In Re Green
2000 Colo. J. C.A.R. 5147, 11 P.3d 1078, 2000 Colo. LEXIS 1034 (2000)
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Rule of Law:
The First Amendment prohibits disciplining an attorney for statements criticizing a judge unless the statements are proven to be false statements of fact, or opinions that imply undisclosed false statements of fact, made with actual malice. Separately, charging an attorney's hourly rate for clerical services or for an excessive amount of time is unreasonable as a matter of law and violates professional conduct rules.
Facts:
- Attorney Lawrence Jamalian Green represented a tile contractor in a breach of contract lawsuit against a homeowner, with a fee agreement that Green would receive whatever attorney's fees the court awarded upon prevailing.
- Green's client won the lawsuit and was awarded damages of $7,422.33.
- Green submitted an affidavit for attorney's fees in the amount of $29,554.80.
- The trial judge reduced the fee award to $12,000, ruling that Green's claimed hours included non-attorney secretarial services.
- Following the fee reduction and during subsequent proceedings, Green sent three letters to the trial judge.
- In the letters, Green accused the judge of being a 'racist' and 'bigot' with a 'bent of mind'.
- Green based these opinions on disclosed events, including the judge describing his performance as merely 'competent,' the judge's 'facial grimaces,' and a past encounter where Green felt the judge racially stereotyped him.
- After an appeal remanded the fee issue, Green submitted a new affidavit requesting a total of $101,991.45 in fees, including over $72,000 for work on the appeal.
Procedural Posture:
- Lawrence Green, on behalf of his client, filed a civil action in Douglas County District Court (trial court).
- The trial court found in favor of Green's client but awarded attorney's fees significantly lower than requested.
- The homeowners appealed the judgment and Green (as respondent/cross-appellant) cross-appealed the fee award to the Colorado Court of Appeals (intermediate appellate court).
- The Court of Appeals affirmed the judgment but reversed the fee award and remanded the issue to the trial court for further findings.
- Disciplinary counsel filed a complaint against Green with a hearing board of the state's grievance committee.
- The hearing board concluded Green violated professional conduct rules for his criticism of the judge and for charging an excessive fee, recommending a sixty-day suspension.
- A hearing panel of the grievance committee approved the board's findings and recommendation, bringing the case before the Supreme Court of Colorado for review.
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Issue:
Does the First Amendment protect an attorney from professional discipline for making statements that criticize a judge as being a 'racist' and 'bigot' when those statements are expressions of opinion based on disclosed, non-false underlying facts?
Opinions:
Majority - Per Curiam
Yes. The First Amendment protects an attorney from discipline for such statements. To discipline an attorney for criticizing a judge, the disciplinary authority must satisfy a two-part test derived from New York Times Co. v. Sullivan: (1) prove the statement was a false statement of fact (or an opinion implying an undisclosed false fact), and (2) prove the statement was made with actual malice. Here, Green's statements that the judge was a 'racist' and 'bigot' were expressions of opinion based on fully disclosed and uncontested underlying facts, such as his encounter with the judge and the judge's characterization of his work. Because the statements were opinions based on disclosed facts and not proven to be false statements of fact, they are protected speech under the First Amendment, and the court did not need to reach the 'actual malice' prong. However, the court found that Green did violate Colo. RPC 1.5(a) by charging an unreasonable fee for the appeal, noting that billing an attorney's hourly rate for clerical work and charging for an excessive number of hours (e.g., 6 hours to review a 12-page opinion) is unreasonable as a matter of law.
Analysis:
This decision establishes a high constitutional bar for disciplining attorneys who criticize judges in Colorado, formally adopting the 'actual malice' standard from defamation law into the professional conduct context. It protects an attorney's right to express even harsh opinions about judicial officers, provided those opinions are based on disclosed facts that are not themselves false. The ruling distinguishes protected, albeit offensive, opinion from unprotected false factual assertions, thereby safeguarding critical commentary on the judiciary. At the same time, the court's holding on the fee issue reinforces the professional duty of attorneys to maintain reasonable and transparent billing practices, particularly by prohibiting the charging of professional rates for non-professional work.
