ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James Albert FROST.
Misc. Docket AG No. 69, Sept. Term, 2012.
Court of Appeals of Maryland.
Feb. 26, 2014.
85 A.3d 264
For the above reasons, I would reverse the circuit court‘s grant of appellees’ motion for summary judgment. As the Honorable Sally D. Adkins stated in Muskin in dissent—that this Court should “not strike down the legislature‘s enactment of Chapter 290, which is a legitimate, rational law designed to regulate the ground lease system[,]” 422 Md. at 568, 30 A.3d at 976 (Adkins, J., dissenting) (footnote omitted)—I would state the same about Chapter 286, and would hold that Chapter 286 is constitutional and does not impermissibly abrogate ground lease owners’ vested rights.
Lydia E. Lawless, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.
James Albert Frost, for Respondent.
GREENE, J.
The Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel“), acting pursuant to
Pursuant to
On May 14, 2013, Judge Harris conducted a hearing on the merits. Respondent failed to appear for or participate in the hearing. During the brief hearing, Petitioner requested that all of Petitioner‘s Requests for Admissions, which went unanswered by Respondent, be deemed admitted. Judge Harris granted the request and accepted the Requests for Admissions into evidence. Thereafter, the hearing judge issued “Findings
Respondent was admitted to the Maryland Bar on June 29, 1972. He does not maintain an office for the practice of law. On April 23, 2012, Respondent wrote an email to his ex-wife, stating, inter alia:
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With regard to Case #110082-C, you know or should know that: (1) Ann S. Harrington, a lawless judge, arranged for deputy sheriffs of the Montgomery County, MD, Sheriff‘s Office to illegally arrest me on May 13, 2008, with no probable cause to do so and there by committed the crime under State of Maryland law of making a false report to an agency of the state with police powers; ... (3) There was no basis in law or in fact for Judge Stephen P. Johnson, a weak man and corrupt judge acting under improper and political influence, to have me locked up in the county jail on a “no bond” order for 87 days and 87 nights but that‘s what was done; and (4) The crooked State‘s Attorney for Montgomery County, MD, John J. McCarthy, Esq., a protégé of Douglas F. Gansler, Esq., the corrupt Attorney General of Maryland, and a political ally of Maryland Governor O‘Malley, a pretty-boy hack politician, didn‘t let his assistant prosecutors drop the phony charge against me until August 8, 2008. With regard to Case #11041-C ... you know or should know that the Maryland State Police deceived District Court of Maryland Commissioner Kaitlyn Boyle into signing a warrant to arrest me and then deceived Circuit Court Judge Joseph A. Dugan, Jr., into signing a search and seizure warrant by and through perjury on the warrant applications signed on August 13, 2008, by Maryland State Trooper Michael Brennan, who was ordered to do that by Maryland State Police Captain Clifford T. Hughes, his supervisor, and Maryland State Police Superintendent Terence B. Sheridan, who were acting under improper and political influence exerted (through an in-
termediary) by Governor O‘Malley and his wife, Judge of the District Court of Maryland for Baltimore City Catherine Curran O‘Malley. Respondent made the April 23, 2012 statements regarding the Honorable Ann S. Harrington, specifically calling her a “lawless judge” and accusing her of “arrang[ing] for deputy sheriffs of the Montgomery County, MD Sheriff‘s Office to illegally arrest [him]” knowing the statements to be false and with reckless disregard as to their truth or falsity. Respondent has no facts to support the statements made regarding Judge Harrington.
Respondent made the April 23, 2012 statements regarding the Honorable Stephen P. Johnson, Retired Judge for the District Court of Maryland for Montgomery County, specifically calling him “a weak man and corrupt judge acting under improper and political influence ...” knowing the statements to be false and with reckless disregard as to their truth or falsity. Respondent has no facts to support the statement regarding Judge Johnson.
Respondent made the April 23, 2012 statement regarding John J. McCarthy, State‘s Attorney for Montgomery County, specifically calling Mr. McCarthy a “crooked” State‘s Attorney, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Mr. McCarthy.
