Marylin Pierre v. Attorney Grievance Commission of Maryland

As judges face unprecedented attacks in the court of public opinion, they must exercise restraint in punishing their most knowledgeable critics. Under Rule 8.2 of the Rules of Professional Conduct, courts may only discipline lawyers who “make a statement that the attorney knows to be false” or utters “with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.” This language mirrors the “actual malice” test of New York Times v. Sullivan. Designed to protect free and robust debate, Sullivan precludes courts from punishing those who disparage public officials unless these critics knew their statements to be false or consciously doubted their truth. Some courts have applied this test in disciplinary proceedings. But most have adopted vague standards which abandon this Court’s First Amendment holdings. Shifting burdens of proof to the attorneys charged, these courts punish lawyers who fail to prove the truth of their statements or who fail to conduct a “reasonable investigation” of the merits. Protecting the reputations of their brethren, some judges have even punished criticism that may “engender disrespect” for their colleagues. Acknowledging this split of authority, the Supreme Court of Maryland has repeatedly declined to select any standard. Chilling the speech of lawyers who must guess about their First Amendment rights, the cases below pose a question that divides lower courts throughout the nation: Does the actual malice test of New York Times v. Sullivan protect lawyers’ First Amendment rights in disciplinary proceedings?