The MISSISSIPPI BAR
v.
Chokwe LUMUMBA.
Supreme Court of Mississippi.
*875 Adаm Bradley Kilgore, Michael B. Martz, and Gwendolyn G. Combs, Jackson, attorneys for appellant.
Imhotep Alkebu-Ian, Adjoa Artis Aiyetoro, Jeffrey L. Edison, attorneys for appellee.
EN BANC.
SMITH, Chief Justice, for the Court.
¶ 1. This is an appeal by the Mississippi Bar of a Complaint Tribunal decision to impose a public reprimand upon Chokwe Lumumba, an attorney licensed to practice law in Mississippi.
FACTS AND PROCEDURAL HISTORY
¶ 2. On October 17, 2001, Lumumba appeared before Leake County Circuit Judge Marcus D. Gordon for a hearing on post-trial motions in a criminal case. During the course of the hearing, Lumumba made the following statement to Judge Gordon: "Look, Judge, if we've got to pay for justice around here, I will pay for justice. I've paid other judges to try to get justice, pay you, too, if that's what is necessary." Other statements were also made to Judge Gordon. Judge Gordon cited Lumumba for contempt, fined him $500, and ordered him to serve three days in the Leake County Jail.[1]
¶ 3. Lumumba appealed the contempt citation to the Mississippi Court of Appeals, which affirmed the trial court on August 26, 2003. See Lumumba v. State,
Lumumba's behavior was done in the presence of the court and intended to embarrass or prevent orderly administration of justice. Further, it was both disrespectful to the judge and disruptive to court proceedings. We cannot fathom any situation that would warrant such behavior. This Court finds that the statements made toward the judge about how he can better get along with lawyers in the future, about the judge's "henchmen," about being proud to be thrown out of the courtroom, and about paying the judge for justice were made to embarrass the court or impede the administration of justice. This Court finds that the statements go far beyond zealous representation of one's client, and makes a mockery of the court and its proceedings.
Id. at 1021. Lumumba spent 1 and ½ days in jail.
¶ 4. In October 2001, Jimmie Gates, a reporter for the Jackson Clarion-Ledger newspaper, interviewed Lumumba by phone concerning the contempt citation. During the interview, Lumumba told Gates that Judge Gordon "had the judicial temperament of a barbarian." Thereafter, on October 31, 2001, the Clarion-Ledger published an article which included the following:
Jackson lawyer Chokwe Lumumba is appealing a contempt charge, saying the judge who had him jailed has "the judicial *876 temperament of a barbarian." Unapologetic for the comments that landed him in hot water, Lumumba said Tuesday, "The judge was wrong."
As a result of these events, the Mississippi Bar filed a formal complaint against Lumumba with this Court, which was heard by a Complaint Tribunal on April 22, 2003.
¶ 5. The Tribunal found Lumumba had violated Rules 3.5(c), 8.4(a), and 8.4(d) of the Mississippi Rules of Professional Conduct. The Tribunal determined a public reprimand was an appropriate punishment. The Mississippi Bar disagreed and appealed to this Court, claiming the Tribunal erred by failing to find that Lumumba violated Miss. R. Prof'l Conduct 8.2(a), and further claiming that a public reprimand was not the appropriate punishment for Lumumba's conduct. Instead, the Mississippi Bar wanted Lumumba suspended from the practice of law for an unspecified period of time. The Mississippi Bar stated that the length of suspension would be left up to this Court to determine. Lumumba cross-appealed, claiming his conduct did not violate the Mississippi Rules of Professional Conduct, and further claiming that he should not receive a public reprimand.
¶ 6. We allowed the Center for Constitutional Rights to file an amicus curiae brief, urging that Lumumba's conduct did not violate the Mississippi Rules of Professional Conduct, and that Lumumba's conduct is entitled to First Amendment protection.
ANALYSIS
¶ 7. This Court has exclusive jurisdiction over all matters pertaining to attorney discipline, and is "the ultimate judge of matter[s] arising under the Rules of Discipline for the Mississippi Bar." Miss. Bar v. Thompson
¶ 8. For clarity and order, the arguments presented are consolidated into the following three issues:
I. Did Lumumba viоlate Rules 3.5 and 8.4 of the Mississippi Rules of Professional Conduct?
II. Did Lumumba violate Rule 8.2 of the Mississippi Rules of Professional Conduct?
III. If Lumumba is found to have violated the Rules of Professional Conduct, what is the appropriate punishment?
I. Rules 3.5 and 8.4 of the Mississippi Rules of Professional Conduct.
¶ 9. We begin with an examination of the record to determine whether, by clear and convincing evidence, Lumumba violated Rules 3.5 and 8.4 as determined by the Tribunal.
Rule 3.5
¶ 10. Rule 3.5(c) states that "[a] lawyer shall not: . . . engage in conduct intended to disrupt a tribunal." The Tribunal unanimously found that Lumumba's statement to Judge Gordon about paying *877 for justice violated this rule. The Tribunal also found that Lumumba's other comments to Judge Gordon did not violate Rule 3.5, but were "a close call."
¶ 11. The Bar says Lumumba's comments to Judge Gordon were abusive and went beyond advocacy, and that his conduct was belligerent and theatrical. The Bar directs us to the comment to Rule 3.5 which states:
The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review аnd preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Miss. R. Prof'l Conduct 3.5 cmt.
¶ 12. Lumumba asserts that the Bar did not prove a violation Rule 3.5(c) by clear and convincing evidence. He says he was merely trying to make a record for his client, and that Judge Gordon abruptly stopped him and ordered him from the courtroom. Lumumba further asserts that his contempt citation is no proof that he disrupted courtroom proceedings for purposes of bar discipline.
¶ 13. The amicus argues that Lumumba did not violate Rule 3.5(c), focusing on the intent requirement of the rule. Lumumba's intent, they claim, was not to disrupt the proceedings at all, but rather to engage the court and to make a record for his client. To substantiate this position, the amicus directs us to the following testimony provided by Lumumba to the Tribunal:
[W]hat I was saying to the Court is that no, just fining me is not going to stop me from raising the issues for my client.
