The Florida Bar v. Ray, SC94433.

• Decision Date: 16 August 2001
• Docket Number: No. SC94433.,SC94433.
• Citation: 797 So.2d 556
• Parties: THE FLORIDA BAR, Complainant, v. Michael Dean RAY, Respondent.
• Court: Florida Supreme Court

797 So.2d 556

THE FLORIDA BAR, Complainant, v. Michael Dean RAY, Respondent.

No. SC94433.

Supreme Court of Florida.

August 16, 2001.

Rehearing Denied October 1, 2001.

John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Division Director, Tallahassee, FL; and Randi Klayman Lazarus, Bar Counsel, Miami, FL, for Complainant.

Neil D. Kolner, Miami, FL, for Respondent.

Tammy Fox-Isicoff, Committee Representative, Miami, FL, for American Immigration Lawyer's Association, South Florida Chapter, Amicus Curiae.

Jonathan P. Rose, Miami, FL, for American Immigration Lawyers Association, Amicus Curiae.

PER CURIAM.

Michael Dean Ray has petitioned for review of a referee's report recommending that he be publicly reprimanded for making certain statements regarding an administrative law judge in the United States Executive Office for Immigration Review. We have jurisdiction. See art. V, § 15, Fla. Const. Upon due consideration of the issues and defenses raised by Ray, we approve the referee's report in full.

FACTS

Ray frequently appeared before a certain immigration court judge in Miami. From February 1996 through August 1997, Ray wrote three letters to the Chief Immigration Judge in Virginia. In these letters, Ray made several statements which questioned the veracity and integrity of the immigration judge, as well as his fairness at a hearing for one of Ray's clients.¹ Based on some of the statements made in these letters, the Bar filed a complaint of minor misconduct against Ray, alleging that he had violated Rule of Professional Conduct 4-8.2(a) ("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 or integrity of a judge."). A referee was appointed and following a hearing on disputed factual and legal issues, the referee found that certain statements in the letters were false, and that Ray had made the statements with reckless disregard as to their truth or falsity:

The letters contained accusations which are utterly false and they were made in my way of thinking at a minimum —at a minimum—with reckless disregard for the truth.

Indeed, if there is one word that characterizes these letters, it is reckless.

... I have read that transcript and I have listened to the tape and there was nothing—nothing—that transpired in that hearing that would justify such outrageously false accusations. And I am utterly appalled that this kind of language would be used against anybody on evidence that barely qualifies as sketchy.

In light of these findings, the referee recommended that Ray be found guilty of violating Rule of Professional Conduct 4-8.2(a), and that Ray be publicly reprimanded. Ray now petitions for review.

ANALYSIS

Ray and the amici curiae² in this case raise several arguments as to why Ray is not guilty of violating rule 4-8.2(a),³ all of which can be distilled down to Ray's contention that his statements were protected speech under the First Amendment and therefore this Court cannot sanction him for these statements. For the reasons expressed, we hold that the statements in Ray's letters were not protected speech under the First Amendment for purposes of this case because Ray did not have an objectively reasonable basis in fact for making the statements.

Ray contends that the statements in his letters were his opinion and that he had a subjectively reasonable basis in fact for making the statements. Subsumed in this argument is Ray's contention that the standard for defamation cases announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), applies in attorney disciplinary proceedings in Florida. Although the language of rule 4-8.2(a) closely tracks the subjective "actual malice" standard of New York Times, following a review of the significant differences between the interests served by defamation law and those served by ethical rules governing attorney conduct, we conclude that a purely subjective New York Times standard is inappropriate in attorney disciplinary actions.

The purpose of a defamation action is to remedy what is ultimately a private wrong by compensating an individual whose reputation has been damaged by another's defamatory statements. However, ethical rules that prohibit attorneys from making statements impugning the integrity of judges are not to protect judges from unpleasant or unsavory criticism. Rather, such rules are designed to preserve public confidence in the fairness and impartiality of our system of justice. See Kentucky Bar Ass'n v. Waller, 929 S.W.2d 181, 183 (Ky.1996) (disrespectful language directed at judge is not sanctioned because "the judge is of such delicate sensibilities as to be unable to withstand the comment, but rather that such language promotes disrespect for the law and for the judicial system"), cert. denied, 519 U.S. 1111, 117 S.Ct. 949, 136 L.Ed.2d 837 (1997). Because members of the Bar are viewed by the public as having unique insights into the judicial system, the state's compelling interest in preserving public confidence in the judiciary supports applying a different standard than that applicable in defamation cases. For this reason, we, like many other courts, conclude that in attorney disciplinary proceedings under rule 4-8.2(a), the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements. See United States Dist. Court v. Sandlin, 12 F.3d 861, 864, n. 13 (9th Cir.1993) (rejecting purely subjective defamation standard and applying objective standard, requiring court to determine whether the attorney had a reasonable factual basis for making the statements); In re Holtzman, 78 N.Y.2d 184, 573 N.Y.S.2d 39, 577 N.E.2d 30 (declining to adopt subjective New York Times standard in attorney disciplinary proceeding regarding statements critical of judiciary, as doing so "would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth") cert. denied, 502 U.S. 1009, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991); In re Graham, 453 N.W.2d 313, 322 (Minn.) (standard in disciplinary proceedings involving criticism of judiciary "must be an objective one dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances"), cert. denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990).

The referee in the instant case heard evidence from both the Bar and Ray regarding whether Ray had a reasonable basis in fact to make the statements he made in his letters and determined that Ray did not. Ray's statements that questioned the judge's veracity were found by the referee to be based on statements that the judge never made, and the referee concluded that it was impossible to "call someone a liar for a statement they never made." As to Ray's allegations of the judge's unfairness at a hearing for one of Ray's clients, the referee, after reviewing a tape recording and a transcript from the hearing,...