In subsequent state court litigation, the New York Court of Appeals ultimately dismissed the disciplinary proceedings on non-federal grounds. Justices of the Appellate Division, First Department v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973), rev'g, 39 A.D.2d 223, 333 N.Y.S.2d 863 (3d Dep't 1972). See also, Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427 (2d Cir. 1975), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Powers v. Coe, 728 F.2d 97 (2d Cir. 1984), dismissal after remand aff'd sub nom. Powers v. McGuigin, 769 F.2d 72 (2d Cir. 1985); United States ex rel. Goodman v. Kehl, 456 F.2d 863 (2d Cir. 1972).
¶ 69. In Justices of the Appellate Division v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973), sanctions against lawyer who made critical comments about judges before whom he practiced were reversed as insufficient to warrant discipline. The offending comments, which appeared in the March 12, 1971 issue of Life magazine, were:
See also In re Friedland, 268 Ind. 536, 376 N.E.2d 1126 (1978) (attorney suspended for referring to paternity hearing as "ordeal," "travesty," and "the biggest farce I've ever seen"); In re Paulsrude, 311 Minn. 303, 248 N.W.2d 747 (1979) (attorney disbarred for in-court remarks, which included calling the judge a "horse's ass" after an adverse ruling and labelling the proceedings a "kangaroo court"). For cases not disciplining attorneys for criticizing judges, see, e.g., State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972) (no discipline imposed where attorney made only general accusations and was speaking as losing party in litigation); Justices of Appellate Division v.Erdmann, 33 N.Y.2d 559, 301 N.E.2d 426, 347 N.Y.S.2d 441 (1973) (attorney not subject to discipline even though he called appellate judges "whores who become madams," and claimed that the only way to become a judge was "to be in politics or to buy it"); State Bar v. Semaan, 508 S.W.2d 429 (Tex.Civ.App. 1974) (no discipline imposed against attorney who wrote letters to newspapers critical of a judge's qualifications to hold office). See generally Annot. "Attorney's Criticism of Judicial Acts as Ground for Disciplinary Action," 12 A.L.R.3d 1408 (1967).
See also, In Re Glenn, 256 Iowa 1233, 130 N.W.2d 672, 12 A.L.R.3d 1398 (1964); ABA Code of Professional Responsibility, EC 8-6; Annot., 12 A.L.R.3d 1408; Annot., 56 L.Ed.2d 841, 855-69. But see, Justices of the Appellate Division v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973); State Bar v. Semaan, Tex. Civ. App., 508 S.W.2d 429 (1974); Polk v. State Bar of Texas, N.D. Tex., 374 F. Supp. 784 (1974)."
See also, In re Glenn, 256 Iowa 1233, 130 N.W.2d 672, 12 A.L.R.3d 1398 (1964); ABA Code of Professional Responsibility, EC 8-6; Annot., 12 A.L.R.3d 1408; Annot., 56 L.Ed.2d 841, 855-69. But see, Justices of the Appellate Division v. Erdmann, 33 N.Y.2d 559, 347 N.Y.S.2d 441, 301 N.E.2d 426 (1973); State Bar v. Semaan, Tex.Civ.App., 508 S.W.2d 429 (1974); Polk v. State Bar of Texas, N.D.Tex., 374 F. Supp. 784 (1974). We conclude as did the Board of Governors that Respondent's public attribution of "highly unethical and grossly unfair" behavior to a named sitting judge, a charge that Respondent knew, or should have known, was unwarranted, was unethical and unprofessional conduct tending to bring the bench and bar into disrepute and to undermine public confidence in the integrity of the judicial process. If the Respondent had had reason to believe in good faith that the trial judge had engaged in proscribed conduct, then the proper forum in which to have made his claim was the Judicial Retirement and Removal Commission as provided in our Constitution, Section 121, and in our rules of court, SCR 4.000-4.300.
Upon a review of the record, we confirm the findings of fact of both the Referee and the Hearing Panel which relate to respondent's sexual misconduct and the charges pertaining to comments concerning this Court; disaffirm the Referee's conclusions of law and confirm the Panel's conclusions of law with respect to those latter charges, and suspend respondent from the practice of law for six months. Initially, we agree with the Panel that respondent's comments about this Court and his ability to influence the Court, made in a private conversation, are not subject to professional discipline as they were uttered "outside the precincts of a court" ( Matter of Appellate Div., First Dept. v Erdmann, 33 NY2d 559, 559; compare Matter of Hayes, 7 AD3d 108 [public censure for accusing court and clerk of prejudice and racism during court colloquy, and making other disrespectful comments]; Matter of Dinhofer, 257 AD2d 326 [three-month suspension for calling a judge "corrupt" during a telephone status conference]; Matter of Golub, 190 AD2d 110 [public censure for making undignified and degrading comments about a New York County Supreme Court Justice to the press]). Regarding respondent's sexual misconduct, we do not believe that disbarment is warranted here. Disbarment has been imposed for conduct far more egregious than the very troubling conduct at issue here ( see Matter of Singer, 290 AD2d 197 [aggravated sexual battery of a child and similar conduct with other children]; Matter of Romano, 246 AD2d 152 [attorney directed three female clients to disrobe and touched them in intimate places]).
In consideration of respondent's cooperation with the Committee and his admission of the charges, respondent's attorney and petitioner's chief counsel entered into a stipulation whereby it was agreed that a sanction of public censure would be sought. While neither the Hearing Panel nor this Court is bound by the parties' stipulation, a public censure does appear to be the appropriate sanction (Matter of Justices of Appellate Div. v Erdmann, 33 N.Y.2d 559; Matter of Markewich, 192 App. Div. 243). In that regard, it is significant that respondent has expressed remorse for his misconduct, cooperated fully with the proceedings against him and has a previously unblemished disciplinary record.
It is beyond cavil that Ms. Silver enjoys a right to criticize, not just opposing counsel, but the Court itself. Such a right, however, does not give rise to a prerogative for " "unfounded and intemperate criticism, insulting language or abuse" (Justices of Appellate Division, First Dept. v. Erdmann 39 A.D.2d 223, 333 N.Y.S.2d 863 [1st Dept.1972] rvsd. 33 N.Y.2d 559, 347 N.Y.S.2d 441 ). It must be emphasized, however, that no censure can be imposed on Ms. Silver for any intemperate language if it is the result of mental illness, witness the maxim " "Furiosus solo furore punitur " (Co.Litt. p. 247).
It is beyond cavil that Ms. Silver enjoys a right to criticize, not just opposing counsel, but the Court itself. Such a right, however, does not give rise to a prerogative for "unfounded and intemperate criticism, insulting language or abuse" ( Justices of Appellate Division, First Dept. v. Erdmann39 AD2d 223, 333 N.Y.S.2d 863 [1st Dept.1972] rvsd. 33 NY2d 559, 347 N.Y.S.2d 441). It must be emphasized, however, that no censure can be imposed on Ms. Silver for any intemperate language if it is the result of mental illness, witness the maxim " Furiosus solo furore punitur" (Co. Litt. p. 247).