Ethical Criticism of Judicial Decisions
Every lawyer who litigates will sometimes disagree with judicial decisions in their cases — often strongly so. And nearly all lawyers will sometimes disagree with decisions of the Supreme Court or courts of appeal on questions of profound social importance — sometimes vehemently so.
From a professional responsibility perspective, many find it easier to navigate the first scenario — where it is our clients’ interests that are at stake. We must diligently advocate for our clients’ interests (Rule 1.3), which may include challenging decisions of a trial court through appropriate motions for reconsideration, writs, or appeals.
We, of course, must limit ourselves to arguments that are warranted under existing law or good faith arguments for a modification of existing law (Rule 3.1), and need to show appropriate candor and truthfulness toward the Court (Rule 3.3). We cannot make false (or reckless) statements concerning the qualifications or integrity of a judge. (Rule 8.2). And even as we challenge decisions with which we disagree, we must at all times “maintain the respect due to the courts of justice and judicial officers.” (Cal. Bus. & Prof. 6068(b). See also Comment to Rule 8.2 (same).)
Where is the line between legitimate criticism and failure to “maintain the respect due to the courts of justice and judicial officers?” The line can sometimes be blurry, but in general, a critique of a judge’s reasoning, even a forceful one, can be done with respect. Consider In re Sawyer (1959) 360 U.S. 622, 634 (“If [the Judge] was said to be wrong on his law, it is no matter; appellate courts and law reviews say that of judges daily, and it imputes no disgrace … The public attribution of honest error to the judiciary is no cause for professional discipline.”). Even a request for recusal can be crafted respectfully, so long as it has a good faith factual basis. (But see In re Koven (2005) 134 Cal. App. 4th 262, 268 (a frivolous request for recusal without factual support can be viewed as improper “judge-shopping” and may support a finding of contempt).)
Personal insults, attacks, and allegations of criminal conduct, in contrast, will almost always cross the line into disrespect, and can place the attorney at peril of sanctions or disciplinary action. (See In re Koven (2005) 134 Cal. App. 4th 262, 268 (finding attorney guilty of criminal contempt where she, among other things, accused Justices of “conspiring” with the plaintiff to “fix” the case); Ramirez v. State Bar (1980) 28 Cal.3d 402, 404, 410 (one-year suspension for statements that appellate Justices had acted “unlawfully” and “illegally” and had become “parties to the theft”; and “Money is king, and some judges feel they are there to see it doesn’t lose”).)
Finally, an attorney who uses abusive or discriminatory language toward the Judge does so at the risk of both their license and their reputation. (See Martinez v. O’Hara (2019) 32 Cal. App. 5th 853, 855 (“The notice of appeal … referred to the ruling of the female judicial officer as ‘succubustic.’ … We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”; attorney referred to State Bar).)[1]
The rules governing advocates’ respectful treatment of judges should not be particularly hard to follow. As advocates, we all know how to be respectful of the judges before whom we appear, and we all know disrespect in the courtroom when we see it.
But what rules attach when we step outside the courtroom? Do our professional responsibilities as attorneys limit our First Amendment rights to criticize or protest decisions with which we disagree — including decisions with profound social consequences?
As an initial matter, Sawyer teaches that lawyers are always free to criticize judges’ decisions and reasoning. Nothing in the professional responsibility rules prevent attorneys from arguing that a judge or a court got it wrong, or that a decision will have negative consequences.
But lawyers may have even broader leeway in their speech outside the courtroom. The Supreme Court notes that “[it] is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Gentile v. State Bar of Nevada (1991) 111 S. Ct. 2720, 2743 [emphasis supplied]. Outside the courtroom, however, a lawyer may well have more latitude, including by raising questions related to integrity and qualification.
In Garrison v. Louisiana, 85 S. Ct. 209, 211 (1964), a prosecutor publicly criticized state court judges, claiming that his ability to obtain funds for undercover vice investigations was due to the “inefficiency, laziness, and excessive vacations of the judges.” In response, he was convicted of criminal defamation.
The Supreme Court struck down the defamation statute, noting that “few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation,” and that such criticism was protected even if it also spoke to the official’s private character. To be sure, Garrison addressed a criminal statute, not a rule of professional responsibility. But the considerations that limit an attorney’s speech in the courtroom, where attorneys are key participants in the fair administration of justice, are likely to be found less compelling when they speak as citizens, outside the courtroom.
Notably, the Rules of Professional Conduct state: “To maintain the fair and independent administration of justice, lawyers should defend judges and courts unjustly criticized.” (Comment to Rule 8.2.) That is a responsibility we should all take seriously. Young lawyers should also consider, however, whether the converse is also true — that the fair and independent administration of justice is also served when lawyers speak up to respectfully criticize legal decisions with which they disagree.
[1] Moreover, advocacy that includes disrespectful language will be unpersuasive and will not serve (and will likely harm) the client’s interests. See Martinez v. O’Hara (2019) 32 Cal. App. 5th 853, 858 (“We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or even ‘reverse peristalsis’ in the notice of appeal.”).