November 1998

Ethics And The LawEthical Responsibility of Lawyers to Uphold the Judiciary

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

As guardians of the law, lawyers have a duty to maintain the integrity of the legal system and of the legal profession. This article looks at our ethical duty under Title 8 of the Rules of Professional Conduct (RPCs) to uphold the judiciary, and at certain other RPCs relating to our duties to judges.

Introduction

The responsibility of lawyers to judges arises from the central role of the judiciary in our legal system. Judges interpret and apply the laws in individual adjudications, and, under our Constitution, balance the powers of the executive and legislative branches of government. They can balance those powers, however, only if they remain independent of those powers. Thus, the Canons of Judicial Conduct (CJCs), which set out the ethical responsibilities of judges and are analogous to the RPCs applicable to lawyers, provide in Canon 1 that "An independent and honorable judiciary is indispensable to justice in our society."

In exercising its powers, the judiciary has neither the executive power of the sword nor the legislative power of the purse. It has only the power which arises from public respect for and confidence in the judiciary. Public confidence and respect in the judiciary must ultimately be based on the independence, integrity and competence of the judiciary.

Lawyers, as part of the legal profession and as officers of the Court, have an obligation to maintain public confidence and respect in the judiciary. Furthermore, because of their positions and presumed greater knowledge of judges, lawyers can, by their conduct and words, have a very significant impact on the public's perception of the judiciary.

The RPCs impose on lawyers various obligations intended to maintain public confidence in the judiciary. This article first looks at RPC 8.2, relating principally to our duty to defend, and to refrain from false or reckless criticism of, judges. Our duty of candor to judges under RPC 3.3 was discussed in Althoff, "Ethical Responsibility of Candor to Judges," Washington State Bar News, October 1998, page 43, and thus is not further discussed here. The article also touches lightly on several other RPC provisions which relate to our day-to-day interactions with judges in litigation.

RPC 8.2(a) Duty to Limit Criticism

RPC 8.2, captioned "Judicial and Legal Officials," sets out three duties of lawyers to judges and public legal officials. Paragraph (a) prohibits certain false or reckless criticisms of judges and others; paragraph (b) requires lawyers who are judicial candidates to comply with applicable provisions of the Code of Judicial Conduct; and paragraph (c) exhorts lawyers to defend judges from unjust criticism.

RPC 8.2(a) prohibits false or reckless statements about judges and certain others. It provides that 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, integrity, or record of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office."

The rule applies to statements about judges, adjudicatory officers (which includes court commissioners and administrative law judges), public legal officers (usually understood to apply to attorney general, prosecuting attorney and public defender positions, but perhaps also applicable to positions such as court reporters, bailiffs and the like), and candidates for election or appointment to any of these positions. It does not prohibit truthful criticism of them. It does prohibit certain, but not all, false and reckless statements about them. It only prohibits false or reckless statements about a judge's "qualifications, integrity, or record." The ABA Model Rule 8.2(a), on which this is based, covers only a judge's "qualifications or integrity"; a judge's "record" was added by the Washington Supreme Court when it adopted the RPCs in 1985.

The WSBA RPC Committee summarized this provision in its June 7, 1982, memorandum transmitting to the WSBA Board of Governors the Committee's final draft of what was ultimately to become our RPCs. It stated:

This Rule continues the prohibition in DR 8-102(A) of making false statements of fact concerning the qualifications of a judicial candidate and in DR 8-102(B) against making false accusations against a judge and extends them to a holder of or a candidate for a "public legal office." The rationale for this extension is that the public relies on assessments by lawyers of the performance of holders of or candidates for public legal offices, and that false statements by a lawyer can undermine public confidence in the administration of justice. The Committee agrees. The prohibition is couched in the language of New York Times v. Sullivan and thus should withstand constitutional challenge.

