
the subsequent opinion of the Missouri Supreme Court which
held that the armed criminal action charge could have been tried
with the murder charge if originally filed with it.
It must also be observed that the dictum had no effect on the
outcome of the case under either Judge Karohl’s opinion or that
of the Supreme Court.
Thus, although Respondent could have charged and tried
Defendant Bulloch with armed criminal action, he and his office
failed to do so due to misadvertence [sic] or mistake. Respon-
dent testified that he had failed to initially charge armed criminal
action with the murder charge because 1) he “hadn’t thought of
it prior to the trial”, (Ex. 6, State v. Bulloch, motion hearing, p.
— A-65 —
85); 2) he didn’t think “armed criminal action” applied to the
weapon used (Id. p. 94-95); and 3) he [mistakenly] believed that
armed criminal action couldn’t be tried with the murder charge.
(Id. p. 95).
C. FALSITY OF THE STATEMENT.
Since the statement is found to be defamatory in the sense in
which thousands of people would have been expected to under-
stand it, examination must be made as to the truth or falsity of the
statement.
In this respect the testimony of Respondent Westfall estab-
lishes the falsity of the statement in the defamatory sense.
Respondent testified that he did not question Judge Karohl’s
personal integrity in the least (MBA Ex. 1, p. 66, 83) and that he
did not mean to impugn Judge Karohl’s personal integrity by the
televised statements that he made. (MBA Ex. 1, p. 76, 78-79).
Respondent further testified that he had privately apologized to
Judge Karohl on the day of the formal hearing before the
committee and had advised him that he did not mean to impugn
or to question his personal integrity, but only to criticize the
opinion. (MBA Ex. 1, p. 79). Respondent also stated that “given
a similar situation I may be a bit more cautious to not reflect upon
one’s personal integrity.” (MBA Ex. 1, p. 78-79) Respondent’s
attorney reported that Judge Karohl “was a fine lawyer and he’s
a fine judge”. (T., p. 15).
At the hearing before the committee Judge Karohl testified
that neither he nor the other judges who decided the case had any
personal interest or preference in the outcome, and that there
were no acts by any of the judges with regard to the management
of the case or the preparation of the opinion that were “less than
honest”. (MBA EX 1, p. 9-10).
Respondent’s statement clearly implies that Judge Karohl
failed to follow the “Supreme Court of the land” which had held
—<
that “our armed criminal action statute was constitutional and
that it did not constitute Double Jeopardy”; and that this was for
“reasons less than honest”. This implication is false as well.
Judge Karohl’s opinion did not challenge either of those deter-
minations. The opinion merely held as the “Supreme Court of
the land” had held in Missouri v. Hunter, supra, that armed
Criminal action and the associated felony had to be tried in a
“single trial”.
D. THE REQUIREMENT OF MALICE
The malice required is that the statement be made “that the
lawyer knows to be false or with reckless disregard as to its truth
of falsity.” Disciplinary Rule 8.2, New York Times Co, supra.
In defamation cases, “[t]here must be sufficient evidence to
permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication. Publishing with
such doubts shows reckless disregard for truth or falsity and
demonstrates actual malice.” Time v. Pape, 401 U.S, 279, 291
(1971). There must be “clear and convincing proof that the
defendant has knowledge of, or recklessly disregarded the falsity
of the defamatory statement.” Tribe, supra, Sec. 12-12, p. 866,
Rosenbloom v. Metro Media Inc., 403 U.S. 29, 30 (1971).
In this case Respondent admits that he believed and knew that
Judge Karohl was a man of personal integrity. Nonetheless he
made the televised statements with the defamatory sense that the
judge was unethical, dishonest, or evencriminal. His admissions
establish that Respondent knew the defamatory statements to be
false. Thus Respondent had more than “a serious doubt’ as to the
truth of the defamatory statements; but rather knew their falsity.
This is sufficient to establish a violation of the rule. See Worley
v. OPS, 686 P.2d 404, 407 (Or App 1984).
Even assuming the possibility that Respondent might not have
comprehended the defamatory nature of the statements which he
a
made, it remains clear that he acted in reckless disregard of the
truth or falsity of those statements. “Reckless disregard” is
demonstrated by other factors in the case as well.
It is relevant that Respondent had both time and opportunity
to investigate the truth of the statement. Restatement, supra, Sec.
580A, Comment d. However, Respondent testified that, before
making his critical statement about Judge Karohl, he failed to
make any check to see whether Judge Karohl had participated in
any Cases on armed criminal action, written any opinions on it,
or expressed any personal opinions about it. Nordid Respondent
check with his staff or any other persons in this respect. (T. p. 43-
44). This failure demonstrates Respondent’s recklessness since
he also testified that he made the critical statements because of
previous opinions of other appellate judges.
