When Can Lawyers Be Punished for "Undignified or Discourteous" Criticism of Judges?

"Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division."

From Kansas Supreme Court Justice Caleb Stegall's concurrence in the judgment yesterday in In the Matter of Suzanne Valdez:

Back in 2021 at the height of the COVID-19 pandemic, the respondent Suzanne Valdez, a publicly elected official—the Douglas County District Attorney—made some intemperate comments about the chief judge of the district. Now, years later, after countless news stories, public outcry, lawyers hired, weeks and months of investigations and hearings, and a subsequent election for Douglas County District Attorney at which the respondent was unseated in part because of these charges—here we are. Was it worth it? No, it was not….

From [the panel decision], we can easily deduce that none of Valdez' comments were proven to be untrue or made with reckless disregard as to their truth. This includes the two comments found to be "undignified or discourteous." Now, given my personal experience with Chief Judge McCabria, I find the entire litany of allegations leveled at him by Valdez to be silly at best and scurrilous at worst—but this is entirely beside the point. Can we really say that truthful statements (or statements that cannot be proven untrue) can still be unethical if they are discourteous? If a judge acts in an undignified manner, is commenting on his or her behavior unethical? See In re Clark (Kan. 2022) (Stegall, J., concurring) ("[The judge's] behavior was embarrassing, foolish, and grossly immoral ….").

I have said it before, but it bears repeating—the practice of law is not a finishing school for debutants preparing for their first dance. "'There's no crying in baseball!' So intoned Tom Hanks' character in the film A League of Their Own…. It is a message the Kansas bar and bench—and our Disciplinary Administrator's office—should consider." … "[I]t does the judicial branch no favors to present publicly with a collective glass chin." … Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division.

This is not, however, what is most important about today's case. There is much more at stake—the beating heart of our democratic process—unconstrained political speech. There is a disturbing trend in our body politic to turn "ethics" into a political widow maker—a recently dislodged calcium deposit stalking the arterial system of our campaigns, elections, and government—threatening a blockage at any time. The rallying cry of, "You can't say that!" accompanied by looming threats of punishment is a kind of atherosclerosis—a narrowing of our political arteries—that I cannot countenance.

For it cannot pass our notice that this entire process was aimed squarely at punishing political speech. Even after (perhaps especially after) Valdez was acquitted by the panel of the most serious charges (and now, finally, is absolved of all guilt by this court), we cannot turn a blind eye to the reality that this attorney disciplinary process played a starring role in an important public election in Douglas County. Without question it impacted the outcome—if perhaps not the ultimate victor. At a minimum, it affected the point spread, as Valdez received only 9% of the vote in the Democratic primary.

Today, the majority finds that Valdez did not violate our ethics rules on what amounts to a technicality. That is, the majority has decided Valdez' comments were not made in the context of an actual legal or other adjudicative proceeding and therefore were not "degrading to a tribunal." I find this reasoning to be a pedantic bit of couper les cheveux en quatre [i.e., hair-splitting]—the distinction drawn is overly fine. I agree with Justice Rosen's dissent that certainly the subject matter of the spat between Valdez and Chief Judge McCabria concerned the "tribunal" of the Douglas County District Court. The issue, after all, was how and when trials were to be conducted during the pandemic. So while I concur in the outcome reached by the majority—that Valdez violated none of our Rules of Professional Conduct—my reasoning differs dramatically.

To put my conclusion bluntly, I would find that KRPC 3.5(d) and KRPC 8.2(a) do not apply to political speech. And while I will discuss First Amendment law below, I ground my decision not in a constitutional prohibition, but rather squarely in this court's discretionary power to make substantive policy when enforcing our Rules. That is, I would expressly limit the application of KRPC 3.5(d) and KRPC 8.2(a) not because the First Amendment requires this—though it may—but because such a policy is necessary to vindicate the free speech values that undergird and inform both the First Amendment and the functioning of our democratic system of self-government.

Let's begin our discussion with a cautionary tale.

The modern record is replete with current politician/lawyers who are critical of the judiciary in "discourteous" ways. Politicians from both sides of the political aisle (who also happen to be lawyers subject to state ethics codes) routinely criticize both judges and their opinions. These range from relatively mild critiques to the more provocative. See Myers & Fox, Utah Sen. Mike Lee introduces bill to stop district court judges from "usurping" Pres. Trump, ABC4 (Mar. 28, 2025) (quoting Senator Lee as saying: " 'America's government cannot function if the legitimate orders of our Commander in Chief can be overridden at the whim of a single district court judge.' "); Goldsberry, Tom Cotton calls upon Supreme Court to "rein in rogue federal judges," Washington Examiner (Apr. 21, 2025) (quoting Senator Cotton as saying: " 'This far-left Obama judge in Maryland is now demanding the president somehow sit down with a foreign leader and come to terms to return an MS-13 wife beater.' "); Blanchet, Adam Schiff Issues Stark Warning For Supreme Court On Trump's "Bogus" Immunity Claim, HuffPost (Mar. 18, 2024) (quoting Senator Schiff as saying: "It would be a terrible decision … it would also just further discredit this partisan and reactionary court."); Robinson, Why Did Texas Sen. Ted Cruz Criticize Judge Sonia Sotomayor During Senate Hearing on Universal Injunctions?, Texas Lawyer (Feb. 25, 2020) (quoting Senator Cruz referring to a Justice Sotomayor dissent as " 'an arsonist complaining about the noise from the fire trucks' "); Crawford, Alito Winces as Obama Slams Supreme Court Ruling, CBS News (Jan. 28, 2010) (describing President Obama's critique of Citizens United v. F.E.C. (2010), in his State of the Union Address).