And that's the way that I think that we're obligated to practice as lawyers. . . . [H]ere's a man that's getting ready to face life in prison . . . probably beyond his life expectancy.
So . . . on one hand, he's . . . telling me I've got to pay a fine. On the other hand, he's telling my client that he's got to spend life in prison. To me, it's more important for my client's interest to be represented, even if I've got to pay the fine. And so part of representing my client's interest is to make sure that the appropriate record was to be made.
We werе in a situation [w]here not only was the judge denying our motion, but this was a judge . . . who was doing his best to close us down to get out of there, without . . . making a record. Even though at one point he relented, at the end, he was still doing the same thing.
[A]t this point . . . [w]e would have to appeal it, and we would have no further chance to make a record, unless it came back on postconviction [sic], which is something the Supreme Court has to allow you to do.
[E]ssentially what I was saying is that using the contempt power was not going to be sufficient to stop me from making a record . . . for my client.
[A] lot of times [gross miscarriages of justice] happen because records aren't made. . . . A lot of times that happened because people want to do the comfortable thing with the judge rather than sometimes challenge the judge when the judge is wrong.
[S]ometimes the judge doesn't understand what you're saying, sometimes he *878 confuses what you're saying, sometimes he may be mad about something else and ignoring what you're saying. . . . And so what you do is make sure that you are heard.
Once you are heard, then . . . more times than not, judges will turn around and step back and say, well, you know, if you've got a reasonable position.
¶ 14. Thus, it is clear that Lumumba's entire defense to the claim that he violated Rule 3.5(c), is his belief that, in order to "make a record," he had to do what he had to do. We find no indication that Lumumba seriously disputes he disrupted the proceedings.[2] Rather, he says that the disruption was not his intent. The amicus cite us to Matter of Ray,
Although [the accused attorney] interrupted the other attorneys . . . by stating, "Oh, brother," and "Oh, what crap," and continued to argue with [the judge] after he told her that her conduct was inappropriate, the referee found no violation. Although he found that she had disrupted the tribunal, he could not find evidence that she had intended such a result. Rather he perceived that she was frustrated by the entire situation and, although completely in the wrong, did not violate [Rule 3.5(c)].
Id. at 731, 733.
¶ 15. Lumumba's claim that he felt he needed to "make a record" is repeated throughout the briefs presented by Lumumba and the amicus. Lumumba characterizes the statements he made to Judge Gordon as "an exchange between the Court and Mr. Lumumba on the heels of Mr. Lumumba's attempt to make a record of the unfairness of the trial. . . ." Citing the comment to Rule 3.5(c), the amicus says it this way:
Although ordinarily "[a]n advocate can. . . protect the record for subsequent review . . . by patient firmness" . ., that was not possible for Mr. Lumumba as the judge had ordered his removal from the courtroom . . . before he could even try to protect the record.
The amicus further says that "[a]ny temporary disobedience was justified under the Rule."
¶ 16. The premise of these arguments is that Lumumba was prepared to present some matter to Judge Gordon which might be waived or lost unless immediately presented. We decline to accept this argument. Lumumba does not reveal tо us any new issue or argument Judge Gordon did not allow him to present. Indeed, if Lumumba intended to raise some evidentiary or procedural issue, Judge Gordon would have been obligated to reject the argument unless the matter was raised at trial. Furthermore, if Lumumba's true purpose was to "protect the record" by presenting some new issue which could not have been raised at trial, he could easily, and certainly more thoughtfully, have presented the matter in his written motion. His verbal argument at the hearing on his post-trial motions was solely for the purpose of attempted persuasion of Judge Gordon, not "making a record."
¶ 17. The record in this case does not support the position taken by Lumumba. The hearing which took place on October 17, 2001, began with Lumumba's argument *879 on his motion for Judge Gordon to recuse. When the trial court denied the motion, Lumumba announced that he was ready to proceed with "evidence" concerning the "allegations we have made in the motion." The trial court then allowed Lumumba to proffer expected testimony and evidence regarding problems Lumumba perceived with some of the jurors. Lumumba's proffer spanned several pages of transcript, uninterrupted.
¶ 18. When Lumumba finished, the court requested case authority, but Lumumba had none. The court then allowed the State to respond, after which Lumumba was allowed an uninterrupted rebuttal. Thereafter, a short discussion took plаce and the court then allowed Lumumba to present still another rebuttal.
¶ 19. At the conclusion of the presentation by counsel, the trial court denied the motion, consuming five pages of transcript explaining his reasoning. Things went downhill from there. It was then that the following took place:
MR. LUMUMBA: I have another application here, Judge. The Court has denied my right to call the jurors in order to talk about the outside influences. What I would do at this time is make an application for a continuance of this motion for a new trial and for instructions to the prosecutor to provide me with the location and addresses of two people who have to do with some of the outside influences, and, there's no rule prohibiting them from testifying as to whether people know them, and, it's really no rule prohibiting a juror from testifying whether they know people, even after the verdict.
But, in any event, one would be Eric Freeman, and, the other one would be who is, interestingly enough, no longer in jail as we found out, and secondly would be Mr. Britt. So, we would be requesting that we get this information and that the hearing be continued for a sufficient amount of time for us to bring these witnesses forward to see if, in fact, as we have alleged, they have information which is helpful to the determination of this motion or any other motion which might be properly brought under the context of this motion for a new trial.
THE COURT: I am going to overrule your motion. There must be some finality to these cases. What that is, it appears to me to be entirely a fishing matter, so the final order of this Court is your motion for a new trial is overruled.
MR. LUMUMBA: Well, Judge this
THE COURT: No additional hearing will be heard regarding your motion for new trial.
MR. LUMUMBA: Just for the record, Your Honor, it's a little more it's a little less than a fishing expedition . . . In fact it is very focused and direct. But, the Court's resolution of the motion is not to be unexpected, given the Court's demeanor during the entire trial.
THE COURT: What do you mean by that?
MR. LUMUMBA: What I mean is that the Court didn't handle the trial fairly, is not handling the motion fairly.