“Reckless disregard” is also demonstrated by another aspect
of the case. As a lawyer Respondent was aware that he should
report dishonest behavior of a judge to the Commission on
Judicial Discipline and Retirement, which would investigate,
and if appropriate, prosecute such misconduct. However with-
out making such a report, without that investigation, and without
any investigation of his own, Respondent proceeded to make a
publicly televised statement alleging unethical and dishonest
conduct.
E. WERE THE STATEMENTS PROTECTED OPINION?
1. Generally the free speech clause of the First Amendment
protects the expression of “pure opinions”. Henry v. Halliburton,
690 S.W.2d 775, 782 (Mo Banc 1985), Anton v. St. Louis
Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo App.
1980). 53 C.J.S., Libel and Slander, Sec. 12, p. 45.
Justice Powell wrote for the Supreme Court in Gertz v. Robert
Welch, Inc., 418 U.S. 323, 339-40 (1974): “Under the First
Amendment there is no such thing as a false idea. However
— A-68 —
pernicious an opinion may seem, we depend for its correction not
on the conscience of judges and juries, but on the competition of
other ideas. But there is no constitutional value in false state-
ments of fact.”
In analyzing Justice Powell’s meaning in Gertz it cannot be
overlooked that in his dissenting opinion in Letter Carriers v.
Austin, 418 U.S. 264, at 297, which was both argued and decided
on the same dates as Gertz, he argued that while derogatory
opinions about “scabs” in general were protected, the speakers
had “specifically impugned” the character of the plaintiff in the
case and were therefore subject to suit. Justice Powell stated in
Letter Carriers: “Itis one thing to say that lawyers are shysters
and that doctors are quacks, but it is quite another matter —
indeed, it is libelous per se — to publish that lawyer Jones is a
shyster or that Dr. Smith is a quack.” Also see Cianci v. New
Times Pub. Co., 639 F.2d 54, 62 (2d Cir 1980).
The logic underlying the privilege is that an opinion can never
be objectively proved true or false; and a privilege is given to the
opinion provided the facts supporting the opinions are set forth.
Buckley v. Littell, 539 F.2d 882, 893 (2nd Cir 1976), Anton, supra
at p. 499. Where the facts underlying the opinion are set forth in
the article, the opinion is afforded a privilege because each
reader may draw his own conclusion to support or challenge the
opinion. Id. Also see Rinaldi v. Holt, Rinehart & Winston, Inc.,
366 N.E.2d at 1306 (1976).
There is an extensive discussion considering the fact/opinion
distinctions in Henry v. Halliburton, supra at page 787-789,
where it was held that it was essential to examine the totality of
the circumstances to determine whether an ordinary reader
would have treated a statement as an opinion. Id, p. 788.
2. One of the exceptions to the privilege is where a defamatory
statement implies the allegation of undisclosed defamatory facts
as the basis for the opinion. Restatement Second Torts, Sec. 566;
— A-69 —
Cuba’s United Ready Mix v. Bock Concrete, 785 S.W.2d 649,
651 (Mo. App. 1990); /verson v. Crow, 639 S.W.2d 118, 119
(Mo. App. 1982); Henry v. Halliburton, supra; Anton, supra.
Where a statement indicates that the speaker knew facts estab-
lishing the defamatory statement, it is actionable defamation.
Id.; Cianci, supra, 639 F.2d at 63. Where the statement of
opinion implies undisclosed facts on which the opinion is based,
then the listener can not evaluate the defamatory language since
no basis for the statement has been disclosed. 53 C.J.S. Libel and
Slander, Sec. 12, p 46.
The Restatement provides an illustration of a mixed fact/
opinion statement as follows:
3. A writes to B about his neighbor C: “I think he must
be an alcoholic.” A jury might find that this was not just an
expression of opinion, but that it implied that A knew
undisclosed facts that would justify this opinion. Id., Sec.
556 at 174.
A’s opinion above is not privileged because “the comment
creates the reasonable inference that the opinion is justified by
the existence of unexpressed defamatory facts”. Id, 175. “This
type opinion, while an opinion in form or context, is apparently
based on facts . . . that have not been stated . . . [and] gives rise
to the inference that there are undisclosed facts that justify the
forming of the opinion expressed by the defendant.” Id. at 172.
Such an opinion is not privileged. Falls v. Sporting News Pub.
Co., 834 F.2d 611, 615-616 (6th Cir. 1987).
Respondent’s statements here do not provide the facts from
which the television viewers could draw their own conclusions
to support or challenge his opinions. The thousands of viewers
could not understand from the facts asserted 1) how Judge
Karohl failed to follow the “Supreme Court of the land’, 2) how
there was a distortion of the statute, 3) what purpose the judge
had to arrive at a decision that he personally liked, 4) why the
— A-70 —
judge made up his mind before he heard the case, and 5) what
dishonest reasons the judge had to do such things. Thus no
privilege attaches under the authorities discussed.