Respondent made the April 23, 2012 statement regarding Douglas F. Gansler, Attorney General of Maryland, specifically calling Mr. Gansler “corrupt,” knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Mr. Gansler.
Respondent made the April 23, 2012 statement regarding Governor O‘Malley, specifically that he exerted “improper” influence over members of the Montgomery County Police Department, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Governor O‘Malley.
Respondent made the April 23, 2012 statement regarding the Honorable Catherine Curran O‘Malley, Judge [for the] District Court of Baltimore City, specifically that she exerted “improper” influence over members of the Montgomery County Police Department, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Judge Curran O‘Malley.
On or about May 2, 2012, Respondent mailed a copy of the April 23, 2012 email to George Meng, Esquire. Prior to May 2, 2012, Respondent had no relationship or communication with Mr. Meng. On or about May 2, 2012, Respondent forwarded a copy of the April 23, 2012 email to Paul Carlin, Esquire. On or about May 2, 2012, Respondent forwarded a copy of the April 23, 2012 email to Katherine Kelly Howard, Esquire.
On May 4, 2012, Mr. Meng emailed Respondent asking why the April 23, 2012 email was sent to him, directing him to
Rule 8.2 ,8.3 and8.4 of the Maryland Lawyers’ Rules of Professional Conduct and requesting a response as how the April 23, 2012 email did not violateRules 8.2 and8.4 and did not require reporting to Petitioner pursuant toRule 8.3 . On May 10, 2012, no response having been received to his May 4 email, Mr. Meng again emailed Respondent requesting a response to the questions posed on May 4, 2012. On May 18, 2012, Respondent emailed Mr. Meng stating, “You should have something from me in your mail Monday.” On May 18, 2012, Respondent mailed Mr. Meng a letter directed to Chief of Police J. Thomas Manger, Montgomery County, Maryland. The May 18, 2012 letter did not, in any way, respond to the questions posed by Mr. Meng in his emails of May 4 and May 10. Mr. Meng received the May 18, 2012 letter on May 21, 2012. On May 21, 2012, Mr. Meng emailed Respondent again requesting a response to his May 4 and May 10 emails.On May 23, 2012, no further communication having been received from Respondent, Mr. Meng filed a complaint with the Petitioner and enclosed: (1) Respondent‘s April 23, 2012
email, (2) Mr. Meng‘s May 4, 2012 email to Respondent, (3) Mr. Meng‘s May 10, 2012 email to Respondent, (4) Mr. Meng‘s May 18, 2012 email to Respondent, (5) Respondent‘s letter of May 1, 2012 to Chief of Police J. Thomas Manger, and (6) Mr. Meng‘s May 21, 2012 email to Respondent. By letter dated July 11, 2012, Bar Counsel forwarded a copy of the May 23, 2012 complaint and enclosures to Respondent and requested a response thereto be provided, in writing, no later than July 27, 2012. Respondent received Bar Counsel‘s July 11, 2012 letter and enclosures. On or about July 26, 2012, Respondent sent a letter to Bar Counsel stating: “The statements of mine concerning which objections have been presented to your office are protected from state action by the free speech clause of the First Amendment to the United States Constitution.” On or about July 27, 2012, Respondent sent a letter to Bar Counsel stating, inter alia:
How did it happen, I wonder, that ten days after my email message of April 24 long-time A.G.C. of Maryland Commissioner George Meng (to whom I had forwarded that email on the subject perjury) sends me an e-mail message (for the first time in his life) with the absurd allegation that I‘m in violation of
Rule 8 of the Rules of Professional Responsibility? No reasonably prudent individual would believe that you and he and, most likely, some other people had not conferred with one another about me and my truth-telling before on May 4th George undertook his fruitless efforts to have me assume the role of attorney respondent who offers an explanation/states some defense to a “complaint.” How did you as the Maryland Bar Counsel dare to get involved in this sort of activity, Glenn? You should be ashamed of yourself.By letter dated July 31, 2012, Bar Counsel directed Respondent‘s attention to
