Circuit court upholds lawyer free speech.

A federal circuit court has ruled in favor of First Amendment speech rights for a lawyer suspended from the bar for his verbal attacks against a judge.

The Ninth Circuit Court of Appeals struck down a two-year suspension against civil rights lawyer Stephen Yagman, who was accused of "impugning the integrity of the court." (Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995).

A petition for en banc review of the decision is pending.

The sanction stemmed from Yagman's public criticism of U.S. District Court Judge William Keller. Yagman had accused Keller of being dishonest, anti-Semitic, and drunk on the bench. The suspension, which had barred the Venice, California, lawyer from practicing law, was struck down on a 2-1 vote. (Richard C. Reuben, Lawyer Free Speech Upheld, A.B.A. J., Aug. 1995, at 23.)

The decision was written by Judge Alex Kozinski. He wrote that "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 then, `imply, a false assertion of fact.'"

Kozinski considered each of Yagman's remarks separately. He interpreted the dishonesty allegation to mean intellectual dishonesty--"a label lawyers frequently attach to decisions with which they disagree."

Addressing the anti-Semitism charge, Kozinski wrote that Yagman's statement was protected free speech because it "was carefully phrased in terms of an inference drawn from the facts specified rather than a bald accusation of bias against Jews. Readers were `free to form another, perhaps contradictory opinion from the same facts.'"

Kozinski noted, however, that "even if Yagman's statement were viewed as a bare allegation of anti-Semitism, it might well qualify for protection under the First Amendment as mere `name-calling.'"

As for Yagman's statement that Keller was "drunk on the bench," Kozinski found that allegation could have merited sanction, but the federal court's standing committee on discipline that brought the charges made no attempt to prove the assertion false.

Kozinski noted that the "statement implies actual facts that are capable of objective verification."

Erwin Chemerinsky, a professor of law at the University of Southern California Law Center in Los Angeles, hailed the circuit court's decision as a "victory for free speech and the free speech of lawyers." The ruling, he said, finds that judges arc public officials and that lawyers have the same right to criticize judges as a citizen has to criticize a public official.

"I think that plaintiffs' lawyers should take this decision as a reassurance that where zealous representation requires public criticism of a judge, the lawyer doesn't have to fear disbarment or suspension as long as it's done without malaice," Chemerinsky said.

Judge Dickran Tevrizian, a judge with the U.S. District Court for the Central District of California, took a different view. Although Tevrizian declined to comment specifically on the Yagman case, he did comment on the larger issue of free speech among lawyers.

"Attorneys have a right to criticize judges as long as the criticism is warranted and relates to the specific facts of a case; name-calling is out." Tevrizian has served on the bench for 23 years, first as a municipal, then superior, and now federal court judge.

Lawyering, the jurist said, is a privilege. As in many other professions, lawyers are held to rules of responsibility that guide their conduct. "When a lawyer stands on the courthouse steps calling judges names, the whole system breaks down," he said.

Tevrizian said the courts already have an effective internal system of checks and balances in place that allows lawyers with complaints against judges an appropriate avenue of protest. Lawyers who choose to operate outside the system and make their complaints public cross the ethical line and should be sanctioned, he added.

Yagman said he believes "the case will be enormously helpful for lawyers in the future. They will not have to fear criticism of the government will get them in trouble."