The right to speak one’s mind: the limits of an attorney’s right to speak about a judge

An appeal handled by my colleague Mike Hensley and me garnered many comments and raised eyebrows when the opinion of the Court of Appeal was partially published in 2019. Martinez v. O’Hara, 32 Cal. App. 5th 853 (2019).

The case drew attention in the press and social media because of opposing counsel’s unfortunate employment of the odd word “succubustic.” Though Mike and I were focused on obtaining affirmance of the trial court’s order denying attorney’s fees, our issue was obviously not the one that drew attention. Rather, the published part of the opinion raised an issue of attorney discipline.

Indeed, Justice Richard Fybel wrote: “The notice of appeal signed by Mr. (Benjamin) Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.” (emphasis added).

Now the case has taken an interesting turn before the California State Bar Court.

State Bar Court Judge Cynthia Valenzuela has recommended discipline, but not for the use of the word “succubustic” – the word that drew the most attention. Nevertheless, she acknowledged that the word was an offensive gendered word directed at a female judge. Thus, the word exhibits gender bias, the very reason the Court of Appeal published. However, Valenzuela did recommend discipline for the use of other languages. In the Matter of Benjamin Laurence Pavone, No. SBC-20-O-30496-CV (State Bar Court 2/10/22). (From the State Bar Judge, Pavone can go to a State Bar Review tribunal and if there is no relief, the only recourse is the California Supreme Court.) Thus, the attorney conduct has been evaluated differently by the State Bar Court Judge and the Justices of the Court of Appeal.

What are the limits of an attorney’s rights to speak harshly about a judge?

In a bar, we may believe that everyone has a right to speak their mind, short of instigating a bar fight. But as a member of the legal bar, our rights to speak about a judge are more circumscribed. The rules that govern are more akin to the laws of defamation, though the rules are not identical.

Mike and I got along just fine with opposing counsel. But Business and Professions Code 6068(b) teaches us, “It is the duty of an attorney to do all of the following: …(b) To maintain the respect due to the courts of justice and judicial officers.”

Canon 3B(6) of the California Code of Judicial Ethics provides that a judge shall require lawyers in proceedings before the judge to refrain from manifesting prejudice based “sex, gender, gender identity, gender expression” (among other aspects of personhood). Canon 3D(2) provides that when a judge has personal knowledge or concludes in a judicial decision that the lawyer has committed misconduct, that judge “shall take appropriate corrective action, which may include reporting a violation to the appropriate authority.” An advisory committee note instructs that California law imposes on judges mandatory reporting requirements to the State Bar regarding lawyer misconduct.

This is where appellant’s attorney went sideways with the Court of Appeal. Instead of filing a simple form notice of appeal identifying the order appealed from and the matter appealed, counsel chose a more baroque approach, referring to the ruling of the female judicial officer as “succubustic.” And this is what resulted in publication.

Importantly, and as it turns out, significantly, the court’s disapproval did not stop with “succubustic”: “We also report Mr. Pavone to the State Bar for the statement in the notice of appeal suggesting the trial court attempted to thwart service of the signed judgment on plaintiff in an effort to evade appellate review and statements in the appellate briefs he signed on behalf of plaintiff accusing the judicial officer who ruled on the motion for attorney fees of intentionally refusing to follow the law. None of these serious charges is supported by any evidence.”

Though the offensive gendered comment invoked a strong reaction from the Court of Appeal, State Bar Court Judge Cynthia Valenzuela extends First Amendment protection to the statements in the notice of appeal that referred to the order as “disgraceful” and stated its “succubustic adoption of the defense position and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.”

Relying on Standing Committee v. Yagman, 55.3d 1430 (9th Cir. 1995), Valenzuela describes the offensive gendered statement as “rhetorical hyperbole,” and not a statement of fact, or of implied fact, as no one would believe that Commissioner Carmen Luege (now Judge Luege of the Orange County Superior Court), who tried the original Martinez case, was literally a mythical female demon. Yagman is a leading case and a good place to begin when analyzing whether a lawyer’s barbs aimed at a judge deserve discipline. While describing the words “disgraceful” and “succubustic” as rhetorical hyperbole, Valenzuela acknowledged that “succubustic” was an offensive gendered comment.

Canon 3B(6) referenced by Fybel has since been reinforced (but only after plaintiff’s notice of appeal was filed), because rule 8.4.1 of California’s Rules of Professional Conduct is now in effect. The newer rule prohibits an attorney from unlawfully harassing or discriminating against persons on the basis of protected characteristics, including gender. But if offensive gendered comments directed at a judge are protected by the First Amendment, one might ask whether the Rule of Professional Conduct prohibiting such harassment really has any bite.

Can one call a female judge a witch, a banshee, or a she-demon with impunity, given First Amendment protection? Relying on the Yagman case, the State Bar Court judge gave a pass to “succubustic.”

The Yagman case upon which the State Bar Court trial judge heavily relied, compares the law of defamation, and the law governing the disciplining of lawyers. Unlike the law of defamation, the disciplining of lawyers is not designed primarily to protect individual reputation and to protect the sensibilities of judges, who, one hopes, will be relatively thick-skinned. “Ethical rules that prohibit false statements impugning the integrity of judges, by contrast, are not designed to shield judges from unpleasant or offensive criticism, but to preserve public confidence in the fairness and impartiality of our system of justice.” Because disciplinary proceedings are designed to protect the public from unreasonable attorneys who recklessly take verbal potshots at judges, and in so doing, undermine respect for the law, judges, and the administration of justice, the Yagman court applied a “reasonable attorney” and “objective malice standard” to attorney misconduct.