Rule 8.2(a) and specifically requested evidence to substantiate his April 24, 2012 statements regarding The Honorable Ann S. Harrington, The Honorable Stephen P. Johnson, State‘s Attorney John J. McCarthy, and Attorney General Douglas F. Gansler. A written response was required no later than August 13, 2012. Re-spondent received Bar Counsel‘s letter dated July 31, 2012. On or about August 4, 2012, Respondent sent a letter to Bar Counsel stating “The statements of mine concerning which objections have been presented to the Office of Maryland Bar Counsel are protected from state action by the free speech clause of the First Amendment to the United States Constitution.” On or about August 6, 2012, Respondent sent a copy of the August 4, 2012 letter to Bar Counsel with the handwritten notation: “Ms. Lawless, Your letter to me dated July 11th constitutes state action.” Respondent never provided a substantive response to Bar Counsel‘s requests for information dated July 11, 2012 and July 31, 2012. Bar Counsel‘s requests for information were lawful. On or about August 15, 2012, Respondent sent a letter to Bar Counsel demanding to know how many complaints Bar Counsel had initiated. On or about September 13, 2012, Respondent sent a copy of a letter addressed to “The Members of the Attorney Grievance Commission of Maryland” to Bar Counsel. The September 13, 2012 letter requested the commission “order Mr. Grossman to answer truthfully in writing the question posed to him in [the] August 15th letter post haste.” In addition to sending the September 13 letter to Bar Counsel, Respondent sent copies to the members of the Attorney Grievance Commission. On or about September 19, 2012, Respondent sent a copy of his August 15, 2012 letter to Bar Counsel.
Judge Harris further entered the following conclusions of law, determining that Respondent violated
Rule 8.1. Bar Admission and Disciplinary Matters
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Respondent violated
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Respondent violated
Respondent violated
Respondent violated
Respondent violated
Respondent violated
Respondent violated
Rule 8.4. Misconduct
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The [c]ourt, as discussed herein, having concluded that Respondent violated
Respondent‘s conduct, taken as a whole, violates
Although Respondent did not at any time participate in the proceedings in the Circuit Court for Anne Arundel County, on May 23, 2013, he filed with this Court a motion to vacate any findings of fact and conclusions of law made by Judge Harris, and to dismiss the action for lack of proper service of process, which we denied on May 30, 2013.6
Neither Respondent nor Petitioner filed exceptions to the findings of fact and conclusions of law of the hearing judge.7 On July 5, 2013, Petitioner filed its Recommendation for Sanction, recommending disbarment. On July 17, 2013, Respondent filed a new motion to dismiss with this Court, alleging principally that there was insufficient service of process upon him, that he had committed no violation of any Rule of Professional Responsibility, and that the statements underlying the instant action against him were protected by the Free Speech Clause of the First Amendment to the United States Constitution. He further requested that this Court “dismiss this unjustified, unjustifiable, and downright ridiculous attorney disciplinary case.” Subsequently, on July 30, 2013, Respondent filed a “Statement” requesting this Court to consider Respondent‘s July 13, 2013 “Motion to Dismiss” as
Discussion
In attorney discipline proceedings, “this Court has original and complete jurisdiction and conducts an independent review of the record.... [T]he hearing judge‘s findings of fact generally will be accepted unless they are clearly erroneous.” Attorney Grievance Comm‘n v. Cherry-Mahoi, 388 Md. 124, 152, 879 A.2d 58, 76 (2005) (citations omitted).
