Free Speech

Lawyer Punished for Biased Comment About Judge in E-Mail to His Own Clients

|The Volokh Conspiracy |

This is what happened in People v. Abrams, decided by the Colorado Office of the Presiding Disciplinary Judge Feb. 12, but just posted on Westlaw a few days ago. Colorado lawyer Robert E. Abrams referred to a judge as a "gay, fat, fag" in an e-mail to his clients. Eventually, his relationship with the clients became strained (apparently mostly based on other reasons), and after he withdrew from representing them, they filed a complaint with bar authorities, based in part on his speech about the judge. The Colorado Supreme Court ruled against Abrams based on Colorado Rule of Professional Conduct 8.4(g), which says that a lawyer may not

engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person's race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, parties, judges, judicial officers, or any persons involved in the legal process.

The court added:

In his private life, Respondent is free to speak in whatever manner he chooses. When representing clients, however, Respondent must put aside the schoolyard code of conduct and adhere to professional standards. Just as our language, norms of social engagement, and the Rules of Professional Conduct evolve, so too must Respondent. This is because lawyers' words and deeds reflect on the values and ideals of today's legal profession. Lawyers are also officers of the court, so their conduct signals to clients the quality of justice and the measure of fairness that can be expected from the legal system as a whole. That system is meant to serve all and dispense justice equally, without regard to race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status; when lawyers represent that system, their conduct must give effect to those principles.

A few thoughts:

[1.] Note that the rule isn't limited to slurs, but extends to any conduct or speech. Telling a client that he should try to avoid a particular judge because the judge is old or Catholic or rich would likely be covered as well, as "conduct … that exhibits or is intended to appeal to or engender bias against a person on account of that person's …. religion, … age, … or socioeconomic status."

[2.] On its face, this would apply to statements about any "person," including the President, legislators, and others. The court mentions that the judge was "a participant in the legal process," but nothing in the rule limits "person" that way. And even if the rule were limit to speech about such participants, it would equally apply to speech about police officer witnesses, about government officials one is suing, about government lawyers on the other side, and of course about all the other people, prominent or not, who are involved in the process.

[3.] This is also the rule that the American Bar Association wants to extend (albeit with somewhat different language, cast in terms of "harassment," such as "demeaning verbal … conduct") beyond just "representation of a client": The proposed rule would apply to speech in "bar association, business or social activities in connection with the practice of law."

[4.] Whatever the value of preventing lawyers from insulting witnesses, parties, and the like to their faces, it seems hard to see a sufficient justification for preventing lawyers from insulting judges, witnesses, or others in private communications to their clients, whether the insults are biased or not.

(Abrams was also found to have committed other misconduct, involving excessive fees, but that is beyond the scope of this post.)

UPDATE: I originally erroneously said this was a Colorado Supreme Court decision, given the first line of the second page; but Prof. Robert Fusfeld (University of Denver) corrected me on this—the case was apparently before a special administrative tribunal appointed by the Court—and I in turn corrected the post. My apologies, and many thanks to Prof. Fusfeld.

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  1. We really need a better class of insults –

    ___________________

    “You will die either on the gallows or of the pox.”

    “That depends on whether I embrace Your Lordship’s principles or Your Lordship’s mistress.”

  2. So how does this apply to Ginsberg and Sotomayor?

  3. I don’t view this as a problem. Lawyers are charged with an obligation to be truthful beyond simply their dealings with judges and juries, and likely beyond what could be constitutionally proscribed. Avoiding appeals to pernicious biases, whatever the language used, seems like a similar kind of commitment. Lawyers should be above that kind of behavior.

    And I don’t view it as detrimental to client’s interests. There is always a way to counsel a client as to unfavorable venues, adjudicators, or broader regulatory environments, without resorting to pat descriptions of their age, religious beliefs, race, political leanings or whatnot. “Judge [X] has a history of ruling against defendants on this point…,” “Department [Y], under President Trump, has taken a dim view of claims like this…,” etc.

