Respect: A Core Principle
Maintaining respect for the judiciary is a core principle of legal ethics. In California, it is codified as Business and Professions Code section 6068(b): “It is the duty of a lawyer… to maintain the respect due the courts and judicial officers.” California Rule of Professional Conduct 8.2(a) also provides that “A lawyer shall not make a statement of fact 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 or judicial officer, or of a candidate for election or appointment to judicial office.” Attorneys have been subject to substantial discipline for violating section 6068(b). A leading case Ramirez v State Bar (1980) 28 Cal.3d 402 involved a lawyer “falsely maligning” justices of the Third District Court of Appeal in making the statements described below:
“The case involves the question: Are Appellate Judges above the law? As to KPCA: Can the judges give you what the law does not? (By taking the Terrys’ property they become parties to the theft.)” Petitioner also implied the justices had improperly favored KPCA, stating: “Money is king, and some judges feel they are there to see that it doesn’t lose.” Petitioner also said that “the KPCA by its power and influence and money was able to induce the defendant judges to act in an unlawful manner ….” Finally, petitioner asserted in the brief that the justices maintained an “invidious alliance with KPCA” resulting in the deprivation of Terrys’ judgment.
Ramirez, at 407-08. One of Ramirez’s defenses was that the court was without jurisdiction to discipline him because his statements were protected speech under the First Amendment. The Supreme Court majority concluded that there was no First Amendment protection for his statements made in “reckless disregard” of the truth and suspended Ramirez for thirty days.
Justice Newman, joined by Justice Tobriner, dissented. Justice Bird filed her own separate dissent. She said:
I find the sensitivity of the court to the sensibilities of judges quite touching, but if taken to its logical conclusion rather dangerous. With today’s decision, this court has removed from the protections of the First Amendment any statement by a lawyer commenting on a member of the judiciary…. These are difficult and unpleasant times. The amenities and courtesies of language and demeanor seem to be absent from our social and business environments. One would hope for a kinder and more thoughtful world. However, censorship is not the best method by which to achieve that end…. The chilling effect this decision will have on the actions of a lawyer is too high a price to pay for the fragile sensibilities of a judge or justice. Further, it smacks of arrogance to so limit the bar while we ourselves carry on dialogues which match or exceed what was said here.
45 years later, Justice Bird’s words about “difficult and unpleasant times” seem almost quaint in comparison to the savagery that seems to dominate our current social and business environments. Ugliness has become a badge of honor among keyboard warriors locked in perpetual struggle against those they see as evil. Disrespect for judges is openly espoused by those occupying high public office.
Proposed Changes to California Rules 8.2 and 8.4
Beyond mere disrespect, calls for violence against judges have increased. And some of those calling for violence are lawyers. In November 2024, the California Judges Association (CJA), citing “increased public criticism resulting in threats and violence against judges due to their rulings. asked the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) “to make modifications to the Rules of Professional Conduct.” COPRAC drafted suggested changes to the comments to Rule 8.2 and 8.4 that were recently subject to a 60-day public comment period.
The proposed comments echo the debate in the Ramirez case concerning the limits of free speech. The proposed comment to Rule 8.2 says
[1] A statement that is asserted as opinion may be the basis for discipline if the “statement implies actual facts that are capable of objective verification.” (See In re Yagman (9th Cir. 1995) 55 F.3d 1430, 1441.)
Similarly, the longer proposed comment to Rule 8.4, which defines misconduct, addresses the issue of protected versus unprotected speech. Rule 8.4 comment 6 currently states that protected speech cannot be disciplined. New comment 7 says:
[7] Unprotected activities, including speech, that may be the basis for discipline under paragraph (c) or (d) include: (1) a statement made with the specific intent of producing imminent lawless action against a judge or judicial officer and likely to do so (Counterma v. Colorado (2023) 600 U.S. 66 [143 S.Ct. 2106]; Brandenburg v. Ohio (1969) 395 U.S.
444, 447 [89 S.Ct.1827] (per curiam)); (2) a true threat of violence, that is, a statement that a reasonable observer would understand to be a “serious expression” conveying that the speaker means to “commit an act of unlawful violence” against a judge or judicial officer made with intent, knowledge, or reckless disregard that others could regard thestatement as threatening violence (Counterman v. Colorado, supra, 600 U.S. at p. 74); and (3) a false statement of fact, or a statement asserted as opinion that “implies actual facts that are capable of objective verification” that are false, regarding a judge or judicial officer made with knowledge or reckless disregard of the truth or falsity of the facts (In re Yagman (9th Cir. 1995) 55 F.3d 1430, 1441; see also rule 8.2(a); Bus. & Prof. Code,
§ 6068, subd. (b).) Courts use an objective standard to determine “what a reasonable attorney, considered in light of all [their] professional functions, would do in the same or similar circumstances.” (United States Dist.. Ct. v. Sandlin (9th Cir. 1993) 12 F.3d 861, 867.)
Olin: Disrespect and A Threat
These legal clarifications are certainly of interest to discipline practitioners and adjudicators. But I wonder if this is really the kind of help the CJA was looking for. Consider the recent Review Department decision In the Matter of Olin*.
Attorney Olin represented himself in a marital dissolution proceeding in Los Angeles Superior Court. He entered into a settlement agreement in 2011 with his former spouse, Kelly, including joint custody of their biological son “J,” with Kelly as the custodial parent and Olin having visitation rights. This co-parenting agreement worked well for seven years. In 2018, Kelly obtained a domestic violence restraining order (DVRO) and temporary restraining order (TRO_ against Olin from Commissioner Glenda Veasey, while denying a DVRO requested by Olin. Both orders were affirmed on appeal. In 2019 Olin filed a motion seeking an order to appoint an independent child custody evaluator and to disqualify Commissioner Veasey.
