Matter of Westfall

needle, syringe droppers eye three hypodermic them,

with nеedles in bot (Buzz) three George In the Matter of E. caps tle ball and small of cotton.” Lock WESTFALL, Respondent. hart, 501 response S.W.2d at 164. In to a No. 72022. question officers, by one of the Lockhart Missouri, stated that items were his. He was En Banc. charged possession apparatus with unauthorized use drugs, of narcotic 3,May 1991. possession with of a controlled substance. Rehearing Denied June Court, conviction, affirming re parapher ferred the items as “narcotics trial,

nalia.” At the officers testified as to

“how the items were adapted for un

lawful use drugs.” of narcotic No such

testimony given was here. Barber,

In possession conviction for of .

controlled substances was reversed be-

cause the evidence was insufficient to show possession

defendant had actual of the con-

trolled substances.

In Zimpher, appeals the court of af- possession

firmed a conviction for and con- marijuana

trol of a quantity exceeding grams. Among the items found to be in possession defendant, including marijuana, bag were “another contain-

ing pipe, cigarette a wood and papers brass plant

and a material in the drawer of a

night stand beside bed which the

defendant and Johnson sleeping.” had been

Zimpher, plant 552 S.W.2d at 347. The

material marijuana. Pacchetti, jury found defendant

guilty of manslaughter, distribution of co- possession

caine and of more than 35

grams marijuana. Defendant did not

challenge sufficiency of the evidence respect marijuana the cocaine and Moreover,

offenses. there was evidence

that defendant had made statements con-

cerning “opening on cocaine.”

I would reverse judgment. Girardeau, Oliver, Jr., Cape

John L. informant. P. Grei-

George E. Schaaf and Gerald man, respondent. Clayton, COVINGTON, Judge. appeals’ opinion The court of in the mat ter, three-judge the unanimous original disciplinary pro This is court, panel was authored ceeding Advisory instituted Commit Honorable Kent E. Karohl. The court held pursuant Bar tee of Missouri to Rule 5 question prosecutorial first that the of vin (Buzz) against respondent, George R. facts, disputed involved a mat dictiveness charged respon Westfall. The information on appeal ter to be considered direct if 8.2(a) dent with of and violation Rules required. Relying Hunter, on Missouri v. 8.4(a) (d) of and Rule Rules of Profes 359, 103 L.Ed.2d 535 Conduct, requested respon sional and (1983), the court also held that a subse of practice dent disbarred from the law. be quent trial Bulloch for armed criminal of appointed as Master to hear the Court action of Bul- would constitute violation Normile, proceedings the Honorable Bruce protection Jeopar loch’s under Double Judge Judge of 2nd Judicial Circuit. dy Clause of the Fifth Amendment of the findings Normile made and recommended of United Constitution States.1 Mis respondent suspended be from the legis souri v. held that Hunter where practice year of law for and that the one specifically lature authorizes cumulative subject of suspension stayed order to punishment statutes, regardless under two disciplinary pro certain conditions. In a proscribe of whether these two statutes ceeding findings, the Master’s conclusions conduct, “same” it does not violate double advisory and recommendations are in na jeopardy impose punishment cumulative ture. This Court reviews the evidence de single Id., such in under statutes trial. novo, independently determines credi 103 S.Ct. at 679. weight bility, testimony and value of the issued, day opinion On re- witnesses, and draws its own conclu spondent made remarks that constitute the Waldron, sions law. In re in basis the information filed this case. (Mo. 1990). banc KSDK-TV, an NBC affiliate in Channel Louis, portions videotaped all St. broadcast At times respondent relevant served with interview on the 6:00 prosecuting attorney of St. Louis Coun- p.m. p.m. programs. and news Re- 10:00 ty and as such was involved a series of spondent’s statement was broadcast as fol- prosecutions of Dennis Bulloch crimes lows: committed in connection with death of wife, Supreme ... The Court of the land has Respondent

Bulloch’s Julia. first led said twice that Our armed criminal stat- the prosecution of Bulloch for murder in it ute is constitutional and that does not degree. the first acquitted Bulloch was Jeopardy. constitute Double charge guilty involuntary found manslaughter. subsequently He was in- charges on

dicted of armed criminal action destroying physical I somewhat evidence. The trial ... for reasons that find I think even a little less illogical, court denied Bulloch’s bit motion dismiss honest, today Judge Karohl has said grounds prosecutorial the indictment on than criminal pursue that we cannot armed jeopardy. vindictiveness and double Bul- really action. has distorted the stat- He petition loch then prohibi- filed a writ of logic ute and I think convoluted to arrive Appeals, tion in the Missouri East- personally likes. at a decision that District, seeking prose- ern to bar further charges. cution of of ap- these The court

peals preliminary issued a in prohibi- rule negative

tion subsequently today made the writ abso- will have a The decision lute. impact pending on all murder one cases granted pre 1. This Court transfer and made the United Court denied certiorari. States U.S. -, Bulloch, liminary rule absolute. State ex rel. Bullоch v. Missouri Seier, 1989). 771 S.W.2d 71 107 L.Ed.2d 738 Missouri, Missouri, I. in the future already appeal and some that are In defense contends that his prison. So a real inmates it’s distress- to the statements were directed court point of view. ing opinion from appeals’ qualifica- and not to