3. In discussion of the defamatory nature of Respondent’s
statements, supra, it was pointed out that false imputation of
criminal conduct is defamatory. However, the Missouri Su-
preme Court has further held that language which suggests
specific criminal conduct would constitute a statement of fact
rather than a statement of opinion. Henry v. Halliburton, supra,
690 S.W.2d at 790. 53 C.J.S. Libel and Slander, Sec. 12, p. 47.
There is acritical distinction between opinions which attribute
improper motives to a public officer, and accusations, in what-
ever form, that an individual has committed a crime or is
personally dishonest. Gregory v. McDonnell Douglas Corp.,
552 P. 2d 425 (1976). There is no First Amendment protection
enfolding false charges of criminal behavior. Id.
The Court in Cianci also declared that the Gertz — Letter
Carriers rules protecting “pure opinions” do not cover charges
which could reasonably be understood as imputing specific
criminal or other wrongful acts.” 639 F.2d at 64; and that the
clear implication of the United States Supreme Court in Greenbelt
Pub. Co-Op Pub. Assn. v. Bressler, 398 U.S. 6 (1970) was “that
if an accusation of actual criminal wrongdoing had been con-
veyed . . . it would have been held actionable .. .” Id. at 62.
Thus, when a speaker said that he considered William F.
Buckley to be a libeler like Westbrook Pegler, the court held that
the “opinion” was something more than a general derogatory
remark, but was laden with factual content, charging the com-
mission of a serious crime; and the First Amendment did not
confer a privilege to such an opinion. Buckley v. Littell, supra.
The statement of an opinion charging a judge with corruption
was held notconstitutionally protected in Rinaldi v. Holt, Rinehart
& Winston, Inc., 366 N.E.2d 1299 (NY 1977).
— A-71 —
“To say of a person that he is a thief without explaining why,
may depending upon the circumstances, be found to imply the
assertion that he has committed acts that come within the
common connotation of thievery.”” Restatement, supra, Sec.
566, Comment b. Likewise to say of a judge that he has done
improper, unethical acts for dishonest reasons without explain-
ing why implies that he has committed criminal misconduct.
In the instant case Respondent’s television interview clearly
stated or implied wrongdoing by Judge Karohl. Without disclo-
sure of the underlying facts, the viewers were not able to evaluate
the defamatory language. Either lay or lawyer viewers could
conclude from the statements that the judge had acted unethically,
improperly, or even criminally. The charges were made “of
specific defined conduct . . . not couched in terms of opinion
based upon described fact premises”, and “far removed from
mere expressions of non-actionable opinion.” Smith v. VAW-
CIO Federal Credit Union, 728 S.W.2d 679, 685 (Mo. App.
1987).
4. It has also been held that opinions “relating to one’s
professional integrity that are susceptible of proof” are expres-
sions of fact. Held v. Pokorny, 583 F. Supp. 1038, 1049
(S.D.N.Y. 1984), Edwards v. National Auduben Society, Inc..,
556 F.2d at 121-22, 53 C.J.S. Libel and Slander, Sec. 12, p. 47.
Since the Respondent concedes Judge Karohl’s personal integ-
rity, the defamatory statements referring to Judge Karohl’s
professional integrity are susceptible of proof in this case, and
also constitute expressions of fact, which are not protected.
5. Professor Prosser states that, “it can be said that the state of
a person’s mind is a fact and if a publisher misrepresents his state
of mind, he misrepresents a fact even though it is only an
opinion.” Prosser and Keeton, supra, Sec. 113, p. 814. Thus
where Respondent made a statement or expressed opinions
which were defamatory, but which he did not believe, he would
— < .
have misrepresented the fact relating to what his opinion was.
Thus there would be no privilege.
E. SUPPLEMENT TO “PROTECTED OPINION”
Since the foregoing Section E was dictated, the United States
Supreme Court has decided the case of Milkovich v. Lorain
Journal Co., No. 89-645, — U.S. — (June 21, 1990).
Milkovich holds that the dictum in the Gertz case supra, 418
U.S. 323, 339-340, as to “opinion” was not“. .. intended to create
a wholesale defamation exemption for anything that might be
labeled “opinion”.
In Milkovich, Chief Justice Rehnquist states:
“If a speaker says, ‘In my opinion John Jones is a liar,’ he
implies a knowledge of facts which lead to the conclusion
that Jones told an untruth. Even if the speaker states the
facts upon which he bases his opinion, if those facts are
either incorrect or incomplete, or if his assessment of them
is erroneous, the statement may still imply a false assertion
of fact. Simply couching such statements in terms of
opinion does not dispel these implications; and the state-
ment, ‘In my opinion Jones is a liar,’ can cause as much
damage to reputation as the statement, ‘Jones is a liar.’ ”
Milkovich also addressed the issue of opinions “susceptible to
proof’, and held that statements which are “sufficiently factual
to be susceptible of being proved true or false”, may be the basis
of defamation.
