Criticizing Judges: a Lawyer's Professional Responsibility

• Publication year: 2021

Criticizing Judges: A Lawyer's Professional Responsibility

Lonnie T. Brown
University of Georgia, ltbrown@uga.edu

Criticizing Judges: A Lawyer's Professional Responsibility

Cover Page Footnote
A. Gus Cleveland Distinguished Chair of Legal Ethics and Professionalism & Josiah Meigs Distinguished Teaching Professor, University of Georgia School of Law. I would first like to thank Professors Dan Coenen and Bruce Green for their very helpful insights, suggestions, and questions regarding earlier drafts of this article. In addition, I am greatly indebted to my amazing research assistants Kristen Bartlett and Sarah Nelson for their extensive research and substantive input throughout the article's evolution. Lastly, I thank my wife Kim for unfailingly making everything that I attempt better.

CRITICIZING JUDGES: A LAWYER'S PROFESSIONAL RESPONSIBILITY

Lonnie T. Brown, Jr.^*

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Lawyers, as officers of the court, are expected to act with deference and respect toward judges. Speaking sharply to or publicly criticizing members of the bench is frowned upon and not infrequently met with punitive responses. The judiciary, however, is not above reproach. Judges are fallible and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned. Indeed, the very nature of a judge's role requires avoidance of even the "appearance of impropriety." When judges fail to adhere to this standard, decisional accuracy is called into question, and the perception of fairness, so important to the judicial process, is diminished.

Judges have broad discretion in deciding whether to disqualify themselves, and legal review of those decisions is limited, especially when made by a state's highest court. In Georgia, for example, if a supreme court justice declines to recuse, there is no avenue for appellate review and mandamus relief is unavailable. Hence, a lawyer's only meaningful recourse may be to publicly criticize the justice, making others aware of perceived wrongful conduct. Such a response, however, is substantially dissuaded in virtually every U.S. jurisdiction by Rule 8.2(a) of the Rules of Professional Conduct, which subjects lawyers to discipline for knowingly or recklessly making a false statement "concerning the qualifications or integrity of a judge." While facially narrow, the rule is widely

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interpreted to cover far more criticism than the text would suggest. Only Georgia and the District of Columbia have declined to adopt Rule 8.2(a), choosing instead to accord greater latitude to the free-speech rights of lawyers. In this article, I argue that such an approach is more consistent with and supportive of lawyers' ethical duties to their clients, the judicial system, and the public, and therefore should serve as the regulatory prototype.

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Table of Contents

I. Introduction....................................................................164

II. Barrow v. Raffensperger.............................................173

III. Lawyers' Judicial Criticism in Barrow v. Raffensperger.............................................................178

IV. Professional Regulation of Judicial Criticism......185

a. the evolution of the aba's approach................185
b. georgia's approach to judicial criticism by lawyers..................................................................195

V. Analysis of the Lawyers' Criticism in Barrow v. Raffensperger...............................................................203

A. THE ETHICAL PROPRIETY OF THE LAWYERS' JUDICIAL CRITICISM................................................................203
B. THE ETHICAL PROPRIETY OF JOHN BARROW'S CRITICISM UNDER THE CODE OF JUDICIAL CONDUCT.................214

VI. Conclusion: A Lawyer's Professional Responsibility to Criticize Judges......................................................217

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"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions."¹

I. Introduction

In American society, judges have traditionally been viewed as wise and impartial arbiters of legal disputes, doling out justice from elevated benches while garbed in regal black robes. Judges' status alone entitles them to respect and great deference. Citizens obediently acquiesce to their will and judgment in a manner similar to that of royal subjects to a king or queen. Lawyers, in particular, are expected to adhere to this hierarchical paradigm, reverently and submissively addressing judges as "your honor" and routinely prefacing in-court statements with "may it please the court." Speaking sharply to or publicly criticizing a judge is anathema to our justice system, and lawyers who do so are not infrequently met with punitive responses from the bench² and outrage from members

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of the bar.³ In addition, such behavior may subject lawyers to professional discipline if their statements falsely or recklessly impugn a judge's qualifications or integrity.⁴

Notwithstanding the traditional judge-lawyer dynamic and the established regulatory limitations, the judiciary is not, and should not be, above reproach.⁵ Judges are as fallible as anyone else and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned.⁶ Indeed, the very nature of a judge's role

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requires the avoidance of even the "appearance of impropriety."⁷ When judges fail to adhere to this standard, the legitimacy of a given decision is subject to skepticism, and the perception of fairness, so important to our legal process, is diminished.