The RPC Committee recognized that in regulating speech, the rule raised constitutional issues. A complete ban on lawyers' criticism of judges would violate the constitution's first amendment right of freedom of speech and would be both undesirable and far broader than needed. The lesser regulation of speech, namely prohibiting false or recklessly false statements about certain matters, is much less restrictive.

A lawyer's statements about judges generally are constitutionally protected unless made with knowledge of their falsity or in reckless disregard of their truth or falsity. Garrison v. Louisiana, 379 U.S. 64 (1964). This more limited regulation of speech is usually justified on the basis that it upholds public confidence in the judiciary, but more importantly, on the basis that as regulated members of the bar, lawyers relinquish certain rights in exchange for the privilege of practicing law. Further, public confidence in the judiciary would likely be equally harmed by attempting to limit all lawyer criticism of judges, since that would likely generate suspicion of the judges, as it would by lawyers' knowingly false and reckless statements about judges. See Note, The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N.Ky.L.Rev. 129 (1988). The Michigan Attorney Discipline Board rejected arguments that Michigan's equivalent to Washington's RPC 8.2(a) impermissibly infringed on lawyers' free speech rights. Grievance Administrator v. Fieger (Mich. Atty Disc. Bd. No. 94-186GA, 9/2/97).

It has been argued that the public has a right to information about the judiciary (see Note, Restrictions on Attorney Criticism of the Judiciary: A Denial of First Amendment Rights, 56 Notre Dame L.Rev. 489 (1981)), and that lawyers have a civic duty to inform the public of their assessments of judges based on their special knowledge of and experience with the competency of judges. WSBA Formal Opinion No. 46 (1956), interpreting the ethical rules then in effect, for example, asserts that "In a state like Washington, where judges are elected, the bar has an affirmative duty to advise the lay public concerning the qualifications of candidates so that good judges may be elected and unqualified persons defeated. (Canon 2 of the Canons of Professional Ethics.)" See also Chapman, Criticism - A Lawyer's Duty or Downfall, 1981 S. Ill.U.L.J. 437. It has also been argued that because of lawyers' special knowledge of judges, lawyers should be held to a higher standard of conduct in statements made about them. See Essay, Three Discussions of Legal Ethics, 126 U. Pa. L. Rev. 452 (1977); In re Hopewell, 507 N.W.2d 911 (S.D. 1992).

In any case, RPC 8.2(a) does not silence lawyer criticism of judges, but only prohibits knowingly false, or recklessly false, statements, thus adopting the libel standard of New York Times v. Sullivan, 376 U.S. 254 (1964). Washington's RPCs define the term "knowingly" as "actual knowledge." In lawyer discipline cases, courts have generally found the state's interest in protecting and defending the judiciary overrides a lawyer's first amendment right of free speech, at least where the lawyer's statements were knowingly false or reckless. See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), and generally, the discussion of Model RPC 8.2 at ABA Annotated Model Rules of Professional Conduct (Third Edition, 1996), p. 539-549. Further, it appears that RPC 8.2(a) likely prohibits only statements of fact, not opinions. See Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995). To some extent, the requirements and spirit of RPC 8.2(a) can be met by lawyers showing common sense, reserve and patience in criticizing judges and by judges recognizing they are not infallible and developing thick skins.

In In re Robert L. Hayes (Washington State Bar News, May 1998, p. 44), a lawyer received two reprimands for, among other things, making unsubstantiated allegations concerning a court commissioner's integrity in violation of RPC 8.2(a). The lawyer had falsely alleged that the commissioner's ruling was biased because he was a friend of opposing counsel. In U.S. District Court for the E.D. of Wa. v. Sandlin, 12 F.3d 861 (9th Cir. 1993) (see also Washington State Bar News, September 1994, p. 42), a lawyer was suspended for six months from practice before the U.S. District Court for violating RPC 8.2(a) by recklessly accusing a judge and/or court reporter of tampering with evidence.

