Lawyers' freedom of speech

This is my article on free speech and lawyers published in July 2018 by the NZ Bar Association.

WHEN ARE LAWYERS NOT PERMITTED TO SAY WHAT THEY THINK?

“[A] function of free speech under our system of government is to invite dispute...

The vitality of civil and political institutions in our society depends on free discussion. . . . The right to speak freely and to promote diversity of ideas and programs is . . . one of the chief distinctions that sets us apart from totalitarian regimes.”[1]

The recent inquiry by a Standards Committee into comments made by a lawyer about a Judge’s sentencing remarks in a domestic violence case has brought into focus the scope of freedom of expression by lawyers.[2]

I contend that lawyers should speak boldly and forthrightly about the role of the courts in society, about the relationship between law and justice, and about our own personal visions of justice. This article offers some observations about why lawyers should ‘speak out’ about justice and other issues, and explores the limits when lawyers do so, by reference to some previous cases when lawyers have experienced disciplinary consequences.

The right to express ideas, including critical or unpopular opinions, is basic to our democratic system of government.[3] Freedom to criticize and to have one’s views published helps hold public and private power to account, and promotes social progress. But if we are uncritical, we will always find what we want; we will only look for, and find, confirmations of our beliefs; and we shall look away from, and not see, what might call into question our pet theories.[4]

The right to freedom of expression under s 14 of the New Zealand Bill of Rights Act includes “the freedom to seek, receive, and impart information and opinions of any kind in any form”, and the right to convey information about court proceedings.[5] Section 14 protects the right to receive information and ideas,[6] and it has been said that this protection “is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”[7] So, by speaking out, lawyers may empower others to speak.

However, freedom of expression is a right that is qualified under the International Covenant on Civil and Political Rights.[8] By virtue of s 5 of the New Zealand Bill of Rights Act, freedom of expression is subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. It has been held that these limits can be drawn by rules of professional conduct. The question for lawyers is: when is it not permitted to say what one thinks, and it is only permissible to keep silent?[9]

The scope of freedom of expression in the lawyer’s disciplinary context has been considered in most common-law jurisdictions.[10] In Orlov v New Zealand Law Society, the Court of Appeal affirmed settled authority, holding:[11] “…it is clear that disrespectful or scandalous allegations against a judge exercising judicial authority is an affront to the court and poses a risk to public confidence in the judicial system. Such excessive conduct does not qualify for protection under the right to freedom of expression.” In the sequel to that appeal in 2014, Mr Orlov’s defence to disciplinary charges based on freedom of expression was examined by the Full Court of the High Court.[12] Describing the right of freedom of expression as “important”, the Full Court held that a “significant level of robustness” was required when considering a defence to a disciplinary charge based on this right. The Court held that freedom of expression in this context was not to be “lightly restricted”,[13] and identified some of the limits when lawyers’ criticise judges.[14] The Court held that allegations of bias, or that were improper, inflammatory and intemperate, even if made without a sufficient foundation, would not usually constitute misconduct, although disciplinary action short of a misconduct charge might remain available, for example based on unprofessional conduct.[15] The Court added that allegations which were extreme in their nature or which alleged improper motives on the part of a Judge, have potential to significantly undermine public confidence in the administration of justice. This is particularly so when the allegations “come from within”, such as from a lawyer.[16]

Similar circumstances arose before the Supreme Court of Canada in Doré v. Barreau Du Québec.[17] Mr Doré, having appeared before a Judge of the Superior Court, then sent a missive to the Judge, accusing him of being arrogant and fundamentally unjust, of hiding behind his status like a coward, of having a chronic inability to master any social skills, of being pedantic, aggressive and petty, and of having a propensity to use his court to launch ugly, vulgar and mean personal attacks. While this comment was not published, the lawyer was still charged with violating a rule of ethics requiring him to act with objectivity, moderation and dignity. The Supreme Court held that open, and even forceful, criticism of our public institutions by lawyers is fundamentally important; however, this freedom has to be balanced against the professional duty on lawyers to act with civility. The Court added that disciplinary bodies must demonstrate that they have given due regard to the importance of lawyers’ “expressive rights”, both in the light of an individual lawyer’s right to expression and the public interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.[18]