THE COURT: Well, you make it very difficult to work with, Mr. Lumumba. I think I gave you a fair trial, and, certainly, anything that I did before the jury, nothing that I did
MR. LUMUMBA: Well, let me say this Judge.
THE COURT: Just a minute, now. I'm
MR. LUMUMBA: I have
THE COURT: You just
MR. LUMUMBA: another
*880 THE COURT: wait just a minute.
MR. LUMUMBA: I have another
THE COURT: I'm the Judge of this Court
MR. LUMUMBA: I have another issue. I just want you to know I have another issue.
THE COURT: I want you to know this hearing is now over with and
MR. LUMUMBA: Can I ask
THE COURT: And there will be nothing else to be made of record.
MR. LUMUMBA: Can I address another issue? You don't want to hear it? You don't want the Court to hear it? It's another issue. It's not what we talked about.
THE COURT: All right. Go ahead.
MR. LUMUMBA: And, what I'm doing is offering this to you, so you can, perhaps, get along better with other lawyers in the future.
THE COURT: Well, don't you worry about
MR. LUMUMBA: Okay. Can I finish?
THE COURT: how I get along with lawyers.
MR. LUMUMBA: Can I finish, please?
THE COURT: You worry about how you get along with Courts.
MR. LUMUMBA: Can I finish, please?
THE COURT: No.
MR. LUMUMBA: Judge
THE COURT: Remove him from the Courtroom.
MR. LUMUMBA: Are you going to have
THE COURT: I am going to have you removed
MR. LUMUMBA: your henchmen throw me out, Judge?
THE COURT: Until you show some respect to the Court
MR. LUMUMBA: I'm trying to show you some respect.
THE COURT: Will you remove him from the Courtroom?
MR. LUMUMBA: That's the way you've handled it the whole Court. I'm proud to be thrown out of your Courtroom.
THE COURT: All right. Just a minute. That will cost you three hundred dollars, Mr. Lumumba. Now if you want to continue
MR. LUMUMBA: Look, Judge, if we've got to pay for justice around here, I will pay for
THE COURT: I will exercise my discretion
MR. LUMUMBA: justice.
THE COURT: regarding a jail sentence.
MR. LUMUMBA: I've paid other judges to try to get justice, pay you, too, if that's what is necessary.
THE COURT: It will cost you $500.00. You will serve three days in the County Jail. You will start serving it immediately, for contempt of Court.
MR. LUMUMBA: No problem. Are you going to feed me? I can't get my bag?
THE COURT: Court is in recess.
(Emphasis added).
¶ 20. A careful review of this transcript clearly reveals that the "issue" Lumumba wanted to raise did not relate to his client at all, but rather was Lumumba's advice on how Judge Gordon could "get along better with other lawyers in the future." The balance of the transcript speaks for itself. The result of Lumumba's conduct was a fine and contempt of court order to serve time in jail. Then, in his testimony before the Tribunal, Lumumba stated that "just fining me is not going to stop me from raising the issues for my client." We *881 also find that Lumumba's statements to the trial judge regarding paying off judges were intended to disrupt, and in fact did disrupt, the court proceedings.
¶ 21. Since it is glaringly obvious that Lumumba's conduct violated Rule 3.5(c), it is equally as obvious to conclude that his conduct also violated Section (a) of Rule 3.5. Rule 3.5(a) states that "[a] lawyer shall not seek to influence a judge, juror, prospective juror or other official by means prohibited by law." When Judge Gordon asked to have Lumumba removed from the courtroom, Lumumba stated "[t]hat's the way you've handled it the whole Court. I'm proud to be thrown out of your Courtroom." (emphasis added). Then, when Judge Gordon advised Lumumba that he would immediately begin serving three days in the county jail for contempt of court, Lumumba tauntingly said, "[n]o problem. Are you going to feed me? I can't get my bag?" While these comments are abusive and disruptive, they are also evidence the fact that Lumumba was purposefully attempting to exert influence over Judge Gordon through intimidation. Lumumba's menacing, belligerent attitude was an unmistakable attempt tо "bully" Judge Gordon into making decisions that were in accordance with Lumumba's ultimate intentions. Further, when Lumumba remarked that he was "proud to be thrown out of your courtroom," this was an unambiguous, open admission of Lumumba's lack of respect for Judge Gordon as well as the judiciary as a whole.
Rule 8.4
¶ 22. The Tribunal was correct in finding that Lumumba's conduct also violated Rule 8.4. The Mississippi Rules of Professional Conduct 8.4 states: "[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct . . . (d) engage in conduct that is prejudicial to the administration of justice. . . ." When this Court reviews a disciplinary action from the Complaint Tribunal, the evidence is examined de novo. Rule 9.4 of the Rules of Discipline for the Mississippi Bar; Broome v. Miss. Bar,
¶ 23. The United States Supreme Court has held that conduct prejudicial to the administration of justice is synonymous with "`conduct unbecoming a member of the bar' [or] conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts." In re Snyder,
¶ 24. Lumumba's statement and behavior in the courtroom directly affected the judicial proceeding. With regard to Rule 3.5(c), Lumumba's statement about "paying for justice," the fact that Lumumba tried to give Judge Gordon advice on "how to get along better with other lawyers in the future," and his statement about how the judge was going to have his "henchmen" throw him out clearly disrupted judicial proceedings. Henchmen are defined as "a political follower giving active support; an unscrupulous often violent member of a gang." Webster's Third New International Dictionary 1056 (1986). Thus, the use of the word henchmen by Lumumba was disrespectful, extremely inappropriate, and nothing less than an attempt to intimidate Judge Gordon. Furthermore, Lumumba's statements were clearly made in the course of the proceedings and directly affected the judicial proceedings. While the hearing was being concluded, the case was proceeding for "judicial determination and disposition" and ultimate determination on appeal by this Court. Howell,
¶ 25. Lumumba also violated Rule 8.4(d) when he made the "barbarian" comment to the Clarion-Ledger. This "barbarian" comment was simply one of many inappropriate statements that Lumumba made during the course of these proceedings. Even though this statement was made after the trial, it was a matter connected to a judicial proceeding which was ongoing and continuing towards determination and disposition, ultimately concluding on appeal to this Court. Rogers,
¶ 26. Lumumba's conduct and statements in the courtroom are not protected by the First Amendment and he may be sanctioned under Rule 8.4. The majority of state and federal courts have found First Amendment protection arguments unpersuasive because the state's interest is in protecting and defending its public officials and in maintaining a respect for the judiciary. See Charles W. Wolfram, Modern Legal Ethics, § 11.3.2, at 602-03 (1986). An attorney may not "seek refuge within his own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults." United States v. Cooper,
¶ 27. Likewise, Lumumba's statement that Judge Gordon has the "judicial temperament of a barbarian" is not protected by the First Amendment, and he can be sanctioned for making it under Rule 8.4. In the case of In re Holtzman,
the issue raised when an attorney makes public a false accusation of wrongdoing by a Judge is not whether the target of the false attack has been harmed in reputation; the issue is whether that criticism adversely affects the administration of justice and adversely reflects on the attorney's judgment and, consequentially, her ability to practice law.
