Let’s face it — the practice of law can be very frustrating at times. Attorneys address unreasonable demands from opposing counsel, tight deadlines, impossibly broad discovery requests, and other issues that escalate stress levels and trigger emotions. A recent decision from the Ohio Supreme Court in Cleveland Metro. Bar Assn. v. Morton presents a cautionary tale about a frustrated attorney’s intemperate assertions in a Memorandum in Support of Jurisdiction filed in that Court. What disciplinary proceeding against him followed? And, what was the First Amendment question that divided the justices when reviewing the findings and recommendations of the Board of Professional Conduct?

Strong words in brief lead to disciplinary proceedings

Richmond Heights attorney, John Alex Morton, represented a client in connection with an effort to reduce the tax valuation of a parcel of land owned by the client in Cuyahoga County.  The property was purchased for $5,000 in 2011, but valued much higher in subsequent tax years. In 2015, the county fiscal officer valued the property at $107,900. Morton filed a complaint with the Board of Revision (BOR) seeking a $5,000 valuation. The BOR found the 2011 sale price was too remote in time and retained the fiscal officer’s much higher valuation. Morton appealed to the Eighth District, which relied on the Ohio Supreme Court’s decision in Moskovitz v. Cuyahoga Cty. Bd. of Revision to uphold the reasonableness and lawfulness of the higher valuation.

Morton appealed to the Ohio Supreme Court on behalf of his client. Clearly frustrated by what he perceived to be misguided precedent on the issue, he made some strongly-worded assertions in his Memorandum in Support of Jurisdiction. Morton argued that:

  • Moskovitz was wrongly decided;
  • the justices in Moskovitz “intentionally misstated the holding of each of the cases” they cited;
  • Moskovitz was “based upon politics, not law”; and
  • “[t]he political goal of the Moskovitz Court was to maximize government revenue, at the expense of the taxpayer ***[.]”

He also claimed the Supreme Court delayed its decision in Moskovitz until Justices Pfeifer and Lanzinger retired from the court and were replaced by Justices Fischer and DeWine.

The Cleveland Metropolitan Bar Association filed a complaint alleging Morton committed ethical violations by making assertions that impugned the integrity of judicial officers. The Board of Professional Conduct agreed. They adopted the panel’s recommended sanction of a one-year suspension from the practice of law, entirely stayed on the condition that Morton commit no further misconduct.

Ohio Supreme Court divided about whether First Amendment protects challenged assertions by counsel, and what standard applies

In a per curiam opinion, the Ohio Supreme Court decided Morton should be suspended from the practice of law for one year, but with only six months

stayed. The majority rejected Morton’s argument that his assertions were protected speech, applying the standard from the Court’s 2003 decision in Disciplinary Counsel v. Gardner. Under Gardner, the court applies an objective standard to determine whether a lawyer’s statement about a judicial officer is made with knowledge or reckless disregard of falsity; i.e., what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.

In strongly worded dissenting opinions, however, Justices Kennedy and DeWine opined the court could not sanction Morton consistent with the First Amendment. Justice Kennedy noted Gardner was decided under the former DR 8-102 of the Code of Professional Conduct, which has since been abrogated. She also noted Prof.Cond.R. 8.2(a) now establishes a different standard for determining whether lawyers are subject to discipline for statements about a judge—prohibiting statements that the lawyer either knows to be false or makes with reckless disregard as to truth or falsity. Justice Kennedy opined that Rule 8.2(a) has superseded Gardner’s reasonable-attorney standard. Justice DeWine also dissented, writing, inter alia:

I just don’t see it. Today, the majority suspends John Morton from the practice of law for saying some not-so-nice things about this court in a brief that he filed. My skin is not so thin as to think that such punishment is warranted. Nothing Morton said has been shown to be untrue. And neither the First Amendment nor our disciplinary rules allow us to punish an attorney just because something he says gets under our skin.

The upshot of Morton is that attorneys should be cautious about making overly emotional or intemperate assertions about judicial officers in their written submissions to any court. As the current split on the Ohio Supreme Court reflects, not everyone agrees what standard applies to determine whether such assertions are constitutionally protected speech. And, the current majority of the Ohio Supreme Court is applying a less forgiving standard that makes it easier for disciplinary charges to stick.