    1. Avoiding appeals to pernicious biases, whatever the language used, seems like a similar kind of commitment.

      I use the example of psychology because they’ve been doing it longer — literally imposing a litmus test upon those who wish to enter the profession.

      That’s why some 95% of licensed psychologists *self identify* as being on the FAR left on all social issues. Far left (and far right) are, by definition, opinions that are out of the mainstream — and one’s political/social views *does* the judgements that one makes.

      And what you consider a “pernicious bias” can be quite different from what another might consider to be one. Much of the Islamic world considers our belief in human equality to be such a pernicious biases — heaven forbid that the testimony of a woman be viewed with equal weight as the testimony of a man.

      Unless you are willing to impose an approved belief system by fiat, there inherently will always be what someone defines as a pernicious bias. I much prefer that part about believing truth stronger than falsehood, and hence resting assured that it will prevail in a free and open encounter.

      1. That’s why some 95% of licensed psychologists *self identify* as being on the FAR left on all social issues.

        Evidence?

        1. An APA survey published some years back.

      2. And what you consider a “pernicious bias” can be quite different from what another might consider to be one.

        The phrase does not submit to your false equivalence. By “pernicious bias,” here, I mean not some kind of non-adherence to a politically correct credo, but a tendency to discriminate based on factors that are not actually relevant to the matter at hand. Nothing about a judge’s being Catholic tells us anything meaningful about how he is likely to rule on a motion, for instance.

  4. It sounds as though the attorney’s characterization of the judge was a complete gratuity. What if it were “strategic” in nature, though, like “we should do whatever we can to get your case assigned to another judge because this one is clearly an antisemitic homophobe and you and your gay Jewish partner can’t count on fair treatment by him”? The lawyer might not want to commit those thoughts to writing, but should he face discipline for sharing them with his/her client?

    1. That wouldnt fall within the scope of the code because the lawyer isnt “engendering” bias against the Judge because he is a gay Jew but rather because he is supposedly a homophobic antisemite, viewpoints which arent protected under the code.

      This is clearly an overbroad and viewpoint discriminatory code. It would be one thing if it were limited to the Courtroom or limited to discriminatory employment practices (taking on clients etc.), but this goes far beyond that

    2. ““we should do whatever we can to get your case assigned to another judge because this one is clearly an antisemitic homophobe and you and your gay Jewish partner can’t count on fair treatment by him”?”

      The problem is that some people are more equal than others — and rules that are content-neutral on their face tend not to be in practice.

      I think the better example would be the converse — “the judge is a gay activist who stated how much he hates fundamentalist Christians at last month’s Gay Pride rally” (assuming he had) — and similarly advising clients as you suggest. I really don’t think that would be treated the same way, or anywhere near close to the same way.

      Now the other thing here is if the lawyer were merely namecalling so as to justify running up the bill (which he was also found to have done). Who says the judge was even gay — he may be a widower still morning having lost his wife to cancer — it happens. That’s the other unknown here.

      1. It seems unfair (perverse, illogical, etc) in cases like this, where it seems to be okay to state things in one way, but not okay to state them in the opposite way.

        1a: “You (my client) don’t want this judge. He’s a fat fag.” Versus,
        1b: “You told me that, like you are, this judge is a fag. And, like you, he is very overweight. We definitely want this fat fag hearing our case.”
        1c: “Client C. You told me from the beginning that you hired me because I was an old, fat, fag…and these qualities allowed me to have empathy for what Villain Jones did to you. I’m happy to report that my research on the judge that has been assigned to us shows that he also is an old fat fag, so we really lucked out on which judge happened to get our case. I suspect that most judges would not have any empathy for your position in this case. But this judge has had to walk a mile in your shoes. We are very fortunate with this assignment.”

        Would the attorney be subject to the same sort(s) of discipline? She is using the exact same terms to describe the judge. Is it possible that using offensive terms is okay when the result is a positive/complementary description, and not okay when it’s a critical description?