tions or Karohl and thus qualifications integ- did not concern the Respondent also rity judge. asserts degree first But if it’s murder we’re question were mere- that the statements which, course, death, asking for is the and, ly expression of because crimes, Judge all Ka- false, most serious of opinion cannot says pur- today 8.2(a). decision we cannot proscribed by rohl’s not Rule that, me, really means sue both. And respon first This addresses Court up his mind before he that he made protestations his statements dent’s decision, just and wrote the reached merely concerning expressions were he wanted to reach. conclusion that decision, appeals’ soundness of the court of provable actual facts not statements of and Advisory by filed The information judge’s His conten integrity. about respondent with charges Committee violat- First, respondent not tions are well taken. (d), 84(a) ing 8.2(a) and of Su- Rules and that “the Court of stated preme Court Rule Rules of Professional Land has twice said our armed criminal 8.2(a) provides: Conduct. Rule it and that action statute constitutional lawyer A not make a statement that shall Im Jeopardy.” does not constitute Double false or knows with mediately following, stated: disregard as to its truth or falsi- reckless for reasons that I find somewhat ... but qualifications integ- or ty concerning the less illogical, and I think even a little bit adjudicatory rity judge, of a officer or Judge honest, today has said than Karohl officer, public legal for of a candidate pursue cannot armed criminal that we appointment election or or le- really the stat- action. He has distorted gal office. logic I to arrive ute and think convoluted personally likes. at a decision he provides pertinent part: Rule 84 added). per- followed this (Emphasis Later professional It law- misconduct language: sonalized yer to: degree first and if it’s murder But (a) attempt violate or to violate the rules which, course, asking for death we’re of Professional Conduct.... crimes, of all is the most serious (d) engage prejudicial in conduct that today says we cannot decision Karohl’s justice.... to the administration of that, me, really And pursue both. up made his mind before that he means Advisory submits that Committee decision, just and reached he wrote the opin to Judge reacted Karohl’s reach.” that he wanted to the conclusion truth, disregard ion in of the utter added.) person- (Emphasis judicial process, specifically judge’s alize the conduct respondent’s respect obligations with there him, motivаtion, integri- and his refer to his to. The Committee further submits that in the ty participation his as it relates to respondent engaged in conduct this without judicial process. appellate facts fac investigation of the and without tual for his statements. Commit basis Respondent that his state contends argued tee additional violations briefed opinion and subjective plainly ments reflect not in the contained information. Because verifiable factual assertions. not only charges “false,” con his argues, Court will consider those cannot be opinion original proscribed by information. Rule tained See comments are Smith, respon 8.2(a). position, support Matter this 1988). microscopically this Court dent would have subject phrases independent assumption examine the and expressing Missouri each other. He also would have this again that a Missouri court error. accept his Respondent after-the-fact characterization by suggest- does not elucidate words, sum, that his simply meant that ing, example, precedent logic that he appeals opinion the court of was “intellec- opin- believes constitute an would “honest” tually dishonest.” subject. merely on the points ion He language similar comments other Respondent seeks to obfuscate the issue. attorneys, including language used merely dichotomy” He creates an “artificial oрinions. dissenting some It is opinion between and fact. Milkovich function, — respondent’s appropri- but the Co., -, Lorain Journal committees’, disciplinary ate to initiate en- 111 L.Ed.2d 1 In Milko- forcement of the Rules. Professional recognize vich Court refused to dichotomy artificial between II. fact, relying instead on whether there was Respondent contends that construction objective an assertion of fact: prohibit of Rule 8.2 or so toas speaker says, If a ‘In 8.4- my John comments made would violate his both liar,’ implies is knowledge Jones a he a of right speech to free right his listeners’ facts which lead conclusion guaranteed by to know as the First Amend- Jones an told untruth. Even if the ment to the United States Constitution. speaker states the facts upon which he opinion, bases his if those facts are either important It is to note at the out incorrect incomplete, or if his assess- bright guide set that there are no lines to erroneous, ment of is them the statement lawyers determining courts and stan imply still a false assertion of fact. impose balancing dards to when the state’s Simply couching such statements in right and need to maintain confi terms of dispel does not these dence in of justice the administration with implications; statement, my and the ‘In lawyer’s rights. a first It amendment is liar,’ Jones is a can cause as clear, however, that of honest attribution damage reputation much аs the state- judiciary pro error to the is not cause for ment, ‘Jones is a liar.’ discipline. fessional Sawyer, In re Id., 110 S.Ct. 2705-06. 1376, 1382, 3 L.Ed.2d S.Ct. Respondent’s clearly imply (1959). statements lawyers It also clear that objective assertion of regarding fact derogatory who make about integrity. protected Karohl’s the First and Four Master so agrees. found and this Court ‍‌​​‌​‌‌‌‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​​‌​‌‌‍teenth Amendments to the United States Respondent’s language very imposition at the least Constitution from of civil and implies the judge’s liability conduct exhibited criminal unless statement dishonesty and lack suf- knowledge and is made or in falsity “with of its ficiently susceptible being factual to be disregard reckless of whether it false was proved true Louisiana, or false. or true.” v. Garrison State of 64, 74, 209, 215, Respondent’s continued assertion (1964). L.Ed.2d 125 “a statement little bit less than honest” simply way saying was another “intellec- What not clear is whether the same tually degree protection dishonest” is not well taken. This of constitutional afforded acknowledges not required but does condone in the and criminal civil arenas is frequent professional the all too imprecise, disciplinary proceedings. often “intellectually rhetorical Supreme use the term The United States Court has not event, issue, dishonest.” In in his on directly attack addressed this and the state judge respondent support does in disagreement. Many courts are courts assignment “dishonesty” by anything disregаrd pro- a claim of first amendment pointing long other than disciplinary proceedings, holding and tortu- tection in history ous speech give lawyer armed criminal action a free does actual regard to the effect of the statement

right openly denigrate court public’s legal See, pro- confidence in eyes public. e.g., Raggio, In re (1971). Note, Attorney P.2d Oth fession. Restrictions on 87 Nev. argu reject Judiciary: courts first amendment A Denial er Criticism of attorney’s volun holding Rights, ments in that an 56 Notre Dame First Amendment voluntary tary (1981). bar acts a entrance to the as 491-92 L.Rev. judiciary. right to criticize the waiver of Court next addressed sanc- See, Woodward, e.g., In re S.W.2d against attorneys allegedly disre- tions 1957) (“A may, layman 393-94 judiciary in spectful remarks about the speech free perhaps, pursue his theories of Sawyer, 360 U.S. re he political activities until runs afoul (1959). Sawyer was a de- L.Ed.2d slander, or into penalties libel or attorney in a Honolulu trial of sever- fense statutory A infraction of our law. some charged conspiracy people under al can, will, stopped member of the bar began Act. weeks after trial the Smith Six infringes he our Canon point at the where sponsored Sawyer meeting spoke at Ethics; if he to remain wishes Longshoremen’s and the International conduct himself member of the bar will Her Union. Warehousemen’s therewith.”); in accordance State Nel Aсt proceedings critical of Smith son, Kan. 504 P.2d thing “There is no such as fair cases: hold that law A smaller number courts All rules of a Smith Act case. trial participants in yers, the administra even scrapped or the have to be evidence pro to the full justice, tion of are entitled Upon can’t make case.” Government See, e.g., the first amendment. tection of the Bar recommendation of Association Hinds, 604, 483, 449 A.2d In re 90 N.J. Hawaii, Supreme territory of the the Court (1982). Sawyer from the suspended Hawaii of spoken Supreme the has not While Court year impugning one practice of law for decisively subject, are on the there several at judge. of trial Id. integrity the the provide by that some decisions the Court The Ninth af- S.Ct. at 1378. Circuit determining by guidance in standards (9th Cir.1958), firmed, and the 260 F.2d 189 judge the first proper which to the role of certiorari, 358 U.S. granted disciplinary proceedings. amendment (1958). L.Ed.2d S.Ct. Wall.) 335, Fisher, (13 Bradley v. 80 U.S. four-judge the Brennan wrote Justice (1872), Court announced L.Ed. the reversing the Hawaii plurality right severe restrictions the attor- noting “lawyers began by that court. He neys judiciary: the to criticize obli- “[T]he free the state of the law.” to criticize attorneys impliedly gation which assume at at 79 S.Ct. Sawyer, 360 U.S. bar, they the ... when are admitted to [is however, freedom, include does not the respect maintain at all times the due to to] unseemly complicity “suggest any right judicial justice courts of officers. Id. at practice.” judiciary the obligation abstaining out of ... includes at 1381. The attribu 79 S.Ct. language of- insulting court from all judiciary, wrote of honest error the tion person- judges the fensive conduct toward Brennan, profession is no cause Justice ally at for their acts.” Id. 80 U.S. tendency to obstruct discipline absent al by codifying legal 355. The reacted states justice. at 635- Id. the administration ethics, culminating Bar in the American deliv at 1382-83. S.Ct. issuing Association’s the Canons Profes- prohibit would by Justice Brennan ered Although Responsibility in 1908. sional only that tend to obstruct re- demanded an attitude of Canons impugn the in justice administration courts, they recog- also spect toward the tegrity judge. aof importance encouraged nized the opinion Justice Stewart separate In a judiciary. Most attorney criticism the only he Canons, result concurred because judicial decisions under the how- ever, in the record prohibited attorney insufficient evidence criticism without found charge impugned eight support Sawyer that the Criminal District Court presiding judge. parish. He The Court first held that the however, emphasized, disagreed he applied that New York Times rule criminal as principal opinion provides intimation in the as civil This rule with well actions. may attorney may that an invoke constitu- that critics officials right subjected tional free to immunize civil sanctions unless the state- discipline knowledge himself for ment it from evеnhanded was made with that was proven disregard unethical conduct. Id. at 79 false or with reckless of whether (Stewart, J., concurring). at S.Ct. it was false or not. York New Times Co. Sullivan, 254, 279-80, Justice Stewart adhered to the traditional 376 U.S. 84 S.Ct. 710, 725-26, free- notions of ethical considerations over 11 L.Ed.2d speech: pre- “only dom of “Obedience to ethical court held that those false Garrison require cepts may high abstention from degree what statements made might probable falsity other circumstances be constitution- awareness of their de- 646-47, protected speech.” ally at 79 manded bemay Id. New York Times subject 1388-89. civil of either or criminal sanc- Garrison, tions.” atU.S. 85 S.Ct. Frankfurter, joined by Justice three oth- at 216. justices, dissented, finding er replete support record was with evidence to These cases and others make clear charge. He went on to address officials, speech concerning public in “strong principal opinion intimation” of the cluding judges, protected speech, Sawyer’s speech protected by speech concerning public affairs is “[f]or first amendment. While Justice Frankfurt- self-expression; more than it is the essence recognized er attorneys have certain 74-75, self-government.” Id. at 85 S.Ct. rights judges, first amendment to criticize at 215-216. See also Landmark Commu maintained, however, rights that these nications, Virginia, Inc. v. did not attorneys extend to in- actively 838-39, 1541-42, 56 L.Ed.2d pending litigation: volved (1978) (A primary purpose of the first course, person Of is a and he protect amendment is to the free discussion affairs, too has a constitutional governmental including oper freedom of utter- of the may ance castigate judicial and exercise it to ations of the and the conduct courts courts and their justice. judges.). principle administration of of The that “debate on lawyer actively But a participating uninhibited, robust, in a public issues should be trial, particularly emotionally charged an wide-open, may and that it include and well prosecution, criminal merely per- vehement, caustic, unpleas is not a and sometimes son and not merely lawyer. antly sharp even a government attacks on and public important no officials” is less when 666, (Frankfurter, Id. at 79 at S.Ct. 1398 Garrison, judiciary the is involved. 379 J., dissenting). Focusing potential on the 75, 216, quoting U.S. at at New S.Ct. speech, effect of such Justice Frankfurter’s Times, 270, York 376 U.S. at 84 S.Ct. at opinion apparently would all ban critical speech by attorneys relating pending litigation. Comment The First Amend- limitations, however, There are Attorney Discipline ment and Criti- for protection. protect first amendment Even Judiciary: Lawyer cism the the Let of speech may regulated. ed unbri Where Beware, 129, N.Ky.L.Rev. (1988). dled amounts to misconduct that interest,

