Standing Committee on Discipline of the United States District Court for the Central District of California v. Stephen Yagman

Never far from the center of controversy, outspoken civil rights lawyer Stephen Yagman was suspended from practice before the United States District Court for the Central District of California for impugning the integrity of the court and interfering with the random selection of judges by making disparaging remarks about a judge of that court. We confront several new issues in reviewing this suspension order.

* The convoluted history of this case begins in 1991 when Yagman filed a lawsuit pro se against several insurance companies. The case was assigned to Judge Manuel Real, then Chief Judge of the Central District. Yagman promptly sought to disqualify Judge Real on grounds of bias.1 The disqualification motion was randomly assigned to Judge William Keller, who denied it, Yagman v. Republic Ins., 136 F.R.D. 652, 657-58 (C.D.Cal.1991), and sanctioned Yagman for pursuing the matter in an "improper and frivolous manner," Yagman v. Republic Ins., 137 F.R.D. 310, 312 (C.D.Cal.1991).2

A few days after Judge Keller's sanctions order, Yagman was quoted as saying that Judge Keller "has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-semitism." Susan Seager, Judge Sanctions Yagman, Refers Case to State Bar, L.A. Daily J., June 6, 1991, at 1. The district court found that Yagman also told the Daily Journal reporter that Judge Keller was "drunk on the bench," although this accusation wasn't published in the article. See Standing Comm. on Discipline v. Yagman, 856 F.Supp. 1384, 1386 (C.D.Cal.1994).

Around this time, Yagman received a request from Prentice Hall, publisher of the much-fretted-about Almanac of the Federal Judiciary,3 for comments in connection with a profile of Judge Keller. Yagman's response was less than complimentary.4

A few weeks later, Yagman placed an advertisement (on the stationary of his law firm) in the L.A. Daily Journal, asking lawyers who had been sanctioned by Judge Keller to contact Yagman's office.5

Soon after these events, Yagman ran into Robert Steinberg, another attorney who practices in the Central District. According to Steinberg, Yagman told him that, by levelling public criticism at Judge Keller, Yagman hoped to get the judge to recuse himself in future cases.6 Believing that Yagman was committing misconduct, Steinberg described his conversation with Yagman in a letter to the Standing Committee on Discipline of the U.S. District Court for the Central District of California (the Standing Committee). See SER 326.

A few weeks later, the Standing Committee received a letter from Judge Keller describing Yagman's anti-Semitism charge, his inflammatory statements to Prentice Hall and the newspaper advertisement placed by Yagman's law firm. Judge Keller stated that "Mr. Yagman's campaign of harassment and intimidation challenges the integrity of the judicial system. Moreover, there is clear evidence that Mr. Yagman's attacks upon me are motivated by his desire to create a basis for recusing me in any future proceeding." SER 329-30. Judge Keller suggested that "[t]he Standing Committee on Discipline should take action to protect the Court from further abuse." SER 330.

After investigating the charges in the two letters, the Standing Committee issued a Petition for Issuance of an Order to Show Cause why Yagman should not be suspended from practice or otherwise disciplined. Pursuant to Central District Local Rule 2.6.4, the matter was then assigned to a panel of three Central District judges, which issued an Order to Show Cause and scheduled a hearing.7 Prior to the hearing, Yagman raised serious First Amendment objections to being disciplined for criticizing Judge Keller. Both sides requested an opportunity to brief the difficult free speech issues presented, but the district court never acted on these requests. The parties thus proceeded at the hearing without knowing the allocation of the burden of proof or the legal standard the court intended to apply.8

During the two-day hearing, the Standing Committee and Yagman put on witnesses and introduced exhibits. In a published opinion issued several months after the hearing, the district court held that Yagman had committed sanctionable misconduct, 856 F.Supp. 1384 (C.D.Cal.1994), and suspended him from practice in the Central District for two years, 856 F.Supp. 1395, 1400 (C.D.Cal.1994).

The Central District provides a mechanism for judges and others who become aware of attorney misconduct to refer the matter to the Standing Committee, a body of twelve members of the Central District bar. See Cent.Dist.Local R. (Civil) 2.6.1, 2.6.3. The Standing Committee reviews the charges and conducts an investigation. If it determines that an attorney deserves discipline, it issues a formal complaint and the case is assigned to a randomly selected panel of three judges. See Cent.Dist.Local R. (Civil) 2.6.4. The three-judge panel then holds a hearing on the charges with the committee acting as prosecutor.

Yagman challenges the makeup of the Standing Committee on the ground that several of its members had conflicts of interest that could have influenced their decision to pursue disciplinary action against him.9 Relying principally on Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), Yagman argues that this denied him due process.

