SC Lawyer, March 2008, #2. Dealing with 1Judges' Critics.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, March 2008, #2.

Dealing with 1Judges' Critics

South Carolina LawyerMarch 2008Dealing with 1Judges' CriticsBy John Freeman There is a saying, "May you live in interesting times." The wish is actually said to be a curse. After all, uninteresting times are those filled with peace and tranquility; in contrast, the curse, of supposedly Chinese origin, politely asks that your life be plagued by upheaval and trouble. Lately we've experienced interesting times for those who decide cases in South Carolina.

Judge John Few of Greenville recently was praised by lawyer for taxpayer advocate Ned Sloan as someone who "thoroughly considers the issues." A different view was offered by Greenville County Councilman Tony Trout. Mr. Trout explained to the Greenville News that he was "not trying to impugn the judge's character" with comments he made in a letter to the paper's editor. After all, he merely contended in the letter that the judge "set out to intimidate and to hinder the grand jury every way possible," had been "personally leaking everything [about the grand jury's actions] to the press," "had a large conflict of interest" and had been acting "arrogantly." Imagine how bad it could have been had Mr. Trout taken off the gloves and actually sought to impugn the judge's character.

The formal response to those charges was not made by Judge Few. His ability to defend himself by responding was limited by Code of Judicial Conduct Canon 3B(9), barring judges from making any public statements that might reasonably be expected to affect the outcome or impair the fairness of any proceeding pending or impending in any court. The matter in question concerned issues before the Greenville grand jury for which Judge Few functioned in an administrative capacity. Grand jury deliberations are confidential. In this state, there is a "long held policy that '[i]nvestigations and deliberations of a grand jury are conducted in secret and are, as a rule, legally sealed against divulgence.'" Anderson v. State, 338 S.C. 629, 632, 527 S.E.2d 398, 399 (S.C. App. 2000).

Because there was little, if anything, Judge Few could say to defend his behavior, the public faced an imbalance of information on an issue of public importance. This problem was rectified when the Bar's Commission on Judicial Independence and Impartiality, speaking through its chair, the estimable Charleston lawyer Dawes Cooke, penned a moderate, informative letter to the editor responding to Mr. Trout. In that letter Mr. Cooke explained the administrative judge's role in the grand jury process and the reason, rooted in judicial ethics requirements, for his inability to respond to charges being advanced against him by Mr. Trout. Kudos to Mr. Cooke and the Bar commission, both for speaking up and for standing ready to protect the public from hearing only one side of a story dealing with judicial conduct that, like most stories about human behavior, has two or more sides to it.

Under what circumstances, if any, may a judge comment on pending or impending legal matters? The answer, supplied by the Code of Judicial Conduct, and alluded to above, is "not many." Canon 3B(9) exempts a judge who "is a litigant in a personal capacity" from the prohibition on offering public comment, with the catch being that the judge be involved personally. If the judge was the subject of a mandamus action in an official capacity, the prohibition would not be lifted.

Since judges are allowed under Canon 3B(9) to make "public statements in the course of their official duties," another way for the judge to communicate with critics is through statements made in the text of judicial orders or opinions. However, it tends to be the order or opinion itself that provokes the criticism. Judges are not mind-readers or fortune-tellers. They cannot see into the future any better than the rest of us. It is therefore nearly impossible for them to fully anticipate and deal in advance with the critics, known or unknown, who are apt to find the forthcoming order objectionable in some respect. Moreover, even judges able to foresee criticism and address critics' complaints in advance are forbidden from adding or subtracting anything substantive to their rulings to protect themselves from attack. See Canon 3B(2) ("A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.").

There are two other ways for judges to deal with criticism. The first is to remain silent. It is hard for a judge who remains silent and shrugs off criticism to be accused of misconduct. Consider this anecdote from 1Gregory C. O'Brien Jr., Speech May Be Free, and Talk Cheap, but Judges Can Pay a Heavy Price For Unguarded Expression, 28 Loy. L.A.L. Rev. 815 (1995):

[A] senior member of Congress, who has long since passed on to his eternal reward, used to advise newcomers, "Just remember, you will never have to explain what you meant by what you do not say." So compelling is the wisdom of this advice that a judge friend of mine maintains a shorthand version of it printed on index cards placed strategically on his bench for his own viewing: "Shut up, shut up, shut up " According to one author, even if the judge's critics "have ignited a firestorm of hostility," the best way to deal with the attackers is through silence: "1While some judges might suppose that such comments will help to restore or maintain public confidence in the judicial system, comments about individual decisions are far more likely to subtly erode public respect." William G. Ross, Extrajudicial Speech: Charting the Boundaries of Propriety, 2 Geo. J. Legal Ethics 589, 606 (1989).

Another option for a judge or member of a court under attack is to speak up in self-defense. The ABA recently amended the Code of Judicial Conduct's provisions dealing with judicial statements on pending or impending cases. New Rule 2.10(E), adopted on February 12, 2007, permits, subject to the need to protect the fairness of proceedings, the judge to "respond directly or through a third party to allegations in the media or elsewhere concerning the judge's conduct in a matter." See ABA Model Code of Judicial Conduct, Feb. 2007, Rule 2.10(E), available at http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf.

The Reporter's commentary to Rule 2.10(e) explained what the drafters meant to accomplish: 1"Judges are justifiably reluctant to speak about pending cases. However, the Commission wanted to make clear that when a judge's conduct is called into question, the judge may respond as long as the response will not affect the fairness of the proceeding." Thus, for the first time, the ABA ethics code has given a visible green light to judges wishing to make public statements in response to attacks, so long as the fairness of pending proceedings is not compromised.

Though in some cases judges are ethically permitted to answer critics directly or "through a third party," an ABA study committee has offered guidance on instances when a no-response approach is the preferred route for bar groups to take when considering whether to step up and defend judges. This guidance comes from an ABA's Judicial Division Lawyers Conference, Response to Criticism of Judges 7 (July 1997), available at http://www.abanet.org/jd/lawyersconf/pdf/response_to_criticism.pdf. The group gave eight examples when no response to criticism normally would be warranted. The group's advice, though only directed at bar groups such as our Bar's Commission on Judicial Independence and Impartiality, could well be used by judges themselves when deciding whether silence or speaking is the best option. According to the ABA study group, saying nothing is presumptively the best option when:

a. The criticism is a fair comment or opinion; b. The feud is between the critic and the judge on a personal level; c. The criticism is vague or the product of innuendo, except when the innuendo is clear; d. The criticism raises issues of judicial ethics appropriate for presentation to the judicial inquiry or disciplinary body; e. A lengthy investigation to develop the true facts is necessary; f. The response would prejudice a matter at issue in a pending proceeding; g. The controversy is insignificant; h. The criticism arises during a political campaign and the bar's response may be construed as an endorsement of a particular candidate for judicial office.

In the old days, when we were not living in "interesting times," neither judges nor the organized Bar were expected to raise their voices in those rare cases when judges came under attack for their decision making. However, just as civility sometimes is lacking in inter-professional dealings among lawyers, so also today public critics can be more bellicose and hurtful as they pursue their agendas. The Bar's response to the attack on Judge Few represents a new effort by lawyers to bolster public confidence in the judiciary's independence and integrity.

The responsibility for supporting judicial independence is not purely a job for the South Carolina Bar as an entity. Individual lawyers have a vested interest in maintaining an honest, fearless and independent judiciary. We, too, should not be reluctant to speak the truth publicly, when appropriate, to explain issues and thereby support public confidence in our judicial decision makers and our profession.