The Ohio Supreme Court disciplined an attorney who criticized the court in a memorandum he filed in a property-tax case, reasoning that he engaged in undignified and discourteous conduct degrading to the court and violated two other rules of professional conduct. The court rejected the attorney’s arguments that his criticism of the judiciary was protected by the First Amendment.
John Alex Morton, an attorney from Richmond Heights, represented an individual who was attempting to lower the tax valuation of a piece of property in Cuyahoga County. Morton’s client purchased the property for $5,000 in 2011, but in 2015, a county fiscal officer valued the property at $107,900. Morton filed a complaint with the Cuyahoga County Board of Revision seeking a valuation back down to $5,000. The Board of Revision, however, refused and retained the fiscal officer’s valuation of $107,900.
Morton appealed to the Ohio Court of Appeals, which ruled against Morton’s client. The appeals court relied on the Ohio Supreme Court’s decision in Moskowitz v. Cuyahoga County Board of Revision (2017). In Moskowitz, the Ohio high court said there was a presumption of correctness to a fiscal officer’s determination of property value and that the applicant bore the burden of proof to show a decision was erroneous.
Morton then sought review in the Ohio Supreme Court. In a January 2019 memo to the high court, he vigorously criticized the Moskowitz decision, writing that it “was based upon politics, not law.” He also wrote that “the political goal of the Moskowitz Court was to maximize government revenue, at the expense of the taxpayer, and his or her Constitutional right to limited taxation.” Further, Morton personalized his criticism of the state Supreme Court, writing that “Justices French and Kennedy … showed a willingness to favor the government, at the expense of the taxpayer and the Constitution, no matter how unreasonable the government’s view of the true value of subject property.” He also criticized Chief Justice Maureen O. O’Connor for allegedly delaying the Moskowitz decision until two justices retired and were replaced.
The Cleveland Metropolitan Bar Association filed a disciplinary complaint against Morton based on these comments. The matter proceeded to a disciplinary hearing before the Ohio Board of Professional Conduct. The panel addressed four alleged ethical violations committed by Morton and found him guilty of three of them.
The board found that Morton had “voiced undignified and discourteous statements about judges and justices who did nothing more than rule contrary to his client’s position.” It also said Morton violated Ohio Rules of Professional Conduct that prohibit lawyers from engaging in undignified or discourteous conduct degrading to a tribunal, making a statement that a lawyer knows to be false or with reckless disregard as to its truth or falsity, and engaging in conduct prejudicial to the administration of justice.
The board found as aggravating factors that Morton did not acknowledge the wrongful nature of his conduct, did not verify the truthfulness of statements in his memo, and denied that his comments were discourteous or undignified. As mitigating factors, the board noted that Morton had no history of discipline as a lawyer and acted without a dishonest or selfish motive.
The board recommended that Morton be suspended from the practice of law for one year, with the entire suspension stayed on the condition that he commit no future misconduct.
Morton appealed his finding of discipline to the Ohio Supreme Court. The Cleveland Metropolitan Bar Association objected to the recommended punishment, arguing that Morton should serve a six-month suspension with no stay.
In a per curiam decision, the court majority ruled 5-2 against Morton and imposed a six-month suspension in its Nov. 23, 2021, decision in Cleveland Metropolitan Bar Association v. Morton. The state high court noted that “our decision in Moskowitz was based on well-settled law.”
The opinion addressed Morton’s First Amendment arguments. Morton argued that his criticism of the judiciary was a form of protected speech. But the court majority focused on its standard from Disciplinary Counsel v. Gardner (2003), which asks “what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.” The Ohio Supreme Court in Gardner asked whether an attorney had a reasonable factual basis for his statements.
The majority said Morton admitted that “he made no investigation and relied solely upon his own interpretation of the facts in making his statements.”
Regarding the sanction, the majority found that “Morton’s unfounded attack upon the judiciary warrants an actual suspension from the practice of law.” The majority sided with the Cleveland Metropolitan Bar Association and imposed a one-year suspension with six months stayed.
Chief Justice O’Connor wrote a concurring opinion, noting that the “case involves Morton’s blatant breach of the professional duties, including preserving the integrity of the court, that he agreed to be bound by as an officer of the court, and the consequences for failing to comply with those duties.”
Justice Sharon L. Kennedy — one of the justices that Morton personally criticized — wrote a dissenting opinion in which she criticized the majority’s reliance on the decision in Gardner, which allows attorneys to be disciplined for negligence. Kennedy reasoned that “the holding in Gardner is inconsistent with United States Supreme Court’s precedent concerning free speech and the judiciary.”
Kennedy favored the adoption of a two-part inquiry for attorney-discipline cases involving the criticism of the judiciary: (1) did the disciplinary authority prove that the attorney made a false statement of fact? And (2) if the statement is false, did the attorney make the statement with actual malice?
“Morton makes assertions of fact that only Chief Justice O’Connor, Justice French, and I could know to be true or false,” Kennedy wrote.
Justice R. Patrick DeWine also wrote a dissenting opinion that begins with the words, “I just don’t see it.”
“My skin is not so thin as to think that such punishment is warranted,” DeWine wrote. “Nothing Morton said has been shown to be untrue. And neither the First Amendment nor our disciplinary rules allow us to punish an attorney just because something he says gets under our skin.”
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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).