We find Young readily distinguishable. The district court there appointed a private attorney to prosecute the defendant for allegedly violating an injunction protecting Vuitton's trademark. The attorney, however, had represented Vuitton in the civil action which resulted in the injunction, and continued to serve as Vuitton's counsel even as he prosecuted the contempt. He was thus representing two clients with potentially conflicting interests: Vuitton and the United States. The Court noted that by doing so, the attorney was violating ethical standards and a federal criminal law, since he could not "discharge the obligation of undivided loyalty to both clients where both have a direct interest." Id. at 805, 107 S.Ct. at 2136. In such situations, the Court concluded, the temptation to use prosecutorial authority to benefit the private client is too great. To avoid such conflicts of interest, the Court held that "counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order." Id. at 809, 107 S.Ct. at 2138.

Yagman doesn't contend that any of the Standing Committee lawyers represent Judge Keller (the supposed interested party here), or that Judge Keller stands to benefit from the disciplinary action against Yagman. Nor does he argue that the committee members violated federal law or professional ethical standards. Thus, the concerns undergirding the Court's ruling in Young are not implicated. Moreover, even the serious conflict of interest present in Young did not result in a denial of due process.10 Instead, the Court invoked its supervisory authority to prevent federal judges from making appointments that force attorneys to violate federal law and widely accepted ethical standards. Id. at 808-09, 107 S.Ct. at 2138-39.

Nor do we find any other support for Yagman's due process claim. The Standing Committee itself has no authority to impose sanctions; whether and to what extent discipline is warranted are matters exclusively within the province of the court. The committee merely assists the district court in maintaining attorney discipline by relieving judges of the awkward responsibility of serving as both prosecutors and arbiters.11 So long as the judges hearing the misconduct charges are not biased (and Yagman doesn't claim they are), there is no legitimate cause for concern over the composition and partiality of the Standing Committee. Cf. Wright v. United States, 732 F.2d 1048, 1058 (2d Cir.1984) (interested prosecutor's handling of criminal investigation and subsequent trial didn't deprive defendant of due process).

Local Rule 2.5.2 contains two separate prohibitions. First, it enjoins attorneys from engaging in any conduct that "degrades or impugns the integrity of the Court." Second, it provides that "[n]o attorney shall engage in any conduct which ... interferes with the administration of justice." The district court concluded that Yagman violated both prongs of the rule. 856 F.Supp. at 1385. Because different First Amendment standards apply to these two provisions, we discuss the propriety of the sanction under each of them separately.

* 1. We begin with the portion of Local Rule 2.5.2 prohibiting any conduct that "impugns the integrity of the Court." As the district court recognized, this provision is overbroad because it purports to punish a great deal of constitutionally protected speech, including all true statements reflecting adversely on the reputation or character of federal judges. A substantially overbroad restriction on protected speech will be declared facially invalid unless it is "fairly subject to a limiting construction." Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 577, 107 S.Ct. 2568, 2573, 96 L.Ed.2d 500 (1987).

To save the "impugn the integrity" portion of Rule 2.5.2, the district court read into it an "objective" version of the malice standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Relying on United States Dist. Ct. v. Sandlin, 12 F.3d 861 (9th Cir.1993), the court limited Rule 2.5.2 to prohibit only false statements made with either knowledge of their falsity or with reckless disregard as to their truth or falsity, judged from the standpoint of a "reasonable attorney." 856 F.Supp. at 1389-90.

Sandlin involved a First Amendment challenge to Washington Rule of Professional Conduct 8.2(a), which provided in part: "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications, integrity, or record of a judge." Sandlin, 12 F.3d at 864. Though the language of the rule closely tracked the New York Times malice standard, we held that the purely subjective standard applicable in defamation cases is not suited to attorney disciplinary proceedings. Id. at 867. Instead, we held that such proceedings are governed by an objective standard, pursuant to which the court must determine "what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances." Id.12 The inquiry focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made. Id.13

Yagman nonetheless urges application of the New York Times subjective malice standard in attorney disciplinary proceedings. Sandlin stands firmly in the way. In Sandlin, we held that there are significant differences between the interests served by defamation law and those served by rules of professional ethics. Defamation actions seek to remedy an essentially private wrong by compensating individuals for harm caused to their reputation and standing in the community. Ethical rules that prohibit false statements impugning the integrity of judges, by contrast, are not designed to shield judges from unpleasant or offensive criticism, but to preserve public confidence in the fairness and impartiality of our system of justice. See In re Terry, 271 Ind. 499, 394 N.E.2d 94, 95 (1979); In re Graham, 453 N.W.2d 313, 322 (Minn.1990).

