Ethics of Protecting the Judiciary from Unfair Criticism: Attorneys' Obligations Under Model Rule 8.2
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Ethics
- event Date
Tuesday, June 25, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.
This CLE webinar will discuss attorneys' duty to defend judges and the independence of the judiciary and the First Amendment implications. The panel will discuss why judges are being attacked, whether attorneys must defend judges, the difference between intimidation and criticism, the requirements of Model Rule 8.2, the Constitutional limits on these requirements especially in light of recent Supreme Court decisions in Alvarez and Counterman, and the consequences of violating it. The panel will also discuss the investigation and removal of judges.
Mr. Ortner joins FIRE after four years litigating on behalf of free speech and equality under the law at the Pacific Legal Foundation. He has written and spoken extensively about First Amendment issues, including in The New York Times, The Hill, and The Epoch Times. Mr. Ortner's law review articles on free speech have been published in the Catholic University Law Review, BYU Law Review, and Virginia Journal of International Law among others. He is a member of the Virginia and California bars. He is also admitted to practice before the Supreme Court of the United States and several United States Courts of Appeals and United States District Courts.
Ms. Vestrand has expertise in legal and judicial ethics, attorney disciplinary law and procedures; character & fitness (bar admission) standards and procedures; the moral development of children and adults; the behavioral science of ethical decision making; building, protecting, and sustaining personal success; skills and practices for superior leadership; the use and effect of restorative justice initiatives in the community, courts and schools; Native American peacemaking and its effectiveness as a form of dispute resolution.
Ms. Bevacqua-Lynott is Senior Counsel in the Firm’s Portland and San Diego offices, and a member of the Firm’s Professional Responsibility and Litigation Practice Groups. She provides guidance and legal representation to attorneys, licensed professionals, and other business clients, including firms and in-house legal departments. Her practice centers on legal ethics, risk management, and discipline defense. Ms. Bevacqua-Lynott acts as outside counsel to clients in a variety of industries, providing advice and counsel on all manner of ethics issues, including conflicts, confidentiality, malpractice, risk management, and fee issues.
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.
- Why judges are attacked and by whom
- Criticism vs. intimidation
- Legislative actions to oversee state court judges
- Impeachment and removal of judges
- Model Rule 8.2
- Responses of major bar associations
- American Bar Association
- National Bar Association
- Federal Bar Association
- Lawyers for Civil Justice
- Defense Research Institute
- American Association for Justice
- American College of Trial Lawyers
- State bar associations
- ABOTA Protocol for Responding to Unfair Criticism of Judges
- Factors for consideration in determining whether to respond to criticism
- Timing, form, drafting consideration, and content of the response
- Recommendations
The panel will review these and other important questions:
- What is unjust criticism of a judge or judicial candidate and can a lawyer be penalized for engaging in such “unjust criticism”?
- Should the media be admonished to stop noting who appointed particular judges?
- Are "traditional efforts to defend judges and courts unjustly criticized"?
- What is the proper procedure for impeaching and removing judges?
- Are political "attacks" on the judiciary ever justifiable?
- How have national bar associations responded and have these responses respected the First Amendment rights of lawyers?
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