On April 14, 2022, the Ohio Supreme Court suspended a lawyer for six-months, entirely deferred, for publicly criticizing a judge after consuming alcohol at a bar association event:
Bahan and her husband attended the annual Logan County Bar Association holiday event on December 8, 2018. During the event, the bar association presented a “mock award” to William Goslee, who at that time was a judge on the Logan County Court of Common Pleas. Bahan, who had consumed alcohol at the event and appeared to be intoxicated, loudly and rudely interrupted the presentation of the award and called Judge Goslee a “piece of shit,” an “asshole,” and a “motherfucker.”
See Columbus Bar Association v. Bahan, 2022-Ohio-1210 (Apr. 14, 2022).
The Bar Association contended that Bahan’s comments violated Ohio Gov.Bar R. IV(2), which regulates attorney conduct toward the courts. See Ohio Gov.Bar R. IV(2). That rule provides: “It is the duty of the lawyer to maintain a respectful attitude toward the courts, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance.”
The Ohio Supreme Court also noted that Bahan had engaged in a pattern of additional incidents of improper conduct while under the influence of alcohol and that her conduct violated Prof. Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice).
Protected Speech?
The respondent lawyer, Bahan, argued that her conduct at the Bar Association event was not directed “toward the courts” and was constitutionally protected speech that may not be sanctioned. According to Bahan, “her speech at the event was political in nature because she intended to express her disapproval of Judge Goslee’s courtroom conduct that purportedly led the bar association to present him with a mock award that evening.” Id. at 5. The Bar Association, however, argued “that this matter is not about the freedom of speech, but rather the uncontrolled, self-indulgent, drunken behavior of a member of the bar.” Id. at 5-6.
Ultimately, the court was not persuaded that Bahan’s speech was protected by the constitution. Said the court:
…none of these regulations prohibit a lawyer from speaking on any subject matter. Instead, they require a lawyer to conduct herself with the dignity and respect that is commensurate with her role as an officer of the court to encourage civility and to preserve public confidence in the legal system.
Id. at 9. The court concluded that Bahan’s alcohol-related public outburst violated Ohio Gov. Bar. R. IV(2) (duty of the lawyer to maintain a respectful attitude toward the courts). The court also concluded that Bahan violated Rule 8.4(d) based on additional incidents of improper conduct while under the influence of alcohol. The court adopted the board’s recommendation that Bahan be suspended for six months with the entire suspension stayed on the condition that she engage in no further misconduct—with the additional condition that she submit to a substance-use assessment conducted by the Ohio Lawyers Assistance Program (“OLAP”).
Several justices wrote separate concurrences to express concerns that the majority’s opinion would have a chilling effect on lawyer’s legitimate criticism of the judiciary:
Today, the majority holds that an attorney may be punished under the Rules for the Government of the Bar of Ohio for speech that fails “to maintain a respectful attitude toward the courts.” Majority opinion, ¶ 26. In doing so, it exceeds the limits of our disciplinary authority. Our rules allow us to punish only attorney speech about a judge that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity. Prof.Cond.R. 8.2(a). What’s more, in holding that an attorney’s speech may be punished simply because it is disrespectful of the judiciary, the majority makes mincemeat of First Amendment protections. The unfortunate result will almost certainly be to chill other attorneys from engaging in legitimate criticism of the judiciary…
The majority’s view is that the First Amendment only “may be invoked as a defense for permissible criticism.” Majority opinion at ¶ 34. News flash. That’s not the way the First Amendment works. The First Amendment guarantees citizens permission to criticize their government; it doesn’t grant government the right to decide what criticism is permissible.
None of this is to defend Bahan’s conduct. By all accounts, her behavior at the holiday party was boorish, unprofessional, and embarrassing to herself and others. No doubt, regardless of any discipline that this court imposes, behavior of this sort has its own consequences. It’s a fairly safe bet that Bahan’s outburst did serious damage to her reputation among the lawyers and judges who were in attendance—damage that one may assume will have financial consequences to her and her practice. And there is a case to be made that independent of the communicative aspects of her drunken tirade, Bahan could have been disciplined for violating Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).
Id. at 31 (DeWine, J., concurring in judgment only).
Conclusion
In my opinion, Justice DeWine’s concurring opinion got it right. A lawyer must refrain from knowingly or recklessly making a false statement about the integrity of a judge, adjudicatory officer, public legal officer or candidate for judicial or legal office. La. Rules of Prof’l Conduct r. 8.2(a). But this rule does not prohibit a lawyer from expressing a personal opinion regarding a judge. Comment 1 to Model Rule 8.2 states that “[e]xpressing honest and candid opinions on such matters contributes to improving the administration of justice.” See Model Rules of Prof’l Conduct R. 8.2 cmt. 1 (2002); see also State Bar of Tex. v. Semaan, 508 S.W.2d 429, 432 (Tex. Civ. App. 1974). Moreover, the First Amendment offers fairly broad protections for a lawyer’s speech even when it is offensive or hateful speech. As Justice DeWine correctly noted, “The First Amendment guarantees citizens permission to criticize their government; it doesn’t grant government the right to decide what criticism is permissible.” Id. at 31.
