Present: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and
Russell, S.J.
JOSEPH LEATH ANTHONY OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 050948 November 4, 2005
VIRGINIA STATE BAR, ex rel.
NINTH DISTRICT COMMITTEE
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Marc Jacobson, Robert M.D. Turk, and Herman A. Whisenant, Jr.,
Judges Designate
This is an appeal of right from the decision of a three-
judge court imposing a public reprimand upon an attorney for
professional misconduct.
Proceedings
Joseph Leath Anthony is an attorney licensed to practice
law in Virginia. In January 2004, the Virginia State Bar
filed a complaint against him alleging professional
misconduct. Anthony demanded trial by a three-judge court and
the Chief Justice of this Court entered an order appointing a
three-judge panel to hear the case, pursuant to Code § 54.1-
3935. The trial court heard the evidence and arguments of
counsel on November 30, 2004, and found Anthony guilty of
violating Rule 8.2 of the Virginia Rules of Professional
Conduct, which provides: “A lawyer shall not make 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 other judicial officer.” The court
imposed a public reprimand with terms.1
Facts2
Anthony was found in violation of Rule 8.2, which became
effective on January 1, 2000, when the present Rules of
Professional Conduct replaced the former Code of Professional
Responsibility. Accordingly, the evidence supporting the
trial court’s decision necessarily relates to Anthony’s
conduct after that date. Because that evidence consists
chiefly of post-2000 reiterations and republications by
Anthony of statements he made in the 1990’s, we must
necessarily examine his earlier conduct.
In 1994 and 1995, an appeal of a legal malpractice case
was pending in this Court styled Snyder-Falkinham v.
Stockburger (the Stockburger case). Although Anthony was not
counsel of record in that case, he represented one of the
parties in other matters. He testified that he received a
telephone call from an unidentified person who spoke in a
“distortion of voice or a whisper” and that the anonymous
1
The terms imposed were as follows: “1) Respondent shall
not file any action in any court, state or federal, without
first associating co-counsel experienced in litigation; and 2)
Respondent shall abstain from contacting any judge by letter
in any proceeding in which he is involved as counsel.”
2
caller, whom he called “Deep Throat,” told him that there had
been ex parte communication between parties in the Stockburger
case and Justices of this Court. “Deep Throat” said that the
improper communication had consisted of an anonymous letter,
signed only “A Grateful Wife,” mailed to the Justices during
pendency of the Stockburger appeal.
Anthony wrote to the clerk of this Court on November 7,
1994 and again on May 1, 1995, stating that he had information
that an ex parte communication had been sent to this Court
and, in the second letter, requesting that “the ex parte
communications, if any, be disclosed.” There followed four
more letters from Anthony to the clerk’s office, seeking
production of the “Grateful Wife” letter. Anthony then sent a
series of five additional letters to the same effect,
addressed to then Chief Justice Harry L. Carrico, in which he
said that the letter he sought had been dated September 5,
1994. In one of Anthony’s letters, dated July 13, 1995,
Anthony stated, “it is logical to assume that the non-response
from any Justice is a combined decision by all of the
Justices, indicating an extreme desire/need to protect some
2
Although the record is voluminous, Anthony concedes on
appeal that “[t]here is little, if any, contest concerning the
facts themselves.”
3
group and/or person.”3 Anthony ultimately sent a copy of the
“Grateful Wife” letter to the Court. He testified that he had
not seen it until he had appealed to “Deep Throat” to produce
it and that thereafter his client had found a copy taped to
her door.
Anthony thereafter, as counsel for the plaintiff in the
Stockburger case, signed and filed a complaint in the United
States District Court for the Western District of Virginia
against the party and lawyers who had opposed his client in
the Stockburger case, alleging civil rights and state law
violations. In the complaint, Anthony alleged that there was
a “conspiracy” between the Justices of this Court and the
Stockburger case defendants to deny his client her civil
rights and that the Justices had “corruptly” denied a petition
for rehearing in that case.
