Lawyers: Think Before You Speak…or Type

The Tennessee Supreme Court suspended an attorney from practice for 30 days for sending an email to a bankruptcy judge, calling the judge a “bully and clown”. On September 3, 2014, the court decided that although the sending of the e-mail did not violate Tennessee Rule of Professional Conduct 8.2(a)(1), the e-mail constituted an improper ex parte communication with the judge in violation of Rule 3.5(b) and conduct intended to disrupt a tribunal in violation of Rule 3.5(e).

The court found that Rule 8.2 was not violated because it was not designed to protect judges from criticism, but rather to protect against unfairly undermining public confidence in the administration of justice. Because this e-mail was not communicated to a third party, it did not violate the rule.

Even though the e-mail was sent nine months after the bankruptcy judge denied the attorney’s fee application, it was sent “during the proceeding,” under Rule 3.5(b), because the attorney could still appeal the district court’s ruling at the time. Thus, the court concluded that Rule 3.5(b) extends through any appellate process until final disposition.

Additionally, the e-mail violated Rule 3.5(e) because: (1) the time for appealing the denial of the fee application had not yet expired, and thus a proceeding was still pending for purposes of the rule; and (2) the e-mail demanded a written apology and had a “threatening tone”, thus representing the conduct that Rule 3.5(e) proscribes.

To be safe, lawyers should refrain from sending possibly offensive or threatening communications to judges.

The full opinion can be found here.

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