Does the First Amendment protect a lawyer from discipline by the bar after she gets drunk and loudly interrupts a judge’s holiday-party speech to call him a “piece of shit,” an “asshole,” and a “motherfucker”? In Columbus Bar Association v. Bahan, the Supreme Court of Ohio said no.[1] The opinion was authored by Chief Justice Maureen O’Connor and joined by all the other justices except Justices Sharon Kennedy and R. Patrick DeWine.[2]

This case involved a disciplinary action brought against Ohio lawyer Natalie Bahan arising out of several disturbing incidents including her outburst at a bar association holiday event.

In the first incident, Bahan got mad at her husband during a charity benefit and called the police on him to accuse him of stealing her car.[3] An officer arrived at the benefit but could not find Bahan because she had gone home with her husband in their car.[4] The officer followed up by going to Bahan’s home and, while there, noted that Bahan appeared drunk.[5]

In the second incident, Bahan called the police to accuse her son of stealing her iPad.[6] At the same time, her husband called the police to report that Bahan was “heavily intoxicated and causing problems.”[7] When police arrived, they found her loud, unsteady, slurring her speech, and with bloodshot eyes and a strong odor of alcohol.[8] The officers helped her husband get out of the house and admonished Bahan to stay inside while she shouted profanities at them.[9] The son had already left house and had taken the iPad with him.[10]

The third incident occurred when Bahan was serving as a guardian ad litem in 2010.[11] She attempted to make a surprise visit to her ward’s mother, but the mother was not home.[12] Bahan went to a nearby restaurant and had a glass of wine before returning to the house.[13]

The disciplinary board found that each of these incidents was “prejudicial to the administration of justice,” in violation of the rules of professional conduct.[14] Bahan objected to these findings on the basis that the evidence did not support them.[15]

The fourth incident was the holiday event.[16] The event was the Logan County Bar Association holiday party, and attendees included lawyers, judges, and their spouses.[17] Witnesses observed Bahan drinking during the event, and one judge testified that she was “a little unsteady on her feet.”[18] After dinner, while another judge was giving a speech, Bahan stood up, interrupted the judge, and began to hurl profanities at him.[19]

The disciplinary board found that this outburst violated the rule requiring lawyers to maintain a respectful attitude toward the courts.[20] Bahan objected to this finding on the basis that her speech was protected under the U.S. and Ohio Constitutions.[21]

Beginning with the bar event incident, the court rejected Bahan’s objections.[22] It noted that the U.S. Supreme Court in Bradley v. Fisher,[23] had held that lawyers must abstain “out of court from all insulting language and offensive conduct toward judges personally and for their judicial acts.”[24] The court went on to say that Bahan’s rant was not protected political speech because she “did not associate her vulgarities with any other facts or context.”[25] Instead, she got drunk and hurled insults at him, which “erodes the civility, dignity, and respect for the rule of law contrary to an attorney’s duty described in [the rule].”[26]

The court similarly rejected the argument advanced in a separate opinion by Justice DeWine that punishing Bahan would chill legitimate criticism of the judiciary.[27] The court flatly declared that this conduct was nowhere close to the line, although it did not attempt to define the line between protected criticism and unprotected criticism.[28]

As to the three other incidents, the court held that the evidence was sufficient to support the board’s conclusions as to the first and second incidents, but not as to the third.[29] The first two incidents were prejudicial to the administration of justice, the court held, because Bahan’s “drunken and questionable reports” misused law-enforcement resources.[30] But the third incident was not because there was no “clear and convincing evidence” that Bahan’s judgment had been impaired by her drinking when she visited her ward’s mother.[31]

In the end, the court suspended Bahan for six months, but stayed the suspension on the condition that she engage in no further misconduct and submit to a substance-abuse assessment.[32]

Justice Kennedy, joined by Justice DeWine, concurred in part and dissented in part.[33] She would have dismissed the charge related to the holiday party on procedural grounds. Ohio has two sets of ethics rules: the Rules for the Government of the Bar, which the majority used against Bahan, and the Rules of Professional Conduct. In Justice Kennedy’s view, the former do not provide a basis that is independent of the latter for sanctioning conduct, and the latter do not provide sanctions for speech that is merely insulting.[34]

Justice DeWine, joined by Justice Kennedy, concurred in the judgement only and reiterated Kennedy’s concern that the majority exceeded its disciplinary authority.[35] He also argued that the majority’s punishment of Bahan’s profane speech risked chilling legitimate criticism of the judiciary because, at bottom, it punished speech simply because it was disrespectful.[36] In his view, the only line that could safely and consistently be drawn was around speech that was false and made with knowledge or recklessness as to falsehood.[37]

[1] Columbus Bar Ass’n v. Bahan, 2022-Ohio-1210, 2022 WL 1110568.
[2] Id. at 1.
[3] Id. at 4.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 5.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 13.
[16] Id. at 6.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 3.
[21] Id. at 5.
[22] Id
[23] 80 U.S. 335, 355 (1871).
[24] Id.
[25] Bahan, 2022 WL 1110568, at 10.
[26] Id.
[27] Id.
[28] Id.
[29] Id. at 13.
[30] Id. at 14.
[31] Id. at 15.
[32] Id. at 21.
[33] Id. at 21 (Kennedy, J., concurring and dissenting in part).
[34] Id. at 22–23.
[35] Id. at 31 (DeWine, J., concurring in the judgment).
[36] Id.
[37] Id. at 32–33.

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