3
David B. Beach, then Clerk of this Court, replied to
Anthony on July 26, 1995: “I am instructed to advise you that
the members of the Court have a vague recollection of
receiving what may have been a copy of the letter dated
September 5, 1994, to which you refer. Some remember reading
only a part of the letter, others remember reading it through.
As the members recall, the letter was anonymous, and some who
read it deemed it incomprehensible. No member gave it any
consideration, and it had no influence upon the subsequent
decision of any member of the Court in your client’s appeal.
Instead, the members threw their copies in the waste basket,
deeming it to be another unsolicited writing often sent to the
Justices by litigants, convicts, and others who are either
pleased or displeased with a decision of the Court.”
4
The defendants filed a motion to dismiss. United States
District Judge Samuel Wilson heard the motion and, in a
memorandum opinion, commented that “[t]he action is based on
an alleged anonymous tip and has all the grace and charm of a
drive-by shooting.” The court dismissed the complaint and
pursuant to Rule 11, Federal Rules of Civil Procedure, ordered
sanctions against Anthony, his client, and Michael A.
Richardson, a Tennessee lawyer who had also signed the
complaint. The court continued the case for hearing on the
quantum of sanctions to be imposed.
Anthony responded by filing a 16-page “Protective Motion
To Reconsider, Rehear, Vacate, Amend, Certify, Extend, And/Or
Stay” in which he accused Judge Wilson of displaying an
“aggressive, hostile attitude” toward him and
“unprofessionally” attacking him. After this, Judge Wilson
entered an order transferring the case to United States
District Judge William L. Osteen, Sr. of the Middle District
of North Carolina, who was designated to hold court in the
Western District of Virginia.
Judge Osteen conducted a sanctions hearing on September
23, 1996, at which Anthony and his co-counsel testified that
the sole basis of their federal complaint had been the
anonymous “Grateful Wife” letter and telephone calls from the
anonymous “Deep Throat.” For reasons not revealed in the
5
record, Judge Osteen did not enter an order disposing of the
case until June 7, 2002, when he held that the “harsh and
incredible allegations are unsupported by even a scintilla of
competent evidence.” Judge Osteen’s order made findings that
Anthony and Richardson had made unfounded attacks upon the
Virginia trial judge in the Stockburger case, the Justices of
this Court and Judge Wilson. He concluded that “[s]uch
conduct is abhorrent to our system of justice and cannot be
tolerated.” Judge Osteen noted that Richardson had no prior
record of discipline, while Anthony had on two prior occasions
accused two judges, one state and one federal, of bias and
inability to understand decisions. Anthony had also been
found in direct violation of a court order in the Western
District of Virginia in another case, under which he was
prohibited from filing motions. Ultimately, the court imposed
sanctions upon Richardson of $7,500 and upon Anthony of
$14,000.
Anthony’s journey had only begun. He filed a “Motion to
Supplement the Record” in the federal district court in which
he made various charges against Judge Osteen. Anthony then
appealed the dismissal of his federal case to the United
States Court of Appeals for the Fourth Circuit, where, in
2002, he filed a “Docketing Statement” in which he said that
Judge Wilson “had not ‘one scintilla of evidence’ – (credible,
6
competent, admissible, or otherwise) to support this libelous,
harsh and incredible legal finding of fact.” He also accused
Judge Osteen of making false accusations against him which, if
not contained in an order, “would be libelous.” Anthony
renewed his charges against the members of this Court.
Referring to the “Grateful Wife” letter, Anthony wrote: “The
letter is credible, not due to who did or did not author it
and competent because it was clandestinely received by all of
the justices who wrongfully decided to treat it as
confidential when it was not, presumably to keep from having
to file it in the record. . . .” Anthony’s “Docketing
Statement” also referred to “the fact that the Supreme Court
of Virginia had received, had concealed, had mischaracterized
and had destroyed the eight originals of the Grateful Wife’s
Letter, which likely contained, inter alia, the DNA of the
author. . . .”
Anthony’s appeal to the Fourth Circuit was unsuccessful.
