Lawyers are a touchy bunch. We have egos and we have inflated senses of self-worth. And it only gets worse when we become judges. No one’s ever gotten their way pissing off a judge.1 That doesn’t mean that no one talks shit about judges and some judges are more frequently talked-shit-about than other judges. But does there come a time when criticizing a judge goes too far?
Or, put another way, should lawyers be permitted to criticize judges in either public or private and not be sanctioned or found in violation of rules of ethical conduct?
Two recent stories brought this to mind: first, in Indiana, lawyer and blogger Paul Ogden received a one-year suspension [PDF] for private emails in which he criticized a judge and that judge’s handling of a case. The emails were turned over to the judge, who then demanded an apology. None was forthcoming; instead Ogden provided the judge with an itemized list of things he did wrong. Ogden then maintained that he has a First Amendment right to criticize public officials like judges and the hearing officer seemingly used that insistence to find that Ogden has limited insight into his behavior and recommend an elevated punishment:
“As a result of the statements made by (Ogden) about Judge Coleman, which statements were false or made with reckless disregard for truth, (Ogden) caused serious injury to the public, Judge Coleman, the judicial system and the legal profession,” York wrote.
York said in his report that he “cannot stress enough the conclusion that (Ogden) has a profound lack of both insight into his own conduct and lack of respect for those who disagree with him.”
Meanwhile, here in Connecticut, a four-month suspension of criminal defense attorney Rob Serafinowicz was just put on hold [PDF] pending his appeal. Serafinowicz, known for his brash style, found himself on the courthouse steps one day two years ago, saying unfavorable things about a judge he had appeared in front of and against whom he’d filed a judicial ethics complaint. Among other things he said “he’s a disgrace to the bench” “has favorites” and doesn’t give people “a fair shake”, “he’s never tried a case in his life” and then made some hollow assertions that the judge violated the code of judicial ethics. Serafinowicz has the habit of engaging in some bluster, which you can see in the video.
Serafinowicz eventually agreed that he violated two of the rules of professional conduct, Rule 8.2 and 8.4 [PDF]:
Rule 8.2. Judicial and Legal Officials
(a) 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.
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(4) Engage in conduct that is prejudicial to the administration of justice;
I write about this not because I think that Ogden or Serafinowicz specifically should be given the freedom to say what they did2 but because it impacts me personally and the judicial system as a whole.
As regular readers will know, I frequently take to these pages to criticize judges, prosecutors and judicial opinions. While I reserve my comments to the “their policies are asinine and idiotic and they write like a bunch of peons” rather than “Justice Smith is an unmitigated idiot” variety of criticism, it is not inconceivable that one day someone might view the former as a violation of a rule of professional conduct as being “prejudicial to the administration of justice”, whatever that means.
And as much as I’d like my response to be “I’m out of order? You’re out of order!”, having the knowledge of such timely pop culture quips will hardly save my mortgage and legal career if public criticism of matters of public importance is so circumscribed simply because the speaker happens to also be a lawyer and thus has some greater duty of care assigned to him.
The law is a morass. Lay people cannot be trusted or counted upon to either care or care enough to know when the law is acting like an ass. The only ones with the knowledge to know and to say something about it are the participants in the system: the whistleblowers, if you will.
As if that weren’t enough, to police private statements like Odgen’s seems a step too far in the administration of justice.
But we are all lawyers. The irony is lost on us.