Though attorneys can play an important role in exposing problems with the judicial system, see Oklahoma ex rel. Oklahoma Bar Ass'n v. Porter, 766 P.2d 958, 967 (Okla.1988), false statements impugning the integrity of a judge erode public confidence without serving to publicize problems that justifiably deserve attention. Sandlin held that an objective malice standard strikes a constitutionally permissible balance between an attorney's right to criticize the judiciary and the public's interest in preserving confidence in the judicial system: Lawyers may freely voice criticisms supported by a reasonable factual basis even if they turn out to be mistaken.

Attorneys who make statements impugning the integrity of a judge are, however, entitled to other First Amendment protections applicable in the defamation context. To begin with, attorneys may be sanctioned for impugning the integrity of a judge or the court only if their statements are false; truth is an absolute defense. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964). Moreover, the disciplinary body bears the burden of proving falsity. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77, 106 S.Ct. 1558, 1563-64, 89 L.Ed.2d 783 (1986); Porter, 766 P.2d at 969.

It follows that statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they "imply a false assertion of fact." See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990); Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir.1983); Restatement (Second) of Torts Sec. 566 (1977) (statement of opinion actionable "only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion"). Even statements that at first blush appear to be factual are protected by the First Amendment if they cannot reasonably be interpreted as stating actual facts about their target. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 879, 99 L.Ed.2d 41 (1988). Thus, statements of "rhetorical hyperbole" aren't sanctionable, nor are statements that use language in a "loose, figurative sense." See National Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974) (use of word "traitor" could not be construed as representation of fact); Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970) (use of word "blackmail" could not have been interpreted as charging plaintiff with commission of criminal offense).

With these principles in mind, we examine the statements for which Yagman was disciplined.

2. We first consider Yagman's statement in the Daily Journal that Judge Keller "has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-semitism."14 Though the district court viewed this entirely as an assertion of fact, 856 F.Supp. at 1391, we conclude that the statement contains both an assertion of fact and an expression of opinion.

Yagman's claim that he, Kenner and Manes are all Jewish and were sanctioned by Judge Keller is clearly a factual assertion: The words have specific, well-defined meanings and describe objectively verifiable matters. Nothing about the context in which the words appear suggests the use of loose, figurative language or "rhetorical hyperbole." Thus, had the Standing Committee proved that Yagman, Kenner or Manes were not sanctioned by Judge Keller, or were not Jewish, this assertion might have formed the basis for discipline. The committee, however, didn't claim that Yagman's factual assertion was false, and the district court made no finding to that effect. We proceed, therefore, on the assumption that this portion of Yagman's statement is true.

The remaining portion of Yagman's Daily Journal statement is best characterized as opinion; it conveys Yagman's personal belief that Judge Keller is anti-Semitic. As such, it may be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false. See Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707; Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 727 (1st Cir.1992).

In applying this principle, we are guided by section 566 of the Restatement (Second) of Torts, which distinguishes between two kinds of opinion statements: those based on assumed or expressly stated facts, and those based on implied, undisclosed facts. Restatement (Second) of Torts Sec. 566, cmt. b; see Lewis, 710 F.2d at 555 (following the Restatement).15 The statement, "I think Jones is an alcoholic," for example, is an expression of opinion based on implied facts, see id. Sec. 566, cmt. c, illus. 3, because the statement "gives rise to the inference that there are undisclosed facts that justify the forming of the opinion," id. Sec. 566, cmt. b. Readers of this statement will reasonably understand the author to be implying he knows facts supporting his view--e.g., that Jones stops at a bar every night after work and has three martinis. If the speaker has no such factual basis for his assertion, the statement is actionable, even though phrased in terms of the author's personal belief.16

A statement of opinion based on expressly stated facts, on the other hand, might take the following form: "[Jones] moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair ... with a drink in his hand. I think he must be an alcoholic." Id. Sec. 566, cmt. c, illus. 4. This expression of opinion appears to disclose all the facts on which it is based, and does not imply that there are other, unstated facts supporting the belief that Jones is an alcoholic.

A statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning. Lewis, 710 F.2d at 555-56; Restatement (Second) of Torts Sec. 566, cmt. c ("A simple expression of opinion based on disclosed ... nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is."). The rationale behind this rule is straightforward: When the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts. Phantom Touring, 953 F.2d at 730; Lewis, 710 F.2d at 555. Moreover, "an opinion which is unfounded reveals its lack of merit when the opinion-holder discloses the factual basis for the idea"; readers are free to accept or reject the author's opinion based on their own independent evaluation of the facts. Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir.1985); see also Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1290 (4th Cir.1987) ("[T]he statement in question readily appears to be nothing more than the author's personal inference from the test results. The premises are explicit, and the reader is by no means required to share [defendant's] conclusion."). A statement of opinion of this sort doesn't "imply a false assertion of fact," Milkovich, 497 U.S. at 19, 110 S.Ct. at 2706, and is thus entitled to full constitutional protection.