Id.
¶ 28. As stated above, Lumumba's statement to the Clarion-Ledger clearly affected the administration of justice and also adversely reflected on his judgment and ability to practice law. The Court, in determining whether the First Amendment provided protection for this attorney, used an objective standard. Id. "In order to adequately protect the public interest and maintain the integrity of the judicial system, there must be an objective standard of what a reasonable attorney would do in similar circumstances." Id. Lumumba's course of conduct clearly satisfies this standard and therefore is not protected by the First Amendment. Since Lumumba is not protected by the First Amendment, this Court can and will sanction him for making the "barbarian" statement to the Clarion-Ledger under Rule 8.4.
II. Did Lumumba violate Rule 8.2(a)?
¶ 29. Rule 8.2(a) prohibits a lawyer from making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. As mentioned previously, our review of this issue is de novo, and accordingly, we make findings of fact as well as conclusions of law. It is readily apparent that all of Lumumba's statements were, in fact, made with wilful, reckless disregard as to their truth concerning Judge Gordon's qualifications and integrity as a judge.
¶ 30. Since the applicable standard of review is de novo, this Court is not restricted to the specific issues presented on appeal, but instead, may review any and all charges against Lumumba regarding the entirety of Lumumba's comments in this disciplinary proceeding. Lumumba's statement to Judge Gordon that "I've paid other judges to try to get justice, pay you too if it's necessary," was a direct attack on the character and integrity of Judge Gordon. It is clearly a direct insinuation that Judge Gordon, among other things, is dishonest, requiring payment by Lumumba in order for justice to be had in the circuit court. "Integrity,"is defined as "an uncompromising adherence to a code of moral, artistic, or other values; avoidance of deception; the quality or state of being undivided." Webster's Third New International Dictionary 1174 (1986). Lumumba's cоmment suggests that justice has been for sale before in other courts and that he had bought and paid for it. He inferred that if it was for sale by Judge Gordon he would buy justice again. By expressly stating that payment for justice was a feasible option, Lumumba unequivocally and recklessly undermined Judge Gordon's judicial integrity or his moral code, ability to be unimpaired, or impartial. The repeated similar allegations of buying justice in several different courts *885 suggests that Lumumba keeps a $100 bill specifically for the purpose of theatrically demonstrating "paying for justice" when the opportunity presents itself.
¶ 31. Lumumba made numerous additional comments during the course of proceedings that constitute a continuing, wilful, reckless disregard as to their truth or falsity concerning the qualifications or integrity of a Judge Gordon. For example, when Judge Gordon denied his motion for a new trial, he said "[w]hat I mean is that the Court didn't handle the trial fairly, is not handling the motion fairly." (emphasis added.). It is undisputed that fairness is an imputed qualification for a judge, and by specifically stating otherwise in open court, Lumumba contemptuously attacked Judge Gordon's qualifications. Lumumba then claimed to desire to raise another legal issue but instead attempted to offer Judge Gordon advice on "how to get along better with other lawyers in the future," and when Judge Gordon asked to have him removed from the courtroom, Lumumba asked if the judge was going to have his "henchmen" throw him out.
¶ 32. Lumumba's aforementioned "bаrbarian" comment also falls under the purview and meaning of Rule 8.2. As mentioned previously, a "barbarian" is defined as "lacking refinement, gentleness, learning; tendency towards brutality, violence or lawlessness." Webster's Third New International Dictionary p. 174, 1986. Quite obviously, averring that Judge Gordon's temperament was like that of a barbarian, Lumumba wilfully and knowingly undermined the presumed integrity and qualifications of Judge Gordon. It would be impossible to have a steadfast adherence to a moral code, be unimpaired, and undivided, while also being a fierce, brutal, or cruel person. Even though being called a barbarian may not at first glance infer dishonesty, it undeniably evinces distrust as to Judge Gordon's integrity as well as his qualifications as a judge. To suggest otherwise, is an intolerable miscarriage of justice as well as condonation that incites continued patterns of egregious disrespect by some lawyers for the judiciary. Lumumba's statements and conduct clearly violated Rule 8.2.
¶ 33. Lumumba's conduct and statements in the courtroom are not protected by the First Amendment and he may be sanctioned under Rule 8.2. In Florida Bar v. Ray,
[b]ecause members of the Bar are viewed by the public as having unique insights into the judicial system, the *886 state's compelling interest in preserving public confidence in the judiciary supports applying a different standard than that applicable in defamation cases. For this reason, we, like many other courts, conclude that in attorney disciplinary proceedings under rule 4-8.2(a), the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements.
Id. Lumumba's actions and statements are clearly not those of a reasonable, objective attorney, and as such, are not protected by the First Amendment so accordingly, they are sanctionable.
