Michelle Lowney MacDonald v. Lawyers Board of Professional Responsibility

Allowing speech by attorneys critical of the judiciary is an essential component of the American system of government. This Court has not addressed the restraint on free speech which is inherent in disciplining a lawyer for comments criticizing a judge, and that is why this case presents an issue of first impression regarding the First Amendment, Free Speech and the discipline of attorneys for statements concerning the qualifications or integrity of a judge. Across the country, attorneys are generally prohibited from and severely punished for impugning judicial integrity. In scores of cases both state and federal courts have disciplined attorneys for making disparaging remarks about the judiciary, and have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan , 376 US 254 (1964) and Garrison v. Louisiana 379 US 64 (1964) for punishing speech regarding government officials. The questions presented are:

1. Whether a free speech right to impugn judicial integrity must be recognized for attorneys when acting as officers of the court and making statements in court pleadings and proceedings?

2. Whether the disciplinary procedures for attorneys can constitutionally abrogate First Amendment Rights when rules are used to punish speech that impugns that integrity of the judiciary without requiring a showing of knowledge or reckless disregard to falsity?