Duties to the Public · 2-4% of the exam
22.3.1Statements about judges and adjudicators (Rule 8.2)
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- Rule 8.2 — Statements about judicial and legal officers.
Why
Judges rarely answer their critics, and courts run on a public confidence they cannot defend for themselves. Lawyers watch judicial performance closer than anyone and are among the few able to say something useful about it. The rule guards the institution without shutting down that criticism.
Plain English
Lawyers may criticize judges sharply. Rule 8.2 bars only knowingly false or recklessly made statements — the reckless-disregard standard, which case law, not the rule's words, equates with the defamation actual-malice test (New York Times v. Sullivan). The statement must speak to the fitness or character of a judge, adjudicatory officer, public legal officer — Comment [1]'s examples of the last are attorney general, prosecuting attorney, public defender — or a person seeking such an office.
A lawyer who is a candidate for judicial office must also comply with the applicable provisions of the Code of Judicial Conduct. Sharp critique resting on good faith and reasonable factual footing does not trip the rule.
The forum makes no difference: a statement concerning the qualifications or integrity of one of those officers is reached whether it is made publicly or in litigation, and framing it as personal belief rather than as established fact does not take it outside the rule.
Rule
Rule 8.2 — Statements about judicial and legal officers.
Rule 8.2 — Statements about judicial and legal officers. An attorney may not utter a statement that speaks to the fitness or character of any judge, adjudicatory officer, public legal officer (Comment [1]'s examples: attorney general, prosecuting attorney, public defender), or person seeking such an office by election or appointment:
one the attorney knows is false, or
one made with reckless indifference to whether it is true.
Any attorney running for a judicial post must adhere to whichever ABA Model Code of Judicial Conduct provisions govern that candidacy. Sharp critique that rests on good faith and reasonable factual footing does not trip Rule 8.2.
Example 1
Ex. 1
Farid loses a major civil case. Three months later, he posts on a public legal forum that the presiding judge accepted money from the opposing firm during trial. He claims the judge ruled against his client in exchange. Farid has no evidence of any payment and conducted no investigation before posting. He wrote in anger after an unexpected verdict. Rule 8.2 is violated. The reckless-disregard standard is met: Farid had no reasonable basis for the bribery claim and made no effort to verify it. The absence of a pending case or a specific adverse ruling caused by the post doesn't matter. The knowingly false or reckless statement itself is the violation. Comb Farid's post for one fact he checked before publishing it.
Trap
Questions · 1
Q 01ch22-e06
Question 1 of 1 · Rule 8.2(a)
Attorney lost a contested custody hearing before Judge. Before saying anything publicly, Attorney read every written ruling Judge had issued in similar matters over four years and found that Judge had denied relief to every unrepresented parent who appeared. Attorney also reviewed the docket sheets and the court's own published statistics, which matched. Attorney then wrote a signed column in a legal newspaper stating that the record shows a settled hostility to unrepresented parents and that Judge is unfit to hear family matters. The column reported the figures accurately and drew its conclusion from them. A disciplinary complaint followed. Is Attorney subject to discipline?
Keys 1 to 4 choose.