Standing Committee on Discipline v.Yagman: Missing the Point of EthicalRestrictions on Attorney Criticismof the Judiciary?

It is outrageous that the Judge wants his profile redone because he thinks it to be inaccurately harsh in portraying him in a poor light. It is an understatement to characterize the Judge as "the worst judge in the central district." It would be fairer to say he is ignorant, dishonest, illtempered, and a bully, and probably is one of the worst judges in the United States. If television cameras ever were permitted in his courtroom, the other federal judges in the Country would be so embarrassed by this buffoon that they would run for cover. One might believe that some of the reason for this sub-standard human is the recent acrimonious divorce through which he recently went: but talking to attorneys who knew him years ago indicates that, if anything, he has mellowed. One other comment: his girlfriend . . ., like the Judge, is a right-wing fanatic. - Stephen Yagman' I. Introduction Attorney Stephen Yagman wrote these scathing words about United States District Court Judge William Keller.2 In addition, Yagman accused Judge Keller of being anti-Semitic and "drunk on the bench" after Judge Keller denied Yagman's motion and sanctioned him for bringing forth an improper and frivolous claim.3 In a disciplinary proceeding, Standing Committee on Discipline v. Yagman,4 the United States District Court for the Central District of California found that Yagman's statements impermissibly impugned the integrity of the court.5 The court concluded that Yagman's statements constituted an ethical violation warranting a two-year suspension from practicing law in the Central District of California.6 The United States Court of Appeals for the Ninth Circuit reversed the district court and struck down the suspension.7 The court of appeals concluded that courts cannot sanction attorneys for making statements that degrade the integrity of the judiciary unless the statements are capable of being proved true or false.8 The Ninth Circuit's opinion is the first time in nearly fifteen years that a federal appellate court has upheld an attorney's First Amendment freedom of speech rights in the face of ethical speech restrictions.9 In light of the Yagman opinion, this Note analyzes the constitutionality of ethical rules that restrict attorneys' freedom of speech. Part II outlines the relevant ethical rules that authorize sanctioning attorneys for speech that might otherwise receive First Amendment protection. to Part II compares the policy arguments that support the existing ethical rules restricting attorneys' freedom to criticize the judiciary with the policy rationale for condeming speech restrictions that infringe upon activity protected by the First Amendment.tI Part III summarizes the historical development of the restriction on attorney criticism of the judiciary.12 Part IV details the intricacies of the Yagman decision.'3 Part V critiques the Yagman opinion in light of the approaches taken in other cases that provided attorneys with less First Amendment protection.l4 Part VI explores the parallel jurisprudence of First Amendment rights in the contexts of the Hatch Act's restrictions on federal employees"5 and universities' restrictions on student speech.16 In addition, Part VI examines whether policy concerns and existing jurisprudence in the analogous contexts provide guidance for the attorney free speech controversy." Finally, Part VII concludes that ethical codes can constitutionally restrict attorney criticism of the judiciary because attorneys accept a duty to uphold the integrity of the judicial system upon entering the profession, and with that duty, certain necessary restraints attach.'8 II. Ethical Rules Restricting Attorney Speech Versus Attorneys ' First Amendment Rights The ethical rule at issue in the Yagman case, Local Rule 2.5.2 of the United States District Court for the Central District of California, prohibits conduct that "degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice therein. …