Opposition Brief — Wilkins v. Disciplinary Commission of the Supreme Court of Indiana

No. 02-1616

In The

Supreme Court of the Gnited States

S

MICHAEL A. WILKINS,

Petitioner,

Vv.

DISCIPLINARY COMMISSION OF

THE SUPREME COURT OF INDIANA,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Indiana

+

BRIEF IN OPPOSITION

,

—

DONALD R. LUNDBERG

Counsel of Record

CHARLES M. KIDD

. INDIANA SUPREME COURT

DISCIPLINARY COMMISSION

115 West Washington Street

Suite 1165

Indianapolis, Indiana 46204

(317) 282-1807

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

Lo. rp

QUESTION PRESENTED

Whether, consistent with the First Amendment, a

lawyer may be publicly reprimanded for impugning the

integrity of a court in a brief without having a factual

basis for doing so.

ii

TABLE OF CONTENTS -

Page

QU Cree FT Eis vinncncincnasiinnsictenaccssmecsnsnnen i

le OF BF ED cnc ccevitviinvcscinesacserniinsinniion iii

STATEMENT OF THE CASE.................cssseseeceessserees 1

REASONS FOR DENYING THE PETITION............. 5

I. The First Amendment claim was not fully and

CHO SEINE IU isevcssiccniccnticeiestccewsnsenantincencdionss 6

II. There is no conflict between this case and

similar cases decided by federal courts of ap-

peals and other state courts of last resort........._ 10

III. The Indiana Supreme Court did not reject

Wilkins’ claim that there is a cognizable dis-

tinction under the First Amendment between

statements of fact and statements not provably

true or false. It merely disagreed that footnote

2 was not a statement of fact ..............ccseseseeees 14

IV. Because of the state’s compelling interest in

fostering respect for the courts, in-court lawyer

speech is not entitled to the same protection as

public speech by citizens about persons and is-

GOED GE PUES BIOS a ceccnccnsenesesnscesverentiosernvinetenis 16

CO CUR A IEY ne enessensenstnsnsonsneninianiiennninithiieanbenonintiint 20

iii

TABLE OF AUTHORITIES

Page

CASES

Committee on Legal Ethics of West Virginia State

Bar v. Douglas, 370 S.E.2d 325 (W. Va. 1988)......... 11, 12

Craig v. Harney, 331 U.S. 367 (1947).............sssscssscsseeeesees 17

Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001), cert.

denied, 535 U.S. 930 (2002) ........ccrerccosssssssssescosess 6, 12, 18

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)........... 7,42

Harte-Hanks Communications, Inc. v. Connaugh-

Se Eee EEE © I ctacireacesnerecovnsonnsessecsaniabtinsbouroneneine ‘4

Idaho State Bar v. Topp, 925 P.2d 1113 (Idaho

1996), cert. denied, 520 U.S. 1155 (1997)..............0006 6, 11

In re Frerichs, 238 N.W.2d_764 (Iowa 1976)..............s000000 13

In re Graham, 453 N.W.2d 313 (Minn. 1990), cert.

denied, 498 U.S. 820 (1990) ..............scceseeeeresseeeees 6, 11, 12

In re Green, 11 P.3d 1078 (Colo. 2000)..............ccesseeeerrreeees 13

In re Holtzman, 78 N.Y.2d 184, 577 N.E.2d 30, 573

N.Y.S.2d 39, cert. denied, 502 U.S. 1009 (1991)........ 6, 11

In re Palmisano, 70 F.3d 483 (7th Cir. 1995) ........ 11, 14, 18

In re Sawyer, 360 U.S. 622 (1959) ...............ccccsessrecscessesees 13

Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165

(Ky. 1980), cert. denied, 449 U.S. 1101 (1981)........... 6, 11

Kentucky Bar Ass’n v. Waller, 929 S.W.2d 181 (Ky.

1996), cert. denied, 519 U.S. 1111 (1997)..............000¢ 6, 13

Louisiana State Bar Ass’n v. Karst, 428 So.2d 406

cI iil islet cninenhidinnterimpeaganiiqorneomeinroneess 11

Matter of Atanga, 636 N.E.2d 1253 (Ind. 1994).............++. 8

iv

TABLE OF AUTHORITIES — Continued

Page

Matter of Cook, 49 F.3d 263 (7th Cir. 1995)........scsssssceseeeee 9

Matter of Garringer, 626 N.E.2d 809 (Ind.), cert.

