Justices of the Appellate Division, First Department v. Erdmann

Per Curiam. In this proceeding to discipline an attorney, which proceeding was instituted in the Appellate Division, First Department, and subsequently transferred to this court, petitioners move for an order sustaining the petition and charges to the extent of finding respondent guilty of professional misconduct. Respondent cross-moves for orders 1) dismissing the petition and charges as being inadequate as a matter of law to sustain the alleged violations; 2) disqualifying the Justices of all departments of the Appellate Division from adjudicating this proceeding on the ground that all Appellate Division Justices are “ interested ” in the proceeding; and 3) opening and making public all prior and future proceedings in this matter. Petitioners’ motion for an order sustaining the petition and charges is premised on the ground that the charges arise out of conduct on the part of respondent as to which there is no material factual dispute so that the matter can be determined on the pleadings, exhibits and papers presently before the court. The charges of professional misconduct against respondent [224] arose as the result of the publication of an article entitled “ I Have Nothing to Do with Justice ”, which appeared in the March 12, 1971 issue of Life magazine. The petition alleges that, according to the article, respondent’s attitude towards Judges is one of disrespect “ so strong and all-inclusive that it amounts at times to class hatred ”. Although the entire article is referred to by reference, the offending language, alleged to have been said of and concerning the courts in the First Judicial Department, appears in paragraph 5 as follows: “ There are so few trial judges who just judge, who rule on questions of law, and leave guilt or innocence to the jury. And Appellate Division judges aren’t any better. They’re the whores who became madams.” “ I would like to [be a judge] just to see if I could be the kind of judge I think a judge should be. But the only way you can get it is to be in politics or buy it—and I don’t even know the going price.” While respondent’s statements and the language used in the article are alleged to be violative of enumerated sections of the Canons of Professional Ethics and Code of Professional Responsibility, the Justices additionally accuse respondent, by his use of unrestrained and intemperate language, of lessening public confidence in our legal system and of failing to uphold the dignity of the judiciary. The courts have frequently recognized that an attorney, both as an officer of the court and a citizen, has a right to criticize the acts of courts and Judges, but this does not mean that an attorney may indulge in unfounded and intemperate criticism, insulting language or abuse. (See 12 ALR 3d 1408.) In Matter of Bevans (225 App. Div. 427, 431) we said the following: “Judicial officers * * * are not immune from suit or criticism; but, like every one else, they are protected against scandalous charges. To make a public, false and malicious attack on a judicial officer is more than an offense against him individually; it is an offense against the dignity and integrity of the courts and of our judicial system. It may bring discredit upon the administration of justice amongst citizens who have no way of determining the truth of the charges. It tends to impair the respect and authority of the court. In this and in other jurisdictions, the rule is well settled that an attorney who engages in making false, scandalous or other improper attacks upon a judicial officer is subject to discipline.” We find that the intemperate, vulgar and insulting language contained in the statement quoted above and concededly used [225] by respondent is an offense against the dignity and the integrity of the courts and tends to create disrespect for judicial officers generally thereby lessening public confidence in our legal system. Accordingly, we find respondent guilty of professional misconduct and sustain the petition and charges to the extent noted. Respondent’s cross motion, insofar as it seeks an order opening and making public all prior and future proceedings in this matter, is granted. In all other respects, the cross motion is denied. Under all the circumstances, we are of the opinion that censure is the approprate measure of discipline. We take pains to point out, however, that nothing contained in this opinion should be interpreted as an attempt by this court to stifle criticism by members of the Bar of the courts or the judicial system, recognizing, as did Chief -Justice Sharswood of the Supreme Court of Pennsylvania almost a century ago, that “No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system. ’ ’ (Matter of Stemman, 95 Pa. 220, 238-239). Respondent should be censured.