Rule 8.2—Judicial and Legal Officials
I. HISTORY OF REGULATION
A. Instruction, Not Discipline
Over a century ago, the 1908 ABA Canons of Professional Ethics stated, as a first obligation, "It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor." Canon 1. A Minnesota statute, also adopted long ago, similarly requires respect. "Every attorney at law shall ... maintain the respect due to courts of justice and judicial officers." Minn. Stat. § 481.06(2).
B. Oath
The oath required to become a Minnesota attorney, includes pledges to act in a "courteous manner," and "with all good fidelity ... to the court." Minn. Stat. § 358.07(9). A traditional basic principle has been that lawyers are officers of the court. False attacks on judges are incompatible with respect, fidelity, and acting as an officer of the court.
C. Free Speech, But Limits
Two cases show how, over a century ago, the court recognized the need for lawyer free speech, including speech critical of the courts, but also applied broad standards when lawyer speech went too far. The courts regarded the statutes requiring respect and courtesy to the court as binding on all lawyers.
1. Criticism Tolerated, Insult Disciplined. A lawyer, Francis Hart, published a long critique of several Minnesota Supreme Court decisions, freely using such trash talk as "emasculated intelligence, or a constipation of morals and faithlessness to duty." State Bd. of Exam'rs in Law v. Hart, 104 Minn. 88, 110, 116 N.W. 212, 213 (1908). Perhaps concerned he had understated his views, Hart also suggested the extreme difficulty of finding a "motive for the decision, which shall not require fumigation before it is stated, and quaranting [sic] after it is made." Id. at 110, 116 N.W. at 213. The court aptly observed, "Above all others, the members of the bar have the best opportunity to become conversant with the character and efficiency of our judges... . The rule contended for by the prosecution, if adopted in its entirety, would close the mouths of all those best able to give advice, who might deem it their duty to speak disparagingly." Id. at 118, 116 N.W. at 216. Insofar as Hart's statements were public critiques, Hart was not subject to discipline. However, insofar as Hart's statements were insults to the Chief Justice, Hart was disciplined. A longer discussion of this case is found in the chapter of this treatise, What Minnesota Legal Ethics Is All About.
2. "Rotten as Hell." A lawyer stated to jury that a supreme court decision related to the case was "rotten as hell itself." Martin v. Courtney, 81 Minn. 112, 114, 83 N.W. 503, 504 (1900). The trial court denied a curative motion and denied a motion for new trial. The supreme court reversed and explained, "Attorneys must have freedom to criticize and disapprove of the decisions of the courts when arguing before either the appellate or nisi prius tribunals, but when the language employed for that purpose would be condemned by common consent as improper, or when it tends to cast suspicion of a corrupt motive on the court, the limitations have been passed." Id. at 115, 83 N.W. at 504.
D. Code
The Code of Professional Responsibility, in effect in Minnesota from 1970 to 1985, provided that a lawyer shall not knowingly "make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office" or "make false accusations against a judge or other adjudicatory officer." Minn. Code Prof'l Resp. DR 8-102.
E. Rule 8.2(a) Expansions
In 1985, when Minnesota adopted the Model Rules in 1985, it followed the ABA's twofold expansion of prohibitions from DR 8-102 to Rule 8.2(a). First, Rule 8.2 added to the "knowingly" false statement prohibition, the defamation standard, "or with reckless disregard as to its truth or falsity." This standard was derived from New York Times Co. v. Sullivan, 376 U.S. 254, 258 n.2 (1964), Rule 8.2(a). Second, Rule 8.2 expanded the class of protected persons to include any "public legal officer" or candidate for "legal office." Id. Restatement § 114 follows the prior Code in not extending its prohibition on recklessly false statements to a "public legal officer" or a "candidate for election or appointment to ... legal office." Rule 8.2(a).
II. OVERVIEW
A. Combination
Rule 8.2 combines two distinct Rules: The first prohibits certain derogatory statements and the second makes lawyer-candidates for judicial office subject to the campaign provisions of the Code of Judicial Conduct. The first of these provisions applies to all lawyers and requires much more extensive analysis.
