Committee on Legal Ethics of West Virginia State Bar v. Douglas

• Citation: 179 W.Va. 490,370 S.E.2d 325
• Decision Date: 07 March 1988
• Docket Number: No. 17949,17949
• Parties: COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. James Wilson DOUGLAS.
• Court: Supreme Court of West Virginia

Page 325

370 S.E.2d 325

179 W.Va. 490

COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. James Wilson DOUGLAS.

No. 17949.

Supreme Court of Appeals of

West Virginia.

March 7, 1988.

Rehearing Refused May 18, 1988.

Syllabus by the Court

1. The Free Speech Clause of the First Amendment protects a lawyer's criticism of the legal system and its judges, but this protection is not absolute. A lawyer's speech that presents a serious and imminent threat to the fairness and integrity of the judicial system is not protected. When a personal attack is made upon a judge or other court official, such speech is not protected if it consists of knowingly false statements or false statements made with a reckless disregard of the truth. Finally, statements that are outside of any community concern, and are merely designed to ridicule or exhibit contumacy toward the legal system, may not enjoy First Amendment protection.

2. "The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals." Syllabus Point 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982).

3. This Court may in appropriate circumstances exercise its inherent supervisory power to review attorney disciplinary charges for which the Committee on Legal Ethics has not recommended discipline.

4. The filing of frivolous and harassing litigation can lead to disciplinary sanctions including disbarment under DR 7-102(A)(1) and (2) of the Code of Professional Responsibility.

Jack M. Marden, Sherri Goodman Dusic, Charleston, W.Va., for Committee on Legal Ethics.

James Wilson Douglas, Sutton, pro se.

MILLER, Justice:

This is an attorney disciplinary proceeding commenced by the Committee on Legal Ethics against the respondent, James Wilson Douglas, a Braxton County attorney. Multiple disciplinary charges were referred for hearing pursuant to State Bar By-Laws art. VI, § 12. Only two of the charges warrant discussion here.

First, the respondent publicly criticized an investigation by two circuit judges to inquire into a real estate transaction in which he was involved. The Committee contends that the criticism was "prejudicial to the administration of justice" in violation of DR 1-102(A)(5), and has recommended a six-month suspension. Second, the respondent prepared and filed a civil suit on behalf of a client, Ricky D.M., ¹ to recover a "stud fee." The suit was said to be factually unsupported and contrary to defenses previously raised in a related paternity suit. The disciplinary charges relative to the "stud fee" suit were dismissed.

While we conclude that the First Amendment Free Speech Clause affords protection to an attorney's extrajudicial speech, we remand for a determination of whether the respondent's speech exceeded the scope of protection. We also conclude that the disciplinary charges based upon the "stud fee" suit warrant reconsideration and, therefore, remand those charges for further proceedings.

I.

PUBLIC COMMENTS ON CIRCUIT COURT INVESTIGATION

A.

On July 22, 1985, a general warranty deed was recorded with the Office of the Gilmer County Clerk in which Kenneth Ray Greenlief was seller and Robert W. Minigh was purchaser. The deed was executed by Wayne King, an attorney in Clay County, as attorney-in-fact for Mr. Greenlief. Also recorded were a limited power of attorney ² and a deed of trust. Various aspects of the transaction were unusual, notably with regard to the prescribed method of payment. ³ All of the documents were prepared by the respondent on behalf of Mr. Greenlief.

The county clerk, aware that Mr. Greenlief had previously been hospitalized for mental illness, ⁴ brought the documents to the attention of A.L. Sommerville and Danny O. Cline, judges of the Fourteenth Judicial Circuit. On August 14, 1985, the judges jointly entered an order which was admitted to record as a lis pendens. The text of the order recited the mental health history of Mr. Greenlief, the questionable propriety of the transaction, and the involvement of the respondent as attorney for Mr. Greenlief. A special commissioner was appointed to investigate the transaction and to report his findings to the court.

An informal hearing in the Greenlief investigation was scheduled for August 29, 1985. The respondent was unable to attend, apparently due to a previous out-of-town commitment. Mr. Greenlief, Mr. Minigh, and Mr. King, together with their counsel, were in attendance. Two area newspaper reporters sought entrance to the hearing, but were excluded by the judges. ⁵ At the hearing, the judges orally prohibited the parties from making any comments to the press on the progress of the investigation. This prohibition was not reduced to a written order.