Garetind,, GAD UE. Ba CT oc cscesevevevcsverssevessdiieavenseas 6, 8, 9

Matter of Hefron, 771 N.E.2d 1157 (Ind. 2002)................. 3

Matter of Westfall, 808 S.W.2d 829 (Mo.), cert. |

denied, GOS U.S. 1008 C1GOA) «....sccrvecsssssesccsccsvesesscesees 6,11

Michigan Mutual Ins. Co. v. Sports, Inc., 698

N.E.2d 834 (Ind.App. 1998), trans. denied, 706

N.E.2d 565 (Ind. 1999)....0....0sssrcsosscoosesvessens 1, 2, 12, 15, 20

Middlesex County Ethics Committee v. Garden

State Bar Ass’n, 457 U.S. 423 (1982)..........cccccccccssssseseees 6

Milkovich v. Lorain Journal Co., 497 US. 1

CO iss tishisieeassisceneshcciaieeienciadancaiinaiieitaaadiMelasstiaie 7, 14, 15, 16

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

RON ssihssck ssccecenscedialesncastuniaeteaerictet leedl deboeliaustdadaabeliibaainiariiaaes 16

_ New York Times v. Sullivan, 376 U.S. 254 (1964) .....passim

Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151 (Ind.

RUE Fi ceiisishsislaiisastchiailessdnmedibasiaasciniandpaahcahiaiabidsn iin wndiaabetnannats 19

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.

FO I iiiccsstensinicistinnivecntensesnntslnntinnnnnctinaplonctiienon 7

St. Amant v. Thompson, 390 U.S. 729 (1968)............:ccee 7

Standing Committee on Discipline v. Yagman, 55

FD TSO CO Ce Bi isieietethikcncsianisnssatesncensesvacevn 11, 14

State Bar of Texas v. Semaan, 508 S.W.2d 429 (Tex.

BOF iicisiibiebinnae sels saint sihcaSialbeeccanlaans Riccnaaaaibadbiales 11

State ex rel. Oklahoma Bar Association v. Porter,

766 P.2d 958 (Okla. ST hiniisisaieividavencicnisiiitcaiabiaabuiiidipbeilis 11

Vv

TABLE OF AUTHORITIES — Continued

Page

United States District Court for Eastern Dist. of

Washington v. Sandlin, 12 F.3d 861 (9th Cir.

SOD vi wissviiinievniins sinigsieseitanie detiistan peices ianniauiiudmediciiadaiens 14

Zauderer v. Office of Disciplinary Counsel, 471 U.S.

Ee ee ovsssiseivicssnipinnsehtessakdoremnaieadtesinibeciuaalaaaonaeias 11

RULES

ABA Model Rule of Professional Conduct 4.2 ................... 17

ABA Model Rule of Professional Conduct 8.2(a)................ 2

FOG: Be SEE. BF cctsvomntinadiaaanaae 12

Tis Ee BI hrtarcknsccncacintenihiisnieiaaadaaad 12

BG: TIE: BI Wis. i ieeeintccencidvidsrsvaiiinacienntaiiianied 17

Eau. BD. SANN. TE. BIRO GD sens ssssiisservesncvecsasmecssnsvnsonsadoiais 7

End. Adeaie. Time: Fe. TOCIG II) ies cvvvcsnscsssvrecssccesessssveessserassbes 7

a, Fs. Ny Bile its etvncensitcincnanetbasinincisieannninonianictialil 17

San, Piel, Cee, TE BD ssesisiiccsnccccintocestesvrcinne 2, 3, 4, 20

SIE, Ths BAD e Be Sica ciccisicovecsssnnsavonyernesninsnennvinpernasannentansaants 2,12

ee Be; I. ID svi seessiasavtincbcnnioncivamricrinbawetisis 4

SE. RF Se tecteticentininsescnnsscinnsnoeoiesenininsiin 4

SN. SIRs: ils: Ba I wise ct ished bdeissicdn ritensrnscctateitasdiaetbinendbiannt 9

1

STATEMENT OF THE CASE

Indiana attorney Michael Wilkins was publicly repri-

manded by the Indiana Supreme Court in a lawyer disci-

pline case for making groundless statements accusing

judges of the Indiana Court of Appeals of deciding a case to

achieve a desired outcome in conscious disregard of the

facts and law. Wilkins’ accusatory statements were con-

tained in a brief to the Indiana Supreme Court. Advocacy

speech by lawyers appearing on behalf of clients is con-

strained in many ways. Given the important state inter-

ests involved in fostering broad public respect for the

judiciary, it does not violate the First Amendment for the

states to insist that controls on in-court advocacy speech

include a prohibition against impugning judicial integrity

with no basis in fact.

Wilkins was reprimanded for making the following

accusation against the court of appeals in a brief support-

ing a petition seeking supreme court review of that court’s

decision in Michigan Mutual Ins. Co. v. Sports, Inc., 698

N.E.2d 834 (Ind.App. 1998), trans. denied, 706 N.E.2d 555

(Ind. 1999):

Indeed, the Opinion is so factually and legally

inaccurate that one is left to wonder whether the

Court of Appeals was determined to find for Ap-

pellee Sports, Inc., and then said whatever was

necessary to reach -that-conclusion (regardless of

whether the facts or the law supported its deci-

sion).

Pet. App. at 3a. As a result of the offending footnote, the

supreme court struck the brief as “[a] scurrilous and

intemperate attack on the integrity of the Court of Ap-

peals,” 706 N.E.2d at 555, but nevertheless reviewed the

petition for transfer on its merits and denied the same. Id.

