UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-30022

UNITED STATES OF AMERICA

Appellee,

VERSUS

PAUL HENRY KIDD

Appellant.

Appeal from the United States District Court for the Western District of Louisiana December 19, 1995

Before REYNALDO G. GARZA, JOLLY, and DUHE, Circuit

Judges.

REYNALDO G. GARZA, Circuit Judge:

Background

Paul Henry Kidd ("Kidd"), an attorney representing Dewey Brown

in a criminal case, was suspended from the practice of law for one

year and fined $5,000 by the district court for challenging,

without an appropriate factual basis, the district court's handling

of his client's trial.1 Kidd had alleged in alternative motions

Dewey Brown was convicted after a jury trial on three counts of violating the Lacey Act,

et seq.

1 for a new trial or for judgment of acquittal notwithstanding the

verdict and the accompanying brief that

[T]he trial court denied the defendant a fair and impartial trial by creating the perception in the mind of the jury that it believed in the evidence presented by the prosecution and that it favored the prosecution's case[.]

United States District Judge Tucker L. Melancon (the "trial court")

issued an order denying the motion on all grounds except the ground

noted above. The trial court referred the issue of impartiality to

District Judge Donald E. Walter.

The district court scheduled a hearing on the question of

impartiality and ordered Kidd to file a brief in support of the

motion. This brief was to include "detailed facts supporting the

conclusion asserted." Kidd filed a memorandum in which he alleged

the following acts on the part of the trial judge:

1. he appeared not to be interested in anything that the defendant testified to;

2) he appeared to give special attention to the witness of the Government;

3) he seemed to have a mission of belittling, castigating, and otherwise discrediting defense counsel;

4) he seemed to have anything but an even hand in addressing objections of the Government and of the defendant;

5) he was partial to the government;

6) he gave -- by gesture -- by facial expression -- and by oral comments -- the impression that he favored the government and disfavored the defendant; and,

7) he gave the jury the impression that he believed the testimony of the Government's witnesses and simply tolerated the testimony of the defendant's witnesses as something that was expected of them to say.

Kidd further stated that "[o]utside of the numerous side bar

2 conferences called for the purpose of admonishing defense counsel

and the comments made from the bench addressing arguments of

counsel which are contained in the record, there is no objective

independent evidence to corroborate the defendant's contentions."

His memorandum concluded that "acrimony between the trial court and

defense counsel deprived defendant of a fair trial."

Dissatisfied with Kidd's lack of specificity, the district

court ordered Kidd to provide record citations, or at least state

under oath how the "appearance" or "impression" of judicial bias

manifested itself and whether objections had been made at trial.

Kidd filed a supplemental brief in which he provided fourteen

excerpts from the trial transcript in support of his allegations.

The excerpts largely involve instances in which the trial court

sustained objections by the government during defense counsel's

cross-examination.

In a memorandum ruling, the district court denied Kidd's

motion for a new trial "because the record is devoid of the

proverbial scintilla of evidence indicating that the trial judge

deprived the defendant of a fair and impartial trial." The

district court also concluded that Kidd had violated Rule 8.2(a) of

the Rules of Professional Conduct of the Louisiana State Bar

Association, pertaining to remarks about a judge that are false or

made with a reckless disregard as to their truth or falsity.2 The

In the memorandum ruling, the district court also referenced its inherent power to sanction in addition to its power to sanction for violation of professional rules. However, the court primarily relied on its finding of the violation of 8.2 to support its sanction order. See discussion infra. The district held Kidd

3 court set a hearing for Kidd to show cause why he should not be

sanctioned for his conduct.

At the hearing on the order to show cause, the district court

instructed Kidd to explain or give examples in the record to

support his allegations of judicial bias. Kidd responded that his

claims were based on subjective "perception," and "impression" and

did not provide specific examples. Noting at the hearing that Kidd

had violated Rule 8.2 of the Rules of Professional Conduct, the

district court suspended Kidd from the practice of law in the

Western District of Louisiana for one year and fined him $5,000 to

be paid within ninety days.

Because we hold that Rule 8.2's restriction on reckless

statements regarding members of the judiciary does not apply to a

lawyer's in court comments concerning the judge's actual

performance during the conduct of the trial, we reverse the

sanctions order of the district court.

Discussion

A. Standard of Review

Sanctions imposed against an attorney by a district court are

reviewed for abuse of discretion. Chambers v. Nasco, Inc.,

(1991). That discretion is abused if the ruling is based on an

"erroneous view of the law or on a clearly erroneous assessment of

accountable for this rule pursuant to Rule 20.4 of the Uniform Local Rules of the United States District Courts for the Eastern, Middle, and Western District of Louisiana, which adopts Louisiana's Rules of Professional Conduct.

4 the evidence." Chaves v. M/V Medina Star,

(5th

Cir. 1995). Of course, the question of whether Mr. Kidd's conduct

was subject to sanction under professional responsibility Rule 8.2

is a legal issue which must be reviewed de novo.