In Ellis v The Law Society,[19] two Judges sitting in the Queen’s Bench Division held that allegations made in the course of proceedings that were inappropriate, offensive and derogatory, directed to and about the Law Society, members of the judiciary (alleging corruption)[20] and others failed to observe professional standards. The Judges, while upholding the disciplinary charges, opined that it was necessary to approach the matter on the basis that a solicitor is entitled to hold strong views about matters such as human rights, however unpalatable others might find them to be, and, that officials and judges must be robust in being able to ignore observations of an intemperate or even abusive nature.[21]

In the United States, it has been held that the First Amendment to the US Constitution shields lawyers from disciplinary consequences unless there is proof of a false statement and of malice (in the sense of, knowing a statement to be false or having reckless disregard to its truth).[22]

In Deliu v Molloy,[23] the Legal Complaints Review Officer considered commentary made by Mr Molloy QC, reported in media. Mr Molloy contended that some High Court Judges were not competent to sit in certain types of cases, describing these Judges as “flouting” their oaths and “sitting under false pretences”, among other things. The Review Officer considered that Mr Molloy’s comments, when taken in context, were intended to provoke an informed debate over the issues; while Mr Molloy’s extravagant commentary was borderline, taken in context, and given it had been selectively reported, a disciplinary response was not warranted.

The courts’ decisions are generally open to public scrutiny. Most proceedings occur in public. Therefore, judges cannot expect to stand above the public dialogue. As to judges bearing up to lawyers’ criticisms, the late Stephen Reinhardt observed that:[24]

“Because we are often isolated from public debate, we are disturbed when others, particularly lawyers, criticize us. We tend to forget that the cases we are deciding have broader implications outside the courts, the cases being litigated often represent small battles in a larger war that the parties are fighting on a far broader front. Thus, we should give attorneys the freedom to speak freely about cases outside the courtroom; we should also give them the freedom to criticise us openly when they believe that such criticism is deserved.”

Judges’ decisions stand or fall on their merits. When judges utter nonsense or make controversial statements in open court or in judgments, they must expect public scrutiny or criticism:[25] it is also important, perhaps more important, that the merits of judicial decisions are freely debated.

It has been said that systemic discouragement of judicial criticism often rests on a “terribly confining” myth: namely, that the judiciary has risen above the usual human foibles, and that judges are not a collection of “human beings, with weaknesses and biases, struggling to do their best to interpret and apply the law as we see it.”[26] Lawyers ought not to give succour to such a myth. And judges should welcome commentary and criticism from lawyers, if only because it is likely to be more informed and principled than most lay comment.

It is, of course, impossible to draw clear lines between what speech is appropriate and what is not. Like many other areas of the law, the boundaries are imprecise.[27] However, the need for caution is greater when a lawyer is commenting on a matter in which she or he was involved, or over which the lawyer has strong personal feelings. Lawyers wanting to ‘speak out’ ought to first ask: should I even be commenting? Can I be objective? Am I moved to adjectival extravagance, or worse? It is advisable when thinking of expressing oneself in such circumstances to have a respected colleague vet your comment before going public. Some of the cases reviewed above highlight this point.

Lawyers can greatly enhance public understanding of the role of judges and of the diverse ways in which judges approach the judicial function.[28] Being critical of the justice system in an informed manner is to uphold the rule of law and the administration of justice, which is one of the fundamental professional obligations of lawyers.[29] I believe that lawyers have an obligation to help to educate not just the legal community but the public at large about matters concerning which lawyers have knowledge or experience. It follows that restraints on lawyers’ speech should be few, and be demonstrably justified.

[1] Terminiello v. City of Chicago 337 U.S.1, 4 (1949). Terminiello is a leading US Supreme Court judgment on the First Amendment to the US Constitution.

[2]The process and issues were discussed in the Committee’s published reasons – see Decision dated 11 May 2017, file 17177, available at: www.lawsociety.org.nz/_data/assets/pdf/0007/122110/MacLennan-OMI-Notice-of-Decision.pdf. I have previously acted for this Standards Committee, but I was not consulted or retained in relation to this matter. As to the correctness of the process and jurisdiction points raised in the public domain in the MacLennan matter, see: Part 7 of the Lawyers and Conveyancers Act 2006, discussed in Hart v Auckland Standards Committee 1 [2013] NZHC 83, [2013] 3 NZLR 103 at [73] (Full Court), and see Duncan Webb, Ethics Professional Responsibility and the Lawyer, 3rd ed., Lexis Nexis, 2016, at 4.4.2, pages 137-139.