So back in 2020 when Senate Minority Leader Chuck Schumer gave a fiery speech on the steps of the U.S. Supreme Court expressing his view of the Court revisiting Roe v. Wade (1973), his rhetoric was unrestrained. Senator Schumer called out two justices in particular, stating "Justice Kavanaugh and Justice Gorsuch, you have unleashed a whirlwind, and you will pay the price." And these comments resulted in a complaint filed with the New York Attorney Grievance Committee. The complaint argued that Senator Schumer had violated Rule 8.4 of the Rules of Professional Conduct for the New York State Unified Court System, which prohibits engaging in conduct that is prejudicial to the administration of justice.

But commentators on both the left and the right nevertheless expressed doubt that such rhetoric merited going after Senator Schumer's license to practice law. For its part, the New York Attorney Grievance Committee declined to take any action against Senator Schumer, stating that

[w]hile these comments were certainly concerning, the Attorney Grievance Committee (AGC) is cautious about disciplining attorneys, whether local attorneys or public officials, for comments that may be protected by the First Amendment. In addition, the AGC is mindful not to wade into political controversies that would result in an endless onslaught of retaliatory complaints by opposing parties.

Senator Schumer later apologized and wryly observed: "I'm from Brooklyn. We speak in strong language."

Though Senator Schumer escaped reprisal, examples abound of lesser-known lawyers who find themselves in hot ethical water for speaking "Brooklynese." For example, a Florida attorney agreed to settle his disciplinary case with a public reprimand after calling a judge an "evil, unfair witch" in his blog. And one can understand why the attorney chose to settle his case after one sees how other disciplinary cases can go in similar circumstances. See, e.g., Cleveland Metro. Bar Assn. v. Morton (Ohio 2021) (attorney suspended for one year for failing to act with "dignity and civility" following accusations that judges apply "politics, not law" in deciding tax valuation cases); In re Marshall (N.M. 2023) (attorney was indefinitely suspended after accusing a judge of intentionally failing to disclose a previous relationship with a party and ignoring the law in order to "fix" the case); Matter of Dinhofer (N.Y. App. Div. 1999) (attorney suspended for three months for comments during a telephone conference such as "[t]his is blatantly corrupt. You are sticking it to me every way you can.").

Contrary to what some think, judicial sensitivity to criticisms and discourtesies does not enhance respect for the judiciary—it undermines it. "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion." Indeed, because "it is a prized American privilege to speak one's mind"—even when not in "perfect good taste"—any "enforced silence … in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." …

The caselaw suggests that while there may be a judicial awareness of the need to tread carefully around the intersection of speech and ethics, some courts feel hamstrung by the language of most ethics codes which spring from the model rules promulgated by the American Bar Association (ABA). The situation is exacerbated by the infusion of subjectivity into the actual text of the rules. How one understands words and concepts like "discourteous" are so conditioned by personal values, upbringing, culture, socio-economic status, and the like, as to be virtually impossible to enforce in an objective and even-handed way. These are the hallmarks of a legal milieu that will inexorably lead to arbitrary enforcement decisions, double standards, and punishments meted out to unpopular people and opinions.

Moreover, the ABA has in recent years forfeited its reputation as a neutral player in the realm of attorney ethics. We owe its conception of "discourteous" behavior no deference. I am reminded of the recent kerfuffle created by the ABA a few years ago when it attempted to bully states into adopting a revised version of its Model Rule 8.4(g), which would have made it unethical to engage in speech judged to be "harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The ABA made it clear that among the conduct prohibited by this change was "harmful verbal … conduct that manifests bias or prejudice towards others" and reached so far as to sweep up speech occurring in "social activities" if they were somehow related to the practice of law.

This spawned a widespread outcry across the legal profession as commentators sounded the alarm—the ABA was trying to regulate lawyer speech at an unprecedented level…. Ironically, Valdez was regarded as an expert on attorney ethics at the time and presented numerous CLEs on the very topic at hand—threats to free speech coming in the form of ethical rules. In them, she warned of the constitutional implications of the proposed rule, observing that it potentially "targets religious beliefs and expression by attorneys, … punish[es] attorneys for membership in disfavored groups, … [and] may raise substantial free speech concerns if applied to statements made by attorneys in connection with their practice of law.

While not directly relevant to today's case, this episode illuminates a powerful anti-speech movement within the bar—and an overweening desire among establishment attorneys to police the thought and speech lives of their fellow lawyers. As the institution constitutionally charged with setting ethics policy in Kansas, this court has already wisely rejected such a path.

