False, disparaging, disrespectful, unwarranted or insulting personal attacks on sitting judges, which are becoming more common in our divided society, impugn the judiciary, undermine public confidence in the judicial system, and violate the American Bar Association (ABA) Model Rules of Professional Conduct (ABA Model Rules) thereby potentially subjecting an attorney to discipline.  The ABA Model Rules, which succeeded the ABA Model Code of Professional Responsibility (ABA Model Code), serve as a model for the ethics rules in all fifty states.  https://www.americanbar. org/groups/professional_responsibility/publications /model_rules_of_professional_conduct/ 

In New Jersey, our Supreme Court adopted the ABA Model Rules, see RPC 1 to RPC 8.5, in 1984, replacing the Disciplinary Rules modeled after the ABA Model Code.  State v. Rue, 175 N.J. 1, 14 (2002); Coyle v. Bd. of Chosen Freeholders, 170 N.J. 260, 264 (2002).  Our Court Rules provide that judges have a duty to enforce the provisions of the Rules of Professional Conduct (RPCs).  R. 1:18.  Violations of the RPCs subject an attorney to a broad range of discipline, ranging from an admonition to a temporary or permanent suspension.  

An attorney does not have an unrestricted First Amendment right to make statements about judges under the ethical rules.  As adopted in New Jersey, RPC 8.2(a) expressly provides that “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications of a judge. . . .”  New York, a State currently experiencing a great deal of attacks on judges, has also adopted RPC 8.2(a).  The comments to NY RPC 8.2(a) provide in part that “[f]alse statements of fact by a lawyer can unfairly undermine public confidence in the administration of justice.”    https://www.nycourts.gov/ad3/AGC/Forms/Rules.   

RPC 8.2(a) is readily applicable to comments made by attorneys during judicial elections,1 but it also has broader applicability.  In New Jersey, where our judges are appointed, violations of RPC 8.2(a) have been found resulting in attorney discipline, in cases where, among other violations, an attorney:  called a judge “corrupt” and characterized his bench decision as “extrajudicial,” Matter of Cubby, 250 N.J. 426 (2022); filed certifications containing baseless accusations against a judge, Matter of Resnick, 249 N.J. 1 (2021); and “needlessly and baselessly impugned the integrity of two judges” during the course of the attorney’s groundless court proceedings, Matter of Malloy, 241 N.J. 538, 538 (2019).  In New York, an attorney in the Central Park jogger case was publicly censured after being held in contempt for calling the judge a partisan and a “disgrace to the bench.”  Matter of Kuntsler, 194 A.D.3d 233 (N.Y. 1st Dep’t 1993).   

In addition to the above examples, “obvious violations” of RPC 8.2(a) include “a lawyer speaking on a talk show – although the same communication could just as easily have been made online.  The lawyer ‘declared war’ on three court of appeals judges calling them ‘jackasses’” and compared them to Adolf Hitler and other Nazis.  Another lawyer on his blog called a particular judge an ‘evil, unfair witch,’ who ‘is clearly unfit for her position and knows not what it means to be a neutral arbiter.’”  Cheryl B. Preston, Lawyer’s Abuse of Technology, 103 Cornell L. Rev. 879, 961-62 (May 2018) (quoting Grievance Adm’r v. Fieger, 719 N.W.2d 123, 129 (Mich. 2006) and Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous, 97 A.B.A. J., Feb. 2011, at 49, 50)).  “Aside from a lack of civility, such comments erode public confidence in the legal system and profession. . . .  Although lawyers are free to criticize judicial opinions in public, such criticisms should be professional and not personal.”  Id. at 962.   

Moreover, other RPCs in New Jersey are also potentially applicable to an attorney’s  disparagement of a judge.  For example, RPC 3.2 provides that “[a] lawyer shall . . . treat with courtesy and consideration all persons involved in the legal process.”  RPC 3-5(c) provides that “[a] lawyer shall not . . . engage in conduct intended to disrupt a tribunal.”  And under RPC 8.4(d), “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.”   

Certainly, as persuasively argued by one commentator, “[l]awyers’ intemperate, personal attacks against sitting judges, let alone statements lawyers make that are knowingly false or in reckless disregard of the truth, severely undermine the administration of justice.  Lawyers are not merely ‘officers of the court’ in a legal or theoretical sense; in the public’s eye, they are knowledgeable, professional spokespersons whose seemingly authoritative comments are accorded greater attention and deference than statements of any other observers.”  Hal R. Lieberman, A Symposium on Judicial Independence:  Should Lawyers be Free to Publicly Excoriate Judges?, 25 Hofstra L. Rev. 785, 796 (Spring 1997).  “[W]henever the line is crossed from legitimate criticism to spurious attack, attorney discipline is warranted in order to maintain the integrity of the bar and the dignity of the courts.”  Id. at 797.   

In conclusion, attacks on courts by attorneys undermine the public confidence in the judicial system and the rule of law and can place the judge and the judge’s family at great personal risk.   An attorney has a professional responsibility to use appropriate language, and to not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning a judge.   

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