The shed in light significant further Garrison threatens state the Louisiana, 64, v. lawyer’s State 85 S.Ct. state restrict exercise of of (1964). Garrison, rights 13 L.Ed.2d personal guaranteed by dis- the Consti Parish, attorney Louisiana, Button, trict Orleans tution. See v. 371 U.S. NAACP 415, 438, was convicted of criminal defamation S.Ct. L.Ed.2d press (1963). speech, statements made at a Restrictions on free how conference disparaged ever, which the judicial scrutiny only if will survive conduct lawyers primary gov an are important the limitation furthers sub essential to the governmental and is no of administering jus stantial interest ernmental function greater necessary tice, than or essential to the historically and have been ‘officers of protection governmental particular ”). of the Lawyers courts.’ must the execute interest involved. Sable Communications responsibilities professional ethically their C., California, v. F. C. 492 U.S. Inc. rules, considered, pursuant carefully and (1989). A 106 L.Ed.2d 93 S.Ct. in the order to ensure confidence of both determination of whether the conditions litigants public. and Statements necessarily requires have met been a bal lawyer impugning integrity qualifi Tribe, ancing process. L. See American a judge, knowledge cations of made with 12-2, (2d Constitutional Law 792-93 § falsity in the statements’ reckless dis ed.1988). The the compet Court balances falsity, regard of their truth or can under ing inter considerations of individual’s in the mine confidence administra in expressing against est certain ideas judiciary, tion and of the thus in government’s justifications interests impartiаl jus fair and administration of restricting expression. such See Bates tice. Arizona, Bar 433 U.S. State 8.2(a) contemplates and Rule 363-65, 2691, 2698-2700, government seeks to effect the substantial denied, reh’g L.Ed.2d justice interest administration 54 L.Ed.2d 164 through a It impartial judiciary. fair and process, it undertaking weighing guides is this substantial state interest that necessary to is evaluate the nature interpretation in its Rule this Court importance of the interest of state 8.2(a). The the rule also rec comments to sought through to be the restric- advanced however, ognize, public’s that the interest expression. It is tion of clear that proper justice may administration of state has a substantial interest maintain- through process. criticism of the served ing confidence the administration rule, then, possibility is sensitive to justice. only The interest is inter chilling effect not be its and will litigant’s public’s. but also inter- preted all of the silence criticism justice by is est in the administration of judicial system. Discipline, imposed, if impartial judiciary. right fair against of punishment not as imposed appeal system. remedy by part this fender, public. In protection Consequently, public’s confidence in the Hardge, re appellate process vital. 1986). Lawyers integral es part 8.2(a) re- Rule Further construction of justice. the administration As sential to quires that or with reckless the term “false court, lawyers the do not officers of stand disregard falsity” or as to its truth ordinary shоes citizens. See Mid consistently re- defined. The cases have County v. dlesex Ethics Committee Gar subjective falsity quired knowledge of the ’n, 423, 434, 102 457 den State Bar Ass U.S. were of one’s statement before sanctions 2515, 2522, (1982) 116 S.Ct. 73 L.Ed.2d defini- imposed. There is no one infallible (“The judiciary as well as the is disregard.” v. of “reckless St. Amant tion dependent upon professionally ethical con 730, 727, 88 S.Ct. Thompson, 390 U.S. attorneys significant thus duct of and has a 1325, (1968). 1323, 20 L.Ed.2d 262 assuring maintaining high interest an been defined as standard has often attorneys engaged standards of conduct of of the likelihood of the circula- awareness practice.”); Virginia v. State Goldfarb degree high Bar, 792, 2004, 2016, tion of false information or 773, 421 95 U.S. S.Ct. falsity. See, probable e.g., (1975) (“We awareness of recognize L.Ed.2d 731, at In at 88 S.Ct. 1325. defamation have interest in the id. compelling the States consistently been practice professions actions the standard has within their bound subjective being in a test not wheth- aries .... interest of the States one—the lawyers have regulating especially great reasonably prudent person er a would since