Thus Milkovich confirms the previous analysis made under
Section E.
<i te
F. FINDINGS OF FACT AS TO DISCIPLINARY RULE
8.2.
Upon the evidence in this case the Master makes the following
findings of fact:
1. That Respondent knew and believed that Judge Kent E.
Karohl was a man of personal and professional integrity.
2. That Respondent’s statement exposed Judge Karohl to
hatred, ridicule, or contempt, and reflected unfavorably upon his
personal morality and integrity.
3. That Respondent’s statement falsely imputed fraud, want
of integrity, and misconduct in Judge Karohl professional work.
4. That Respondent’s statement falsely imputed criminal
conduct.
5. That Respondent’s statement disparaged Judge Karohl.
6. That Respondent’s statement disparaged the Court of
Appeals in the administration of justice.
7. That Respondent’s statement related to Judge Karohl and
his motivation, rather than to the reasoning of the opinion or an
analysis of the opinion.
8. That Respondent intended to state that Judge Karohl had
made up his mind before he got the case.
9. That Respondent made no investigation into Judge Karohl’s
views Or previous opinions concerning “armed criminal action”
case prior to making his public statement.
10. That Respondent made the statement with malice, i.e.,
knowing its falsity or with reckless disregard of its truth or
falsity.
so
11. That Respondent’s personal attack on Judge Karohl was
based primarily upon his disagreement with and frustration from
opinions of other Missouri Appellate Judges prior to 1983.
12. That Respondent could have charged and tried Defendant
Bulloch with armed criminal action along with the murder
charge in the underlying case.
13. That Respondent’s failure to initially charge Defendant
Bulloch with armed criminal action resulted from Respondent’s
own mistake or inadvertence.
G. CONCLUSIONS OF LAW AS TO DISCIPLINARY
RULE 8.2
Upon the evidence in this case and the foregoing discussion,
the Master makes the following conclusions of law:
1. That Respondent’s televised statement was defamatory as
to the Court of Appeals and Judge Karohl.
2. That Respondent’s statement violated Disciplinary Rule
8.2.
3. That Respondent’s statement did not constitute a “‘privi-
leged opinion”.
4. That Disciplinary Rule 8.2, as applied to Respondent’s
known false charges about Judge Karohl, is not unconstitutional
as a violation of the “free speech clause” of the First Amendment.
5. That the Advisory Committee has sustained its burden of
proof by clear and convincing evidence.
V ANALYSIS OF DISCIPLINARY RULE 8.4
This rule provides that it is “professional misconduct” for a
lawyer to (a) violate the rules of professional misconduct and (d)
“engage in conduct that is prejudicial to the administration of
justice”. The specific misconduct charged is the making of a
false statement about Judge Karohl as previously described.
— A-75 —
Rule 8.4(a) refers to all violations of the Disciplinary Rules,
including 8.2, 8.4(d) and 3.6 relating to a lawyer’s extra-judicial
statements about pending cases.
A violation of Rule 8.2, by false criticism of a judge, may also
violate Rule 8.4(d) insofar as a defamatory statement would
prejudice the fairness and procedural safeguards of the judicial
process by an attempt to influence, intimidate or coerce the
actions of jurors or judges, or affect the public confidence in the
courts. Thus Section 8.4(d) relates to “conduct” even by way of
speech.
The development of the law in this area has not been under the
law of “defamation”, but rather under the law relating to Con-
tempt of Court and Lawyer Disciplinary Proceedings.
Professor Tribe has pointed out two distinctive approaches by
the United States Supreme Court to “free speech” claims. When
a government regulation is aimed at the communicative impact
of an act, a regulation is unconstitutional unless it is shown that
the message poses a “clear and present danger’ or is a defama-
tion. However when the government regulation is aimed at the
non-communicative impact of an act, the “regulation is consti-
tutional, even as applied to expressive conduct, so long as it does
not unduly constrict the flow of information and ideas.” Tribe,
supra, Sec. 12-2, p. 791-792.
In simple terms, shouting “fire” in the crowded theater is
conduct rather than speech. There is no “communication” and no
“content” in such a false expression. Rather, the shout is conduct
meant to cause panic or alarm. Similarly making a known false
accusation against a judge in a pending proceeding is not
“speech” discussing a public issue, but rather it is “conduct” in
the nature of an attack or assault. There is no “communication”
and no “content” in such a false expression. The regulation of
false statements is thus content neutral. Chaplinsky, supra. Such
conduct might be for the purpose of coercing, influencing, or
a
— A-76 —
intimidating a judge so as to affect the result in a pending case.