2

The only authoritative basis for the supreme court’s action

in striking the brief could have been Ind. R. App. P. 42.’

Contrary to Wilkins’ assertion, Pet. at 3 n. 3, it did not

exercise its contempt jurisdiction when it struck the brief.’

Thereafter, the Indiana Supreme Court Disciplinary

Commission filed a professional discipline complaint

against Wilkins, alleging that the statements in the

Michigan Mutual brief violated Indiana Rule of Profes-

sional Conduct 8.2(a).* Wilkins did not file an answer or

raise any affirmative defenses in a responsive pleading in

the discipline case. He formally raised his constitutional

defense for the first time in his trial brief, filed just more

than a week before trial and after final witness and

exhibit lists had been submitted. Respondent Michael

Wilkins’ Trial Brief, pp. 19-22. In discussing the First

Amendment argument in his trial brief, Wilkiis did not

assert that that the burden of proving falsity of the state-

ments in the Michigan Mutual brief fell on the Discipli-

nary Commission or that the Disciplinary Commission’s

* Ind. R. App. P. 42 states: “Upon motion made by a party within

the time to respond to a document, or if there is no response permitted,

within thirty (30) days after the service of the document upon it, or at

any time upon-the court’s own motion, the court may order stricken

from any document any redundant, immaterial, impertinent, scandal-

ous or other inappropriate matter.”

* Thus, Wilkins is incorrect when he states, Pet. at 5, that the

S 1preme court’s reprimand was a second punishment.

* Ind. Prof. Cond. R. 8.2(a) states: “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.” ABA Model Rule of

Professional Conduct 8.2(a) is identical.

3

charge of reckless disregard had to be proved by a subjec-

tive, rather than an objective standard. Instead, his First

Amendment claim focused on the contention that footnote

2 was protected speech because it was a statement of pure

opinion, not a statement of fact that was provably true or

false.

After the hearing officer issued his findings of fact and

conclusions of law, Wilkins petitioned the Indiana Su-

preme Court to review the case. When a party petitions for

review, the Indiana Supreme Court conducts a de novo

review, albeit one limited to the factual record developed

in front of the hearing officer. Matter of Hefron, 771 N.E.2d

1157, 1159 (Ind. 2002). In his petition for review and

supporting brief, Wilkins, again, did not argue that the

First Amendment required the Disciplinary Commission to

shoulder the burden of proving the falsity of the state-

ments in footnote 2 or that the reckless disregard standard

had to be a subjective one. Instead, he concentrated his

First Amendment challenge on the claim that the state-

ments in footnote 2 were “not capable of being true or

untrue as a matter of fact.” Brief in Support of Petition for

Review of the Hearing Officer’s Findings of Fact, Conclu-

sions of Law, and Recommendation, p.13.

In its decision, the Indiana Supreme Court found that

Wilkins’ footnote 2 violated Ind. Prof. Cond. R. 8.2(a). The

court found that other “heavy-handed” statements in the

brief did not violate Prof. Cond. R. 8.2(a) because they

roughly paraphrased legitimate grounds for seeking

review of lower court decisions. These statements charged

that the lower court decision “erroneously and materially

misstates the record by making affirmative misstatements

regarding the evidence” and that the decision “is quite

disturbing” because it is “replete with misstatements of

4

material facts, it misapplies controlling case law, and it

does not even bother to discuss relevant cases that are

directly on point.” Pet. App. at 6a-7a.

The statements in the footnote, however, violated

Prof. Cond. R. 8.2(a) “because they were made with reck-

less disregard as to the truth or falsity concerning the

integrity” of the lower court judges. Pet. App. at 7a. In

rejecting Wilkins’ claim that his statements were protected

by the First Amendment, the court relied on Rule 8.2’s

concern “with preserving the public’s confidence in the

administration of justice.” Pet. App. at 8a. Wilkins cited no

evidence in the appellate record to support the footnote 2

accusation, and there was none. If Wilkins had evidence of

improper judicial conduct outside the record, it could have

been presented to the Judicial Qualifications Commission,

Indiana’s body charged with enforcement of the Code of

Judicial Conduct. Pet. App. at 9a.

The court also held that the statements were unpro-

tected because they were made in an appellate brief

governed by Indiana’s appellate rules. The rules require

that briefs be “supported by cogent reasoning, citations to

authorities, statutes or the record.” Pet. App. at 9a, quot-

ing, Ind. R. App. P. 46(A)(8)(a). Whether a lawyer’s state-

ment in an appellate brief makes an accusation that

impugns judicial integrity or addresses some other topic, if

it is factually unsupported in the record, it is not allowed

vy andiana’s appellate rules. Ind. R. App. P. 46(A)(6)(a).

In a reciprocal disciplinary proceeding in the local

federal district court, the court declined to additionally

reprimand Wilkins because discipline in addition to that

assessed by the Indiana Supreme Court was “not neces-

sary.” Pet. App. at 35a. Wilkins’ implication, Pet. at 9, that

5

the federal court declined to assess a further sanction

based on the First Amendment arguments Wilkins pre-

sented to that court is wrong.