«37 had serious doubts as to the truth 322. Minnesota’s rule is identical this to 8.2(a), publication, in Court’s Rule but whether the defendant and also identical to 8.2, Bar Rule American fact entertained such Association Model doubts. Id. Rules of Professional Conduct. The Gra however, clear, It is not whether 8.2(a), noted that ham court Rule on its knowledge disregard” or in “with recklеss face, rejects privilege an absolute for false used in standard defamation cases must be by lawyer statements made with reckless applied strictly disciplinary proceedings. disregard falsity. for the The court noted Garrison, 73, But see at language that the rule’s itself is consistent (“Moreover, at utter even where the placed with the constitutional limitations on false, great principles ance is defamation actions the United States of ex Constitution which secure freedom Supreme cases of Court New York Times pression attaching preclude this area and Garrison. Id. at 321. The con court consequences any except adverse cluded, however, that because of the inter falsehood.”). knowing or reckless Some protecting public, est in the administra simply apply courts have refused to justice, profession, purely tion of and the test, holding New York Times that it was subjective inappropriate. standard Id. inapplicable disciplinary proceeding. to a Citing def differences between 334, Johnson, See 240 Kan. Matter of (a personal wrong personal amation awith 1175, (1986); P.2d 1180-81 Ter Matter of redress) (redress professional discipline ry, (1979), 271 Ind. 394 N.E.2d public wrong) of a the court decided that nom., cert. denied Terry sub v. Indiana attorneys higher should be held to a stan Comm’n, Disciplinary leveling dard when criticism that ad 62 L.Ed.2d versely justice. affect the administration (1980). Other courts have dicta indi attorneys practice court certifies cated that the New York Times test protect and the administra- applicable in disciplinary proceedings. See tion justice. implies That certification Boardman, Eisenberg F.Supp. practice the individual admitted (W.D.Wis.1969); State Bar v. Se capacity judg- law exhibits a sound maan, (Tex.Civ. 432-33 attorney ment. Where criticizes App.1974). appear apply Some courts bar, simply bench issue is test, York New Times but it is unclear the criticized whether individual has been they applying subjec whether the same harmed, but rather whether the criticism knowledge tive “with or in dis reckless legal impugning judge regard” See, standard. e.g., Ramirez v. adversely officer affects the administra- State California, Bar 28 Cal.3d adversely justice tion of reflects Cal.Rptr 619 P.2d capacity judg- the accuser’s for sound attorney ment. An who makes critical At directly least one court has ad regarding judges legal question dressed the and concluded that an disregard with reckless officers objective subjective rather than standard falsity their lack truth or ... exhibits a should used. re Ac Disciplinary judgment her that conflicts with Graham, tion Against 453 N.W.2d position legal sys- as “an officer of the (Minn.), cert. sub denied nom. Graham v. public having special tem citizen —Wernz, -, justice.” the responsibility quality L.Ed.2d See also Louisiana Minn.R.Prof.Conduct, Preamble. Karst, State Bar Ass’n 428 So.2d reasoning agrees Id. This with the Court (La.1983). the Supreme Graham holding of the court. Graham proper Court of Minnesota held that the objective first standard survives amend- attorney in discipline standard “must cases scrutiny light compelling ment in of the objective dependent be an one on what the interests served. state attorney, reasonable considered in light of functions, all professional his to would do in It remains determine whether findings the or respondent same similar circumstances.” the rule. The Id. at violated disregard stated that duct reflects a reckless for the and conclusions of the Master respondent falsity did in fact act with reckless truth or of the statements made. concluded, disregard falsity supra, as to the truth or of the already This has Court Judge regarding Karohl. statements made respondent’s imputed that statements lack agrees. This When asked about the Court judge’s in and misconduct the up judge statement the “made his professional work. His were decision,” respon- he the mind before wrote basis; appeals opinion without the court of he meant “that he’d dent testified that teaching relied on the of Missouri v. Hunt- case,” got up made his mind before he the Respondent’s prejudicial er. conduct was convey mes- that his intent was to the justice to the administration of reflects Judge he Karohl’s sage that felt prac- adversely respondent’s on to fitness foregone As stated was conclusion. Accordingly, tice law. this Court now above, respondent that he meant asserted conduct, by finds that reason of this the “intellectually the dishon- was respondent 8.2(a) of violated Rule the explain to how the est” but when asked Rules of Professional Conduct. dishonest, merely respondent opinion was must now assess an again his that the “Mis- referred to view appropriate disciplinary by sanction reason appellate system has been intellectu- souri in of the misconduct found this case. Re criminal ally concerning dishonest armed public spondent argues that as an elected one, day they action from steadfast- official, using only practicable was ly to follow the directives of the refuse communicating means of with his constitu highest land and I antici- court ... public figures ents. It is true that thing happen again.” pated the same would speaking public those on matters should making Before these statements about not be held in fear of retribution for their Karohl, Judge failed investi- respondent to every Respondent word. is nevertheless Judge gate to Karohl determine whether subject the Rules to of Professional Con any involving participated had cases privilege enjoy does not reck duct and issue, any armed criminal action authored lessly public the in impugn before the any opinions subject, expressed on judiciаry. While deference is tegrity of personal opinions it. about given to the needs of officials evidence, any re- Without corroborative effect, chilling free the mere hold from Judge spondent accused Karohl of deliber- exempt a ing office does not law dishonesty. judge He ate accused Rules yer operation from the of the purposefully ignoring the law to achieve Respondent notes Professional Conduct. personal implica- His not an ends. engage bribery jurors, that he did not negligence tion of carelessness or but of a misrepresentation perjury, subornation deliberate, dishonest, design conscious court, kind to a similar of conduct. part judge to serve his own Furthermore, this Court This is correct. respondent That now interests. seeks independently did notes that negate findings the Master’s and conclu- judge of criminal conduct or not accuse only saying meant sions subject influence. being inappropriate appeals opinion to characterize the court of respondent has The Master noted that “intellectually being dishonest” refutes judge’s privately stated his belief re- language neither actual used personal integrity and that at the commit- re- spondent press nor conference reported that he hearing respondent tee legitimately to spondent’s failure criticize privately apologized Karohl had reasoning holding of and the the court hearing. The Master found this before opinion. appeals investigation, Without noted mitigating to be a circumstance but however, inability knowing and the court’s respon- aggravating unspoken as an circumstance respond to mo- to accusations public apolo- tive, pub- dent’s failure to make similar respondent proceeded to make a damage gy thereby alleviate the licly alleging purpose- televised ‍‌​​‌​‌‌‌‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​​‌​‌‌‍statement appeals and the fully Respondent’s caused to the court of dishonest conduct. con- judge. BLACKMAR, C.J., cir- aggravating separate There are other in dissents cumstances. At the time made opinion filed. statements, pending. the case remained J., BILLINGS, sitting. Nelson, 210 Kan. 504 P.2d

See complaint 215. Avenues for were available SEILER, Judge, ROBERT E. Senior rehearing in form of a motion for concurring. through filing complaint well as of a Retirement, with the Commission on Re- my opinion, is question there no but Discipline. Riley, moval and See Matter of in Mr. Westfall his television interview (banc 142 Ariz. 691 P.2d maliciously recklessly or made false 1984); Lacey, In re 283 N.W.2d Judge statement Karohl his wrote (S.D.1979). date, To has contin- satisfy to personal Bulloch his own uously steadfastly refused deviate views, using less than honest reasons to do original position, light from his even (which opinion, incidentally, so in its result legal subsequent proceеdings, none necessarily exposed igno- Mr. Westfall’s holding which disturbed either the or the rance of the jeopardy, law double no reasoning appeals opinion. of the court of thereby arousing doubt his pique). noted, respondent’s As the Master twenty years’ experience prosecutor as a “belies Mr. self-serving protestations Westfall’s any suggestion that he have acted “respect Karohl”, that he had Judge for did inadvertently mistakenly, or rather question personal “in the knowingly he did so or recklessly of least” and never to “impugn had intended damage only he would cause. The question Judge personal integ- or Karohl’s apparent very conclusion is that un- later, rity”, only made months after disci- aspects usual and sensational case him, plinary charges against had been filed afforded him opportunity personal an in no way change spirit behind he what publicity self-aggrandizement which said in about Karohl the television utilized without upon reflection the serious interview. consequences entailed.” test, Clearly, any under Mr. Westfall’s recognizes possible is it 8.2(a) is conduct a violation Rule for a lawyer charge judge with miscon- discipline. which he deserves None of egregious duct more charged than that in many opinions cases cited herein present case. recog- This Court also require nizes that this case would otherwise. involves a matter impression first and initial construction of My necessary belief is that it is not 8.2(a) Rule and that purpose of the rule desirable reach conclusion in this protect public. is to cir- Under these degree case as whether the same cumstances, public reprimand appropri- protection constitutional afforded ate. required civil and criminal cases law- charges brought under Rule are yer disciplinary cases. encompassed within the violation of Rule judgment I discipline by concur 8.2(a) and, in this purposes case reprimand. imposition discipline, cannot be distin- guished.