Such conduct may constitute “contemptuous conduct” punish-
able as contempt of court, or “unethical conduct” punishable as
professional misconduct.
The Supreme Court has held “that when ‘speech’ and ‘non-
speech’ elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the
non-speech element can justify incidental limitations on First
Amendment freedoms.” United States v.O’ Brien, 391 U.S. 367,
376-377 (1968). Ggovernment [sic] regulation of such speech/
conduct is sufficiently justified if it furthers an important gov-
ernmental interest, unrelated to the suppression of free expres-
sion, and if the incidental restriction on speech is no greater than
essential to the furtherance of that interest. Id.
Speech, whether oral or symbolized by conduct, is also
subject to reasonable time, place, and manner restrictions. Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 293
(1984). Such restrictions are valid provided they are justified
without reference to the content of the regulated speech, ordi-
narily tailored to serve a significant governmental interest, and
leave open ample alternative channels for communication. Id.
Examination of these issues of “conduct” may be made by
reviewing 1.) responsibilities of lawyers and prosecuting attor-
neys, 2.) restrictions on lawyer speech, and 3.) analysis of the
conduct in this case.
B. RESPONSIBILITIES OF A LAWYER AND PROS
ECUTING ATTORNEY
1. Courts cannot function without lawyers. “The office of
attorney is indispensable to the administration of justice and is
intimate and peculiar in its relation to, and vital to the well-being
of, the court.” 7 C.J.S. Attorney and Client, Sec. 4, p. 802.
Lawyers act “as assistants to the court in search of a just solution
to disputes.” Cohen v. Hurley, 366 U.S. 117, 124 (1961).
pay, pone
Upon being admitted to the Missouri Bar every lawyer must
take an oath as required by Supreme Court Rule Rule 8.11. The
oath taken by Respondent Westfall was in part that he would
support the Constitution, faithfully demean himself in his prac-
tice, maintiain [sic] the respect due to courts ofjustice [sic] and
judicial officers, abstain from all offensive personality, and
advance no fact prejudicial to the honor or reputation of a party
or witness unless required by the justice of the cause with which
he is charged.
2. The legal profession is largely self-governing;: and “this
relative autonomy carries with it special responsibilities of self-
government.” Preamble, Rules of Professional Conduct. Thus,
“every lawyer is responsible for observance of the Rules of
Professional Conduct” Id. Lawyers are required to know and
comply with the law and court rules designed for the protection
of the public by aiding in the administration of justice and
upholding the authority and dignity of the courts. 7 C.J.S.
Attorney and Client, Sec. 46, p. 904.
Thus a lawyer has a duty to see that actions and proceedings
in which he is engaged “are conducted in a dignified and orderly
manner, free from passion and personal animosities, and that all
causes brought to an issue are tried and decided on their merits
only” 7 C.J.S. Attorney and Client, Sec. 4, p. 802. An attorney
is required to conduct himself “with integrity, honesty and
fairness, and to preserve the respect and confidence of the public,
the courts and the legal profession.” Id, Sec. 45, p. 901.
The Supreme Court has explained this requirement in the case
of In Re Snyder, 472 U.S. 634, 647 (1985) as follows:
“All persons involved in the judicial process — judges,
litigants, witnesses, and court officers — owe a duty of
courtesy to all other participants. The necessity for civility
in the inherent contentious setting of the adversary process
suggests that member of the bar cast criticisms of the
system in a professional and civil tone.”
wit
If a lawyer fails toconform toa high standard of ethics, he may
“bring disrepute upon the legal profession, impair the standard
of the courts, and impede the administration of justice.” Leimer
v. Hulse, 178 S.W.2d 335, 339 (Mo 1982).
The legal profession has developed its own rules of ethics, and
it is a function of the Bar Association to maintain high standards
of professional conduct by its members. Lawyers from across
the state have served on various committees of the Missouri Bar
Association to review the Rules of Ethics and make recommen-
dations to the Missouri Supreme Court in that respect. Respon-
dent Westfall was in fact a member of the committee which
recommended the adoption of Disciplinary Rule 8.2, which was
adopted in 1985.
Since 1804 the Supreme Court, in the territory and State of
Missouri has had the power and authority to discipline Missouri
lawyers for their misconduct. Divine, Lawyer Discipline in
Missouri, 46 Missouri Law Review, 709, 712. The United States
Supreme Court has noted that: “Courts have long recognized an
inherent authority to suspend or disbar lawyers .. . this inherent
power derives from the lawyer’s role as an officer of the court
which granted admission.” /n Re Snyder, supra, 472 U.S. at 643;
C.J.S. Attorney and Client, Sec. 43, p 895; Jn Re Thompson, 574
S.W.2d 365 (MO 1978). Under Supreme Court Rule 5.18, the
Supreme Court is charged with the duty of reprimanding, sus-
pending, or disbarring lawyers who are found guilty of profes-
sional misconduct.