In Georgia and elsewhere, judges have broad discretion in making recusal decisions, especially at the supreme court level.⁸ Georgia justices decide recusal motions themselves,⁹ and there is no requirement that they supply any explanation for their recusal or non-recusal.¹⁰ Furthermore, when a justice declines to recuse, there is no avenue for appellate review,¹¹ nor is the extraordinary remedy of mandamus available to force recusal.¹² Does this mean that a Georgia justice is completely immune from professional scrutiny regarding matters of this nature? In terms of obtaining a judicial

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remedy, the answer appears to be "yes." However, there are two potential extrajudicial options available.

First, if the refusal to recuse is egregious enough, a lawyer may file a disciplinary complaint against the justice with the Judicial Qualifications Commission based on an arguable violation of Rule 2.11(A) of Georgia's Code of Judicial Conduct,¹³ which mandates the disqualification of judges under specific circumstances.¹⁴ The other possibility, contrary to the tradition of deference and respect, is for a lawyer to criticize a justice openly in order to bring any perceived impropriety to the public's attention.¹⁵ The latter approach was taken by the lawyers in Barrow v. Raffensperger.¹⁶

In Raffensperger, three of nine justices ultimately refused to recuse themselves in an appeal involving the procedure for replacing a resigning, but still sitting, justice.¹⁷ The specific issue presented was whether Justice Keith Blackwell's announced resignation, to take effect eight months later, allowed for his position to be filled by gubernatorial appointment, rather than the expected general nonpartisan election.¹⁸ The lawyers for the lead appellant John Barrow responded to the recusal decision by sharply criticizing the non-recusing justices in the media.¹⁹ Barrow, also a lawyer and one of the would-be candidates for the court seat at issue, was even more condemnatory in rebuking the justices,

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especially Presiding Justice David Nahmias.²⁰ In addition to questioning the appropriateness of Nahmias's refusal to recuse, Barrow also took the opportunity to denounce Nahmias generally for his alleged domineering style on the bench and suggested that the Presiding Justice was using his authority improperly to obtain a desired result in Barrow's appeal.²¹

In this article, I examine whether the judicial criticism lodged by Barrow and other lawyers was ethically proper, and I address the broader question of whether lawyers criticizing judges is a systemic necessity warranting a sweeping expansion of their ability to engage in this form of speech. Currently, the applicable ethical rule in every U.S. jurisdiction, except Georgia and the District of Columbia, is consistent with Rule 8.2(a) of the ABA Model Rules of Professional Conduct,²² which generally prohibits a lawyer from knowingly or recklessly making a false statement "concerning the qualifications or integrity of a judge."²³ Georgia expressly declined to include this provision in its version of the rules of professional

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conduct adopted in 2001,²⁴ even though its version is principally fashioned after the ABA's Model Rules.²⁵ Given this departure from the Model Rules, are Georgia lawyers freer to criticize the judiciary than lawyers licensed in other states? In my view, the answer is a qualified "yes." Members of the bar in Georgia do have more ethical room to criticize judges, but that room is not without limits. Even in the absence of Rule 8.2(a), there are ethical restrictions and practical considerations that appropriately constrain the form and manner of judicial criticism by lawyers.

Part II introduces this subject by discussing the background of Barrow v. Raffensperger, which supplies essential context for assessing the propriety of lawyers' criticism of judges. Part III then details the actual statements made by the lawyers in that case along with the public...