Respondent reprimanded and directed BLACKMAR, Justice, dissenting. Chief pay proceedings. the costs of these proceed very We carefully should when politi- to censor to censure we asked ROBERTSON, RENDLEN, HIGGINS, speech. spoken opin- cal Words about an HOLSTEIN, JJ., concur. subject judge period- ion who is to the voters, SEILER, scrutiny ROBERT E. Judge, Senior ic elected separate concurs attorney potential filed. prosecuting candi- date, to relating important speculate to an criminal mat- critics. Nor do we have this ter, epitomize political expression. lawyer's privilege point to whether a as greater involving comment is in a case im- spoken during an inter- The words were portant public interests than matters of reporter. a These re- view with television private concern. purely questions, using the porters fire streams responses they newsworthy. most deem hearing At the formal before the Adviso- give most These are often the vivid.1 Such respondent testified ry Committee part political process, and take a follows: discouraged by the and should not be Westfall, you MR. SCULLY: Mr. do scrutiny. hypercritical threat of you particular think this instance that day the criticized The interview came opinion could have criticized respondent opinion down. The was handed Appellate in a different fashion? was to share his overview entitled A. I Sure. told Karohl this decisions, legal without detailed course here, we came I saw him and I before research, spoke report- before he with something wanting to did I’ve been do required he withhold com- er. Nor was to often, but I don’t see him I went over to rehearing ment for was until the motion say good morning to him if he disposed news it is of. An when I okay seemed to shake his hand. said rehearing are handed down. Motions for face-to-face, Judge, you I to say want to formalities, sought but sel- usually often not to influence the outcome of this hear- absolutely dom There is noth- successful.2 ing here, I but we’re did mean to ing indicating respon- that the record impune your question personal or to [sic] pressure trying bring public dent to on I if integrity badly feel that’s the opinion, or the other author of the you family or your inference drew court, grant rehearing. to a his colleagues your have some of friends martyred pose He a rather assumed My purpose drawn. was to criticize the suggesting sympa- that the bench was not I still opinion, wrong, I still feel it was thetic to aims. right obligation my feel I have the Nelson, 210 Kan. State v. things say those and I’ll constituents to (1972) P.2d 211 Court of Kan- I may be a again given a similar situation request discipline sas of an declined upon more cautious to not reflect bit attorney had criticized a who decision personal one’s that’s a court, him, disciplining when he was thing made tough to do he sort of it approached by shortly an interviewer after dealing clear that understood perceived The court “sit- handdown. put tough they with the media is because replete acrimony,” uation with emotion and put I they what on so made want and noted “the fact that him. that clear to respondent, general- attributed to the were inly terms.” Id. 504 P.2d at 217. It broad solely disposition of this case our practical dismissing very took the course responsibility. deference to We owe no petition. It us to do would wise for are finder. tribunal. We the fact other likewise. credibility calls in significant There no are I no report, and find indication the master’s argue prosecuting I that a attor- do that he did not consider ney enjoys superior privileges regard must We also es- credible witness. рolitical simply His speech. office dem- the field of speech. chew intrusions on political of his forbidden onstrates the nature Corp. rights necessarily expression. Like to his free v. Consumers available Bose course, rehearing, is a con- principal The motion for 1. The faults the 84.17, asking “microscopically examine the precedent us Rules dition to further review. other,” phrases independent subject of each 83.03. though disjoint- even the broadcast consisted of segments ed rather selected the editors than discourse. continuous

«41 U.S., Inc., 485, 499, ry grammar 466 104 respon- Union U.S. teaches that what the 1949, 1958, (1984). S.Ct. 502 suggested 80 L.Ed.2d dent “a little less were bit than reasons, honest” were judge. not the public reprimand A is a substantial sanc Any contrary conclusion is a distortion of tion, only which must be administered language. coupling his The of the offen- process accordance with due of law. In re phrase “illogical” sive is a further Voorhees, 178, 180 demonstration that the is com- 1987),citing Discipli v. Zauderer Office of menting on the reasons. Ohio, nary Supreme Counsel 626, 636-37, 2265, 471 U.S. 2274- principal opinion The seeks to bolster its 75, (1985). reprimand 85 L.Ed.2d 652 construction least unsupportable six and, scar the lawyer’s paraphrases a record in a respondent’s of the actual impacting Amendment, case the First has He not “specifically words. did refer to chilling an obvious effect on ex judge’s] integrity further ... it relаtes to [the pression. liberty give participation are not at a appellate judicial We his lawyer “chewing” for process.” rudeness or inso is no objec- There “assertion of presence regarding lence not committed in the Judge judicial tive fact Karohl’s court. integrity.” implication is no There “that judge’s dishonesty conduct exhibited judgment reprimand faulty, integrity....” and lack of The statements no first because violation of Rule has 8.2 judge pur- “accused the established; second, been because the re- posefully ignoring the law achieve his spondent’s protected speech is under the deliberate, personal implied ends” or “a I, 8, First Amendment and Art. Sec. of the dishonest, part design conscious on the Constitution; and, third, Missouri because interests,” judge serve own or oppressive Advisory conduct of the “imputed that his integ- lack of Committee. rity judge’s profes- and misconduct in the work,” writer, sional are the words of the 1. There is no Rule Violation respondent. the words of drafted, Rule 8.2 narrowly virtually highlights treatment of his words the dan- terms of the standard New York Times ger seeking discipline expressions Sullivan, 710, Co. v. 376 U.S. 84 S.Ct. great give about matters and will (1964). L.Ed.2d 686 There no any lawyer, holding concern to whether discipline except not, any professor office or or to who law statement knows to be license, values a law about criticism of false or disregard with reckless of its judge opinion. “[Sjpeech or a falsity truth or concerning qualifica- concerning public affairs is more than self- tions or judge. of a expression; self-govern- it is the essence pointedly rule makes no reference to Louisiana, ment.” v. Garrison disrespect, discourtesy, impro- or similar 64, 74-75, 209, 215-216, 85 S.Ct. 13 L.Ed.2d priety. It calumny; is directed at (1964). not at The United States indiscreet extravagant expression. See frequently holding Court has reiterated its Printing Co., Seested v. Post & Pub. on matters of concern (1930); Mo. occupies S.W.2d “highest rung hierarchy Co., values, Diener v. Star-Chronicle Pub. 232 of First Amendment and is entitled (1911); Mo. 135 S.W. special protection.” Williams v. Myers, Connick v. Co., Agency 1684, 1689, Coast Collection 493 461 U.S. 103 S.Ct. Gulf (Mo.App.1973). (1983) omitted). S.W.2d (quotation The evi- L.Ed.2d dence does not knowing demonstrate Philadelphia Newspapers, also Inc. See reckless falsehood as the requires. Hepps, rule L.Ed.2d 783 part

The most offensive of the interview states, “for Judge reasons that I find apparently Karohl himself did not somewhat illogical, I think even little bit less think that had been accused of dishon- honest, than esty. Karohl ...” He testified as follows: Elementa- that he was opinion reach.” Karohl testified my present