4

v

REASONS FOR DENYING THE PETITION

The questions presented by the petition share in

common the single question whether the constitutional

standard for protecting speech in the defamation context

established by this Court in New York Times v. Sullivan,

376 U.S. 254 (1964) and its progeny applies with full and

equal force to a professional disciplinary proceeding

resulting in the reprimand of a lawyer who makes ground-

less statements impugning judicial integrity during a

court proceeding. "

The Indiana Supreme Court, consistent with prior

Indiana authority, has expressed solicitude for legitimate

lawyer advocacy, but has not fully embraced New York

Times as the correct expression of the limits to state

regulation of in-court lawyer speech. The clear consensus

of state high courts and federal courts of appeals is that a

different standard is warranted because of the unique role

of lawyers acting as officers of the court and the state’s

compelling interest in fostering public confidence in the

fundamental integrity of judicial processes. The decision of

the Indiana Supreme Court in this case is consistent with

those other cases. None of the lower court authorities cited

by Wilkins fully accepts New York Times and the cases

interpreting it as the First Amendment standard for

regulating in-court lawyer speech. There is no split of

authority meriting the Court’s review.

6

This Court has given deference to the traditional state

supreme court function of determining who is fit to prac-

tice law and what lawyer conduct is worthy of regulation.

Middlesex County Ethics Committee v. Garden State Bar

Ass’n, 457 U.S. 423, 434 (1982). Its treatment of claims by

lawyers held professionally accountable for impugning

judicial integrity is no exception. See, Florida Bar v. Ray,

797 So.2d 556 (Fla. 2001), cert. denied, 535 U.S. 930

(2002); Idaho State Bar v. Topp, 925 P.2d 1113 (Idaho

1996), cert. denied, 520 U.S. 1155 (1997); Kentucky Bar

Ass’n v. Waller, 929 S.W.2d 181 (Ky. 1996), cert. denied,

519 U.S. 1111 (1997); Matter of Garringer, 626 N.E.2d 809,

813 (Ind.), cert. denied, 513 U.S. 826 (1994); In re Holtz-

man, 78 N.Y.2d 184, 577 N.E.2d 30, 573 N.Y.S.2d 39, cert.

denied, 502 U.S. 1009 (1991); Matter of Westfall, 808

S.W.2d 829 (Mo.), cert. denied, 502 U.S. 1009 (1991); In re

Graham, 453 N.W.2d 313 (Minn. 1990), cert. denied, 498

U.S. 820 (1990); and Kentucky Bar Ass’n v. Heleringer, 602

S.W.2d 165 (Ky. 1980), cert. denied, 449 U.S. 1101 (1981).

——— ee

I. The First Amendment claim was not fully and

timely raised below.

Wilkins argues that the First Amendment standard to

be applied to in-court statements by lawyers who impugn

judicial integrity is the standard set forth in New York

Times v. Sullivan and its progeny. In New York Times, this

Court held that the constitutional standard for recovery of

defamation damages by a public official is that the party

seeking damages must prove “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.” 376 U.S. at 279-280. Later cases clarified that the

New York Times standard, as applicable to statements

et i

7

made about public officials, public figures and nonpublic

persons who are involved with important public questions,

is comprised of three elements. First, proof of actual

malice demands a showing by the damage claimant that

the speaker had either actual knowledge of falsity or was

subjectively reckless regarding the veracity of the state-

ment in question. Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657, 688 (1989); St. Amant uv.

Thompson, 390 U.S. 729, 731 (1968). Second, in reckless

disregard cases, the damages claimant must still carry the

affirmative burden of proving that the statement in

question was actually false. Philadelphia Newspapers, Inc.

v. Hepps, 475 U.S. 767, 775-76 (1986). Third, allegedly

defamatory speech may not be punished if it makes

assertions that cannot be reasonably interpreted as

stating facts or are not susceptible of being proved true or

false. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20

(1990).*

Ind. Admis. Disc. R. 23(14)(a), as it was in effect at the

time the disciplinary charge was filed, stated in relevant

part: “The case shall be heard on the complaint and an

answer which may be filed by the respondent within thirty

(30) days after notice of the filing of the complaint. An

answer, if filed, may assert any legal defense.” Wilkins

opted to not answer the complaint and, accordingly, did

not raise the First Amendment defense in a responsive

* The standard of proof to be borne by the damages claimant is

“clear and convincing evidence.” Gertz v. Robert Welch, Inc., 418 U.S.

323, 342 (1974). That is not an issue here, because in Indiana lawyer

discipline actions the burden of proof is on the Disciplinary Commission

to prove its claims by clear and convincing evidence. Ind. Admis. Disc.