  5. The whole point of rules like these is to be able to show the moral superiority of those dishing out the discipline.

  6. His punishment should be being ostracized by the voluntary acts of individuals, socially and in the market for legal services. Not by laws against thoughtcrime.

  7. Second try, without the cites —

    Professor Volokh — you might want to look into the Jennifer Keeton matter. Short version is that she was kicked out of a psych program for her religious views on homosexuality, and stating that if she had a gay client wanting to discuss that subject, she’d refer the client to someone else whom she thought could be more helpful.

    The University of Georgia stated that they were *required* to expel her as a condition of APA accreditation, which (like with APA approval of law schools) is a prerequisite to obtaining a state license. Hence what I’d suggest worrying about is the ABA doing what the APA already has — mandating an ideological litmus test on those whom accredited schools permit to be/remain students.

    1. To save Eugene the trouble I looked it up.

      What you say is bullshit.

      From one of the decisions:

      in answering a hypothetical posed by a faculty member, Keeton responded that as a high school counselor confronted by a sophomore student in crisis, questioning his sexual orientation, she would tell the student that it was not okay to be gay. Similarly, Keeton told a fellow classmate that, if a client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client’s behavior, and if she were unable to help the client change his behavior, she would refer him to someone practicing conversion therapy.

      If you read the whole decision you’ll see that she is a liar too. Apparently, while studying the Bible she inadvertently overlooked the part about bearing false witness.

      Also, it was Augusta State University, not U. of GA.

      1. If A wants to be a counselor, why must A be forced to be able to be a “multicultural counselor?” Perhaps A does has no intention of counseling sodomites.

        Any person who has a problem with A’s freedom of association reveals what a bigoted, control freak they are.

        1. Obviously, there is a HUGE difference between a professional who says [as part of a hypothetical, raised by a teacher],
          (a) “I cannot represent you/counsel you. I have a religious background that tells me that your behavior is morally inappropriate. You will be better served by being treated by a counselor who does not have my biases or prejudices. If I am were treat you, I need to let you know that the focus of my counseling will be to convince you that the very nature of your sexual identity is morally wrong and that I will try to convert you to a non-gay sexual identity. If I am unable to convince you that being gay is wrong, my treatment plan would be to next refer you for conversion therapy.” . . . vs a professional with the same prejudices who says,

          (b) I am not the right therapist for you. I am prejudiced against a gay lifestyle and I find it morally wrong. But I am happy to refer you to other therapists–there are many equally-qualified ones out there who are not bigoted and who are much more qualified to address the issues that are going on with you, right now, in your life.”

          I think that homophobic (or racist, or anti-religion bigots, etc.) students should be able to become therapists…assuming all other skills are there, of course. As long as they know themselves not to take on cases where their own prejudices would be at play, and as long as they have the awareness and the ethics to turn down such cases, I’d say, “Give the awful person a chance to finish up the educational portion and let this person join the workforce.”

        2. Actually, she said she would counsel homosexuals. But she is going to counsel them very badly.

          Some other points:

          1. Apparently at least some of the students graduating from this program become school counselors, and she did not indicate that she wouldn’t seek such a position. A school counselor doesn’t have a choice.

          2. How is she going to learn about a patient’s orientation right away? Is that the first question she asks of a new patient?

          3. How do you monitor her promise? She doesn’t ex[press any unwillingness to counsel homosexuals. In fact she seems eager to do so, by trying to “convert” them. Her faith in that nonsense disqualifies her. And suppose the patient lies initially, and it only becomes apparent later that sexulaity is an issue. What then?

          Letting this woman become a counselor is dangerous and irresponsible. I’m damn tired of people defending bigotry and ignorance on religious grounds.

          1. There were also other related cases. Go look it up.

            1. Ed,
              Given your dishonest description of that first case, why bother checking up on you any more. Your credibility is shot already, as far as I’m concerned.