RPC 8.2(b): Judicial Candidates Subject to Judicial Code

RPC 8.2(b) requires lawyers who are judicial candidates to "comply with the applicable provisions of the Code of Judicial Conduct." The most relevant of those provisions for purposes of this article is Canon 7(B), which governs judicial campaigns.

Section (1)(c) of Canon 7(B) prohibits judicial candidates from (i) making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office," (ii) making statements that "commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the courts," and from (iii) "knowingly misrepresenting the identity, qualifications, present position or other fact concerning the candidate or an opponent." The Canons also prohibit the personal solicitation of campaign contributions by judicial candidates (other than through committees). Thus, if a lawyer contributes to a judge's reelection campaign, the contribution should be to the campaign committee and not to the judge personally; and even such a contribution may be inadvisable, for example, if the lawyer has cases pending before the judge.

A lawyer considering running for judicial office should become familiar with the Code of Judicial Conduct. Under Rule 1.1(k) of the Rules for Lawyer Discipline, a lawyer is subject to discipline for violating that code. See the Sandlin decision above, for cites to several Washington decisions relating to discipline arising from judicial candidates' statements. The WSBA has concurrent jurisdiction with the Commission on Judicial Conduct over alleged violations of the Code of Judicial Conduct by lawyers who are successful in their candidacy, and exclusive jurisdiction over lawyers who are not successful in their candidacy.

RPC 8.2(c) Exhortation to Defend Judges

RPC 8.2(c) provides that a "lawyer, in order to assist in maintaining the fair and independent administration of justice, should support and continue traditional efforts to defend judges and courts from unjust criticism" (emphasis added). By use of "should" rather than "shall," this provision is hortatory, and no discipline will result for failure to comply with this provision.

The provision appears to have been taken from a comment to Rule 8.2 of the ABA's Model RPCs, on which our RPCs generally are based. It was not a part of Washington's Code of Professional Responsibility, the predecessor to our RPCs. Nor was it in the drafts of the then-proposed RPCs submitted by the WSBA RPC Committee to the WSBA Board of Governors. It appears to have been added by the Board, since it was included in the proposed RPCs sent by the Board to the Washington Supreme Court and published for comment by the Court in the 103 Wn.2d, No. 8, advance sheets.

What are those "traditional efforts" which the rule exhorts us to continue? They include speaking up when the judiciary as an institution is under attack, as well as when individual judges are falsely attacked, correcting public misinformation about the judiciary, and educating the public about the role of the judiciary and its need for independence. Do leaders of the bar, those at bar associations and those such as attorneys general have a more pronounced obligation to defend the judiciary? Do lawyers who serve in the legislature have a special duty to defend judicial independence? Is a mere exhortation to defend the judiciary an adequate protection of an institution of such central importance to our legal system? To some extent, the exhortation of RPC 8.2(c) to defend judges gives meaning to the generality of our promise in our oath of admission as an attorney (Admission to Practice Rule 5(d)) that we "will maintain the respect due to the courts of justice and judicial officers." See also discussion of RPC 3.5(c) below.

When the ABA first adopted its Model RPCs, the ABA Judicial Administration Division published a program to implement its comment to Model RPC 8.2. Unjust Criticism of Judges: Model Program Outline for State and Local Bar Meet Inaccurate or Unjust Criticism of Judges and Courts (1986), available as Appendix B to ABA, An Independent Judiciary: Report of the Commission on Separation of Powers and Judicial Independence (1997). It recommended that the bar should respond publicly to attacks on a judge only if (1) the attack is a public comment and is an unwarranted or unjust attack on a judge in a pending case, or (2) the attack is unwarranted or unjust and may adversely affect the administration of justice. The model program notes that generally judges are not in a position to defend themselves since the public is likely to view such defense as mere self-defense and lacking in credibility, and since any self-defense may interfere with pending litigation and merely encourage those who seek to control the judiciary through intimidation.