The hearing judge‘s proposed conclusions of law are reviewed for legal correctness. Attorney Grievance Comm‘n v. West, 378 Md. 395, 410, 836 A.2d 588, 596 (2003). “In other words, the ultimate determination as to an attorney‘s alleged misconduct is reserved for this Court.” Attorney Grievance Comm‘n v. De La Paz, 418 Md. 534, 552, 16 A.3d 181, 192 (2011) (citation omitted). Based on our review of the record, we agree with the hearing judge that Respondent violated
As noted previously, an order of default was entered against Respondent due to his failure to file an answer or participate in the disciplinary proceedings. Moreover, Respondent failed to bring his claims regarding improper service to the attention of the hearing judge. Rather, his “motions to dismiss” were filed with this Court after the disciplinary hearing had concluded, thus the hearing judge was never given an opportunity to rule on them. Where Respondent failed to participate in or appear for the disciplinary hearing despite being properly served with process, and where the circumstances surrounding Petitioner‘s attempts to personally serve Respondent indicate his awareness of the instant proceedings, Respondent‘s failure to comply with the rules for disciplinary procedures is inexcusable. See Attorney Grievance Comm‘n v. Steinberg, 395 Md. 337, 361, 910 A.2d 429, 443 (2006) (holding that where an attorney received service of process and provided no valid reason for his failure to participate in the proceedings, the attorney‘s “failure to appear at the hearing [was] inexcusable” and that the order of default was proper); Attorney Grievance Comm‘n v. Faber, 373 Md. 173, 178-79, 817 A.2d 205, 208-09 (2003) (rejecting the respondent‘s exception that he did not receive proper service and that he was denied due process, where bar counsel demonstrated repeated attempts to serve the respondent personally and on the Client Protection Fund of the Bar of Maryland). Therefore, we will not set aside the default entered against Respondent. We next address Respondent‘s First Amendment argument as it relates to the hearing judge‘s conclusion that Respondent violated
- That the Honorable Ann S. Harrington was a “lawless judge” and accusing her of “arrang[ing] for deputy sheriffs of the Montgomery County, MD Sheriff‘s Office to illegally arrest [him];”
- That the Honorable Stephen P. Johnson, Retired Judge for the District Court of Maryland for Montgomery County, was “a weak man and corrupt judge acting under improper and political influence;”
- That the Honorable Catherine Curran O‘Malley, Judge for the District Court of Maryland for Baltimore City, exerted “improper” influence over members of the Montgomery County Police Department;
- That John J. McCarthy, State‘s Attorney for Montgomery County, was a “crooked” State‘s Attorney;
- That Douglas F. Gansler, Attorney General of Maryland, was “corrupt;” and
- That Governor O‘Malley exerted “improper” influence over members of the Montgomery County Police Department.
Along with its Petition for Disciplinary or Remedial Action, Petitioner served Requests for Admissions asking Respondent to admit that at the time he made each of the above statements, he knew them to be false or made them with reckless disregard for their truth or falsity, and that he had no facts to support any of the statements. Because Respondent failed to answer the requests, they were deemed admitted and, therefore, Respondent is charged with knowledge of the falsity of each statement, or reckless disregard as to the truth or falsity of each statement. See
We agree with the hearing judge‘s conclusion that each of Respondent‘s statements relate to the integrity and/or qualifications of the named individuals, and that Respondent made the statements knowing they were false or with reckless disregard as to their truth or falsity. At the outset, we reject the hearing judge‘s conclusion that Respondent‘s statement as to Governor O‘Malley violates
Moreover, these statements are, generally, the kind of statements that
The Preamble to the Maryland Lawyers’ Rules of Professional Conduct provides that “[6] ... a lawyer should further the public‘s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” In other words, “[m]embers of the legal profession have a responsibility to refrain from engaging in conduct prejudicial to the administration of justice.” Attorney Grievance Comm‘n v. DeMaio, 379 Md. 571, 581, 842 A.2d 802, 808 (2004).
In Attorney Grievance Comm‘n v. Hermina, 379 Md. 503, 842 A.2d 762 (2004), we found a violation of
In Attorney Grievance Comm‘n v. DeMaio, we found a violation of
Although DeMaio did not contend that his statements were entitled to First Amendment protection, in that case we nevertheless discussed In re Evans, 801 F.2d 703 (4th Cir. 1986), in which the Fourth Circuit specifically rejected such a First Amendment argument. In that case, the United States District Court for the District of Maryland disbarred Evans from practicing law in that court for a violation of
In re Evans, 801 F.2d at 707 (quoting In the Matter of Greenfield, 24 A.D.2d 651, 652, 262 N.Y.S.2d 349, 350-51 (N.Y.App.Div.1965)). The Fourth Circuit also cited several other jurisdictions that have reached a similar conclusion as to the limitations of First Amendment protection for speech by lawyers that is in contravention of rules of professional conduct and prejudicial to the administration of justice. In re Evans, 801 F.2d at 707-08 (citing The People ex rel. The Chicago Bar Assn., Relator v. Metzen, 291 Ill. 55, 125 N.E. 734 (1919); Kentucky Bar Assn. v. Williams, 682 S.W.2d 784 (Ky.1984); In re Rogers, 28 N.M. 375, 212 P. 1034 (1923); In re Manheim, 113 A.D. 136, 99 N.Y.S. 87 (N.Y.App.Div.1906)).
