Indiana Supreme Court Establishes Precedent for Attorneys’ Statements about the Judiciary

Posted by: Editor on Wednesday, October 9, 2013 at 12:03:00 pm

In a 4-1 decision announced yesterday, the Indiana Supreme Court cleared a Bingham Greenebaum Doll LLP client of all wrongdoing in an attorney disciplinary case wherein the issue was criticism of a trial judge.

In 2009, attorney Tom Dixon volunteered to represent 85 men and women who were charged with criminal trespass on the grounds of the University of Notre Dame. His clients were gathered to engage in pro-life demonstrations in response to announcements that President Barack Obama would speak at Notre Dame and receive an honorary degree.

The cases were assigned to a judge in St. Joseph County. Mr. Dixon sought to disqualify the judge under the rules of criminal procedure on the grounds that she had a personal bias or the appearance of a bias. Mr. Dixon alleged that the judge’s husband was a long-term Notre Dame faculty member, that the judge had not disclosed her husband’s pro-choice academic writings, and that the judge had ruled contrary to law in a prior case involving pro-life litigants. After Mr. Dixon sought to appeal the judge’s refusal to disqualify herself, the judge filed a disciplinary grievance against him and voluntarily removed herself from the case. Mr. Dixon later secured dismissal of all criminal charges against his 85 clients under a settlement that also released the clients’ civil claims against the university.

The Disciplinary Commission charged that Mr. Dixon’s statements in support of his motion violated the Professional Conduct Rules governing criticism of judicial officers. In a 16-page opinion, the Supreme Court disagreed. It determined that Indiana would adopt an objective-reasonableness standard to attorney speech critical of judges and would not follow the well-known New York Times standard that states First Amendment law in defamation cases. Nevertheless, the Supreme Court held that the attorney-speech rules will be “least restrictive when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge’s decision.” Because Mr. Dixon’s motion constituted good-faith advocacy on behalf of his clients—and because he supported the motion with 40 pages of factual material—the court determined that his statements about the judge were not sanctionable.

The decision creates new law in Indiana and offers substantial guidance to attorneys on the scope of their ethical duties with respect to the judiciary. Bingham Greenebaum Doll LLP attorneys Kevin P. McGoff and Patrick A. Ziepolt represented Mr. Dixon in the proceedings.

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