In of words this of a writ division one of the members opinion. is our a criticism of preliminary in to a order which voted issue Extraordinary writs are prohibition. Well, Q. talking from to you know Missouri, judge and a grudgingly issued certainly that he meant to Mr. Westfall preliminary very votes to issue a order who opinion; correсt? your criticize isn’t that likely strong feeling relief has a rather I he criti- A. haven’t doubt granted. Tentative views are should be taking the cizing the from all of opinion briefing argu- subject to further oral he words used. ment, stop criminal cases are but writs to of the principal opinion The makes much that, issued, prose- is rare when one the so “Judge “the use Karohl” rather than of apprehension. cutor has reason for hardly significant or sub- court.” This is of deci- respondent’s analysis realistic distinction, practice, in view of our stantial process not demonstrate sional does collegial all American along with almost knowing or reckless falsehood. opinions pre- courts, speaking through development of the Mis The historical au- pared by bearing one member helpful in demonstrat souri law libel is name name. The later use of the thor’s ing allegedly defamatory words should how pronouns does singular personal many cases over the construed. be not, construction, con- by any reasonable plaintiff will not be years it is said that a in an vert a statement about the reasons place a strained and unnatural allowed to judge’s in- opinion to a statement about sup language in order to construction tegrity. Diener v. Star- port a claim libel. simply portions Other of the interview 416, Co., 232 Mo. 135 S.W. Pub. Chronicle charge that the is result oriented. 6, (1911); City v. 9 Thomson The Kansas frequently аbout (Mo. assertion is made 493, Co., banc 387 S.W.2d Star judicial opinions, and cannot be found to be 1965) & and Jacobs v. Transcontinental 523, fact. As Justice Holmes Air, a statement of Mo. 216 S.W.2d Western out, pointing judicial opinions (1948). permissible only was fond if is Innuendo impacted by judges’ inarticulate supported by are actual words. fairly it is Co., major premises.3 Langworthy Members v. Pulitzer Pub. right per- (Mo.1963); have to about their v. comment S.W.2d Swafford Miller, (Mo.App. ception premises. judges Some 213-14 of these 711 S.W.2d minded,” 1986). phrases uses “plaintiff principal others be branded clearly “respondent’s companies.” statements are “tools the insurance such as language at the imply” “respondent’s segment to Some are “law and order” one man very implies.” speak To this “hanging judges” oth- least respondent’s “tyrants;” others ner to concede ers. are said Some prosecution say not what such as these words do “wimps.” Characterizations say. is no reason discipline. them There subject are Nor would have not cases, though serving why defamation even there the statement about what vice purpose, should All have different judge “personally likes.” somewhat construction helpful problems when shape the law should be notions about the disciplinary case.4 presented in a hope their find favor take and views colleagues. with their furthermore, recog- Missouri, always has defamatоry discipline nized distinction between supportive of all of the Least opin- up and statements of imposed that “he made fact is the statement ion, Henry decision, objective fact. grounded his mind before he wrote the Halliburton, 786-87 just the conclusion wanted v. reached Miller, York, S.W.2d People 4. See v. v. State New Lochner Swafford 1986). (Mo.App. 49 L.Ed. 937 Dooner, 1985); Willman 770 were to abandon the historic distinction we (Mo.App.1989). reject S.W.2d We re the wisdom would of decades. views, spect people’s right express their proof required also deficient especially of public on matters concern. showing that the statement was one which Halliburton, Henry v. at 784- S.W.2d “the false knows or [was (published subsequent copy column and disregard truth with reckless of its made] calling agent, life insurance identified in 8.2 falsity.” requires purpose or Rule a to terms, broad or ex “fraud” “twister” an New through See cause harm defamation. actionable); pression opinion of and not Times, York 279-83, 376 at 84 S.Ct. at U.S. Newspa v. Anton St. Louis Suburban 725-28, 2, and Part There is no infra. Inc., pers, 493, (Mo.App. 499 support finding for a the respondent that 1980) (remark engaged in lawyer that any purpose had other than to denounce “sleazy” dealings expression an opinion. informants, Counsel for the actionable); Co-op. Greenbelt Pub. not response my question to argument, at oral Bresler, v. 6, 1537, Ass’n 398 U.S. 90 S.Ct. strongest case is In re Saw said that their (use (1970) 26 6 tеrm L.Ed.2d “black yer, 360 U.S. 622, 1376, 79 S.Ct. 3 L.Ed.2d characterizing negotiating position mail” (1959), principal opinion 1473 which the dis public figure securing zoning variances length. cusses For at reasons that follow libel). nor princi was neither slander 2, infra, give any Part the case does not pal opinion asserts that support to the result. by suggest “seeks to obfuscate issue” support Nor is there ing a claim that opinion, distinction between fact and “knowingly quoting statement was or reckless from the case of Milkovich v. Lo — Co., ly rain Journal U.S. -, applied made.” “Recklessness” as to 110 S.Ct. 2695, equivalent “popping 111 L.Ed.2d 1 With re due injure spect, off.” There must an intent prin the obfuscation comes from the cipal opinion. before there is occasion for the determina showing tion of recklessness. There is no Milkovich, newspaper published here of “false made statements strongly editorial in which it was intimated high degree probable of awareness of their plaintiff that had perjured others falsity” required by Garrison v. Louisi public hearing. themselves at a The Su- ana, 215, 85 13 379 S.Ct. preme simply Court said defamatory (1964), L.Ed.2d 125 discussed in Part might statements of fact support judg- infra. libel, though ment for they pref- even were finder, phrase my aced such as “in opinion,” we the fact we Because are speaker if the suggests personal respondent’s disregard knowl- should not testi- edge defamatory mony. agreed spo- facts stated. This Hе he should have different, entirely tangi- carefully, case for lack of ken more and said that other fact. Milkovich is con- ble statements of portions the interview which the new- (Second) Restatement sistent with air speople did not see fit made his Torts, (1965), positively general princi- purpose 566 with the He stated clearer. § ples exemplified by of Missouri law as our purpose questioning he had no decisions, prior Supreme judge’s integrity and with have and that should cases, length. certainly way. which it phrased cites at It his comments in a different require does not this Court on “the to abandon Distinctions based whether he said Karohl,” “Judge historic distinction between court” or “in- statements rather than opinion. fact and statements of than “a little tellectually state- dishonest” rather “[A] honest,” opinion relating pub- ment of to matters of bit less than show no more than concern which prov- negligence, lic does not contain a reckless- and do establish ably requires. false factual connotation will ness law receive standard the protection.” Milkovich, Louisiana, v. full constitutional Garrison 379 U.S. at (citation omitted). 110 S.Ct. at at 218. If we S.Ct. Sullivan, v.

No principal case cited facts close this one. Sev (1964), involves even held even L.Ed.2d which eral of the cases cited have assessed disci subject false statements constitu- unequivocal has pline when a made proteсtion in if tional defamation actions charging judges, one or more or public fig- they concern issues and acting others, in concert with plaintiff ures. The defamation must show fraud, corruption conspiracy in the dis malice, if a which be found false Matter Ter position particular cases. defamatory wilfully reck- statement (1979); ry, Ind. N.E.2d 279-80, Id. lessly made. at California, v. State Bar Ramirez holding ele- 725-26. introduces new Cal.Rptr. Cal.3d P.2d sought ment into the law when it is Louisiana State Bar Ass’n (1980); expression. impose The hold- sanctions Karst, 428 So.2d 406 (La.1983); In re Dis applicable cases ing was made to criminal Graham, 453 ciplinary Against Action Louisiana, 67, in Garrison v. 379 U.S. cert. denied ‍‌​​‌​‌‌‌‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​​‌​‌‌‍sub nom. (Minn.) N.W.2d 313 215, 74, 212, demonstrating that — 85 S.Ct. at Wernz, U.S. -, v. 111 Graham S.Ct. York New holding rationale and 67, 112 L.Ed.2d 41 These cases are Times apply with no less force when Matter of similar to our in own Alexander, 1991), remedy is criminal. (Mo. 70 807 banc S.W.2d properly points pro which to the need for however, principal opinion suggests, The public tecting the from who makes unfounded accusations for which no is same What not clear whether the furnished, support though even law degree protection af- constitutional yer, paranoia eccentricity, out of or other re- and arenas is forded civil charges AH criminal believe the to be true. charges professional disciplinary pro- unsupportable quired involved false conduct, conspiratorial criminal оr and do ceedings. holding support not of this case. answer, submit, quite The I clear. I approach would commend such their First Lawyers do not surrender Nelson, v. 637, State cases as 210 Kan. 504 they accept their rights Amendment when Semaan, (1972); Bar v. P.2d 211 State 508 v. Bar Ari licenses. See Bates State State ex (Tex.Civ.App.1974); S.W.2d 429 350, zona, 433 U.S. 97 S.Ct. Porter,