            2. What santamonica11 said.

              I chased down one of your lies, and you don’t even have the grace to apologize for completely misstating the matter. I’m not going to chase down a bunch more.

  8. “eight hours of cultural awareness and sensitivity training”

    Sending people to reeducation camps ought to be a violation of legal ethics too.

    1. Sensitivity training is one of my CLE requirements for this reporting period. It’s obnoxious, but not actually that novel.

      1. From what I’ve seen in higher ed, it also is quite counterproductive — it tends to harden feelings and create hatred that otherwise wouldn’t exist.

        At one point, UM Amherst proposed having a list of banned words — words which one would not be permitted to utter. It didn’t work out because there never could be a consensus that the list was finally complete, and it was unConstitutional, but my take was quite simple:

        “You’re going to give that list to drunken 18-year-olds and really expect not to have it read back to you — at 2AM by someone screaming it out a 22nd story tower window? Isn’t them screaming “Yankees Suck” bad enough?!?

      2. Old or new, it’s Groupthink, and abhorrent, no matter how justified it may be claimed to be. One more reason I’m glad to be retired and on inactive status with the CA Bar.

        1. Did you guys read what the training is, or are you just spouting off?

          Do you really think it’s unreasonable to require someone who aspires to be a professional counselor, and would almost surely have gay and lesbian clients, to become acquainted with issues that would arise?

          Or does being a Christian mean you get to make up a lot of shit?

          1. Christian or not, one’s fidelity should be to the free and unfettered expression and exchange of ideas and not to genuflecting to diversity, egalitarianism, and other politically correct totems.

            1. Nobody is stopping her from expressing her ideas. But she is not entitled to become a professional counselor if she wants to promote her own prejudices rather providing the best treatment. There is a big difference between speaking in a professional capacity and just mouthing off.

              1. Gays and lesbians were once banned under the exact same logic.

                1. Banned from what? Under what logic?

          2. As a gay, male, Judeo-Xtian – of the tribe, but not of the faith – who’s on record in the Federal and California Reporters for handling cases advancing gay rights, I don’t make things up; I research, respect, and rely upon facts. But, I also abhor indoctrination of any kind, and I don’t need anyone to teach me how to form my opinions: they’re based on science, knowledge, experience, and the law.

            1. It’s not a question of being taught how to form your opinions. It’s a question of proper professional training.

              As a lawyer you’re entitled to hold whatever opinions you like, but not to base your advice to clients on incorrect ones. You can think a certain law is stupid, for example, but that doesn’t mean you’re entitled to tell a client to ignore it.

  9. “In its “Equity and Inclusion during COVID-19” memo, UC officials said students, faculty, staff and administrators should “not use terms such as ‘Chinese Virus’ or other terms which cast either intentional or unintentional projections of hatred toward Asian communities, and do not allow the use of these terms by others…”

    https://www.thecollegefix.com/uc-system-tells-students-and-faculty-not-to-use-term-chinese-virus/

  10. The PDJ ruled that Respondent’s alleged use of a derogatory term that arguably exhibited or engendered bias was not a matter of public concern warranting First Amendment protection, reasoning that the Colorado Supreme Court chose to enact Colo. RPC 8.4(g) and has not imposed any First Amendment strictures on the rule.

    The fact that a lawyer of any kind—much less a state Supreme Court—could sign on this reasoning is terrifying.

  11. I have an absolute rule in my practice, one that I verbally warn and instruct all of my clients about, which is this: Never write down, even digitally, any negative comment about the judge. My duty to my clients often requires me to share my subjective opinions and impressions about the judge we’re before, but nothing requires that those be put in writing.

    Yes, it may be part of a privileged communication. But suppose you have a fight over privilege — guess who does the in camera review?

    1. When I was a younger lawyer, I had written some snarky thing in a fax to a client, and my supervisor corrected me.

      “Remember”, he said, “the client holds the privilege, not you, and the client can waive it”.

