Public service and system integrity - Criticism of judges an...

Learning Outcomes

After reading this article, you will be able to identify when criticism of judges and adjudicating officials is permitted or prohibited under the Model Rules and the Code of Judicial Conduct. You will understand the boundaries of protected speech, the consequences of making false or reckless statements about judicial officers, and the reporting duties related to judicial misconduct. You will be able to apply these principles to MPRE-style questions.

MPRE Syllabus

For the MPRE, you are required to understand the ethical rules governing lawyers’ and judges’ public statements about judges and adjudicating officials. This includes knowing when criticism is allowed, when it is sanctionable, and the obligations to report judicial misconduct. For revision, focus on:

• The prohibition on knowingly false or reckless statements about judges, adjudicators, or candidates for judicial office.
• The distinction between protected opinion and actionable misconduct.
• The duty to report judicial misconduct that raises a substantial question as to fitness for office.
• The consequences of violating these rules, including discipline for both lawyers and judges.
• The interplay between the First Amendment and professional responsibility rules in this context.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A lawyer publicly states, without evidence, that a judge is corrupt and unfit for office. Is the lawyer subject to discipline?
   1. Yes, if the statement is knowingly false or made with reckless disregard for the truth.
   2. No, because lawyers have free speech rights.
   3. Yes, unless the judge is a candidate for re-election.
   4. No, unless the judge files a complaint.
2. Which of the following is required for a lawyer to be disciplined for criticizing a judge?
   1. The statement must be made in a private conversation.
   2. The statement must be about a judge’s legal knowledge only.
   3. The statement must be false or made with reckless disregard for the truth.
   4. The judge must request discipline.
3. If a lawyer knows that a judge has committed a serious violation of the Code of Judicial Conduct, the lawyer must:
   1. Ignore it if no harm occurred.
   2. Report it to the appropriate authority.
   3. Tell the judge privately.
   4. Wait until the judge is investigated.
4. A lawyer, in good faith, publicly expresses an opinion that a judicial candidate lacks the temperament for the bench. Is the lawyer subject to discipline?
   1. Yes, because criticism of judicial candidates is always prohibited.
   2. No, if the opinion is honestly held and not knowingly false or reckless.
   3. Yes, unless the candidate is not currently a judge.
   4. No, unless the candidate complains.

Introduction

Lawyers and judges play a key role in maintaining public confidence in the legal system. Criticism of judges and adjudicating officials is sometimes necessary for accountability, but the Model Rules and the Code of Judicial Conduct set clear limits. Lawyers may express honest opinions about judges, but knowingly false statements or those made with reckless disregard for the truth are sanctionable. There is also a duty to report serious judicial misconduct. Understanding these boundaries is essential for MPRE success.

Key Term: Criticism of Judges
Statements or opinions made by lawyers or judges regarding the qualifications, integrity, or conduct of judges, adjudicators, or candidates for judicial office.

Key Term: Reckless Disregard
Making a statement without regard to its truth or falsity, or with conscious indifference to whether it is true, especially when the facts are easily ascertainable.

Key Term: Judicial Misconduct
Conduct by a judge that violates the Code of Judicial Conduct or other law, raising a substantial question as to the judge’s honesty, trustworthiness, or fitness for office.

Permissible and Prohibited Criticism

Lawyers are permitted to express honest and candid opinions about judges and candidates for judicial office. This includes statements about judicial temperament, competence, or suitability for the bench, provided the statements are not knowingly false or made with reckless disregard for the truth.

However, the Model Rules prohibit lawyers from making statements about a judge’s qualifications or integrity that they know to be false or with reckless disregard as to their truth or falsity. This applies to both public and private statements.

Key Term: Knowingly False Statement
A statement made by a lawyer or judge with actual knowledge that it is untrue.

Worked Example 1.1

A lawyer, frustrated by a judge’s ruling, posts online: “Judge Smith takes bribes from plaintiffs’ lawyers.” The lawyer has no evidence for this claim.

Question: Is the lawyer subject to discipline?

Answer:
Yes. The lawyer made a serious accusation without any factual basis. This is a statement made with reckless disregard for the truth and is sanctionable under the Model Rules.

Honest Opinion vs. False Allegation

The rules distinguish between honest, good-faith opinions and false or reckless accusations. Expressing a genuine belief that a judge lacks judicial temperament, based on personal experience, is generally allowed. However, inventing or repeating damaging rumors without verifying their truth is not protected.

Key Term: Good Faith Opinion
An honestly held belief or view, based on reasonable grounds and not intended to deceive.

Worked Example 1.2

An attorney, when asked by a reporter, says: “Based on my experience, I do not think Judge Lee has the patience required for the bench.” The attorney’s statement is based on several observed incidents in court.

Question: Is the attorney subject to discipline?

Answer:
No. The attorney expressed an honest opinion based on personal experience. There is no evidence of knowing falsity or reckless disregard for the truth.

Duty to Report Judicial Misconduct

Lawyers who know that a judge has committed a violation of the Code of Judicial Conduct that raises a substantial question as to the judge’s fitness for office must report the misconduct to the appropriate authority. This duty applies even if the lawyer is not personally involved in the matter.

Key Term: Duty to Report
The obligation of a lawyer to inform the appropriate authority of another lawyer’s or judge’s serious misconduct when it raises a substantial question about fitness for office.

Worked Example 1.3

A lawyer learns that a judge has accepted expensive gifts from a party appearing before the court, in violation of the Code of Judicial Conduct. The lawyer has reliable evidence of this conduct.

Question: What must the lawyer do?

Answer:
The lawyer is required to report the judge’s misconduct to the appropriate disciplinary authority, as it raises a substantial question about the judge’s fitness for office.

Consequences of Violation

A lawyer who makes a knowingly false or reckless statement about a judge, or who fails to report serious judicial misconduct, is subject to discipline. Sanctions may include censure, suspension, or disbarment, depending on the severity of the violation.

Exam Warning

Be careful: The First Amendment protects some criticism of judges, but does not shield lawyers from discipline for knowingly false or reckless statements. The MPRE often tests this distinction.

Revision Tip

When answering MPRE questions, look for facts showing whether the lawyer had a reasonable basis for the statement or acted with reckless disregard for the truth.

Summary

Lawyers may express honest opinions about judges and adjudicating officials, but false or reckless statements are prohibited. The duty to report serious judicial misconduct is mandatory. Violations can result in professional discipline. Always distinguish between protected opinion and sanctionable conduct.

Key Point Checklist

This article has covered the following key knowledge points:

• Lawyers may express honest, good-faith opinions about judges and adjudicators.
• Knowingly false or reckless statements about judges’ qualifications or integrity are prohibited.
• The duty to report serious judicial misconduct is mandatory when it raises a substantial question as to fitness for office.
• Violations of these rules can result in discipline, including censure, suspension, or disbarment.
• The First Amendment does not protect lawyers from discipline for knowingly false or reckless statements about judges.

Key Terms and Concepts

• Criticism of Judges
• Reckless Disregard
• Judicial Misconduct
• Knowingly False Statement
• Good Faith Opinion
• Duty to Report