rel. v. Oklahoma Bar Ass’n R.M.J., (1977); In re 455 U.S. L.Ed.2d 810 Hinds, In re (Okl.1988); P.2d 958 90 N.J. (1982); 929, 71 102 S.Ct. L.Ed.2d (1982); and Matter of 449 A.2d 483 reversing of R.M.J., Matter Keller, (1984), Mont. P.2d Button, v. (Mo. 1980). NAACP banc recognized in which the have courts (1963); 415, 83 9 L.Ed.2d 405 U.S. S.Ct. discipline lightly for not be should Primus, re decreed. (1978). These cases demon 56 L.Ed.2d 417 I speak- not admire the for do rights must strate that First Amendment ing he did. could de- as His remarks be actions, put respected disciplinary be intemperate, disrespectful, dis- scribed as on the states to show substantial burden courteous, informed, poorly ple- with sup compelling public interest in order to adjectives. similar He is an thora of ambi- port expression. on freedom of limitations politician penchant publici- tious for with a narrowly must drawn rules There ty. Perhaps had a defense reaction protect The compelling interest. major disappointing verdict in a case. principal opinion suggests The still informants must demonstrate vio- sup disciplinary actions interest involved narrowly lation of a drawn rule. ports freedom of ex stricter controls over 2. The First Amendment Issue claim, Garrison refutes pression. this be pub it too involved the vindication оf cause prime places reliance on rights. of New private lic Pro York Times Co. rights rather than landmark case above, fully chilling lawyers cited in Part discipline fessional can be which expression prosecution.5 disciplined charging as can criminal have been for conspiratorial conduct, with criminal or scanty principal opinion adduces with recent our case Matter Alexan- authority the proposition obsolescent der, supra, slightest bears sim- apply that the First Amendment does not ilarity to this case. to, to, lawyer application or has limited discipline cases. Some of the cases are Lawyers possess First Amendment gm-New pre- York Times and most are rights. legitimately Before a court can Bates. The more recent and better con- impose discipline, chilling the First Amend- recognize sidered cases that First Amend- ment, compel- the state must articulate a protection applies ment force.6 full ling Advisory interest. This Committee from quotation our case of In re has not done. Woodward, S.W.2d 393-94 Communications, In Landmark Inc. 1957) light must read in 838-39, Virginia, intervening Supreme numerous Court deci- 1535, 1541-42, (1978), 56 L.Ed.2d demonstrating sions that courts are seri- ously sanctioning Court held that the state’s interest in main- lawyers limited in they say, disciplinary taining confidentiality what rules disci- must consist plinary proceedings with the First Amendment. did justify a sanc- against newspaper published tion a which (13 Wall.) Bradley Fisher, 335, v. 80 U.S. an pending proceedings. article about (1871), 20 interesting L.Ed. 646 in decided also emphasizes lawyer that context, help historical is of in no at all our discipline must be exercised a manner present inquiry per- because it dealt awith with consistent the First Amendment. sonal lawyer confrontation a between and a judge during a recess in a trial. The case of trilogy Bridges Pertinent also is the v. damage a by lawyer against involved suit a Cal., 252, 190, State 314 U.S. 62 S.Ct. 86 a judge presented issues, several none (1941); L.Ed. Pennekamp 192 v. State of germane present to the inquiry. 1029, Fla., 331, 328 U.S. 66 S.Ct. 90 L.Ed. principal opinion (1946);

The Craig finds solace in a Harney, 1295 v. 331 U.S. case, 367, 1249, Minnesota In Disciplinary (1947), re 91 Action 67 S.Ct. L.Ed. 1546 Graham, Against (Minn.), 453 N.W.2d 313 which the Court established rule that —Wernz, cert. den. sub purpose maintaining nom. Graham v. respect for -, 67, U.S. 111 S.Ct. 112 justify contempt L.Ed.2d 41 courts does sanctions (1990), which present is said to “objec- fairly such as have been common in the tive” rather than a “subjective” past a judge’s test for criticism of conduct in a knowing element of pending explained and reckless falsehood case. The Court that in disciplinary eases. There a right who the freedom includes lost charged a case presiding judge right sug trilogy to criticize courts. The conspiring with gests to deprive others his must thick that have skins rights. client his disciplinary require At his protection do not from criticism hearing he support offered no evidence in unless thеre is malicious defamation. First charges, sought outweigh to defend on the far pur Amendment interests charges pose basis he believed the “maintaining respect true. The court professed held that this California, courts.” See also Cohen v. 15, 22-26, belief could charge not refute the reck- 403 U.S. 91 S.Ct. 1786- lessness. The case inis line with cases 29 L.Ed.2d 284 Nevada, Porter, In Gentile v. State Bar Nev. 6. State rel. Bar v. ex Oklahoma Ass'n (1990), Supreme Keller, 787 P.2d 386 (Okl.1988); Court Ne- P.2d Matter Mont. tried vada to one-line the First Amendment is- Hinds, (1984); N.J. 693 P.2d 1211 In re disciplinary involving lawyer's sue ain action Nelson, (1982); A.2d v. State public statement of his client's innocence of (1972); Kan. 504 P.2d 211 v. State Bar pending charges. granted The Semaan, (Tex.Civ.App.1974). 508 S.W.2d 429 argued. certiorari the case been has used in defamation prove regard” standard failed Advisory Committee applied discipli- strictly “the must one which cases the statement was nary proceedings. false or lawyer knows to be made] [was truth or falsi- disregard of its with reckless Thompson, and St. Amant Garrison in the New York ty.” Rule 8.2 is embodied L.Ed.2d 262 88 S.Ct. proving defamation. standard for Times (1968), Lawyers provide the answer. 279-80, Times, at New York political disadvantaged in their not be malice denotes a Actual S.Ct. at 725-26. compelling reasons. speech except for through def- to cause harm purpose apparent Respondent’s “recklessness” 279-83, at 725-28. at 84 S.Ct. amation. Id. things failure to think ly found that the opinion points out principal But study the case law. through or to hearing at the formal respondent testified law is a in First Amendment recklessness impugn integri- mean to that he did not art, casually attributed. not to be term of Karohl, and that he did not ty said, Garrison, “it is essential the Court believe, suggest, mean to and did not protect Amendment some the First informants, honest. The judge was not publications.” v. Lou erroneous Garrison testimony as evidence incredibly, use this isiana, at 216. 379 U.S. at knowingly spoke falsehoods when that he “Moreover, the utterance is even where prin- tongue is indicated. only a loose false, great principles of the Constitu far, appear go this cipal opinion does not expression in freedom of which secure tion indication on his admissions as but seizes attaching conse adverse preclude this area disregard as to reckless that he acted “with knowing or reck except the quences ” falsity of the statements.... the truth or at 215. less falsehood.” Id. point holding, opinion misses the In so has ex Supreme Court The United States requirement of scienter. fig concerning public plained that cases position, In Contrary to the Committee’s public interest matters of ures and 1376, 3 79 S.Ct. Sawyer, re by not measured reckless conduct (1959), support no provides L.Ed.2d 1473 man reasonably prudent whether a con- principal opinion’s the remarkable have in- or would published, would have knowing respоndent spoke that clusion There publishing. vestigated before justices majority A of the falsehoods. the permit sufficient evidence must be charged with Sawyer found that was not in fact en- ‍‌​​‌​‌‌‌‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​​‌​‌‌‍the defendant conclusion that attempted found to have and could not be as to the truth doubts tertained serious ongoing in an proceedings to obstruct the Publishing with publication. of such doubts shows on to conclude majority trial. The went disregard for reckless statements, are much more that her which actual falsity and demonstrates truth or inflammatory any- than disparaging and supplied). (Emphasis malice. case, properly be thing in this could not at Thompson, 390 U.S. Amant v. St. the sin- personal as a attack on construed case also teaches at 1325. That 88 S.Ct. The judge hearing the case. gle who was investigate does failure to negligent the for more deference four dissenters called Amant v. recklessness. St. not establish courts, findings of the two lower to the at at Thompson, 390 U.S. pending trial suggested that counsel in a Inc., Time, case, 1326. also Cervantes far See special responsibilities. The had (E.D.Mo.1971). The F.Supp. discipline imposed the supporting from that here, opinion fails to demonstrate present principal the result. is at war with meet the stan- respondent’s utterances opinion struggles to find principal The dards of Amant Garrison.7 St. “recklessness,” saying: jurisprudence also teaches clear, howevеr, Our own It is not whether found. lightly to be is not knowledge or in reckless dis- recklessness “with emphatically that he Discipline, astounding when he stated intimation that the re- I find judi- any suggestion imply report assert or spondent kind of did not should have made Retirement, cial misconduct. Removal and to the Committee Co., Advisory bring sought Herald S.W.2d The Committee Glover v. 1977), Seiler, Louis There a St. C.J. to an after the formal hear- matter end meeting alderwoman stated a of the respondent ing by tendering the a written she abortions. Board that had had two pursuant to Rule admonition 5.13. correctly telephoned Her was to the name necessarily tender indicated that the Com- city reporter, a but the rewrite desk was of the conduct mittee that his ald- editor substituted the name of another require suspension disbar- did not either “working while on a erwoman deadline.” temporary Had it ment. concluded set plain- This Court aside a verdict for the separation practice from permanent tiff, holding jury proper- that the could not interest, required its offer was ly find under reckless conduct the evidence manifestly would of a mere admonition “high in the case and because there was no irresponsible. part degree of awareness on [the editor’s] probable falsity he Id. what wrote.” refused the admonition at 861. stating in a courteous letter that “I ... feel strongly my only conduct