R. 23(14)(h).

pleading. Rather, he formally raised a First Amendment

defense for the first time in his trial brief, filed just more

than a week before trial and after final witness and

exhibit lists had been filed. Respondent Michael Wilkins’

Trial Brief, pp. 19-22. Even then, Wilkins did not assert

that the First Amendment demanded that the Disciplinary

Commission bear the burden of proving falsity. Nor did

’ Wilkins make a First Amendment claim that in a reckless

disregard case the standard must be subjective, rather

than objective. Instead, he confined his First Amendment

claim to the contention that statements of opinion that are

not susceptible of being proved true or false enjoy constitu-

tional protection. Even in his petition to the Indiana

Supreme Court for review of the hearing officer’s findings

of fact and conclusions of law, Wilkins restricted his First

Amendment argument to the claim that footnote 2 was

protected speech because it was not provably true or false.

Part of Wilkins’ argument ‘ncludes the claim that the

Disciplinary Commission had the burden of proving the

actual falsity of the factual assertions in footnote 2. Pet. at

6. The state of Indiana law at the time of the hearing on

the merits in Wilkins was that in a reckless disregard case

the lawyer may not attempt to prove for the first time

during his discipline case that the earlier statement was

unwittingly true; hence, when a statement was recklessly

made, an after-the-fact attempt to decipher the truth of

the offending statement is unavailing. Matter of Atanga,

636 N.E.2d 1253, 1258 (Ind. 1994); Garringer, 626 N.E.2d

at 813. In sum, the Indiana position is that a lawyer who

makes a statement impugning judicial integrity after

making a reasonable investigation will not be held profes-

sionally accountable, even if the statement should turn out

,

aes Se re re

9

to be untrue. Conversely, if a lawyer groundlessly makes

such a statement, the lawyer will be held professionally

accountable even if, by dumb luck, the statement should

turn out to be true. The inquiry, under the Indiana

scheme, is on the quality of the lawyer’s inquiry at or

before the time he makes the statement. In light of the

established Indiana law on this question, by failing to

timely raise his burden of proof claim in a responsive

pleading or otherwise in advance of the hearing on the

merits, Wilkins deprived the Disciplinary Commission of

fair notice of the extent of his constitutional arguments so

that the Disciplinary Commission could have undertaken

t» prove the falsity of the factual assertions-contained in

footnote 2. By failing to raise his First Amendment burden

of proof claim at all in the state court, Wilkins did not

timely raise that aspect of his constitutional question, and

so it is not properly before the Court for review. Sup. Ct. R.

14.1(g\(i). Likewise, because he failed to timely raise his

First Amendment claim that reckless disregard is to be

measured subjectively, not objectively, that question, too,

is not properly before the Court. Id.

The practical effect of placing the burden of proving

falsity on the lawyer disciplinary agency in reckless

disregard cases will be to require those agencies, even

when the attack on judicial integrity was groundless, to

hail respected judges into court to be examined and cross-

examined about, for example, their internal thought

processes, as in this case, or to disprove that they con-

sciously concealed federal crimes. See, e.g., Garringer, 626

N.E.2d at 811. Indeed, at least in the case of federal

judges, this might be impossible. See, e.g., Matter of Cook,

49 F.3d 263, 265 (7th Cir. 1995) (“[TJhe [Illinois Attorney

10

Registration and Disciplinary Commission] issued a

subpoena requiring [federal district court] Judge Rovner to

appear and submit to cross-examination about the pro-

ceedings in her court and the rationale for her findings.

Not surprisingly, she declined, observing that federal

judges speak through their opinions, and that their mental

processes are not subject to examination.”)

II. There is no conflict between this case and

similar cases decided by federal courts of ap-

peals and other state courts of last resort.

In declining to fully extend New York Times and its

progeny to in-court lawyer speech that impugns judicial

integrity, the Indiana Supreme Court acted consistently

with cases decided by the other state high courts and

federal courts of appeals. Unquestionably, lawyer speech

in this context enjoys First Amendment protection, but the

lower courts universally share the view that it should not

be identical to the standard that applies to ordinary

citizen speech in public about persons or matters of public

concern. The cases relied upon by Wilkins do not support

his claim that there is a split in lower court authority.

The organizing principle underlying the numerous

lower court decisions in this area is that a different stan-

dard of protection is warranted in in-court speech cases

because of thé special role played by lawyers in the ad-

ministration of justice. The lower courts have consistently

recognized the need to strike an appropriate balance

between the free speech rights of lawyers and the respon-

sibility of legal advocates to eschew unfounded and reck-

less attacks on the integrity of the judicial system.

11

: Most of the cases relied upon by Wilkins in support of

his claim of a conflict in lower court authority are factually

distinct from this case because they deal with lawyer

speech to news media or in some other out-of-court setting.

See, Topp, 925 P.2d at 1116 (interview with local news

media); Standing Committee on Discipline v. Yagman, 55

F.3d 1430, 1437-38 (9th Cir. 1995) (statements to and

advertisement in local newspaper and statement to pub-

lisher of judicial almanac); Westfall, 808 S.W.2d at 837

(interview with local television station); Holtzman, 78

N.Y.2d at 189, 577 N.E.2d at 32, 573 N.Y.S.2d at 41 (re-

lease to news media of letter “o chair of public policy

taskforce); State ex rel. Oklahoma Bar Association uv.

