ARDC Hearing Board Recommends Reprimand For False Campaign Speech

Filed November 26: The case is captioned In re Ronald Richard Duebbert, 2013 PR 00127.

This is an emerging area of attorney discipline practice. Can a lawyer who runs for judicial office be disciplined if he makes false statements in his campaign literature and accuses his political opponent of negligence? In this case, the answer is yes. Here the lawyer was found to have violated Rule 8.2(a) which prohibits making 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, or a candidate for election or appointment to judicial office.  The Hearing Board recommended a censure.

The respondent in the case was Ronald Duebbert. In 2012, Duebbert ran for judge in the 20th Judicial Circuit against Associate Judge Vincent J. Lopinot. Duebbert lost the election.

Duebbert allegedly designed and wrote the contents of a mailer. The Hearing Board explains:

“Respondent designed and wrote the contents of a mailer, or approved its design and contents. Respondent caused between 75,000 and 100,000 copies of the mailer to be circulated and also caused it to be printed in newspapers as a campaign advertisement. The mailer contained the statement:

Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian Trentman “were NEGLIGENT in their representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his wrongful conviction of murder of Audrey Cardenas.”
(Source: Woidtke v. St. Clair County, St. Clair County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No. 02-4223, May 2003). The above statement in the mailer was false, in that Judge Lopinot, as a part-time public defender in 1989, had no supervising duties over Brian Trentman; there was no finding that Judge Lopinot was negligent; and Judge Lopinot had no involvement in the Woidtke case in 1989. Respondent knew the above statements in the mailer were false or he made the representations with reckless disregard as their truth or falsity.
The mailer also gave the false appearance that the United States Court of Appeals in the case of Woidtke v. St. Clair County, et al., 335 F.3d 558 (7ht Cir. 2003) (No. 02-4223) had found Judge Lopinot negligent in the Woidtke case. Respondent knew the source citation gave such a false appearance or he created or authorized the citation with reckless disregard as to it truth or falsity.”
The Hearing Board further explains:
“We find it impossible to believe that Respondent actually thought the quotation on his mailer accurately reflected what the Court of Appeals said or meant. The quotation on the mailer makes it appear that the Court of Appeals said that Judge Lopinot and Trentman “were negligent” in representing Woidtke in the 1989 criminal proceeding. In other words, the quotation makes it appear that negligence by Judge Lopinot and Trentman was a finding of fact or statement of historical fact in the case. In reality, however, the Court of Appeals was simply stating what allegation was made by the plaintiff in his civil lawsuit. Any attorney acting in good faith, and particularly an attorney who had been engaged in the practice of law for more than 20 years, would know that stating negligence by the defendants was “alleged” is vastly different than stating that the defendants “were negligent.” Clearly, the quotation on the mailer misrepresents what the Court of Appeals said or meant. Thus, we find Respondent’s testimony that he believed the mailer accurately quoted from the Court of Appeals opinion to be simply incredible and false.”

Comment: Basically Duebbert was guilty of misstating the contents of a judicial opinion and wrongfully imputing negligence to Judge Lopinot, who had no involvement in the matter. I would note that lawyers misstate and mislead courts all the time concerning the contents of judicial opinions, sometimes implying that the opinion has a holding that is actually opposite of what the opinion states. Courts typically do not punish lawyers for misstating the law.

The Hearing Board also rejected the First Amendment defense made by Duebbert on the ground that the First Amendment does not protect false and misleading speech about judges.  The discussion is lengthy. I will quote a portion of it here:

“The Supreme Court of the United States has also distinguished criticism or disagreement with a judge’s rulings or the state of the law from speech that impugns the impartiality, integrity, motivation, or competence of a judge. In Sawyer, an attorney was suspended for making statements that allegedly impugned a judge’s integrity and fairness in conducting a trial. The Supreme Court did not find the Canon of Professional Ethics under which the attorney was charged to be unconstitutional. Rather, the Court said that “lawyers are free to criticize the state of the law,” and that “[s]uch criticism cannot be equated with an attack on the motivation or the integrity or the competence of the judges.” The Court also said a criticism that a judge was “wrong on his law, is of no matter; appellate courts and law reviews say that of judges daily, and it imputes no disgrace.” The Court described the statements the attorney made and found that they did not contain any allegations that the judge was “corrupt or venal or stupid or incompetent.” Thus, the Court held that the suspension based on the attorney’s speech could not stand. Sawyer, 360 U.S. 622 at 624-25, 631, 635.

In Illinois attorney discipline cases, it has been consistently held that an attorney’s knowingly or recklessly made false statements regarding the integrity or competency of a judge or another attorney is not protected speech. For example, in In re Ditkowsky, 2012PR00014, M.R. 26516 (Mar. 14, 2014), Respondent sent out numerous e-mails accusing two judges of, among other things, “corruption and theft” and “assisting guardians in their illegal conduct.””
Comment: the problem with the Panel’s reasoning is that Duebbert did not question the integrity of the incumbent. He made a mistake and implied that the incumbent had a role (when he was a public defender) in a criminal case where the conviction was later vacated by the Seventh Circuit. Duebbert was simply negligent, not reckless. This case should have been dismissed.  Negligent misstatements in political advertising should be protected under the First Amendment.  Duebbert wrongfully accused his political opponent of negligence, not corruption or venality or a lack of integrity. The Hearing Board’s opinion, which is lengthy, fails to deal with this issue in an intellectually honest manner.  Duebbert should appeal.
Edward X. Clinton, Jr.

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