[3] Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [156] per McGrath, William Young and Glazebrook JJ.

[4] Karl Popper, The Poverty of Historicism (1957) Ch. 29 (The Unity of Method).

[5] Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [158] per McGrath, William Young and Glazebrook JJ.

[6] See Stanley v. Georgia, 394 U.S. 557, 564 (1969).

[7] Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982).

[8] Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [21] per Elias CJ (dissenting, but not on this point), citing Article 19(3).

[9] Paraphrasing from one of Cicero’s letters written during the dictatorial rule of Julius Caesar, see Fam. 4.9.

[10] It has also received consideration in the European Court of Human Rights: see, for example, Nikula v Finland (2004) 38 EHRR 45 (ECHR); Steur v Netherlands (2004) 39 EHRR 35.

[11] Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562, at [122].

[12] In Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606 (“Orlov v NZLCDT”).

[13] Orlov v NZLCDT at [84].

[14] The source of the limit is Rule 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008; comparable rules exist in other common law jurisdictions, for example see the discussion about similar rules in Australia in Dal Pont, Lawyers Professional Responsibility, 5th ed., Thomson Reuters, 2013 at 25.25.

[15] Orlov v NZLCDT at [123]. Mr Orlov was struck off, but this order was overturned, and he effectively served an 8 months’ suspension.

[16] Orlov v NZLCDT at [207]. I question whether lawyers are truly “within”: while lawyers are officers of the court, they are not within the justice system in any functional or formal sense. Lawyers have an overriding duty to the court under s 4 of the Lawyers and Conveyancers Act, but this is imposed from without, by law and historical practice, rather than being an institutional duty arising from official status.

[17] Doré v. Barreau Du Québec [2012] 1 S.C.R. 395. Mr Doré was suspended.

[18] To similar effect, see Histed v Law Society of Manitoba [2007] MBCA 150, where a lawyer described certain judges as bigots and too “right wing” to sit. Mr Histed was fined.

[19] Ellis v The Law Society [2008] EWHC 561 (Admin). Mr Ellis was suspended from practice.

[20] Compare a similar allegation, among others, resulting in suspension, made in National Standards Committee v Deliu [2016] NZLCDT 26, upheld in Deliu v National Standards Committee & Anor [2017] NZHC 2318. An appeal by Mr Deliu to the Court of Appeal is pending.

[21] Compare similar sentiments of Cooper J in Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No.2) HC Hamilton, CIV 2010-419-1209, 20 December 2010.

[22] Even when a lawyer’s statements undermine the administration of justice, see In Re Green 11 P.3d 1078 (2000), a decision of the Colorado Supreme Court, citing Gentile v State Bar of Nevada 501 U.S. 1030 (1991): the ratio being that, if an attorney's activity or speech is protected by the First Amendment, disciplinary rules governing the legal profession cannot punish the attorney's conduct.

[23] Deliu v Molloy LCRO 155/2013, 14 April 2016.

[24] Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), 812.

[25] If moved to do so, others including lawyers and law associations may come to their defence, if they consider the criticisms to be meritless or unfair. There may be occasions when it is in the public interest to come to a judge’s defence, particularly if a judge is facing a jingoistic or vile attack.

[26] Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), 810.

[27] As a starting point, check off the obvious: respect the sub judice rule, suppression and non-publication orders; ensure there is an adequate basis for what you say, and check your facts.

[28] For example, there may be a wide-spread public notion that judges are emanations from a generally conservative social matrix. But judges are “not fungible” (per Justice Douglas in Chandler v Judicial Council of the Tenth Circuit, 398 U.S. 74, 137 (1970)): some judges might be described as judicial technicians, some are deferential to the legislature, others are alive to the potential evils of majoritarianism; some are concerned with due process, some with fairness and some with the broader development of justice – see Stephen Reinhardt, Judicial Speech and the Open Judiciary, 28 Loy. L.A. L. Rev. 805 (1995), from which article I have drawn liberally for themes and propositions in this article.

[29] See s 4 of the Lawyers and Conveyancers Act 2006.