Mauricio Hernandez, a Blog Law Blog reader and an attorney in my home state of Nevada, e-mailed me about the work of Professor Margaret Tarkington of BYU’s law school. Tarkington has written on a somewhat obscure corner of lawyer ethics – the rule subjecting lawyers to discipline for impugning the integrity of a judge.
Model Rule of Professional Conduct 8.2 says “A lawyer shall not make 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.”
In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 Boston College Law Review 363 (2010), Tarkington notes several cases where attorneys and even their clients have been sanctioned for calling into question a judge’s fairness, even when those comments were made in court filings and were relevant to the matter at hand – such as arguing that a client was denied due process because of a biased judge.
From a blog law perspective, I’m particularly interested in the out-of-court/online expression of attorneys. As blogs open up more and more opportunity for attorneys to make their opinions known, I imagine there will be more judges with wounded sensibilities who will want to sanction attorneys. As a lawyer and law professor, I have tremendous respect for judges. But at the same time, I think it is particularly important that judges should be subject to criticism, and even invective when someone is moved. Ultimately, the rule of law is better safeguarded by thriving freedom of expression directed at the judiciary than a erecting a legal rampart to deflect unwanted words.
I like what Tarkington says here:
The speech at issue is by definition political speech—speech regarding the qualifications and integrity of public officials—and thus is entitled to the fullest protection offered by the Constitution. But rather than protecting such speech, courts have imposed viewpoint-based punishment regardless of the forum in which the speech is made, whether to the press, on blogs, in personal letters, or otherwise. Suppressing attorney speech regarding the judiciary frustrates democracy by denying the right of the attorney speakers to contribute to the robust, uninhibited, and wide-open debate regarding public officials that is central to our ability to self-govern. Such suppression correspondingly denies the right of the public to receive opinions from those who have the education, training, and exposure to best offer informed views regarding the judiciary. This manipulation of public debate regarding the judiciary in turn frustrates the ability of the public to employ democratic correctives to check the abuse of judicial power and allows for judicial self-entrenchment.
Id. at 431