In its sole opinion this Thursday, the Supreme Court of Virginia affirmed a three-judge circuit court’s judgment suspending attorney Phillip Ben-Zion Leiser’s law license for three years based on violations of RPC 8.2 and 8.4(b), rejecting his First Amendment and due process challenges to the discipline.
The charges arose from statements Leiser made in four appellate filings across two unrelated representations. In the first representation, after the Court of Appeals denied his client NAG’s petition for a writ of prohibition challenging a trial court’s subject matter jurisdiction (in which the Court also noted that direct appeal, not prohibition, was the proper vehicle) Leiser filed a petition for appeal and later a petition for rehearing accusing the appellate courts of “intellectual sophistry,” deliberately depriving his client of due process, and “cowering” for fear of being exposed. In the second representation, after a Court of Appeals panel denied his client VCDL’s petition for a writ of mandamus seeking to invalidate Fairfax County’s local page-limit rule, Leiser filed a petition for rehearing en banc and a petition for appeal accusing the three panel judges of “collective, selective amnesia,” “chicanery,” and delivering “a judicial middle finger” to litigants, counsel, and the rule of law itself. Notably, Leiser had previously received a public reprimand under RPC 8.2 for false or reckless statements about the trial judge in the same NAG matter.
Leiser requested that the allegations be heard by a three-judge circuit court. He filed a demurrer arguing that RPC 8.2 is unconstitutional and that the certification was fatally defective for failing to name a specific judge. The court overruled the demurrer since a demurrer is not an available pleading in attorney disciplinary proceedings, yet they heard and rejected both arguments on the merits. After the VSB introduced the pleadings and orders as exhibits, the court found violations of both Rules and imposed the three-year suspension. (The circuit court panel found that Leiser had violated RPC 8.4(b) based on his repeated violations of RPC 8.2.) The Supreme Court of Virginia affirmed.
The Court first dispatched Leiser’s due process claim, stating that he conflated a tribunal’s rejection of his chosen procedural vehicle with a denial of due process. (The Court observed that he had repeatedly done the same in the cases underlying his disciplinary charges.) Due process requires notice and a meaningful opportunity to be heard, not a state’s acquiescence in a litigant’s preferred procedure. The record showed that Leiser argued his constitutional and notice theories at length, covering more than 40 transcript pages. The panel simply found them unpersuasive.
Leiser made both facial and as-applied First Amendment challenges. On the facial challenge, the Court found that RPC 8.2’s text, which prohibits statements the lawyer “knows to be false or with reckless disregard as to its truth or falsity,” deliberately tracks the actual malice standard of New York Times Co. v. Sullivan, confining violations of the Rule to constitutional applications. The Rule allows legitimate, factually based criticism of judges, and only reaches baseless attacks on judicial qualifications or integrity that threaten the administration of justice, which create material prejudice as a matter of law and are not protected speech. The Court noted that sister states have uniformly rejected identical challenges to rules based on ABA Model Rule 8.2(a).
The as-applied challenge fared no better. Leiser’s stated justification for his corruption accusations—that the courts had ignored or hidden the bases for their rulings—was facially false, since the orders he attacked expressly addressed his arguments. His filings effectively asserted that any adverse ruling is proof of corruption: “any game in which Leiser does not prevail is a rigged game.” A rational factfinder could conclude that the statements were false and made knowingly or recklessly. The Court added that because the statements appeared in pleadings filed in pending cases, they received even less protection under Gentile v. State Bar of Nevada. It rejected Leiser’s argument that written filings should be treated differently from oral courtroom statements.
The Court also rejected Leiser’s textual argument that Rule 8.2’s reference to “a judge or other judicial officer” requires the VSB to name a specific jurist. Rather, the Court held that the indefinite article “a” means “any” or “each,” so the Rule reaches statements about individual judges, identifiable panels, and the judiciary as a whole. In any event, Leiser’s filings attacked rulings of identified or identifiable panels, giving him ample notice of whom his statements concerned.
Finally, because Leiser’s challenge to his RPC 8.4(b) violation rested solely on his claim that RPC 8.2 was unconstitutional, the Court’s contrary holding disposed of it.
The Court closed its opinion by emphasizing that RPC 8.2 does not prohibit lawyers from criticizing judicial decisions or conduct; it only prohibits baseless attacks on judicial integrity likely to prejudice the administration of justice.
A Virginia Appellate Law Blog 