He then wrote a letter, dated February 18, 2003, to Chief
Judge William W. Wilkins of the Fourth Circuit, accusing
federal judges of placing “false and defamatory information
into public records, – apparently to cover up the documented
wrongful judicial conduct of state court judges and/or to
punish and defame the individuals who dared to question that
state judicial conduct. Each of these Judges
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manufactured/fabricated evidence. . . .” In his letter to
Judge Wilkins, Anthony also accused the judges of the Fourth
Circuit of “corruptly” entering orders “because the Fourth
Circuit judges knowingly allowed false and defamatory
information to remain in public records. . . .”
On April 25, 2003, Anthony filed a petition for a writ of
certiorari in the Supreme Court of the United States. In his
petition, he wrote: “This case presents a situation in which
the lower courts were unable to police themselves to avoid
misuse of judicial power.” He further wrote that an
“investigation” had “revealed that the justices of the
Virginia Supreme Court had received ex parte communication,
concealed it, wrongfully declared it confidential,
mischaracterized it and ultimately destroyed it after a copy
was requested.”
Anthony’s petition for certiorari was denied. He then
filed a petition for rehearing in which he referred to
“material judicial misconduct,” “major fabrications of
evidence by the Federal District Court,” “obvious
creation/manufacturing of evidence by judges,” a
“determination that was made on a fraudulent basis,” a
“corruption of the judicial process” and “a complete
abdication of judicial integrity.” Anthony’s petition for
rehearing was denied.
8
At Anthony’s hearing before the three-judge court, he
admitted making all of the previous statements, but stated
that he was exercising his “First Amendment rights” in making
them. At many points in the proceedings, Anthony was asked
what factual basis he had for his statements. His replies
were either “the underlying record” or references to his
anonymous telephone calls from “Deep Throat” and the anonymous
“Grateful Wife” letter. Anthony offered no other
justification for the numerous attacks he had made upon the
qualifications and integrity of the several judges, state and
federal, maligned by his statements.
Discussion
At the hearing before the three-judge court, Anthony made
numerous jurisdictional objections and filed a plea in bar, a
motion to dismiss, a motion for the production of exculpatory
evidence, and a motion to strike the Bar’s evidence. The
trial court overruled or denied all of the foregoing.
Anthony, on appeal, assigns error to each of those rulings.
We find no merit in any of Anthony’s assignments of error,
only two of which require discussion.
A. The Legal Standard
Anthony argued at his hearing and on appeal that the Bar,
in order to establish a violation of Rule 8.2, had the burden
of proving that his various statements concerning judges were
9
in fact false. That contention ignores the simple language of
the rule. We held, in Pilli v. Virginia State Bar, 269 Va.
391, 611 S.E.2d 389 (2005), that the Bar has the burden of
establishing two elements to prove a violation of Rule 8.2:
“First, the Bar must establish that a lawyer made a statement
about a judge or other judicial officer involving his or her
qualifications or integrity. Second, the Bar must prove that
the statement was made with reckless disregard of its truth or
falsity or with knowledge that the statement was false.” Id.,
at 396, 611 S.E.2d at 391.
The standard of review we apply to the decision of a
three-judge court in a Bar disciplinary proceeding is the same
as the standard applicable to decisions of the Disciplinary
Board. We conduct an independent examination of the entire
record. We consider the evidence and all reasonable
inferences that may be drawn from the evidence in the light
most favorable to the Bar, the prevailing party in the trial
court. We accord the trial court’s factual findings
substantial weight and view those findings as prima facie
correct. Although we do not give the trial court’s
conclusions the weight of a jury verdict, we will sustain
those conclusions unless it appears that they are not
justified by a reasonable view of the evidence or are contrary
to law. See Pilli, 269 Va. at 396, 611 S.E.2d at 391.
10
Applying the standard set forth in Pilli, the trial court
found, by clear and convincing evidence, indeed by unrefuted
evidence, that Anthony had made statements about a number of
judges involving their qualifications and integrity and that
he made those statements with reckless disregard of their
truth or falsity. Anthony's explanation that his statements
impugning the integrity of various judges were based only upon
anonymous telephone calls, an anonymous letter, and “the
underlying record,” were in themselves sufficient to support
the trial court’s conclusion that those statements were made
with reckless disregard of their truth or falsity. Our
independent review of the record supports the trial court’s
findings.