Other Duties to Judges

Even if a lawyer's statement or criticism of a judge or public legal officer is not knowingly false or made recklessly, or does not pertain to the judge's "qualifications, integrity, or record," and thus is not prohibited by RPC 8.2(a), it may still subject the lawyer to discipline under other RPCs.

A lawyer's statements or conduct may, for example, violate RPC 3.5(c), which proscribes "conduct intended to disrupt a tribunal," or RPC 3.6(a), which prohibits a lawyer from making extrajudicial statements which the lawyer "knows or reasonably should know" "will have a substantial likelihood of materially prejudicing an adjudicative proceeding," or RPC 8.4, which prohibits "conduct that is prejudicial to the administration of justice." Besides subjecting the lawyer to discipline under these various RPC provisions, such conduct, whether or not also violative of RPC 8.2(a), may, if made in the course of legal proceedings, also subject the lawyer to the court's contempt power.

In In re Michael W. Smith (Washington State Bar News, February 1998), a lawyer was reprimanded for, among other things, discourteous and disrespectful conduct violating RPC 3.5(c), RPC 8.4(d), and the Oath of Attorney, for conduct described by the court in State v. Garrett, 124 Wn.2d 504, 522 (1994). The court concluded that the defense counsel was "boorish, contemptuous, discourteous, disrespectful, insolent, obdurate, obnoxious, offensive, rude and uncouth" and was "disrespectful, abusive, antagonistic and insulting in total disregard for the respect due the court."

In In re Larvadian, 664 S. 2d 395 (LA 1995), a lawyer was suspended from practice for three months for attacking the integrity of a district court judge by accusing him of being racist and cursing him in the courtroom. In Prucker v. Statewide Grievance Committee, No. CV94-054-14-36 (Conn. Superior Ct, June 9, 1995), a lawyer's comment to a judge that "this is bullshit" was found to be profanity disruptive of the legal process.

A lawyer's conduct, as opposed to statements, as it relates to judges is also subject to ethical restraints. These include our RPC 3.1 duty not to bring or defend lawsuits or issues on a frivolous basis; our RPC 3.2 duty to use reasonable efforts to expedite litigation "consistent with the interests of the client" and our RPC 3.5 duty not to seek to influence a judge or fact finder by prohibited means (including ex parte contacts and disruptive conduct). RPC 3.5 prohibits a lawyer from (a) seeking to influence a judge (or a juror or prospective juror) by means not permitted by law, (b) from communicating ex parte with such a person, or (c) from engaging in conduct intended to disrupt a proceeding. In each case, the rule seeks to protect the judiciary from improper influences, communications and conduct which would diminish its ability to act impartially.

A lawyer generally may not communicate ex parte with the judge, but may communicate with the judge on any matter that is unrelated to and remote from any matter pending before the judge. The test is whether the communication has the possibility or appearance of influencing the outcome of the case. It does not matter whether the lawyer or the judge initiates the communication; if it is the judge, the lawyer needs to decline to participate and the lawyer or the judge should notify opposing counsel of the event. For administrative law judges, the practical aspects of such communications may be more difficult. For example, since often they have no support staff, yet they need to schedule conferences and status meetings, they may contact the lawyer directly, but they should seek to simultaneously include lawyers from each side.

Obviously a lawyer may not attempt to influence the judge by offering gifts or loans, and, if a judge solicits gifts or loans, the lawyer may not agree. This does not mean, however, that the lawyer cannot participate in normal social hospitality of social dinners, birthday gifts, and other items of small monetary amount so long as they are not intended to influence the judge. Common sense is obviously needed.

Conclusion

The role of an independent judiciary is central in our legal system. Lawyers have important ethical responsibilities to help maintain that independence. The duties include limiting criticism of judges to truthful criticism, defending the judiciary from unjust attacks, and taking steps to assure the proper functioning of the judicial system. Lawyers have not only an ethical obligation to support the judiciary, but also a very practical reason: without an independent judiciary, there cannot be an independent bar.