B. Sanctions Under Rule 8.2 (a) of the Louisiana Rules of Professional Conduct

The court below relied on its finding of the Rule 8.2

violation to sanction Mr. Kidd. We believe this reliance was

erroneous. Rule 8.2 (a) provides that:

[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, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

From the face of the rule, it is unclear whether Rule 8.2 is

meant to apply to comments on a judge's performance by a lawyer at

trial. No case of this circuit has interpreted this provision and

the decisions of other courts applying this provision have all

involved allegations of dishonesty or corruption.

In Louisiana State Bar Assn. v. Karst,

(La.

1983), one of the cases cited in support of sanctions, an attorney

was suspended from practice for one year for repeated public

allegations that a judge was dishonest and had engaged in fraud and

misconduct. The lawyer made statements to that effect in letters

to newspapers and in briefs filed in various courts. The Louisiana

Supreme Court upheld sanctions against the attorney under an

earlier but similar version of the rule.

5 In In re Disciplinary Action Against Graham,

(Minn. 1990), the Minnesota Supreme Court upheld a 60-day

suspension of an attorney under Rule 8.2 of the Minnesota Rules of

Professional Conduct for stating in letters to a U.S. Attorney and

to the Chief Judge of the Eighth Circuit that a state judge, a

United States Magistrate Judge and various attorneys had conspired

to fix the outcome of a federal case. See also In the Matter of

Emil J. Becker, Jr.,

(Ind. 1993) (30-day suspension

upheld for lawyer's baseless allegations that the court had

interfered with audio recording of trial and had granted

continuances to favor one side of the litigation); Matter of

Westfall,

(Mo. 1991) (attorney reprimand ordered for

televised statement accusing judge of purposefully dishonest

conduct).

None of these cases interpreting the language of Rule 8.2

involved mere lawyer's complaints about how judicial conduct may

have affected the decision of the jury in the context of a an

adversary proceeding. Rather, the statements made were accusations

of dishonesty and corruption. Kidd's comments about gestures,

comments and inattentiveness made in the confines of the judicial

process hardly equal the statements noted supra of graft and

conspiracy. Kidd himself repeatedly stated on the record that he

was not attacking the trial court's character but was simply noting

how the court's conduct may have appeared to the jury.

The official comment to Rule 8.2 of the ABA Model Rules of

Professional Conduct suggests as well that the Rule is meant to

6 reach comments on a judge's integrity.3 Comment 1 to the ABA Rule

states:

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

Nothing in this or the other comments to the rule intimates that

the rule is to be applied, as it was by the district court, to a

lawyer's criticism of a judge's handling of a trial in which the

lawyer was involved made in papers filed with that same court in

the same proceeding. Rather, the comment suggests that the rule is

primarily a prohibition on comments made to the public that would

undermine public confidence in the administration of justice.

Because attorney suspension is a quasi-criminal punishment in

character, any disciplinary rules used to impose this sanction on

attorneys must be strictly construed resolving ambiguities in favor

of the person charged. Matter of Thalheim,

(5th

Cir. 1988). We are also wary, as a matter of policy, of equating

an attorney's questioning of the court's conduct of a trial with

the sort of character attack proscribed by Rule 8.2. Attorneys

should be free to challenge, in appropriate legal proceedings, a

court's perceived partiality without the court misconstruing such

a challenge as an assault on the integrity of the court. Such

challenges should, however, be made only when substantiated by the

The Louisiana rule is identical to the ABA rule.

7 trial record.

Should an attorney question how the court's behavior at trial

may have affected the jury without a basis for the allegation, the

court may possibly sanction that attorney under some version of ABA

Rule 3.1. Rule 3.1 provides that a "lawyer shall not bring or

defend a proceeding, or assert or controvert an issue therein

unless there is a basis for doing so that is not frivolous."4 Rule

8.2 does not address such frivolous adversary statements.

Based then on our examination of other courts' application of

Rule 8.2, the ABA Comment and the strict construction in favor of

the charged, we conclude that Rule 8.2 does not reach Kidd's

statements made in his motion for new trial. Rule 8.2 solely

proscribes false or reckless statements questioning judicial

qualifications or integrity (usually allegations of dishonesty or

corruption). While such comments could arise in the trial context,

a trial court should be careful to distinguish frivolous motions on

the appearance of partiality from attacks on the character of the

court.

C. Sanctions Under the District Court's Inherent Power

The district court relied principally on its finding that Kidd

violated Rule 8.2, rather than on its inherent power, as the basis

for sanctions. This is demonstrated by the court's statement at

Louisiana has codified this provision as Rule 3.1 of the Professional Rules of Conduct.

8 the show cause hearing.5 Nonetheless, we hold that had the court

relied on its inherent power to sanction Kidd, it would have abused

its discretion.

Conclusion

Since we hold that Rule 8.2 provided no basis for sanctioning

Kidd for his comments on the court's handling of the trial and that

use of the inherent power would have been an abuse of discretion,

we REVERSE the sanction order of the district court and render

judgment dismissing the rule of sanctions.

At the hearing, the district court stated:

Mr. Kidd, I find that you violated the terms of Rule 8.2 of the rules of professional conduct. . .And consequently I'm going to sanction you by suspending you from practice in the Western District of Louisiana for a period of one year[.]

9