III. What is the appropriate sanction for Lumumba's conduct?
¶ 34. The Complaint Tribunal ordered a public reprimand. The Mississippi Bar has appealed that decision, seeking a morе severe punishment. In measuring the appropriateness of punishment of an attorney for violation of the rules of professional conduct, we look at (1) the nature of the conduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) the protection of the public; and (5) the sanctions imposed in similar cases. See Miss. Bar v. Alexander,
Nature of the conduct involved.
¶ 35. A review of the transcript leaves no reasonable doubt that Lumumba chose truculent language for the purpose of inciting anger. Such tactics are perhaps arguably understandable at times in the cross examination of a witness, but are never appropriate when addressing a court. Lumumba's duty was to his client, not to his own need to test the trial judge in a verbal battle over whether or not the trial court had been fair, and whether the trial court needed instruction in how best to get along with other lawyers among other inappropriate comments. Under the guise of "protecting the record," Lumumba abandoned his client to pursue his own interests. To compound his inappropriate motive, he chose language clearly outside the bounds of reasonable, respectful advocacy, regardless of his purpose. Furthermore, his "barbarian" comment to the Clarion-Ledger attacked the integrity of the Judge and the judiciary as a whole.
The need to deter similar misconduct.
¶ 36. This Court cannot abide conduct calculated to disrupt a tribunal and whiсh implies that justice can be bought and sold. Were we to overlook Lumumba's conduct, we have no doubt other members of the Bar would be encouraged to exhibit less respect for the courts. If history teaches us anything in this respect, it is that our judicial system cannot function properly where there exists a pervasive lack of respect for the courts and judges. An attorney need not personally like or respect a judge or justice, but when communicating with the court, the attorney is required to show respect for the position and institution.
The preservation of the dignity and reputation of the profession.
¶ 37. No more need be said than has already been said above regarding the need to deter similar conduct.
The protection of the public.
¶ 38. Our failure to properly condemn Lumumba's conduct would result in the understandable perception that his conduct is acceptable. That, of course, would lead inescapably to others engaging in similar conduct, thereby compromising the cases of their clients. The public is *887 entitled to know that when lawyers engage in such conduct, their clients are not well served.
The sanctions imposed in similar cases.
¶ 39. Other than a previous case involving similar conduct by Lumumba, for which he was disciplined and one other reported case for which he was not sanctioned we know of no other case decided by this Court where an attorney has addressed a trial court in the manner as disrespectful and insulting as here. Howevеr, the Bar cites numerous cases in other jurisdictions in which attorneys have been disbarred, suspended and reprimanded for similar conduct. For example, in United States District Court for Eastern District of Washington v. Sandlin,
¶ 40. In the case of In re Evans,
¶ 41. We have also recognized as an important factor prior disciplinary sanctions against an attorney. See Terrell v. *888 Miss. Bar,
(1) Mr. Lumumba had previously been found in contempt of Court twice in Michigan and once in New York because of actions he took while acting as trial counsel for separate, unrelated clients, though Mr. Lumumba testified the Michigan contеmpt citations were subsequently reversed on appeal; He had previously been issued an Informal Admonition by the Mississippi Bar's Committee on Professional Responsibility in Docket No. 97-73-1; and Mr. Lumumba was also issued a Public Reprimand by the Bar's Committee on Professional Responsibility on April 13, 2000 in Docket No. 99-208-1 when he was found to have violated the provisions of Rules 3.5(c) and 8.4(a, d and e), MRPC, for behavior similar to the conduct involved in the instant proceeding.
¶ 42. The Bar reasons that a public reprimand is insufficient, pointing out that Lumumba received a public reprimand for engaging in very similar conduct in the previously cited case, and has now repeated the offense, demonstrating the insufficiency of that sanction. We agree.
¶ 43. Lumumba's conduct, in the case sub judice, as well as his extensive history of similar misconduct, most assuredly constitutes serial misconduct. Lumumba has continued to demonstrate to the courts of this state, as well as the courts of Michigan and New York, that he does not respect the courts, judges, or justices. All of his conduct and actions, whether viewed as a whole or in part, unabashedly violate Rules 3.5, 8.2, and 8.4 of the Mississippi Rules of Professional Conduct. Here, the dissenting member of the Tribunal was absolutely correct in stating that Lumumba showed "indifference to his legal obligation to conduct himself in a professional manner." The dissenting member also noted, quite accurately, that a public reprimand would neither adequately demonstrate that this type of behavior will not be tolerated, nor serve a sufficient deterrent for Lumumba. Also, as shown by his serial, willful misconduct, a public reprimand will not serve as a deterrent for Lumumba.
¶ 44. Lumumba's flagrant refusal and self-imposed immunity to the authority of the judiciary, fellow members of the Bar, and the legal community as a whole is intolerable. One need only look at Lumumba's almost identical behavior in Glover v. Jackson State University,
CONCLUSION
¶ 45. After thorough review of this record and considering all necessary analysis of the criteria set out in Miss. Bar v. Inserra,
¶ 46. CHOKWE LUMUMBA IS SUSPENDED FROM THE PRACTICE OF LAW FOR SIX MONTHS AND UNTIL HE RE-TAKES AND PASSES THE ETHICS PORTION OF THE MISSISSIPPI BAR EXAMINATION, FINED $1,000 WHICH IS DUE AND PAYABLE TO THE CLERK OF THIS COURT WITHIN 30 DAYS, AND PAY COSTS OF THIS APPEAL.
WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DICKINSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
GRAVES, Justice, dissenting:
¶ 47. My dissent from the majority is three-fold. First, I disagree with the majority's decision that Chokwe Lumumba's conduct during the post-trial hearing violated Rule 8.2(a) of the Mississippi Rules of Professional Conduct. Rule 8.2(a) seeks to sanction statements of fact, not mere opinions which do little to attack the qualifications or integrity of a judge. Second, I disagree with the majority's decision thаt Lumumba's statements to the Clarion-Ledger violated Rule 8.4(d). While Lumumba's statements to the press do not necessarily warrant First Amendment protection, those statements, standing alone, are not violative of Rule 8.4(d). Lastly, I disagree with the severity of the sanction imposed by the majority. The majority offers little substance to suggest that Lumumba's violations of the rules warrant a suspension of six months from the practice of law and a fine of $1,000 plus costs. Under the facts before us, this is an extreme and draconian sanction which is not proportional to the particular offenses. Because of this, I am forced to respectfully dissent.