The purpose of supervision of the bar by the judicial system “‘is
to qualify the bar to perform its function for the public benefit,
and to maintain publicly beneficial professional standards and
conduct...” 7C.J.S. Attorney and Client, Sec. 43, p. 894. Thus
lawyer disciplinary proceedings are not designed with a primary
purpose of punishment, but as an inquiry into a lawyer’s fitness
to continue as a lawyer, and any discipline imposed has as its
"
— A-79 —
objective the protection of the courts and the public, and the
maintenance of the integrity of the profession and the court.” Jn
Re Haggerty, 661 S.W.2d8 (MO 1987). In re Staab, 785 S.W.2d
551, 554 (1990). The paramount objective in disciplinary
proceedings is to protect society and maintain the integrity of the
legal profession. Jn Re Lang, 641 S.W.2d77 (MO 1982); Leimer
v. Hulse, supra; Middlesex Ethics Com. v. Garden State Bar
Assn., 457 U.S. 423, 434 (1982).
3. As lawyers, Prosecuting Attorneys must meet all of the
requirements of the Rules of Professional Conduct. However,
they, and all “lawyers holding public office assume legal respon-
sibilities going beyond those of other citizens.” Comment,
Disciplinary Rule 8.4. The “Special Responsibilities of a Pros-
ecutor” are described in Disciplinary Rule 3.8. The Comment to
that rule states that “a Prosecutor has the responsibility of a
minister of justice and not simply that of an advocate.” Prosecu-
tors have been described as “judicial or quasi-judicial officers”.
27 C.J.S., District and Prosecuting Attorneys, Sec. 1, p. 622.
A prosecutor’s obligation is not simply to obtain a conviction,
but to see that justice is done and that the accused gets a fair trial.
State v. Hicks, 535 §.W.2d 308, 311 (Mo App 1976); State v.
Jackson, 664 S.W.2d 583, 584 (Mo App. 1984); Volume 1, ABA
Standards for Criminal Justice, 2nd Ed, The Prosecution Func-
tion, Sec. 3-1.1.(c), 1978). It is the duty of the Prosecutor to be
impartial and to refrain from conduct that causes him to be a
heated partisan who appeals to prejudice and seeks conviction at
all costs. State v. Wintjen, 500 S.W.2d 39, 43-44 (Mo App 1973).
C. LIMITATIONS ON LAWYER “FREE SPEECH”
1.) The Supreme Court has consistently used the “clear and
present danger” standard in reviewing out-of-court statements
critical of the administration of justice in ongoing judicial
proceedings; and has assumed that all behavior and speech that
prevents the fair adjudication of a case presents a “clear and
—s
present danger”, and is punishable as contempt. Tribe, supra,
Sec. 12-11, p. 856-857. The state’s interest advanced to justify
this limitation is the interest in fair trials, in putting guilty
criminals in jail, and in maintaining confidence in the fairness of
the judicial system. Id.,n. 3, p. 857. However, such statements
must pose a “serious and imminent threat” of interference with
the fair administration of justice. Chicago Council of Lawyers
v. Bauer, 522 F.2d 242, 249 (7th Cir. 1974), In Re Oliver, 452
F.2d 111 (7th Cir 1971).
The United States Supreme Court has recognized “ that the
states have a compelling interest in the practice of professions
within their boundaries, and that as part of their power to protect
the public health, safety, and other valid interest they have broad
power to establish standards for licensing practitioners and
regulating the practice of professions. .. The interest of the states
in regulating lawyers is especially great since lawyers are essen-
tial to the primary governmental function of administering
justice, and have historically been “officers of the court”. Goldfarb
v. Virginia State Bar, 421 U.S. 773, 792 (1975). In Re Primus,
436 U.S. 412, Ohralick v. Ohio State Bar Assn., 436 U.S. 447,
460 (1978).
“The most fundamental of all freedoms” is the right to a fair
trial. Estes v. Texas, 381 U.S. 532, 540 (1965) and courts have
the duty to ensure fair trials to all citizens. Sheppard v. Maxwell,
384 U.S. 333 (1966); and to control prosecutors and defense
lawyers from the divulgence of inflammatory publicity. Id., p.
