Ethics of Protecting the Judiciary from Unfair Criticism: Attorneys’ Obligations Under Model Rule 8.2

Description

In recent years it appears that there has been an increase in both verbal and physical attacks on members of the judiciary. With that increase in criticism, has come a corresponding effort to implore or even require attorneys and bar associations to stand up to unfair criticism and false accusations for the sake of the independence of the judiciary.

Proponents of efforts to prevent criticism of the judiciary and to require lawyers to defend the integrity of the justice system argue that much criticism is intended to intimidate judicial officers from ruling in accordance with the law. And because judges are prohibited from defending themselves, especially in the context of unpopular decisions in particular cases, defending them from unfair attacks must fall to attorneys.

On the other hand, critics of such requirements argue that they violate the First Amendment especially if they apply to attorney speech that takes place outside of the courtroom or official representation of clients before the judiciary. They also argue that vigorous criticism is required given the power and lack of democratic accountability of the judiciary.

At the center of this debate is ABA Model Rule 8.2 which prohibits a lawyer from making 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. The Rule's Comment recognizes the importance of honest evaluations of judges and judicial candidates but also advises that to maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

Listen as this experienced panel of lawyers discusses how attorneys and bar associations can carry out their duties under Rule 8.2 and what to do if a judge has been unfairly or falsely criticized.