Violation of Rule 8.2(a)
¶ 48. The majority holds that Lumumba's statements made during the course of the post-trial hearing violated Rule 8.2 of the Mississippi Rules of Professional Conduct. As the majority correctly points out, Rule 8.2(a) prohibits a lawyer from making a statement that the lawyer knows to be *890 false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. In support of its finding that Lumumba violated Rule 8.2(a), the majority turns to Lumumba's statement, "I've paid other judges to try to get justice, pay you too if it's necessary." The majority contends that this comment attacked the character of the trial judge as well as undermined his integrity. The majority also finds that other statements Lumumba made on the record come within the auspices of Rule 8.2(a), including:
Lumumba: "What I mean is that the Court didn't handle the trial fairly, is not handling the motion fairly."
Lumumba: "And what I'm doing is offering this to you, so you can, perhaps, get along better with other lawyers in the future."
¶ 49. While the above statements are irresponsible and unbefitting a member of the Bar, I cannot agree that these statements are sanctionable under Rule 8.2(a). Rule 8.2(a) deals with those statements of fact, not just mere opinions, which attack the qualifications or integrity of a judge. Considering the substance of the rule, the majority's holding is very problematic.
¶ 50. It cannot be established that any of Lumumba's statements made during the hearing qualify as statements of fact which would be sanctionable under Rule 8.2(a). Instead, Lumumba's statement that the "Court didn't handle the trial fairly," is his raw and unedited opinion concerning the events of the trial. Lumumba's statement about "getting along better with other lawyers in the future," is also completely devoid of any factual predicate. Generally, a statement of fact is of a matter whose truth can be objectively determined. There is no objective manner to assess the truthfulness of any statement Lumumba made during the post-trial hearing.
¶ 51. Rule 8.2(a) contains an actual malice standard which seemingly tracks the standard for defamation of a public figure. Where the defamed party is a public figure, such a party is prohibited from recovering damages unless that party proves that the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or not. Curtis Publishing Co. v. Butts,
Violation of Rule 8.4(d)
¶ 52. The majority holds that Lumumba's statement to the Clarion-Ledger violated Rule 8.4(d). Lumumba was quoted as saying, "[Judge Gordon] has the judicial temperament of a barbarian." Rule 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
¶ 53. First, at the time Lumumba made the statement to the press, the case which brought Lumumba before the trial judge (in a representative capacity) was over. Lumumba's statements to the press were not prejudicial to the administration of justice in that no judicial proceeding was ongoing. The post-trial hearing was conducted on October 17, 2001, and the Clarion-Ledger article was published on October 31, 2001. Given the span of approximately two weeks, it is difficult to *891 conclude that Lumumba's statements to the press in some way adversely affected the legal rights or interests of his client or the State. Inasmuch as the post-trial hearing had concluded prior to Lumumba's statements to the press, I cannot agree with the majority that his statements to the press were prejudicial to the administration of justice.
¶ 54. Second, the substance of Lumumba's statements rises only to the level of political hyperbolе and lacks sufficient qualitative value to constitute a violation under Rule 8.4(d). Lumumba's assertion that the trial judge possessed the "judicial temperament of a barbarian" is just an opinion. There is absolutely no qualitative means available to determine whether an individual possesses the "temperament of a barbarian." Instead, Lumumba's comments to the press constitute nothing more than political hyperbole. As the majority points out, the denotation of a "barbarian" is one comparable to a savage and one who is marked by a tendency toward brutality, violence, or lawlessness. Obviously, there is no sophisticated manner to equate Lumumba's statement to the denotation of a "barbarian." Thus, without more, I cannot agree that Lumumba's words to the newspaper rise to the level of a sanctionable offense.
Severity of the Sanction Imposed
¶ 55. The Complaint Tribunal found that Lumumba's conduct before Judge Gordon as well as the statements made during the Clarion-Ledger interview violated Rules 3.5(c), 8.4(a), and 8.4(d) of the Mississippi Rules of Professional Conduct. Even after finding that three (3) separate provisions were violated, the Tribunal determined that a public reprimand was an appropriate punishment considering the circumstances. Today, the majority finds that Lumumba's violation of the rules warrants a suspension of 6 months from the practice of law and a fine of $1,000 plus costs. The majority imposes a harsher sanction than did the Tribunal while the majority finds the sаme number of violations as did the Tribunal. This result seems patently unfair considering that Lumumba has already served 1 and ½ days in jail and paid a fine.
¶ 56. While it is true that this Court has exclusive jurisdiction over all matters pertaining to attorney discipline and this Court is free to impose sanctions either more or less severe than those imposed by the Complaint Tribunal, deference is afforded to the Tribunal's findings because of its opportunity to observe the demeanor and attitude of the witnesses, including the attorney, which is vital in weighing evidence. Parrish v. Miss. Bar,
(1) the nature of the misconduct involved;
(2) the need to deter similar misconduct;
(3) the preservation of the dignity and reputation of the profession;
(4) the protection of the public;
(5) the sanctions imposed in similar cases;
(6) the duty violated;
(7) the lawyer's mental state;
(8) the actual or potential injury resulting from the misconduct; and
(9) the existence of aggravating or mitigating factors.
Miss. Bar v. Inserra,
¶ 57. In considering the nature of Lumumba's misconduct, the majority states that during the exchange between Lumumba and the trial judge, Lumumba abandoned the interest of his client to pursue his own in waging a verbal battle with the trial court over whether or not the trial court had been fair. On this point, it is important to note that during the post-trial hearing, there were no other parties, attorneys, or witnesses present in the courtroom waiting to be heard by the trial court. The record reflects that the only individuals present during the hearing were the trial judge, the judge's staff, Lumumba, Lumumba's client, and opposing counsel. While it is clear that the words Lumumba used to express himself were inexcusable and at best "truculent," the effect of Lumumba's words, however lasting and/or damaging, was limited to only those individuals present in the courtroom at the time the exchange took place. Clearly, Lumumba's comments were wrong and completely inappropriate. However, because such comments did not result in actual or potential injury to the tribunal, it cannot be established that they were so grossly egregious as to warrant a six month suspension.