In recent years, additional state and federal courts have chimed in on these limitations. For example, the Supreme Court of Indiana, discussing whether the New York Times11 subjective test or an objective test would apply to Rule 8.2(a)12 violations, recently stated:
First, the limits on professional speech by attorneys are not coextensive with the limits of the First Amendment.... Second, attorneys are expected to exercise reasonable objectivity in their statements about judicial officers. We expect those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process.
In re Dixon, 994 N.E.2d 1129, 1136 (Ind.2013). See also United States Dist. Ct. v. Sandlin, 12 F.3d 861, 866 (9th Cir.1993) (“[O]nce a lawyer is admitted to the bar, although he
In a different context, we discussed limitations on lawyers’ extrajudicial speech in Attorney Grievance Comm‘n v. Gansler, 377 Md. 656, 835 A.2d 548 (2003). In that case, then State‘s Attorney for Montgomery County Douglas Gansler was charged with violating
Noting that “attorneys occupy a special role as participants in the criminal justice system, and, as a result, the public may view their speech as authoritative and reliable[,]” we held that Gansler violated
Our goal when imposing sanctions is to protect the public and the public‘s confidence in the legal profession, not to punish the erring attorney. See Attorney Grievance Comm‘n v. Tanko, 408 Md. 404, 424-25, 969 A.2d 1010, 1023 (2009); Attorney Grievance Comm‘n v. Goff, 399 Md. 1, 30, 922 A.2d 554, 571 (2007); Attorney Grievance Comm‘n v. Rees, 396 Md. 248, 254, 913 A.2d 68, 72 (2006). Sanctions protect the public when they deter future offending conduct and remove “those unfit to continue in the practice of law from the rolls of those authorized to practice in this State.” Attorney Grievance Comm‘n v. Gore, 380 Md. 455, 471-72, 845 A.2d 1204, 1213 (2004). When sanctions are imposed, they should be “commensurate with the nature and gravity of the violations and the intent with which they were committed.” Attorney Grievance Comm‘n v. Stein, 373 Md. 531, 537, 819 A.2d 372, 375 (2003).
In DeMaio, a case substantially similar to the case at bar, we held that disbarment was the appropriate sanction, stating that:
Making accusations in petitions to this Court seeking their removal, impugning the integrity of the Chief Judge of the Court of Special Appeals and the Clerk of that court, without justification or even an attempt at justification beyond conjecture and speculation, and repeating those accusations during the disciplinary hearing, again without attempt at justification, are themselves, as they would be with respect to any judge or clerk, cause for disbarment.
DeMaio, 379 Md. at 585, 842 A.2d at 810. Additionally, DeMaio failed to demonstrate any investigation or factual basis for his allegations, and maintained his allegations throughout the disciplinary proceedings against him. Quoting In re Evans, we stated that:
... [A]ppellant‘s failure to investigate, coupled with his unrelenting reassertion of the charges ... convincingly demonstrates his lack of integrity and fitness to practice law. A person guilty of such practices is ... dangerous in any walk of life and is especially so when he occupies the responsible position of an attorney upon whose good faith, truthfulness, sense of propriety and ethical standards both courts and litigants are entitled to rely.
DeMaio, 379 Md. at 584, 842 A.2d at 809-10 (quoting In re Evans, 801 F.2d at 706). We also noted that, in addition to making false statements about the integrity and qualifications of judicial officers, the attorney‘s response to the disciplinary proceedings “raise[d] other questions with respect to the respondent‘s fitness to continue in the practice of law.” DeMaio, 379 Md. at 585, 842 A.2d at 810.