Today this Court fails to heed the federal professional, defining assign- appropriate.” This he decisions recklessness. ing an unwarranted Rule perfect right construction to admoni- had the do.9 An 8.2, the Court commits classic First tion not a matter. trivial It could be sin Amendment of overbreadth. If law- disciplinary proceedings.10 used in future yers subjected particu- to the whims of that, if might believe he tribunals, lar and are unable to determine admonition, accepted the he would be con- of their expression, limits freedom of “prior every ut- sidered offender” whose protected their expressions will be serious- respecting system terance ly impeded.8 personnel its would be scrutinized principle New York Times disciplinary bar authorities. He should applying represent cases it good law least, not, very subjected at the to addi- good policy. rights Our bill of embodies refusing tional most sanctions for it. The values same does First Amend- should risk is formalization ment. should We not strive for minuscule charges, with no of a sanction excess discipline distinctions order to public reprimand. An admonition speech. The New York Times-Garri- bargain, part in plea designed invitation to principles amply protect son prosecu- to cut on the down burdens defamatory from by lawyers statements is purpose advisory tor. Its sole and reme- judges. about proceed We should dial, in respondent’s in case which the speech, free tradition of which our courts practice questioned. not fitness is have so long. honored After the admonition was refused the

3. The Actions praying Committee filed an information Advisory Committee disbarred, respondent that that the “be practice why right There another and license to law be can- proceed- reason ing be terminated, should without discipline. terminated celed and that his name be however, Airport judiciary, painting 8. See Board Los Commissioners it is the with a Inc., Jesus, Angeles brush, Jews broad that intrudes on the narrow for (1987) (invalidating S.Ct. 96 L.Ed.2d 500 boundary already through of a rule defined proscribed rule which all First Amendment ac years jurisprudence. Alabama, airport terminal); tivities in Marsh v. (1946) 326 U.S. (trespass 90 L.Ed. 9. It in this interest that admonition against designed strictly private, statute held not enforceable case was not ordinarily to be as is case, religious distribution company literature on streets of but was conditioned town). being advised Karohl’s about it. Traditionally, it is the function of courts permissible Kopf, define the constitutional and con- re 10. In rule, regulation Today, 1989). tours of a or statute. principal opinion suggests he said. attorneys in this stricken from the roll of relationship clear. between the First message state.” The was loud and lawyer disciplinary pro- say If a doesn’t “uncle” when Amendment and admonition, Advisory ceedings an defined in the Committee offers has not been well Many so, thеy’ll respect then throw the book. accused case If this is we should law. lawyers accept they would admonitions Amendment those who invoke the First subject- consider unwarranted rather than they court because of when are drawn into public prayers ing forget themselves to for disbar- they say. what We should ment. in defense of free blood that has been shed speech. may turn out to Some defenders master, Next, hearing at the before may ultimately sanc- wrong and suffer highly publicized the informants made a tions, in they placed should not be but suspension for a of three recommendation seeking judicial for de- jeopardy additional years. This recommendation was con- rights they termination of their view brief, and, argument, in firmed in their oral Advisory conduct them. The Committee’s they suspension. a “substantial” asked for strong potential chilling has a freedom only recommendation can Committee’s expression. The Court should abate the attempt punish- regarded as further drawing analogy from find- proceedings, rejecting ment the admonition.11 in ings prosecutorial misconduct criminal all. The informants ar- But this cases. us, brief, gued in and also before their chilling in the intima- There is a further charges the Court could consider additional report princi- and in the tion the master’s violation, of rule of which the have pal opinion that the should notice, support had no of the enhanced record, apology on the made some sort they sought. It was then asserted sanction filing after the of the information. respondent’s origi- that the criticism of the “private” opinion refers to his statement jury nal Bullock after the verdict violated integrity and his judge’s confidence in the 3.6(a) 3.8(e).12 Neither of these Rules apology hearing, at the formal but then rules was mentioned in the information. “continually and stead- asserts that he has approach only in is not conflict original rules; from his elementary princi- fastly refused to deviate our it violates the this at all. ples process principal position.” I do not understand of due of law. The hearing formal his license was opinion properly states that these addition- After the considered, entitled to make charges being jeopardy. we He should be al are not defense, outside go should further. We should tell the Ad- his surely be dis- visory proceedings uncertain terms should Committee no no couraged. explained that he meant disciplinary an information in a action He integrity. Is the judge’s criticism of the must set out all of the rule violations the suggesting he should have an- support the disci- Court Committee relies on change in his view of the court pline charges If additional nounced a it seeks. right have no to appeals opinion? We sought an amended information should be him in this manner. attempt proffer addition- brоwbeat tendered. example chilling charges al is a further problem opinion presents a further The tactics. suggestions that the re- by repeated its adequate research appro- spondent has not laid an The tactics of the Committee are case, criticisms of the Karohl priate in this in which foundation for his for comment only to opinion.13 pointing It him for being charged for what faults cases, partial jury or either cized a which returned full 11. Based on our a recommendation suspension acquittal. or substantial for this of disbarment ridiculous, single patently whether or offense reprimand previously not a tendered. 13.See, e.g., Thompson, U.S. at St. Amant v. (negligent failure to investi- 88 S.Ct. at 1326 that a 12. I am rather shocked the intimation recklessness). gate not constitute does prosecutor might disciplined because he criti- history of long freely. Many “the armed will tortuous conclude that it is wise Missouri,” and for criminal action in his not keep quiet. Lawyers, who have contrib- logic “suggesting precedent or that he be- uted so much to discussion in the opin- an ‘honest’ lieves would constitute past, severely disadvantaged should not be ion_” says It he “failed to investi- compared pub- to other members of the gate to determine Karohl whether lic. participated involving has cases any record, On the Westfall whole should be rule,” overlooking armed criminal action fully dischаrged of information. his participation pre- issuance of the liminary rule. comments belie These

finding of false of fact. statement

Conclusion

Make no it. principal mistake about lawyers’ judicial chills about speaker weigh

decisions. It invites the every political opponents word. It invites TONKIN, al., Joel L. et to scan suspicion statements for least Respondents-Appellants, of a false fact publicize statement of and to the filing charges any criticism of a or, matter, judge, court or a for that The BOB ELDRIDGE CONSTRUCTION protected of the persons other Rule INC., COMPANY, al., et 8.2(a), applies which to statements about Appellants-Respondents. officers, adjudicatory public legal officers appointment candidates for election No. 42556. WD judicial office, legal as well as to Appeals, Missouri judges. disadvantages of allowing Western District. these kinds of complaints outweigh far advantages. Button, See NAACP v. March 1991. U.S. at warning 83 S.Ct. at of the Rehearing Motion for and/or Transfer to danger in censoring inherent criticism of April Court Denied 1991. issues, as follows:

A rule compelling critic of official guarantee

conduct to Application truth of all his Denied to Transfer factual assertions leads ... ‘self-cen- June sorship.’ rule, ... Under such a would- critics official conduct be de- voicing criticism,

terred from their even

though it is to be true believed and even true,

though it is in fact because of doubt proved

whether it can be in court or fear expense having to do so. quite adduced a few lawyers other

containing comments about deci-

sions challenged similar to the statements

here. principal opinion testily replies function, respondent’s

that “It is not appropriate disciplinary committees’,

initiate enforcement of the Professional portends

Rules.” This language further

disciplinary against proceedings lawyers ‍‌​​‌​‌‌‌‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌​​‌​‌‌‍express who themselves too

Case Details

Case Name: Matter of Westfall

Court Name: Supreme Court of Missouri

Date Published: May 3, 1991

Citation: 808 S.W.2d 829

Docket Number: 72022

Court Abbreviation: Mo.