¶ 58. Today, the majority holds that Lumumba's statements to the trial judge regarding "paying off judges" were intended to disrupt, and in fact did disrupt, the court proceedings in violation of Rule 3.5(c). The majority does not address an extremely important issue regarding the rationale behind Lumumba's sanction. Prior to publishing the words for which Lumumba is being sanctioned, Judge Gordon said, "I want you to know this hearing is now over with and" Lumumba said, "Can I ask" Judge Gordon said, "And there will be nothing else to be made of record." At that very moment, the hearing had adjourned, and the proceedings were concluded. Rule 3.5(c) prohibits a lawyer from engaging in conduct intended to disrupt a tribunal. It is problematic to sanction Lumumba for disrupting a tribunal, when the tribunal had already adjourned the proceeding. Before the exchange which resulted in the Rule 3.5(c) violation, the trial judge had already ruled *893 on Lumumba's motions. In addition to the numerous and rigorous demands placed upon trial court judges, they never relinquish the tantamount responsibility of ensuring order and control in their courtrooms, even among lawyers. Because the hearing had concluded or, at least, so nearly concluded Lumumba's statements concerning "paying off judges" were at most, minimally disruptive. Thus, I conclude that a Rule 3.5(c) violation under the present circumstances warrants no more than a public reprimand.
¶ 59. The majority correctly points out that this case is one of first impression. Prior to this, the only violations of Rule 3.5 of the Professional Rules addressed by this Court dealt with sub-parts (a) and (b). See Miss. Bar v. Logan,
¶ 60. Without any guiding precedent, we look to case law from our sister jurisdictions. The facts in the instant case are most similar to those in Prucker v. Statewide Grievance Committee,
¶ 61. While we review disciplinary matters de novo, we are permitted to defer to the findings of the Tribunal. Today, the majority chooses to ignore the recommendation of the Tribunal. The Tribunal considered all of the evidence in this case, including its personal observation of the witnesses as well as Lumumba's testimony and determined that a public reprimand was aрpropriate under these facts. It is illogical for the majority to hold that Lumumba violated the same rules determined by the Complaint Tribunal but should receive a harsher sanction. In my opinion, the paramount issue for this Court to consider while taking all the factors of Inserra into account when assessing the gravity of *894 a sanction is whether or not the sanction is proportional to the rule(s) violated. A disciplinary sanction must reflect the serious nature of the harm inflicted on the orderly administration of justice by the attorney's behavior. In the instant action, I am of the opinion that a public reprimand is the appropriate sanction under the present circumstances.
¶ 62. The Preamble to the Mississippi Rules of Professional Conduct reads, "A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold [the] legal process." This theme is reiterated in the comment to Rule 3.5 which states, "Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants." Unquestionably, Lumumba's conduct on the record fell short of these honorable standards. However, I wholly conclude that Lumumba's comments did not result in any injury to the tribunal, the administration of justice or the legal process. To this end, I respectfully dissent from the majority's holding to susрend Lumumba from the practice of law for a period of six months.
DICKINSON, Justice, concurring in part and dissenting in part:
¶ 63. In my view, the majority is correct in finding that attorney Chokwe Lumumba violated Rules 3.5 and 8.4 of the Mississippi Rules of Professional Conduct by making numerous statements in court, on the record, which not only were calculated to disrupt the tribunal, but also served to prejudice Lumumba's client. However, because I conclude that the statement made by Lumumba to the reporter for the Clarion-Ledger was political speech protected by the First Amendment to the United States Constitution, and because I do not believe the record supports a finding that Lumumba's statement to the reporter related to a pending case or served to prejudice the administration of justice, I am not prepared to agree that Lumumba violated Rule 8.4(d) by making it. I therefore respectfully dissent, in part.
¶ 64. I wish to clearly point out that my disagreement with the majority is not with its interpretation of the law, but rather with its determination of facts. I do not believe the Bar met its burden of proving Lumumba's statement to the reporter was directed toward the pending case. The statement, on its face, is general in nature, and expresses Lumumba's personal opinion of the judge's judicial temperament. The Bar produced no evidence to prove the statement was made as a criticism of the judge's conduct in the pending case. Had I concluded, after rеviewing the record, that the statement referred to Lumumba's case pending before the judge, I would have concludedas the majority didthat it violated Rule 8.4. However, I cannot agree that a lawyer's our-of-court general criticism of a judge is sanctionable, unless the statement refers to a pending case and is prejudicial to the administration of justice. Such general criticism, I believe, is protected by the First Amendment.
Rule 8.4
¶ 65. Mississippi Rule of Professional Conduct 8.4 states: "It is professional misconduct for a lawyer to ... (d) engage in conduct that is prejudicial to the administration of justice."
¶ 66. A majority of the Tribunal held that Lumumba violated MRPC 8.4(a) and 8.4(d) when he stated to a Clarion Ledger reporter that Judge Gordon has "the judicial temperament of a barbarian." A dissenting *895 member of the Tribunal, however, believed that Lumumba's statement to the Clarion-Ledger reporter was protected by the First Amendment, and that therefore there was no violation of the Rules of Professional Conduct.
¶ 67. Although we have no Mississippi cases directly on point, several cases from other jurisdictions have held that similar attorney criticism of judges is protected by the First Amendment. For instance, in Standing Committee on Discipline v. Yagman,
¶ 68. In Ramsey v. Board of Professional Responsibility,
¶ 69. In Justices of the Appellate Division v. Erdmann,
There are so few trial judges who just judge, who rule on questions of law, and leave guilt or innocence to the jury. And Appellate Division judges aren't any better. They're the whores who became madams. I would like to [be a judge] just to see if I could be the kind of judge I think a judge should be. But the only way you can get it is to be in politics or buy itand I don't even know the going price.
