A recent New York Times article addressed the issue of lawyers criticizing judges and the legal profession in the context of social media tools. It discussed the tension between being an officer of the court with limited ability to criticize the court and the loss of personal privacy, and maybe even appropriate discretion, that occurs through the use of online communication tools. But the real issue is not just about how lawyers are constrained by professional codes of conduct from fully expressing themselves online. That's just the medium. The seminal question is an age-old one that concerns the extent to which lawyers' discourse about the profession and individuals therein should be constrained, period.
The belief is often bandied about that lawyers should refrain from pettifogging criticisms or other contempt in the face of the court, to avoid undermining public faith in the legal system. That said, lawyers are not soldiers atop the courts' ramparts, defending and protecting the judiciary's inner sanctum. Lawyers represent their clients. Judges can generally fend for themselves, even though their own ethical canons bar them from making public comments or rebukes on pending matters. Nonetheless, few judges are milquetoast creatures deserving of kid-glove handling. Not to say that judicial proceedings shouldn't have dignity and decorum, but isn't a respectful attitude toward the court best exemplified not by blind allegiance to its practices but rather by assisting to uphold the honor of the legal profession by calling a spade a spade when a judge does something significantly deserving of condemnation and critique?
Obviously, criticisms that amount to threats are verboten, and must be unequivocally condemned criminally. Recall the recent case where a blogger posted online that three 7th Circuit judges, identified by name, photo and workplace address, "deserve to be killed" for affirming the dismissal of a challenge to local handgun bans in Chicago. These threats would not have been rendered innocuous had they come from a fellow member of the bar. Spiteful or dangerous remarks are destructive to the profession, and bad-mouthing, lying or making generally uninformed wisecracks about a judge is wrong, whether it is done in person or online, as through interactive social media.
The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose intemperate statements are not aimed at improving the legal system per se. Unfortunately, the latter type is far more common, if only because courtrooms tend to be filled with trial lawyers who are, as Carly Simon would say, the types to have "walked into the party like they were walking onto a yacht" (and yes, they probably think this article is about them too). No wimpy civility, to put it mildly, from these blowhards. But our point is: The alternative is less desirable and far more dangerous -- our legal system cannot sustain itself with a world full of lawyers with Laodicean attitudes toward judicial integrity.
Now is the right time to have this discussion -- this is the age of transparency. The Obama administration is implementing measures to uncloak the covert actions of the government and to beef up government oversight for companies that failed to regulate their own financial accounting practices. We should think about whether the legal profession would be better off by engaging in meaningful self-governance, rather than waiting for some crisis to dictate reform and mandate tighter regulations of and investigations into courtroom practices by "outsiders" -- who have no stake in protecting, in the best sense of the word, the legal system. Surely, on reflection, most lawyers would say the historical practice, overall functioning, and public trust in the legal profession is best served by effective self-regulation. If that requires greater openness and sharing of "secrets" in criticizing our legal community members, so be it.
Lawyers still have a duty to be civil to those in the profession. But to suggest that standards of civility should somehow supplant or override a greater duty to scrutinize our own, as fellow members of the bar, however, is an act of strawmanese. Our legal codes of conduct do not mandate such censorship. The potential harm to a reputation that could result from the spread of unsubstantiated or malicious nattering should not unduly silence the healthy and well-deserved criticism of our practice, or of individual judges or attorneys in it. Such a result would risk chilling the zealous advocacy that is every practitioner's duty and the cornerstone of our justice system.
As political philosopher Hannah Arendt stated, there can be no patriotism without permanent opposition and criticism. We have a duty as lawyers to uphold and respect, and yes be patriots of, our profession by voicing our discontent with whatever aspects of it fall short of the aspirational standards we set for ourselves. We do not want to teach legions of lawyers to be proud and unquestioning, bien-pensant members of the bench and bar. The judicial system should not need such propping up; rather, a court should withstand the strictest of scrutiny by the lawyers that come before it. To question everything, with a trained eye, is the art of lawyering. Nonjudgmental allegiance should not be the legal community's strong suit!
It is the practice of law for a reason. Seasoned attorneys should bring to the table their expertise and background knowledge of the case, the court, and the parties at hand. Their unvarnished, gut intuition about the predilections and practices of individual judges and lawyers is precisely what clients pay for, and rightly so. Just think of the data loss we would sustain if we read our own rules of professional conduct to disallow us to provide disapproving analysis of legal figureheads. Sometimes, in practice, discretion is not the better part of valor. We're not proposing to change our system of criticizing judges to something akin to England's Prime Minister's Questions -- a weekly critique of the PM ostensibly designed to advance some public policy or political stance from the Loyal Opposition. To many Americans, rightly or wrongly, that practice is often rude, boisterous and undesirable. Still, we as lawyers must remain vigilant in our critical self-examination and protection of the judicial system. It's the only one we've got.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is a former New York state and federal prosecutor and is an Adjunct Professor of Professional Responsibility at Fordham Law School. He is a frequent commentator and lecturer on criminal law and legal ethics. He can be reached at firstname.lastname@example.org. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York City law firm. She has published numerous articles and commentary on legal issues. She can be reached at email@example.com. This column is the latest in a monthly series by Cohen and Helm for Law.com.