Michelle MacDonald v. Minnesota Office of Lawyers Professional Responsibility

Speech by attorneys critical of the judiciary is an essential component of our 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, for decades, in scores of cases, both state and federal courts have discipled 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 U.S. 254 (1964) and Garrison v. Louisiana, 379 U.S. 64 (1964) for punishing speech regarding government officials. Attorneys are generally prohibited from, and severely punished for impugning judicial integrity, even though the American Bar Association expressly adopted the constitutional subjective standard established in Sullivan and Garrison in its Model Rule 8.2 to only prohibit attorneys from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”1. The checking power of attorney speech is not the antithesis of preserving judicial integrity---checking government power is the primary method for preserving government integrity. 1 See Rules of Professional Conduct R. 8.2 (a), Maintaining the Integrity of the Profession, Judicial & Legal Officials. The Model Rule is identical to Minnesota Rule of Professional Conduct R. 8.2 (a) Judicial & Legal Officials.