On August 30, 1985, an article appeared in the Braxton Democrat Central, a weekly newspaper. The article was titled "JUDGES SOMMERVILLE-CLINE ORDER INVESTIGATION: DOUGLAS, KING, MINIGH TARGETED," and detailed the charges in the lis pendens order.

A follow-up article appeared on September 6, 1985, under the headline: "DOUGLAS IGNORES GAG ORDER." The respondent was quoted extensively in the article. He attacked the circuit judges for attempting to prohibit public comment on the investigation: "I have much disdain and contempt for the gag order." He also attributed the investigation to "political expediency," and described it as "a farse [sic] and a thinly disguised attempt at 'power jockeying'." He concluded by observing that the judges "drew first blood" and that he would "rise to the challenge." ⁶

The newspaper article was accompanied by a photograph of the respondent dressed in military fatigues and armed with a facsimile bow and arrow, a knife, and rifle ammunition. A caption beneath the photograph quoted the respondent and read, in part: "Just like Rambo I'll defend against the judges alone if necessary."

A Notice of Hearing and Statement of Charges was served upon the respondent by the Committee on June 24, 1986. Count III charged, inter alia, a violation of DR

1-102(A)(5) ⁷ by virtue of the respondent's comments to the press and photograph. Hearings on the various disciplinary charges were held before a subcommittee of the Hearing Panel during the months of August and September, 1986. The subcommittee determined in a written report that the respondent's conduct violated DR 1-102, and recommended a six-month suspension. While the subcommittee recognized the right of a lawyer to "freely express his opinions," it concluded that the "abusive attack" by the respondent "crossed the threshold" into unprotected speech. The full Hearing Panel adopted the report on October 25, 1986. The Committee, by its verified complaint of March 19, 1987, now seeks imposition of the suspension.

B.

The Committee's principal position is that the public statements by the respondent and the "Rambo" photograph were in violation of DR 1-102(A)(5), which provides:

"Misconduct --(A) A lawyer shall not:

* * *

* * *

(5) Engage in conduct that is prejudicial to the administration of justice."

We begin with some general observations about public comment and criticism by lawyers. There appears to be rather unanimous agreement that general criticism of judges, their opinions, and court procedures, even if harsh and strident, will not result in a violation of the Code of Professional Responsibility. Annot., 12 A.L.R.3d 1408 (1967). The more troublesome area involves criticism which becomes personally abusive and lacks any factual basis.

A distinction is also made because of the differences in language between the general standard in DR 1-102(A)(5), conduct that is "prejudicial to the administration of justice," and the more detailed strictures contained in DR 7-107, which govern counsel's extrajudicial comments with regard to pending litigation in which he is involved. It appears these more detailed rules rest, at least in the criminal area, on the constitutional right to a fair trial, as the New Jersey Supreme Court summarized in In Re Hinds, 90 N.J. 604, 615, 449 A.2d 483, 489 (1982):

"There can be no doubt that the State has a substantial interest in ensuring the fairness of judicial proceedings.... This interest does not belong to the defendant alone. The public also has an interest in a fair trial that cannot be imperiled or diminished by out-of-court assertions by either defense or prosecution lawyers.... Thus, courts have recognized that restricting the extra-judicial statements of criminal defense attorneys relates to the government's substantial interest in preserving the proper administration of justice and the basic integrity of the judicial process." (Citations omitted).

In this case, we need not consider the implications of DR 7-107 because the respondent was not charged under this Canon. ⁸ He was also not charged with violating DR 8-102(B), which provides that "[a] lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer." ⁹

There also appears to be general agreement that the "prejudicial to the administration of justice" standard contained in DR 1-102(A)(5) is not unconstitutionally vague. This is because the standard is considered in light of the traditions of the legal profession and its established practices. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). The court in In re Keiler, 380 A.2d 119, 126 (D.C.App.1977), in upholding the constitutionality of the rule against a vagueness claim, stated: "The rule was written by and for lawyers. The language of a rule setting guidelines for members of the bar need not meet the precise standards of clarity that might be required of rules of conduct for laymen." See also State v. Martindale, 215 Kan. 667, 527 P.2d 703 (1974).

Another general observation which can be made is that most of the disciplinary cases involving attorneys speaking critically of...