While black letter First Amendment law may permit the kind of punishment sought by the ODA and proposed by the panel in this case, this is far from certain. I take no position on this question in today's case because even if Valdez' speech had no formal constitutional protection, we must still evaluate whether—as a matter of Kansas policy—punishing such speech is wise or desirable….

Protecting "public confidence in the legal system" does not require dogmatic silence by attorneys working in that system—especially when attorneys are bringing attention to perceived problems and inequities. The practice of law, by nature, is adversarial. Punishing attorneys for voicing their criticisms serves to undermine the rule of law rather than bolster it and creates the impression that "judges can dish but they can't take." "The First Amendment is not abridged for the benefit of the Brotherhood of the Robe." …

[The] gap between the kinds of speech restrictions allowed by courts conducting a strict constitutional review and the values courts are inclined to protect has not gone unnoticed. "The difference between free speech values and First Amendment doctrine is particularly pronounced when it comes to lawyers because of the considerable leeway the Court has offered to states in the regulation of attorney speech." If we must choose, long experience and prudence counsel that when setting speech policy for lawyers in Kansas, the values undergirding the First Amendment must control even over its black letter application. So when we exercise our constitutional discretion to limn the boundaries of attorney ethics in Kansas, we must not hyperregulate the very First Amendment protections that attorneys and judges are sworn to uphold simply because an attorney's own speech is at issue.

Without a clear statement on these principles from this court, I fear the continuing chill on attorney speech in Kansas by the well-meaning but aggressive action of the ODA to take up the cause of bruised judicial feelings and punish all manner of "discourtesies." To which I can only say, "Stop it!" Kansas judges are not so delicate. We will not wilt in the face of lawyer criticism—or even an uncouth comment or name-calling. We retain the traditional tools of regulating our courtrooms through contempt or Rule 11 proceedings.

And most importantly, public trust in the legitimacy of the rule of law can only be harmed by a defensive posture reminiscent of petty gangsters and warlords surrounded by enforcers. In a mature democracy, fragility in leadership sows only distrust. We can and should do better.

To very briefly summarize the long fact discussion from the much narrower majority opinion, in Nov. 2020, the Chief Judge arranged certain plans for holding jury trials during COVID, and said that he had "consulted with all of the stakeholders." D.A. Valdez responded with a press release saying,

The District Attorney's Office was not consulted and is undoubtedly a stakeholder. Importantly, had I or my office been consulted by the District Court, we would have shared our concerns about trials during the COVID pandemic, as well as trying high level felony cases at the Douglas County Fairgrounds in a makeshift courthouse where security is not guaranteed.

She then sent a text message to the Chief Judge:

You should be ashamed of yourself.
We were Told, not consulted.
The only reason you commented is because I am a Hispanic female I [sic]a position of power.
I will she (sic) the light of truth
I will shine the light of truth
I will shine the light of truth on everything

She issued another press release saying,

Chief Judge McCabria did not ask for my advice or for my input regarding the April jury trial plan. To suggest that he and I met personally or consulted about the jury trial plan, or that he invited or asked for my or my office's input is simply false. It is disappointing that Chief Judge McCabria has misrepresented my communication with him about the legitimate public safety concerns I have about trying serious high level felony jury trials at the Fairgrounds. Unfortunately, this is yet another example of how an outspoken and honest woman is mischaracterized as untruthful by a male in power.

And she posted the second press release on her own Facebook page and the D.A.'s office Facebook page, together with this:

Women of the world-be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I! [Fist bump emoji and strong arm emoji followed the statement]

This led to a bar investigation of Valdez, and the bar hearing panel recommended formally censuring her on the grounds that her statements violated Kansas Rule of Professional Conduct 3.5(d), "A lawyer shall not … engage in undignified or discourteous conduct degrading to a tribunal":

Respondent engaged in undignified or discourteous conduct degrading to Judge McCabria and the legal system when she publicly called Judge McCabria's credibility into question in her second press release. In addition, Respondent's Facebook post about an "insecure man" was clearly directed at Judge McCabria. Respondent's comments about Judge McCabria were not made in the course of a zealous attorney making a point to a judge about a factual finding or ruling. Rather, they were personal comments that would be inappropriate even during a closed-door meeting with a judge. In this case, the undignified and discourteous comments were made public, published in a newspaper, and placed on social media. Respondent exhibited a reckless disregard for the negative impact her comments would have on others and the judicial system.

The majority (Chief Justice Marla Luckert, Justices Dan Biles and Melissa Taylor Standridge, and Senior Judge Meryl Wilson) concluded that Rule 3.5(d)'s reference to "tribunal" meant that the Rule only "prohibit[s] a lawyer from engaging in undignified or discourteous conduct degrading to a court or other arbiter when the court or other arbiter is acting in an adjudicative capacity." Because Valdez's criticisms were aimed at the Chief Judge's administrative actions, they were not covered by the rule. (Justice Eric Rosen and Senior Judge Nancy E. Parrish dissented, arguing that Rule 3.5(d) does apply to "undignified or discourteous" criticism of a court's "administrative decisions.")

Stephen Angermayer (Angermayer Law, L.L.C.) argued on Valdez's behalf, as did Valdez herself. Thanks to Lance Kinzer for the pointer.