B. Policy Purposes
A comment states policy purposes for Rule 8.2(a). Because others reasonably rely on lawyers' assessments of candidates for, and holders of, judicial and public legal office, honest opinions help, and false statements hinder "the administration of justice." Rule 8.2 cmt. 1. In this view, Rule 8.2(a) works together with Rule 8.4(d) (Conduct Prejudicial to Administration of Justice). It might also be said that Rule 8.2(a), like Rule 8.4(c) (Dishonesty, Misrepresentation), rests on the premise that false statements by lawyers, made knowingly or recklessly, reflect adversely on fitness to practice, regardless of subject. On this view, lawyers are especially reminded to be cautious when falsity matters greatly, as it does regarding judges and legal officials.
C. Countervailing Policy Purposes
A leading commentary on the Rules notes an argument for not enforcing Rule 8.2 too narrowly or harshly, "If lawyers were reluctant to call public attention to judicial shortcomings, most incompetent or corrupt judges would probably remain unchastened on the bench." CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 11.3.2, at 601 (1986). "Cf. J. Goulden, The Benchwarmers: The Private World of the Powerful Federal Judges 21-22 (1974) (speculation that prohibition in ethics codes against criticism of judges frightens lawyers from adverse public comments about incompetent or corrupt judges)." Id. at § 11.3.2, at 601 n. 46.
D. Tension
Rule 8.2(a) is in tension with several other policy principles, as well as legal rights and duties. Lawyers are best situated to criticize judges who are corrupt or perform poorly. Lawyers are citizens, judges are public officials, and America champions and protects the right of citizens to criticize public officials. Lawyers are required, on pain of discipline, to report judges who commit serious violations of the Code of Judicial Conduct. Rule 8.3(b).
E. "Reckless Disregard"
Rule 8.2(a) is the only Rule that expressly forbids a lawyer to make a statement "with reckless disregard as to its truth or falsity." Although recklessness about the truth is generally bad quality in a lawyer, "reckless" is not a standard used in the Rules, except in Rule 8.2(a). And, although Rule 8.2(a) also forbids knowingly false statements about certain persons, such statements are also forbidden by the more general prohibition in Rule 8.4(c) (Dishonesty, Misrepresentation).
F. Rule 8.4(c) and Rule 8.2(a)
Does Rule 8.2(a) cover ground already covered by Rule 8.4(c) (Dishonesty, Misrepresentation)? If a lawyer were to make a false, reckless, and derogatory statement regarding a candidate for a nonlegal public office, Rule 8.2(a) would not apply. Rule 4.1 (Truthfulness), would not apply, for lack of knowledge by the lawyer and, in many cases, because the lawyer did not speak as a client representative. Should the general prohibition on "misrepresentation" in Rule 8.4(c) be applied to such statements? If such application were made, Rule 8.4(c) could, similarly, be applied to such statements about judges and legal officials. In that case, there would be no reason for Rule 8.2(a) to exist. On the other hand, there are several rules that are duplicative.
G. Judicial Candidates—Level Playing Field
Rule 8.2(b) in effect requires that all candidates for election or appointment to judicial office play by the same rules, regardless of whether they are incumbents or lawyers seeking judicial office. However, unlike Rule 8.2(a), Rule 8.2(b) does not extend to candidates for nonjudicial office.
H. Defending Judges and Courts
"To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized." Rule 8.2 cmt. 3. This comment is not anchored in the Rule, but instead expresses support for a general, traditional undertaking of good lawyers.
I. Applications
Rule 8.2 cases and commentary are sparse. However, the case law and commentary are interesting and important.
J. Closely Related Rules
Rule 8.2 is closely related to Rules 3.1, 3.4(c), 3.5(h), 4.1, 4.4(a), 8.3(b), and 8.4(c)-(d). Where the demanding requirements of Rule 8.2 cannot be met, a lawyer still might be subject to discipline under one or more of these related Rules.
III. OVERBREADTH ISSUES
A. Private, Public, and Publicized Statements
As written, Rule 8.2(a) would be violated if a lawyer stated privately, albeit falsely and recklessly, "The County Attorney is not qualified for the position he holds." A violation would be found if a lawyer said, falsely and recklessly to a client, after a motion hearing went badly, "That judge had his mind made up beforehand. He has it in for insurance companies." In contrast, the Restatement covers only statements made "publicly." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 114 (2000). The Restatement recognizes, "there is less reason for concern with statements made by a lawyer in private conversation." Id. at § 114b. Even public statements, if made for a very small audience and not publicized, would often not trigger concerns with the...