361; but also see Nebraska Press Assn. v. Stuart, 427 U.S. 539
(1976), Chicago Counsel of Lawyers v. Bauer, 522 F.2d 242 (7th
Cir., 1975). It is recognized that “[e}xtra-judicial statements to
the media provide a powerful prosecutorial weapon to prejudice
a defendant’s right to a fair trial.” Gershman, Prosecutorial
Misconduct, Sec. 6.2 (Clark Boardman Co. 1989). -
— A-81 —
As expressed by Justice Holmes, “[t]he theory of our system
is that the conclusions to be reached in the case will be induced
only by evidence and argument in open court, and not by any
outside influence, whether of private talk or public print.”
Patterson v. Colorado, 205 U.S. 454, 462 (1907). “Legal trials
are not like elections, to be won through the use of the meeting
hall, the radio, and the newspaper.” Bridges v. California, 314
U.S. 252 (1941). The Supreme Court has insisted that no one be
punished for a crime without “a charge fairly made and fairly
tried in a public tribunal free of prejudice, passion, excitement,
and tyrannical power.” Chamber v. Florida, 309 U.S. 227, 236-
237 (1940).
When there is an irreconcilable conflict, the right of free
speech must give way to the right of a fair trial. Chicago Council
of Lawyers v. Bauer, supra at p. 248. When the judicial function
is integrally threatened by contemptuous expressions, the “‘ad-
ministration of the judicial enterprise necessitates subjugation of
other rights, including the rights of persons to freely and even
intemperately express their minds.” McMilian v. Rennau, 619
S.W.2d 848, 852 (Mo. App. 1981).
Thus public comment of every character upon pending trials
or legal proceedings may not be as free as similarcomments after
a complete disposal of the litigation. Pennekamp v. Florida, 328
U.S. 331, 346 (1946). As Justice Holmes has stated: “When a
case is finished, courts are subject to the same criticism as other
people. The propriety and necessity of preventing interference
with the course of justice by premature statements, argument, or
intimidation hardly can be denied.” Patterson v. Colorado,
supra.
Thus there is a “delicate balance between a lawyer’s right to
speak, the right of the public and the press to access to informa-
tion, and the need of the bench and bar to ensure that the
administration of justice is not prejudiced by a lawyer’s remark.”
— A-82 —
Ramsey v. Board of Professional Responsibility, 771 S.W.2d
116, 121-22 (TN 1989). Courts must ensure that lawyer disci-
pline “does not create a chilling effect on First Amendment
rights.”
2.) A lawyer is a person and he too has a constitutional
freedom of speech, Jn Re Sawyer, 360 U.S. 666 (1959), even as
a participant in the administration of justice. Jn Re Hinds, 449
A.2d 483, 489 (NJ 1982).
However, “where a lawyers unbridled speech amounts to
misconduct which threatens a significant state interest, a state
may restrict the lawyer’s exercise of personal rights guaranteed
by the Constitution.” NAACP v. Button, 371 U.S. 415, 438
(1963). Matter of Johnson, 729 P.2d 1175, 1178 (KN 1986).
“Generally, courts are in agreement that while a lawyer may,
in a proper tone and through appropriate channels, attack the
integrity or competence of a court or judge, or the propriety of
any particular judicial act, he may not, by unfounded charges
create disrespect for courts or their decisions, and if he does so,
he maybe properly disciplined. Attorneys have wide latitude in
differing with, and criticizing the opinions of the court, yet when
they resort to misrepresentation and unwarranted assaults on
the courts whose officers they are, they violate their duty and
obligation and are subject to discipline. 7 C.J.S. Attorney and
Client, Sec. 23, p. 752 (Emphasis added).
“[A] lawyer’s right of free speech does not include the right to
violate the statutes and canons proscribing unethical conduct.”
Committee on Prof. Ethics and Conduct v. Hurd, 360 N.W.2d
96, 105 (IA 1984). Generally, a layman may pursue his free
speech until he runs afoul of the defamation laws, but a lawyer
will be stopped when he infringes the Canons of Ethics. /n Re
Woodward, 300 S.W.2d 385 (Mo 1957).
—_—
A lawyer cannot “invoke the constitutional right of free
speech to immunize himself from evenhanded discipline for
proven unethical conduct”, and he must conform to professional
“standards of propriety and honor, which experience has shown
necessary in a calling dedicated to the accomplishment of
justice.” In Re Sawyer, supra at page 646-47, Steward J.
concurring, and speaking for five members of the court) “Obe-
dience to ethical precepts may require abstention from what in
other circumstances might be constitutionally protected speech”.
Id.
Thus “attorneys who go beyond the latitude afforded them in
differing with, and criticizing the opinions of, the courts and
resort to misrepresentation and unwarranted assaults on the
courts, are subject to suspension or disbarment.” 7 C.J.S.