We applied this principle in Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.1983), where an attorney claimed he had been defamed by an article calling him a "shady practitioner." We held that this expression of opinion was protected by the First Amendment because the article set forth the facts on which the opinion was based: a judgment entered against the attorney for defrauding his clients, and another judgment holding him liable for malpractice. Id. at 556. Because the article's factual assertions were accurate, we concluded that the plaintiff's claim was barred: "[W]here a publication sets forth the facts underlying its statement of opinion ... and those facts are true, the Constitution protects that opinion from liability for defamation." Id.; see also National Ass'n of Gov't Employees, 396 N.E.2d at 1000; Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 950, 366 N.E.2d 1299, 1306 (1977).

Yagman's Daily Journal remark is protected by the First Amendment as an expression of opinion based on stated facts. Like the defendant in Lewis, Yagman disclosed the basis for his view that Judge Keller is anti-Semitic and has a penchant for sanctioning Jewish lawyers: that he, Kenner and Manes are all Jewish and had been sanctioned by Judge Keller. The statement did not imply the existence of additional, undisclosed facts; it was carefully phrased in terms of an inference drawn from the facts specified rather than a bald accusation of bias against Jews.17 Readers were "free to form another, perhaps contradictory opinion from the same facts," Lewis, 710 F.2d at 555, as no doubt they did.

3. The district court also disciplined Yagman for alleging that Judge Keller was "dishonest." This remark appears in the letter Yagman sent to Prentice Hall in connection with the profile of Judge Keller in the Almanac of the Federal Judiciary. See n. 4 supra. The court concluded that this allegation was sanctionable because it "plainly impl[ies] past improprieties." 856 F.Supp. at 1391. Had Yagman accused Judge Keller of taking bribes, we would agree with the district court. Statements that "could reasonably be understood as imputing specific criminal or other wrongful acts" are not entitled to constitutional protection merely because they are phrased in the form of an opinion. Cianci v. New Times Publishing Co., 639 F.2d 54, 64 (2d Cir.1980).

When considered in context, however, Yagman's statement cannot reasonably be interpreted as accusing Judge Keller of criminal misconduct. The term "dishonest" was one in a string of colorful adjectives Yagman used to convey the low esteem in which he held Judge Keller. The other terms he used--"ignorant," "ill-tempered," "buffoon," "sub-standard human," "right-wing fanatic," "a bully," "one of the worst judges in the United States"--all speak to competence and temperament rather than corruption; together they convey nothing more substantive than Yagman's contempt for Judge Keller. Viewed in context of these "lusty and imaginative expression[s]," Letter Carriers, 418 U.S. at 286, 94 S.Ct. at 2782, the word "dishonest" cannot reasonably be construed as suggesting that Judge Keller had committed specific illegal acts.18 See Bresler, 398 U.S. at 14, 90 S.Ct. at 1541 ("blackmail"). Yagman's remarks are thus statements of rhetorical hyperbole, incapable of being proved true or false. Cf. In re Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 441, 301 N.E.2d 426, 427 (1973) (reversing sanction against attorney who criticized trial judges for not following the law, and appellate judges for being "the whores who became madams"); State Bar v. Semaan, 508 S.W.2d 429, 431-32 (Tex.Civ.App.1974) (attorney's observation that judge was "a midget among giants" not sanctionable because it wasn't subject to being proved true or false).

Were we to find any substantive content in Yagman's use of the term "dishonest," we would, at most, construe it to mean "intellectually dishonest"--an accusation that Judge Keller's rulings were overly result-oriented. Intellectual dishonesty is a label lawyers frequently attach to decisions with which they disagree.19 An allegation that a judge is intellectually dishonest, however, cannot be proved true or false by reference to a "core of objective evidence." Cf. Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707; Rooney, 912 F.2d at 1055. "[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable." Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993). Because Yagman's allegation of "dishonesty" does not imply facts capable of objective verification, it is constitutionally immune from sanctions.

4. Finally, the district court found sanctionable Yagman's allegation that Judge Keller was "drunk on the bench." Yagman contends that, like many of the terms he used in his letter to Prentice Hall, this phrase should be viewed as mere "rhetorical hyperbole." The statement wasn't a part of the string of invective in the Prentice Hall letter, however; it was a remark Yagman allegedly made to a newspaper reporter.20 Yagman identifies nothing relating to the context in which this statement was made that tends to negate the literal meaning of the words he used. We therefore conclude that Yagman's "drunk on the bench" statement could reasonably be interpre