In the present matter, we have concluded that Respondent violated
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST JAMES ALBERT FROST.
ADKINS, J., concurs.
MCDONALD, J., concurs and dissents.
ADKINS, J., Concurring.
The Majority opinion is well-researched and well-stated. Respectfully, I write this concurring opinion to articulate a constraint on our disciplinary authority that the Majority does not express. In my view, there are boundaries on our authority to discipline an attorney for false statements or reckless statements under
But, here, the statements made by Respondent were not so confined. As the Majority says, the statements in question were intentionally mailed by Respondent to lawyers who were not part of a judicial or other disciplinary body, and with whom he had absolutely no relationship and no reason to correspond, except to make the admittedly false and defamatory statements. I do not share Judge McDonald‘s view that we should restrain from imposing discipline based upon a respondent‘s deemed admissions. In this context, I agree that the discipline imposed by the Majority opinion is fully justified.
MCDONALD, J., Concurring and Dissenting.
Although the Majority opinion is well thought out and carefully written, I cannot join it. Our primary purpose in attorney discipline is to protect the public from inept or errant lawyers, not to protect public officials from criticism, even if unjustified. I would suspend Mr. Frost for his failure to respond adequately to Bar Counsel‘s inquiry, but am not comfortable disbarring on this limited record for what appears to be largely an expression of opinion, misguided though that opinion may be.
Under the
Lawyers are specially situated to assess the official performance of judges and other judicial and legal officers. Accordingly, both constitutional law and sound social policy require that lawyers have broad latitude in criticizing such officers. Under the rule of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, judges and other public legal officers are “public officials,” so that an action by a judge or public legal officer against a lawyer for damages for defamation would require a showing of actual malice. Similar considerations should also lead to application of the standard in New York Times v. Sullivan in lawyer-discipline cases.
Restatement (Third) of the Law Governing Lawyers § 114, comment b (2000 & 2013 Supp.).
The Majority opinion finds that the “knowing or reckless” element is satisfied in this case as a result of Mr. Frost‘s failure to participate in the proceedings below and to respond
Requests for admissions are typically used to obtain agreement as to the genuineness of documents, the establishment of other foundational facts necessary for the admission of evidence, or the truth of uncontested facts, thereby streamlining the adjudication of a matter. See, e.g., P. Niemeyer & L. Schuett, Maryland Rules Commentary 336 (3d ed. 2004) (“Requests for admissions of fact serve a limited but useful function.... The purpose of the rule is ... to eliminate from trial those matters over which the parties truly have no dispute“). While I do not fault Bar Counsel, or any other litigant, for seeking to have an opposing party concede the entire case through this discovery device, requests for admission that concern the ultimate issue in a case are generally not that useful and thus are not enforced.2 Id. And when a request on an ultimate issue is “deemed” admitted, it may be more accurately characterized as a default than a finding or holding on the particular issue. Thus, the deemed violation of
I suspect that few lawyers—or judges—have not, at some time, uttered an unkind and undeserved criticism of a judge, an Attorney General, a State‘s Attorney, or a Public Defender. No doubt there have been occasions where an attorney, in the aftermath of an adverse ruling, has commented on the parentage of the judge in a way that, even without the benefit of a “deemed admission,” is obviously and literally false, but is essentially a statement of opinion rather than fact. Perhaps such remarks are usually made to those who share the sentiment and, unlike the instant case, do not generate a complaint. But whether there is a violation of
The summary of case law in the Majority opinion is certainly accurate. I add four observations.
First, as the authors of the Restatement noted, civil liability for criticism of a public official is limited to false statements made with actual malice—i.e., knowledge of falsity or reckless
Second, the drafters of
Third, the decisions of this Court under
Finally, discipline imposed by the judiciary that may appear designed to shield judges from general statements of adverse opinions can itself undermine confidence in the judiciary. See J. Dodd, The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N. Ky. L.Rev. 129, 144 (1988).
At this intersection of statements of fact and statements of opinion, of protected speech and public officials, it is best to proceed with caution. I would not impose discipline on the basis of a “deemed admission” of the critical intent element. Rather, we should hold the charges under