Porter, 766 P.2d 958 (Okla. 1988) (statements to local news

media); Committee on Legal Ethics of West Virginia State

Bar v. Douglas, 370 S.E.2d 325 (W. Va. 1988) (statements

to local newspaper); Louisiana State Bar Ass’n v. Karst,

428 So.2d 406, 409 (La. 1983) (letter to and advertisement

in local newspapers); Kentucky Bar Ass’n v. Heleringer,

602 S.W.2d at 168 (press conference to local media); State

Bar of Texas v. Semaan, 508 S.W.2d 429, 431 (Tex. 1974)

(letters to the editor of local newspaper). In re Palmisano,

70 F.3d 483, 485 (7th Cir. 1995) was a hybrid case, where

the lawyer made statements impugning judicial integrity

in motions to courts and in correspondence with adminis-

trative officials and prosecutors; as was Graham, 453

~N.W.2d-at 315, where the lawyer impugned judicial integ-

rity in court filings and in correspondence to a United

States Attorney and a federal appeals court judge. In fact,

Semaan specifically noted that its willingness to use New

York Times as the standard was limited to “utterances

made outside the course of judicial proceedings.” 508

S.W.2d at 432-33. Douglas, relying on Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626 (1985), also explicitly

12

differentiated out-of-court lawyer speech from in-court

statements. 370 S.E.2d at 332.

The balance of competing state interests is very

different when lawyers speak out-of-court as citizens

versus when they formally act as officers of the court by

addressing tribunals on behalf of their clients. Indeed, the

very foundation of Fed. R. Civ. P. 11 and its state ana-

logues rests on the notion that courts have considerable

leeway to regulate the conduct of counsel appearing before

them. Rule 11-type standards demand no less of counsel

than Prof. Cond. R. 8.2(a) — “an inquiry reasonable under

the circumstances.” Fed. R. Civ. P. 11(b). The logic of

Wilkins’ First Amendment position is that courts are so

restricted in their ability to regulate in-court lawyer

speech that it was a violation of his or his client’s constitu-

tional rights for the Indiana Supreme Court to even strike

his Michigan Mutual brief pursuant to Ind. R. App. P. 42.

The cases cited by Wilkins that deal with in-court

statements uniformly apply a different standard than New

York Times because of the state’s compelling interest in

shielding the judicial system from unfounded attacks on

its integrity by advocates. In Ray, 797 So.2d at 559 (apply-

ing an objective standard to the reckless disregard branch

of the actual malice standard), the Florida Supreme Court

rejected a full-fledged application of the New York Times

standard to in-court lawyer speech because of the compel-

ling interest states have in “preserviing] public confidence

in the fairness and impartiality of our system of justice.”

Id. at 558-59. See also, Graham, 453 N.W.2d at 321-22 -

(applying an objective standard to the reckless disregard

branch of the actual malice standard). Without explicitly

i

RRO ERT

13

discussing the applicability of the New York Times stan-

dard, the Kentucky Supreme Court has similarly given

important weight to the state’s interest in protecting

public confidence in the integrity of the judicial system by

regulating groundless, in-court lawyer speech. Waller, 929

S.W.2d at 183 (referring to judge in a pleading as a “lying

incompetent ass-hole”). Without specifically discussing the

New York Times standard, in In re Frerichs, 238 N.W.2d

764, 767 (Iowa 1976), the Iowa Supreme Court, relying on

language from Justice Stewart’s concurring opinion in In

re Sawyer, 360 U.S. 622, 646-47 (1959), stated that law-

yers, because of their professional role, are properly held

to a different standard when making in-court attacks on

the integrity of the judicial system than are members of

the general public, and rejected subjective intent as the

proper measure of the lawyer’s conduct. Jd. at 770.

Wilkins points to Jn re Green, 11 P.3d 1078 (Colo.

2000) as a case that supports the view that the New York

Times standard fully applies to in-court lawyer speech.

Pet. at 16. This mischaracterizes the case. The Green court

looked to the New York Times standard only by analogy

and to support its finding that the lawyer’s statements

were pure opinion and not statements of fact amenable to

being proved true or false. The Green court explicitly

avoided reaching the question whether the reckless

disregard standard ought to be objective or subjective. Jd.

at 1086. The court acknowledged, however, the numerous

authorities holding that the reckless disregard test for

lawyers should be governed by an objective standard. Jd.

at 1086 n. 7.

