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Publication Date

12-2021

Abstract

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 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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