Relying on an earlier federal case, the Yagman court held, “the purely subjective standard applicable in defamation cases is not suited to attorney disciplinary proceedings…Instead,...such proceedings are governed by an objective standard, pursuant to which the court must determine ‘what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.’” A “subjective malice standard” would not ask what a reasonable attorney who is not reckless would do under the circumstances, but would instead consider what the attorney believed. Relying on Yagman, Valenzuela explained, “This so-called ‘objective malice standard’ strikes a constitutionally permissible balance between an attorney’s right to criticize the judiciary and the public’s interest in preserving confidence in the judicial system.” The public is disserved by baseless accusations directed at judges.

Under this “objective malice standard”, Valenzuela concluded Pavone had not acted as a reasonable attorney should, because his accusations that Luege intentionally refused to follow the law in issuing the attorney’s fees order, exhibiting bias against Pavone, and that Luege ruled as she did to intentionally punish him, were made with reckless disregard of the truth. Unlike a statement that a judge is dishonest, which is abstract and could be charitably interpreted to mean “intellectually dishonest,” statements that a judge intentionally refused to follow the law to punish the lawyer are specific, and here, unsupported by the record.

We draw a few lessons from Valenzuela’s decision. If it is the final word, it raises serious questions about the State Bar’s ability to discipline attorneys for offensive gendered statements directed against judges, notwithstanding our Rules of Professional Conduct. But perhaps we can also draw a distinction between the Canon 3B(6) of the Code of Judicial Ethics, upon which the Court of Appeal relied, and Rule 8.4.1 of the Code of Professional Responsibility, which became law after Pavone filed the peculiar notice of appeal.

Canon 3B(6) is first and foremost a guide for judicial ethics governing judges. Coupled with Canon 3D, it provides a basis when attorney misconduct occurs, for a judge to take appropriate corrective action, which may include reporting a violation. The Court of Appeal dispatched a judicial duty by reporting attorney misconduct. Whether lawyer misconduct has occurred is now directly addressed by Rule 8.4.1 of the Code of Professional Responsibility, which would be violated by offensive gendered language.

Rule 1.0 provides the Rules “have been adopted by the Board of Trustees of the State Bar of California and approved by the Supreme Court of California pursuant to Business and Professions Code sections 6076 and 6077 to protect the public, the courts and the legal profession; protect the integrity of the legal system; and promote the administration of justice and confidence in the legal profession. These rules together with any standards adopted by the Board of Trustees pursuant to these rules shall be binding upon all lawyers.”

Perhaps a future court decision would conclude, based on Yagman, and the opinion of the State Bar Court, that an offensive gendered statement directed at a female judge is constitutionally protected. Or perhaps not, given the specificity of the Rules of Professional Conduct, and the preamble setting forth that the State Bar and Supreme Court have concluded that the Rules are necessary to protect the public, the courts, the legal profession, and to promote the administration of justice and confidence in the profession.

Second, attorneys have broad First Amendment protections to comment about judges, including the protections found in defamation defenses that a statement is truthful, or one of opinion. However, specific, untrue, harassing, and unsupported statements directed at a judge may result in discipline – a point on which the State Bar Court Judge and the Justices of the Court of Appeal agreed. As did the court in Yagman, Valenzuela applied the “objective malice standard,” meaning, what would the reasonable attorney, considered in light of all his or her professional functions, do in the same or similar circumstances? The State Bar need not establish subjective malice requiring proof the defendant attorney actually had doubts about the truth or falsity of statements. Therefore, the attorney who makes specific charges of intentional judicial wrongdoing without evidence is at risk of disciplinary action and contempt.

As to the latitude the First Amendment provides to lawyers to speak their mind, the court in Yagman humbly conceded that it could not improve on the words of Justice Hugo Black: “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

Third, we draw a lesson from Justice Fybel, who wrote, “We further note that many of the words and phrases in the notice of appeal have no place in a court filing. We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or ‘reverse peristalsis’ in the notice of appeal.” This is good advice. When entering the courtroom, one should not abandon common sense.

One final observation. In the age of social media, one’s words can take on a life of their own, regardless of disciplinary consequences and First Amendment rights. Stories are repeated and amplified on the internet, where free speech reigns supreme. Thus, a google search of the word “succubustic” will turn up many references to this incident. We close with but one example.

In March 2019, Kevin Underhill, the blogger responsible for “Lowering the Bar,” posted a question: “Succubustic”: Is it a Word You Should Use to Describe a Judge? Answering his question, Underhill wrote, “I think not, and here are three reasons why.” The first reason was that it was disrespectful. The second was that it was misogynistic.

And the third? “It’s not even a real word. My Westlaw search also showed that the word ‘succubustic’ had never before been used in the U.S. legal system until this case. That makes sense, because (1) ‘succubus’ is rare to begin with, and (2) the adjective form isn’t ‘succubustic. It is “succubine”... “And thus the last lesson is that a lawyer’s poor choice of a word may reverberate, even if the choice is protected by the First Amendment.