It is not just state high courts that have recognized

the importance of incorporating into the First Amendment

calculus consideration of the special role of lawyers and

14

the state interest in preserving the public’s respect for

judicia! institutions. In United States District Court for

Eastern Dist. of Washington v. Sandlin, 12 F.3d 861, 867

(9th Cir. 1993), the court of appeals held that the First

Amendment reckless disregard standard is an objective

one when applied to in-court speech. See also, Yagyman, 55

F.3d at 1437-38. The court of appeals in Palmisano also

held that the New York Times standard is not fully appli-

cable to in-court lawyer speech to the same extent as it

applies to discourse about public issues and personages.

“(T]he Constitution does not give attorneys the same

freedom as participants in political debate.” 70 F.3d at 487.

Contrary to Wilkins’ claim, there is not a split of es

authority on the question whether in-court lawyer speech

that impugns judicial integrity enjoys First Amendment

protection under the unalloyed standard developed by this_

Court in New York Times and its progeny. Most of the

cases he relies upon to illustrate a split of authority arise

in the very different factual context of out-of-court lawyer

speech to the news media or in other unrestricted public

forums. The balance of the cases he relies upon uniformly

recognize that a different First Amendment standard f

applies when lawyers make groundless, in-court state-

ments that impugn judicial integrity.

Ill. The Indiana Supreme Court did not reject

Wilkins’ claim that there is a cognizable dis-

tinction under the First Amendment between

statements of fact and statements not provably

true or false. It merely disagreed that footnote

2 was not a statement of fact.

In Milkovich, this Court rejected the artificial distinc-

tion between statements of fact and statements of opinion

15

as a helpful demarcation between constitutionally re-

strainable versus unrestrainable speech. Rather, because

statements of fact can be readily cloaked in statements of

opinion, the focus must be on the susceptibility of a state-

ment to be proved true or false or whether it is a state-

ment, even by implication, of fact at all. 497 U.S. at 19-20.

Contrary to Justice Sullivan’s dissent in Wilkins, Pet. App.

at 12a, Wilkins’ statement in footnote 2 was not mere

rhetorical hyperbole incapable of being proved true or

false. Rather, it was a statement of fact, thinly veiled by

the pseudo-speculative, introductory language: “one is left

to wonder whether.... ” This transparent veneer of

speculation gives footnote 2 as little constitutional cover as

does the statement, “In my opinion, John Jones is a liar.”

Id. at 19.

Wilkins’ statement of fact was that the court of ap-

peals judges in Michigan Mutual were “determined to find

for Appellee Sports. Inc., and then said whatever was

necessary to reach that conclusion (regardless of whether

the facts or the law supported its decision.)” Footnote 2

was no less a statement of fact merely because it alleged

facts that were internal to the thought processes of the

judges. Nor was it a statement that was inherently un-

provable as true or false, such as would be, for example, a

statement that the court of appeals’ opinion imposes

unjustifiable risks on casualty insurers. Were statements

about state of mind inherently unprovable, it would be

futile in our judicial system to attempt proof of criminal

scienter; yet it happens every day. Indeed, in Milkovich,

this Court held that an accusation of perjury, which

contains an element of criminal scienter, is “susceptible of

being proved true or false.” Jd. at 21. .

Neither in Wilkins nor elsewhere has the Indiana

Supreme Court rejected Wilkins’ claim that Milkovich

16

protects statements that are not factual in nature or are

not provably true or false. It implicitly disagreed with the

premise of Wilkins’ argument that footnote 2 should enjoy

the First Amendment protection afforded by Milkovich as

a statement not susceptible of being proven true or false.

“The language of footnote 2 does not merely argue that the

Court of Appeals decision is factually or legally inaccurate.

Such would be permissible appellate advocacy. The foot-

note goes further and ascribes bias and favoritism to the

judges authoring and concurring in the majority opinion of

the Court of Appeals, and it implies that these judges

manufactured a false rationale in an attempt to justify

their pre-conceived desired outcome.” Wilkins, Pet. App. at

30a. Thus, “the necessary effect of the judgment” of the

Indiana Supreme Court was not to deny Wilkins’ claim

under Milkovich. New York ex rel. Bryant v. Zimmerman,

278 U.S. 63, 67 (1928). Whether the Indiana Supreme

Court was right or wrong to treat footnote 2 as a state-

ment of fact does not raise a substantial federal question

that makes this case appropriate for Supreme Court

review. Unless all lower court decisions determining that a

statement is one of fact that is verifiably true ov false are

sufficiently important to merit Supreme Court review,

there is nothing in the Indiana Supreme Court’s decision

that justifies granting certiorari.

IV. Because of the state’s compelling interest in

fostering respect for the courts, in-court law-

yer speech is not entitled to the same protec-

tion as public speech by citizens about

persons and issues of public import.

This Court has never held that the constitutional

standard articulated in New York Times and its progeny is

the constitutional measure of all speech by all citizens in

17

every context. Instead, the precise constitutional balance

must be struck by taking into account other legitimate and

compelling state interests that compete with the impor-

tant state interest in encouraging public debate on

matters of public concern. Gertz v. Robert Welch, Inc., 418

U.S. 323, 348 (1974).