He alleged in that motion that Kelly engaged in parental alienation and interfered in his relationship with his son. Olin alleged, “For the record – as this matter has been intentionally mischaracterized by the unashamedly biased Commissioner Veasey, [Olin’s] problem with this is not that [Kelly] communicated with the minor child, but rather that it was done in secret with the clear purpose of causing discord . . . [and Commissioner] Veasey has chosen to be willfully ignorant as the facts conflict with her unmitigated bias against [Olin].” He further stated, “Please, please, please don’t continue to deny me justice. I am already suicidal enough and everyday [sic] is already a struggle.”
During the disciplinary trial, Commissioner Veasey testified that she was concerned because Olin had filed pleadings on an ongoing basis using berating language and what she perceived as escalating threats towards her. She stated she could no longer ignore her concerns after Olin filed a pleading referencing only being alive because four others needed to precede him, and she believed she was one of the “main people on that list.”
Olin, slip opinion at pages 6-7.
Of course, there is more – a lot more. The Office of Chief Trial Counsel of the State Bar (OCTC) charged Olin with seven counts of under Business and Professions Code section 6068(b)(failing to maintain respect due to courts and judicial officers) based on disrespectful and demeaning emails he sent to multiple judicial officers and one count alleging a violation of Business and Professions Code section 6106 (moral turpitude) based on an email he sent to a Commissioner Veasey stating that if he won the lottery, he would pay someone to kill her minor child. The hearing judge dismissed counts two, five, seven, and eight because statements contained within those counts amounted to rhetorical hyperbole incapable of being proven true or false, and because OCTC failed to present sufficient evidence to establish falsity for the remaining statements. In one count, the hearing judge’s dismissal was based on Olin’s statements being protected by the First Amendment as expressions of his subjective opinion. Citing Ramirez, the Review Dept. affirmed that the First Amendment does not protect intentionally false statements and false statements made with reckless disregard for the truth (Ramirez , at 411). Moreover, truth is an absolute defense to any statement made by an attorney that impugns the honesty or
integrity of a judge (citing Yagman, at 1438). Statements characterized as “rhetorical hyperbole” and statements of opinion that are incapable of being proven as true or false are not sanctionable unless such statements could reasonably be understood as declaring or implying actual facts which themselves are false (again citing Yagman, at 1438-1439).
Olin is a 44-page decision, and it is long because the Review Dept., like the hearing judge below, produced a meticulously reasoned opinion navigating the shoals and shallows of the First Amendment analysis necessary to reach a constitutional basis for discipline in the statements alleged to violate section 6068(b). The State Bar Court has been navigating these First Amendment waters for some time, beginning with In the Matter of Anderson (1997) 3 Cal. State Bar Ct. Rptr. 775, and more recently in the high profile disciplinary prosecutions of attorneys Marla Brown (SBC-23-O-30270: exonerated on First Amendment grounds for the inflammatory tweets in the wake of the George Floyd civil disturbances), Benjamin Pavone (SBC-20-O-30496: discipline for disrespectful statements under section 6068(b), even as his comment about a judge’s “succubistic” ruling was found to be protected speech, however distateful) and John Eastman (SBC-23-O-30029: Eastman’s First Amendment defense awaiting decision in the Review Dept. after oral argument on March 19, 2025.)
But the Review Dept. and hearing judge had a less complicated path to find Olin’s threat to kill Commissioner Veasy’s child completely outside the protection of the First Amendment. Citing City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 536-537, the Review Dept. held that credible threats of violence are simply not protected speech. And a long line of Review Dept. cases has held that intentional threats or harassing behavior involve moral turpitude in violation of section 6106.
Much of this analysis is similar to the proposed comments to Rules 8.2 and 8.4. But Olin wasn’t charged with violating either of those Rules. Instead, he was charged with statutory violations, including the Big One, moral turpitude in violation of section 6106. The moral turpitude violation, along with Olin’s indifference to this misconduct in continuing to portray himself as the victim, is a big part of the Review Department’s increasing the recommended discipline from 90 days to nine months.
Is That All There Is?
There is little to argue with the proposed comments to Rules 8.2 and 8.4 as far as they go. It seems unlikely that they will deter individuals like Olin from making such threats. These people always see themselves as the victims; lack of insight into their conduct is baked in. As far as can be determined, OCTC has apparently never charged violations of Rule 8.2 or 8.4(d) (conduct prejudicial to the administration of justice), preferring instead to charge statutory violations.
But the California judges who requested comments to the Rules of Professional Conduct to address the increase in threats to judges might be forgiven for wondering (a la Peggy Lee), is that all there is? The question of exactly how these changes will help mitigate the problem raised by increasing threats of violence against judges by lawyers is not apparent. The lawyers who make explicit threats of violence or engage in harassing behavior and intentional threats are not going to be deterred by fine-tuning the Rules of Professional Conduct. The deterrent effect of decisions like Olin, decisions imposing substantial discipline, is uncertain. The individuals who make these kinds of threats generally perceive themselves as victims who are justified in their behavior. A society that has increasingly normalized violent and disrespectful language at the highest levels, coupled with information technology that makes that language easier than ever to transmit can’t help but bleed over into professional norms, and there is very little that can be done about it but aggressive disciplinary prosecution, for what little effect it may have.
* The discipline recommendation in Olin was transmitted to the California Supreme Court on April 2, 2025, and is currently awaiting final action.