Anthony v. STATE BAR EX REL. NINTH DIST.

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.”

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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,

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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.

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 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.”

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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.

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