Nowadays, prosecutors and public defenders often send mass e-mails to their fellow assistants in prosecution offices or to colleagues around the defense community, respectively, to enable an attorney to get from his colleagues "the book" on a lawyer or judge new to them. To say nothing of the freewheeling communication that can go on at the local pub after work. The answers they get can be very helpful, especially if it is something like: "That lawyer will never go to trial, so hang tough" or, more relevant here, "Don't trust anything she says!" And as for judges, a responding colleague might helpfully say "Good luck getting that judge to disbelieve (or, alternatively, believe) a police officer's or agent's testimony." Or, "She's dyed-in-the-wool in big business's corner -- you've got a real problem with her as a plaintiff's lawyer in a securities class action."
They may be extremely relevant and helpful critiques. Assume the responding lawyers also show reasonable decorum and professionalism (for example, by not being spiteful and using words like "fascist" or "communist" to describe the judge's predilections in the suppression case, as some more salty, over-the-top members of the bar might dubiously employ), when giving the inquirer the straight scoop in writing or in person. And assume they resist the temptation to hit the "reply to all" button or else to put loudmouthed, vainglorious spin on how to "handle" said lawyer or judge, this, it seems, is a perfectly acceptable practice. It permits lawyers to gain invaluable intelligence that can and should affect strategy in a case.
A lawyer's job is to give the client all the benefits of her research in order to effectively represent the client. Indeed, a lawyer who doesn't research the judge is probably committing malpractice. Of course, it is a far different matter if a particular judge is a fool and the informal "bar" ("the rotunda bar," if you will, where lawyers chitchat about their gripes du jour under the rotunda of the courthouse) or the formal bar wants to really do something about it. But in any case, graphically indecorous and highfalutin brickbats involving judges do not meaningfully advance the ball. More light, not heat, about members of the judiciary should be the goal.
So when is an attorney subject to professional discipline for speaking his or her mind about a judge's conduct or decisions? What are the limits on a lawyer's free speech rights when it comes to -- let's say it like it is -- bad-mouthing judges, which any lawyer has to admit that he's done at some time in his career, if he's had any courtroom experience to speak of?
It is flatly against policy for a lawyer to openly decry a sitting judge. More staunchly, ethics rules and case law inform us that professional misconduct charges can be levied when an attorney makes false or reckless accusations against a presiding judge to the press, when the lawyer's remarks create a substantial likelihood of materially prejudicing an adjudicative proceeding, or when the attorney's conduct is otherwise unbecoming a member of the bar. See, e.g., ABA Model Rules of Professional Conduct 8.2(a); In re Palmisano, 70 F.3d 483 (7th Cir. 1995); In re Snyder, 472 U.S. 634 (1985); U.S.D.C. v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993) (noting a lawyer "does not surrender his freedom of expression" upon admission to the bar, but "he must temper his criticisms in accordance with professional standards of conduct.").
Famed civil rights attorney William Kunstler was subject to disciplinary charges by the New York State Bar after exclaiming to the justice presiding over the Central Park jogger rape trial that the justice had exhibited his partisanship, that he "should not be sitting in court," and that he was "a disgrace to the bench." See Kunstler v. Gilligan, 571 N.Y.S.2d 930 (App. Div. 1991), aff'd, 579 N.Y.S.2d 648 (N.Y. 1991).
By contrast, the well-regarded criminal defense attorney Martin Erdmann was found to have been improperly disciplined for criticizing "the system" from within when he told Life magazine ("I Have Nothing To Do With Justice") that appellate division judges were "whores who became madams"; that he would like to be a judge, but "I don't even know the going price"; and that "I always get away with murder." (Perhaps surprisingly, given those comments, Erdmann was later appointed a criminal court judge.) See Justices of Appellate Division, 1st Department v. Erdmann, 33 N.Y.2d 559, 560 (N.Y. 1973) ("Without more, isolated instances of disrespect for the law, Judges and courts expressed by vulgar and insulting words or other incivility, uttered, written, or committed outside the precincts of a court are not subject to professional discipline.") In reversing the Appellate Division's disciplinary conviction, the Court of Appeals noted that it wasn't commenting on Erdmann's taste, civility, morality or ethics.
Would the disciplinary conviction have been dismissed if Erdmann had named names and instances, even outside of a courtroom? After all, what he did was hardly akin to calling the judge a scurrilous name in open court or else akin to a U.S. congressman boisterously confronting the president of the United States with "You lie" during official proceedings before Congress. A lawyer who plays a role in exposing valid problems within the judicial system that can impact the fair trial rights of litigants is doing his job, while Rep. Joe Wilson was likely looking for campaign contributions from the anti-Obama health-care-plan crowd.
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Jonathan A. Weiss
The bar is much too deferential. They should be much more vocal. Look at the scene in Pennsylvania where the ABA Journal commented on five years of Judicial corruption and kickbacks in sentencing children to special jails with clients and lawyers (with a few exceptions) doing nothibng.
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