Attorney and Client, Sec. 82 b, p. 995 (emphasis added). A
lawyer “has no right . . . to asperse and defame, without
justification, the character and motives of the judge upon the
bench.” Leimer v. Hulse, 178 S.W.2d at 340. There are some
special limitations on a lawyer’s speech since his membership in
the bar is a privilege burdened with conditions; he is an officer
of the court, and “like the court itself an instrument or agency to
advance the ends of justice.” People Ex Rel Karlin v. Culkin, 162
N.E. 487, 489 (1928).
3. The above principles may be somewhat illustrated by
listing specific circumstances where lawyer’s speech is consti-
tutionally restricted.
Many disciplinary rules are well accepted, although they
restrict a lawyer’s free speech. For example, free speech does not
allow a lawyer to reveal confidential information received from
hisclient. Disciplinary Rule 1.6. Likewise, free speech does not
allow a lawyer to represent clients with conflicting interest.
Disciplinary Rule 1.7, 1.8, and 1.9. Free speech does not allow
a lawyer to make a false statement of material fact or law to a
— A-84 —
court, Rule 3.3(a)(1); or offer evidence that the lawyer knows to
be false. Rule 3.3(a)(4). Prosecutors are not allowed to exercise
their free speech to disclose the fact or any indictment being
found by a grand jury until the arrest or recognizance of the
defendant. Section 545.090 RSMo. Free speech does not allow
a lawyer to communicate with an opposing party who is repre-
sented by another lawyer. Rule 4.2. Free speech does not allow
a lawyer to make false or misleading communications about his
services. Rule 7.1. Bates v. State Bar of Arizona, 433 U.S. 350
(1977). Free speech does not allow a lawyer to testify in a case
where he is an advocate, except in limited circumstances. Rule
3.7; 7 C.J.S. Attorney and Client, Sec. 87, p. 1006. Free speech
does not allow a lawyer to have ex parte communication to a
judge about a pending case. Re Chopak, 60 F.Supp. 265 (D.C.,
NY (1946, aff. 160 F2d 886, cert. denied 331 U.S. 835).
Rules restricting lawyers from solicitation of clients do not
violate the lawyer’s freedom of speech. Oralick v. Ohio State
Bar Assn., 436 U.S. 447 (1978), In Re Jones, 431 S.W.2d 809
(MO 1966), Jn Re Woodward, supra, 7 C.J.S., Attorney and
Client, Sec. 47, p. 908. Likewise, a lawyer’s free speech is not
violated by court rules prohibiting lawyer advertising under
certain circumstances. Zauderer v. Office of Disciplinary Coun-
cil, 471 U.S. 626 (1985). Obscene epithets directed towards a
judge in a court proceeding could be found a contempt of court.
Eaton v. City of Tulsa, 415 U.S. 697, 698 (1974).
D. APPLICATION TO THE INSTANT CASE.
1. EXTRA-JUDICIAL STATEMENTS
The Bar Committee asserts that Respondent’s attack upon
Judge Karohl’s integrity was the culmination of a series of
unethical acts in the prosecution of the Bulloch case, including
1) Respondent’s public statements criticizing the jury, 2)
Respondent’s public comments about Defendant Bulloch’s char-
acter, credibility, reputation and record, and 3) Respondent’s
inks
public expression of opinion as to Bulloch’s guilt of murder, both
before the trial, and after Bulloch was acquitted of murder and
found guilty only of involuntary manslaughter.
Under the Disciplinary Rules, a prosecutor may not make
extra-judicial statements to be publicly disseminated if he knows
or reasonably should know that it will have a substantial likeli-
hood of materially prejudicing adjudicative proceeding”. Rule
3.6(a), Rule 3.8(e). The rules further provide that such a
Statement “ordinarily is likely to have such an effect when it
refers to... a criminal matter’, and the statement relates to “the
character, credibility, reputation or criminal record of a party”,
Rule 3.6(b)(1); or to “any opinion as to the guilt or innocence of
a defendant or suspect.” Rule 3.6.(b)(4). Also see 7 C.J.S.,
Attorney and Client, Sec. 53 b, p. 925; Volume 2 ABA Standards
for Criminal Justice, Fair Trial and Free Press, Second Ed., Sec.
8-1.1, (1978), (which is essentially equivalent to Disciplinary
Rule 3.6.); Prosecutorial Misconduct, supra, Sec. 6.2(f).
The tendency of a minority of prosecutors and defense council
to indulge in “trial by press” is a disservice to the fair adminis-
tration of justice. ABA Standards, The Defense Function, Sec.
4-1.4.16. The expression of a Prosecutor’s personal opinion as
to the guilt of a defendant “is condemned because it unfairly
exploits the tremendous power anc prestige of the prosecutor’s
office.” Prosecutorial Misconduct, supra, Sec. 10.5.
The ABA Standards further provide that “a prosecutor should
not make public comments critical of a verdict, whether rendered
by a judge or jury” since such remarks may improperly influence
the jurors in
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