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Saturday, October 03, 2009

Courts - "The Propriety of Criticizing Judges"

"The Propriety of Criticizing Judges," a lengthy article by Joel Cohen and Katherine A. Helm, prepared as a special to Law.com, is dated Oct. 5th. A few quotes:

So when is an attorney subject to professional disciple for speaking his or her mind about a judge's conduct or decisions? What are the limits on a lawyer's free speech rights when it comes to -- let's say it like it is -- bad-mouthing judges, which any lawyer has to admit that he's done at some time in his career, if he's had any courtroom experience to speak of?

It is flatly against policy for a lawyer to openly decry a sitting judge. More staunchly, ethics rules and case law inform us that professional misconduct charges can be levied when an attorney makes false or reckless accusations against a presiding judge to the press, when the lawyer's remarks create a substantial likelihood of materially prejudicing an adjudicative proceeding, or when the attorney's conduct is otherwise unbecoming a member of the bar. See, e.g., ABA Model Rules of Professional Conduct 8.2(a); In re Palmisano, 70 F.3d 483 (7th Cir. 1995); In re Snyder, 472 U.S. 634 (1985); U.S.D.C. v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993) (noting a lawyer "does not surrender his freedom of expression" upon admission to the bar, but "he must temper his criticisms in accordance with professional standards of conduct.").

Famed civil rights attorney William Kunstler was subject to disciplinary charges by the New York State Bar after exclaiming to the justice presiding over the Central Park jogger rape trial that the justice had exhibited his partisanship, that he "should not be sitting in court," and that he was "a disgrace to the bench." See Kunstler v. Gilligan, 571 N.Y.S.2d 930 (App. Div. 1991), aff'd, 579 N.Y.S.2d 648 (N.Y. 1991). * * *

A recent New York Times article addressed the issue of lawyers criticizing judges and the legal profession in the context of social media tools. It discussed the tension between being an officer of the court with limited ability to criticize the court and the loss of personal privacy, and maybe even appropriate discretion, that occurs through the use of online communication tools. But the real issue is not just about how lawyers are constrained by professional codes of conduct from fully expressing themselves online. That's just the medium. The seminal question is an age-old one that concerns the extent to which lawyers' discourse about the profession and individuals therein should be constrained, period.

The belief is often bandied about that lawyers should refrain from pettifogging criticisms or other contempt in the face of the court, to avoid undermining public faith in the legal system. That said, lawyers are not soldiers atop the courts' ramparts, defending and protecting the judiciary's inner sanctum. Lawyers represent their clients. Judges can generally fend for themselves, even though their own ethical canons bar them from making public comments or rebukes on pending matters. Nonetheless, few judges are milquetoast creatures deserving of kid-glove handling. Not to say that judicial proceedings shouldn't have dignity and decorum, but isn't a respectful attitude toward the court best exemplified not by blind allegiance to its practices but rather by assisting to uphold the honor of the legal profession by calling a spade a spade when a judge does something significantly deserving of condemnation and critique? * * *

The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose intemperate statements are not aimed at improving the legal system per se. Unfortunately, the latter type is far more common, if only because courtrooms tend to be filled with trial lawyers who are, as Carly Simon would say, the types to have "walked into the party like they were walking onto a yacht" (and yes, they probably think this article is about them too). No wimpy civility, to put it mildly, from these blowhards. But our point is: The alternative is less desirable and far more dangerous -- our legal system cannot sustain itself with a world full of lawyers with Laodicean attitudes toward judicial integrity.

Now is the right time to have this discussion -- this is the age of transparency.

Posted by Marcia Oddi on October 3, 2009 10:54 AM
Posted to Courts in general