Lawyers, as legal representatives, are not like other

citizens. They are granted a monopoly over the right to act

as attorneys at law on behalf of their principals in court

proceedings. Lawyers are required to acknowledge from

the outset the special responsibilities that accompany

their unique status. In Indiana’s oath of attorneys, similar

to the oath taken by lawyers in many states, new lawyers

commit to “maintain the respect due to courts of justice

and judicial officers.... ” Ind. Admis. Disc. R. 22.° Law-

yers, as members of a regulated profession, are different in

many ways from ordinary citizens. To cite just one exam-

ple, parties to litigation may communicate directly with

each other, notwithstanding the fact that they are repre-

- sented, but a lawyer may not speak to a represented party

without the consent of opposing counsel. Ind. Prof. Cond.

R. 4.2.°

Especially in civil litigation, the court system exists to

resolve disputes between private litigants that cannot be

* While it is true that judges should be able to thrive in a “hardy

climate,” New York Times, 376 U.S. at 273 (quoting Craig v. Harney,

331 U.S. 367, 376 (1947)), they should not have to thrive in an unfair

one. Because judges are human, the quality of justice may suffer when

they are bombarded with unfounded ad hominem attacks.

* ABA Model Rule of Professional Conduct 4.2 is substantially the

same.

RE SNe SRE OF RE mea

18

.. peaceably resolved in some other setting. The courts are a

heavily subsidized and overburdened public resource

dedicated to resolving private disputes. So statements to |

courts by lawyers are not the same as statements made to |

the world on the sidewalk in front of the courthouse or in

an advertisement in a newspaper. The rough and tumble

of political debate on issues of public import is not a model

that accurately reflects the controlled and deliberative

process by which judicial decisions are and should be

made. By availing themselves of the resources of the court

system for the benefit of their clients, lawyers knowingly

accept myriad limits on their speech imposed by proce-

dural rules governing trials and appeals.

In addition to the state’s interest in regulating the

way in which evidence and arguments are presented to

courts, the state also has a compelling interest in protect-

ing the court system from being held up to groundless

criticism because of its interest in preserving “public

confidence in the fairness and impartiality of the system of

justice.” Florida Bar v. Ray, 797 So.2d at 558-59. Indeed,

because of their intimate knowledge of the workings of the

system of justice, lawyer commentary about courts and

judges will be given greater weight by the public than

statements by outsiders.

The court system plays a central role in the function-

ing of civil society. It exists, in no small part, to provide a

"It is true that it also protects public confidence in judicial

institutions when judicial corruption is exposed and punished. But that

laudatory goal is not furthered by reckless allegations that judges have

abandoned their ethical duties and decided cases without regard to the

facts and the law. See, Palmisano, 70 F.3d at 487.

iis iibieeiiie

19

means for the peaceful resolution of disputes. In order for

courts to effectively discharge their responsibility, they

must enjoy the respect of the litigants who come before

them, for if judicial pronouncements are widely held to be

corrupt, we are little better off than if we had no court

system at all. Of necessity, courts must heavily rely upon

the inherent force of their pronouncements and the will-

ingness of litigants to voluntarily comply. That is why

unfounded speech that has the effect of eroding the integ-

rity of the courts in the eyes of the public is so insidious.

Lawyers, as officers of the courts and integral actors in the

business of the courts, can readily plant the seeds of public

cynicism about the integrity of the system of justice if they

are allowed the unfettered ability to make groundless

statements that erode public confidence in the court

system. :

We do not wish to overstate our point. The govern-

ment is certainly not free to arbitrarily and capriciously

limit what lawyers may say when acting as advocates for

their clients and causes. The speech of advocates in court

proceedings has to be robust in order for our adversarial

system to flourish. The Indiana Supreme Court has

championed this view:

[W]e cannot fail to recognize that the imposition

of punitive sanctions does have significant nega-

tive consequences. ... It will have a chilling ef-

fect upon the exercise of the right to appeal. It

will discourage innovation and inhibit the oppor-

tunity for periodic reevaluation of controlling

precedent. ... [W]e must invite, not inhibit, the

presentation of new and creative argument. ...”

Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152-53 (Ind.

1987), quoted in Wilkins, Pet. App. at 29a. Indeed, the

Indiana Supreme Court held that all argument in the

20

Michigan Mutual brief with the exception of footnote 2

was, while perhaps “heavy-handed,” not a violation of Ind.

Prof. Cond. R. 8.2(a). Wilkins, Pet. App. at 7a.

The issue is whether the limits of constitutional

protection for in-court lawyer statements must be congru-

ent with the constitutional standard applicable to citizen

_ speech about persons or matters of public interest. Be-

cause of the specialized and unique role played by lawyers

in the administration of justice, the standard should not

be the same.

4

v

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

DONALD R. LUNDBERG

Counsel of Record

CHARLES M. Kipp

INDIANA SUPREME COURT

DISCIPLINARY COMMISSION

115 West Washington Street

Suite 1165

Indianapolis, Indiana 46204

(317) 232-1807

Counsel for Respondent