B. Freedom of Speech
Finally, Anthony argues that even if his statements
violated Rule 8.2, they fall within the category of speech
protected by the First Amendment to the Constitution of the
United States and Article I, Section 12, of the Constitution
of Virginia. Anthony cites criminal and criminal contempt
cases, and cases involving statements published by news media,
to support his arguments. He argues that state law may not
regulate speech unless it is shown that the speech constitutes
a “clear and present danger” of causing substantive evils that
the state has a right to prevent.
11
We do not agree. The Supreme Court of the United States
has made it clear that the speech of lawyers in pending cases
may be regulated under a less demanding standard than the
“clear and present danger” standard established for the
regulation of the press. A lawyer’s right to free speech is
“extremely circumscribed” in the courtroom and, in a pending
case, is limited outside the courtroom as well, to a degree
that would not apply to an ordinary citizen. Gentile v. State
Bar of Nevada, 501 U.S. 1030, 1071 (1991). Those limitations
on lawyers’ rights of free speech are based upon a lawyer’s
obligation to abstain from public debate that will obstruct
the administration of justice. Id. at 1074. Because lawyers
have special access to information within the judicial system,
their statements may pose a threat to the fairness of a
pending proceeding, such statements being likely perceived as
especially authoritative. Id.
An appropriate test for balancing a lawyer’s free speech
rights against the restrictions imposed by the Rules of
Professional Conduct is: Whether the conduct in question
creates a “substantial likelihood of material prejudice” to
the administration of justice. Gentile, 501 U.S. at 1074-75.
That is the test we adopted in Pilli, where we said:
“Finally, we observe that these written statements by a member
of the bar of this Commonwealth, published in the form of a
12
“pleading” filed with a court, are more than a troubling
reflection of the author’s lack of professionalism. Such
statements also may have the undeserved effect of diminishing
the public’s perception of the numerous lawyers and judges who
so ably serve the citizens of this Commonwealth.” 269 Va. at
397, 611 S.E.2d at 392.4
Judges are no more immune from criticism in the public
forum than are any other public office-holders, although their
ability to reply to it is extremely limited. A judge's errors
are subject to correction on appeal, and judicial misconduct
is subject to discipline by independent bodies created by
statute. Judges are subject to removal or impeachment for
wrongdoing pursuant to constitutional provisions, and they are
responsible for violations of the law as are all other
citizens. The judicial branch of government, however, is
uniquely dependent upon the trust of the people for the
effective performance of its work. It commands no armies and
does not control the public purse. It is especially
4
The Supreme Court, in Gentile, 501 U.S. at 1068,
observed that Virginia had adopted the “clear and present
danger” standard in these circumstances. That was true in
1991, when Gentile was decided, because former Disciplinary
Rule 7-106, then in effect, expressly adopted that standard.
Present Rule 8.2 is silent as to the balancing test to be
applied. Its companion Rule 3.6, however, relating to trial
publicity, expresses a standard parallel to that which we
apply here: “a substantial likelihood of interfering with the
fairness of the trial.”
13
vulnerable to unfounded attacks that undermine public
confidence in its integrity. Reckless attacks by lawyers are
especially damaging, for the reasons discussed above.
We hold that a derogatory statement concerning the
qualifications or integrity of a judge, made by a lawyer with
knowing falsity or with reckless disregard of its truth or
falsity, tends to diminish the public perception of the
qualifications or integrity of the judge. Such a statement
creates a substantial likelihood of material prejudice to the
administration of justice as a matter of law and is not,
therefore, constitutionally protected speech.
Conclusion
Because the record supports the finding of the three-
judge court that Anthony’s statements violated Rule 8.2, and
because his statements lacked constitutional protection, we
will affirm that court’s order.
Affirmed.
14