Id. at 441-42,
¶ 70. The Bar аrgues that Lumumba's statement to the reporter was, indeed, a violation of the Rules of Professional Conduct, and not protected by the First Amendment because it was prejudicial to the administration of justice. The Bar says comparing his judicial temperament to that of a barbarian impugned Judge Gordon's integrity, qualifications to hold office, and the integrity of the judicial system. The Bar fails, however, to direct us to evidence in the record to support this theory. Additionally, it could be argued that the Bar's position would prevent any criticism of any judge, since it might impugn the judge's "integrity, qualifications to hold office, and the integrity of the judicial system."
¶ 71. The Bar further submits that there are other available avenues for lawyers to air grievances against the judiciary without being publicly disrespectful, i.e. appealing rulings and filing complaints with the Mississippi Commission on Judicial Performance. This interesting observation has no bearing on the question before *896 us. Either Lumumba had a right to make the statement, or he did not. If he did, the availability of other "avenues" is irrelevant.
¶ 72. To support its position, the Bar cites People ex rel. Chicago Bar Association v. Metzen,
¶ 73. Lumumba and the amicus argue that Rule 8.4(d) is violated only when an attorney engages in misconduct which has a prejudicial effect on a judicial proceeding. They cite Rogers v. Miss. Bar,
¶ 74. I suppose any lawyer making a statement critical of a judge could later regret it, should the judge retaliate in a subsequent judicial proceeding. And such retaliation could, I suppose, be called prejudicial. But if the effect of the rule is to bar all out-of-court criticism by lawyers of judges for fear of what it might do, then I reject it.
¶ 75. In Yagman, the court held that in order to be sanctionable, a statement to the press relating to a judicial matter unrelated to a pending case must "pose a clear and present danger to the proper functioning of the courts." Lumumba's "judicial temperament of a barbarian" statement was simply an opinion of politiсal speech which I would find protected by the First Amendment. In Yagman, the court stated:
Statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they imply a false assertion of fact. Even statements that at first blush appear to be factual are protected by the First Amendment if they cannot reasonably be interpreted as stating actual facts about their target. Thus, statements of rhetorical hyperbole aren't sanctionable, nor are statements that use language in a loose, figurative sense.
¶ 76. I have seen no evidence that Lumumba's statement affected any judicial proceeding. More importantly, I believe Lumumba's out-of-court statement to the reporter was one of opinion and thus protected by the First Amendment.
*897 ¶ 77. Rule 8.4(d) states that it is misconduct for an attorney "to engage in conduct that is prejudicial to the administration of justice." (emphasis added). The Rule does not say "might have been prejudicial." Rule 8.4(d) may therefore be applied only to conduct that affects a judicial proceeding or a matter directly affecting a judicial proceeding, as this Court stated in Rogers,
¶ 78. If the phrase "prejudicial to the administration of justice" were applied to statements made outside the courtroom which are not shown to have caused any problem or prejudicе in any case, Rule 8.4(d) would be subject to such broad interpretation that I can not conceive of the scope of its application to judicial criticism. Members of the bar would have difficulty determining what activities, conduct, or speech could potentially be covered by the rule. The Bar would be justified in pursuing sanctions against members for anything that could be seen as a negative reflection on a judge or the professioneven where such negative reflection were justified.
¶ 79. The record does not demonstrate that Lumumba's comment to the Clarion-Ledger affected a judicial proceeding or any matter directly related to a judicial proceeding. His statement was doubtless insulting to Judge Gordon, as it would be to me. But the Bar has not demonstrated prejudice to any case or legal proceeding. Indeed, we are left only to assume that the comment related to the previous hearing, rather than a general response to a general question from the reporter during the interview, I therefore do not agree that Lumumba violated Rule 8.4(d).
¶ 80. It is my belief that this Court should hold that statements of opinion critical of a judge or of the judicial system, made outside the courtroomand which do not affect a judicial proceedingare generally protected by the First Amendment unless they imply a false assertion of fact capable of being disproved. See Milkovich v. Lorain Journal Co.
¶ 81. Furthermore, the United States Supreme Court has held that statements must be reasonably interpreted as stating actual facts about their target before they can be punishable. Hustler Magazine, Inc. v. Falwell,
¶ 82. Lumumba did not assert that Judge Gordon was literally a barbarian, but rather used the phrase to express his opinion, right or wrong, of Judge Gordon's judicial temperament. Certainly, false assertions of fact are punishable, as are opinions that imply a false assertion of fact. Additionally, statements by an attorney about a judge, even if truthful, may be punished if they are made in court and relate to pending legal matters where a *898 party might suffer prejudice as a result of the attorney's statements. See Gentile v. State Bar of Nevada,
¶ 83. As an integral part of our tripartite form of government, the judiciary, may be criticized by the citizens it governs; and citizens who are also lawyers should not lose this privilege. "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana,
¶ 84. I would hold the Tribunal erred in finding a violation of Rule 8.4(d) for Lumumba's statement to the reporter. Additionally, because I do not believe the statement violated Rule 8.4(d), I would also hold there was no violation of Rule 8.4(a) with regard to this statement. In all other respects, I am in agreement with the majority.
NOTES
Notes
[1] Lumumba actually served 1 ½ days in the Leake County Jail.
[2] The issue of "disrupting the proceedings" is not addressed by Lumumba, with the exception of the following statement from the "Summary of Argument" of Lumumba's brief; "The courtroom was virtually empty, the legal proceedings were completed and Judge Gordon entertained the dialogue by remaining on the bench." The amicus presents no argument or authority on the issue.
[3] Rule 4-8.2(a) of the Florida Rules of Professional Conduct is exactly the same as Rule 8.2(a) of the Mississippi Rules of Professional Conduct.
[4] Lumumba had previously been issued a Public Reprimand by the Bar's Committee on Professional Responsibility on April 30, 2000 in Docket No. 99-208-1, in which he was found to have violation the provision of Rules 3.5(c) and 8.4(a, d, and e) of the Mississippi Rules of Professional Conduct.