Andrew Napolitano
Andrew Napolitano (Carmen Natale)

Fox News contributor Andrew Napolitano, a former New Jersey Superior Court judge, recently claimed on television that former President Barack Obama enlisted the British intelligence services to wiretap Donald Trump when Trump was running for president.

Attorneys say this unverified assertion could cause Napolitano to face ethics charges, though the burden of proof to show he violated ethics rules would likely be steep and the potential punishments relatively minor.

Lawyers who focus on attorney ethics say anyone wanting to pursue an ethics complaint against Napolitano would have to prove the former judge lied on purpose and would have to overcome his First Amendment free speech protections.

Napolitano quit the bench in 1995 after a dispute with the New Jersey Supreme Court over his right to earn outside income, but is still licensed to practice in New Jersey and New York.

Fox News, according to media reports, removed Napolitano on March 16, after he claimed, citing unnamed sources, that the U.K.’s Government Communications Headquarters, at Obama’s request, bugged Trump’s communications.

Napolitano’s allegations were cited by the Trump administration as evidence that Obama was behind a wiretapping scheme. In a rare public statement, GCHQ flatly denied Napolitano’s claim, stating: “Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct ‘wiretapping’ against the then President Elect are nonsense. They are utterly ridiculous and should be ignored.”

Fox News later issued a statement saying it could not confirm Napolitano’s assertions, and took him off the air.

To explain how Napolitano could face trouble, attorney ethics mavens on both sides of the Hudson River cited Rule 8.4(c) of the New York and New Jersey Rules of Professional Conduct, both of which state that lawyers and firms “shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Nicole Hyland

Given the current political climate and the belief from the left that Fox News and its contributors are little more than unquestioning mouthpieces for the right, “someone at some point is probably going to file a complaint,” said Nicole Hyland, of Frankfurt Kurnit Klein & Selz in New York. “Anyone can file a complaint, and it’s kind of likely.”

“This could relate to his standing as a lawyer,” said Eric Kahn, of Springfield, New Jersey’s, Wurgaft Hicks Kahn Wikstrom & Sinins. “He was not acting in his role as a lawyer, but he’s going on TV and making an accusation.”

Napolitano is listed as counsel at New York’s Mintz & Gold, where his online biography says he focuses his legal practice on complex litigation, white-collar criminal defense and appellate work. He did not return a telephone call seeking comment.

“He could be in very serious trouble” if someone wants to file a complaint, said Morristown solo Marc Garfinkle, adding that while Napolitano was acting as a TV commentator when he made his claims, “he’s still a member of the bar, and the general rule is that lawyers need to maintain a high standard regarding truthfulness.”

One problem that potentially could plague Napolitano, according to Garfinkle, is that he still calls himself “judge” and has others use the title when speaking to him. “He’s holding himself out in his professional capacity,” Garfinkle said.

Hyland agreed, saying that though Napolitano did no harm as an attorney to a specific client, “he’s still holding himself out as someone with legal gravitas.”

But at least one legal professional warned that anyone who would seek to pursue an ethics complaint against the ex-judge might want to think twice.

“He accused the former president of the United States of criminal behavior, and was advancing himself in the media world,” said Bernard Freamon, a professor at Seton Hall University School of Law who has represented lawyers accused of ethics violations. “But his media activities have nothing to do with the practice of law.”

Someone conceivably could charge Napolitano with a violation of R.P.C. 8.4(c), but it would “be a stretch,” Freamon said. “He has very formidable First Amendment protections.”

All of the lawyers interviewed agreed that it would take years for any ethics complaint to wind its way through either state’s judicial disciplinary system. And, they said, even if Napolitano were eventually found to have committed an ethics violation, he would likely only face a minor punishment, anywhere from a private reprimand, to at most, a public reprimand or an admonishment.

Napolitano was nominated to the bench by Gov. Thomas Kean in 1987 and served for eight years before he resigned after a dispute with the state Supreme Court. He argued, unsuccessfully, that he should be allowed to receive compensation for lectures he was conducting at the time. The New Jersey judiciary still maintains its rule that judges may not receive outside earned income while on the bench.

He initially joined Newark’s Robinson, St. John & Wayne, then moved to Reed Smith and eventually became a contract attorney at what is now Sills Cummis & Gross.

The flap over Napolitano’s wiretapping accusations is not the first time he’s been in the limelight.

In 2001, Napolitano was teaching a class on constitutional law as an adjunct professor when the school abruptly replaced him with a full-time professor, ostensibly because he was missing too many classes while taping one of his early Fox shows, “Power of Law.”

Napolitano also drew attention in New Jersey a few years earlier when he was accused of spilling details of a confidential ethics case to a Law Journal reporter. In 1998, the New Jersey Supreme Court said it determined that the case against Essex County Superior Court Judge Carol Ferentz became public because Napolitano, who had complained of Ferentz’s behavior on the bench, along with former member of the state Advisory Committee on Judicial Conduct Victor Harwood III, spoke to the press.

Articles published in the Law Journal at the time disclosed the nature and content of the ethics proceedings against Ferentz. Citing that publicity, the court made public its private reprimand of Ferentz for conduct prejudicial to the administration of justice in violation of Rule 2:15-8(a)(6). Ferentz also was removed from her position as Essex County’s presiding civil judge.

In a statement released at the time, the court called Harwood’s conduct inconsistent with established ACJC procedures and said Napolitano’s actions reflected an insufficient concern for the integrity of the judicial disciplinary process. However, no disciplinary action was taken against either of them.

Napolitano strenuously denied any wrongdoing, saying he never learned of the record before the ACJC or was privy to the content of its conferences or deliberations. And while he admitted that he spoke to reporters about his experiences with and opinions of Ferentz, he denied releasing to the Law Journal reporter any confidential information.

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