      1. Yeppers. This is a corollary to one of the general rules of life in the digital age:

        Dance like nobody’s watching. But email like it will be read aloud over the courtroom PA system at your trial.

    2. Beldar: Wise advice.

  12. Wait, I watched those Volokh videos on libel, I thought telling the truth was a valid defense in libel cases.

    The judge may be gay, meaning he is a fag. The lawyer might be in the clear if he really is fat.

    (p.s. Yes, I know)

    1. In our brave new world, the truth is only protected if you use the (currently) acceptable terms to articulate the truth.

      What gets really interesting is the infamous “N” slur — it’s perfectly acceptable for Blacks to use it, both in song and as a friendly greeting to colleagues, but an abomination for anyone else to do so.

      Hence is the White male playing loud rap music that uses that word repeatedly merely “woke” or a knuckle-dragging racist? (Personally, I think he is an A-hole who is disturbing the peace, but I digress….)

      1. The black male blasting rap music is also disturbing the peace.

        1. True. The black male blasting the Rolling Stones (or gospel music) is disturbing the peace. The while male blasting rap music (which I experience far more than black men doing the same thing) is disturbing the peace. “Blasting” and “music” are the operative words, I think we all agree. The who and the music genre seem almost entirely irrelevant…other than for those who have a particular ax to grind.

  13. I think elimination of bias is a good thing and lawyers should be discouraged from saying these sorts of things. It should be viewed as unprofessional and I might even go so far as saying a bar association could publicly reprimand such a lawyer when such comments are discovered.

    But that’s the outer limit of any sanction. I don’t think any state bar should be able to deprive a lawyer of liberty or property based on this sort of speech, which is clearly protected by the First Amendment.

    1. Why is elimination of bias a good thing?

      Why should a lawyer be compelled to be feminized?

      Why should the feelz govern conduct?

      Neutering the free expression and exchange of ideas should not be within the province of bar associations or courts or any civilized association.

      1. I don’t know if the elimination of bias speech is necessarily “feminine” in nature. Ever hear women talk about each other in private? That can get mean and vicious quick.

        1. “Feminize” means operating upon the basis of feelz; ruling by emotion; disparaging evidence, facts, logic, and ratiocination in assessing, deciding, and disposing of matters.

          1. Elimination of bias is a good thing because the law is supposed to treat everyone equally, a principle that is contained in the Constitution and is even chiseled into the Supreme Court’s facade.

            I think the whole “lawyers are officers of the court” thing is overstated, but lawyers do have an obligation to society to uphold the principle of equal treatment. We are supposed to promote confidence in the legal system, and to send the message to the rest of America that an ideal of fair treatment without bias is upheld. And yes, making disparaging comments about a judge as “fat” would run counter to that. It sends an entirely different message.

            This is, indeed, why state bars shouldn’t be integrated. There should be a separation between actually pulling a lawyer’s license (which should be fully subject to First Amendment restrictions) and informally condemning or calling out lawyers who do things that lawyers shouldn’t do (which should be the province of a private bar association).

          2. Feminize” means operating upon the basis of feelz

            Uh, this is pretty screwed up.

            Is Trump feminine? He’s pretty emotional!

  14. Does this apply to those two deranged judges who recently penned those mean-girl letters about President Trump and Lefty John Roberts?

    1. No; that’s different.

    2. One track mind, this guy.

  15. What if the assertion about the judge is true (nothing in the opinion suggests either way.) Is truth not an absolute defense here? (yes that is sarcasm folks…)

  16. While the lawyer’s use of biased slurs does seem juvenile, the judge’s comments seem to me to be problematic in another way. The judge seems to be implying that attorneys have a duty to support the desire of “all those involved in the legal system” to keep up its reputation as being fair, potentially to the extent that if he feels it is unfair (or that, for instance, a particular judge is unfair) he must keep that opinion to himself. I don’t agree that such a restriction is called for or acceptable.

    1. Not only is not called for or acceptable, its an abomination that has no place in a free society.

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