Prohibiting False Statements About Judges

Criticism of Judges

Prohibiting False Statements About Judges

Model Rule 8.2(a) draws one line: honest criticism of judges is permitted, and falsehood is not. The rule forbids a lawyer to make a statement that the lawyer knows to be false, or makes with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.¹

That sentence has four working parts: a speaker who is a lawyer, a subject (qualifications or integrity), a list of protected targets, and a mental state. This section covers the first three and the purposes behind them. The mental-state clause, the line between fact and opinion, and the constitutional limits on enforcement follow in later sections.

The protected targets reach well beyond sitting judges. The text names adjudicatory officers and public legal officers alongside judges, and the comment lists the attorney general, the prosecuting attorney, and the public defender as public legal offices.² The text also names candidates for election or appointment, so a lawyer may not lie about a challenger in a judicial race or about a nominee for a legal office. Candidates fall inside the rule because lawyers' assessments are relied on when fitness for these offices is evaluated.³

The subject matter is narrower than the list of targets, because the rule speaks only to qualifications or integrity. The falsehoods that concern the commentary are those that impugn a legal official's basic credentials or character, such as an invented accusation of past misconduct or of fact-based ineptitude.⁴

Two interests explain the rule's shape, and they pull against each other. The first is public confidence. False statements by a lawyer can unfairly undermine public confidence in the administration of justice,⁵ and a lawyer who impugns an official's credentials or character with reckless disregard for the truth does the same damage.⁶ The second is the supply of good candidates. If those who seek judicial or legal office face invented accusations of misconduct or ineptitude, people of good character and qualifications become less willing to be considered.⁷

The opposing interest is candor. Lawyers' assessments are relied on in evaluating fitness for judicial and public legal office, and honest, candid opinions on those matters contribute to improving the administration of justice.⁸ The judicial branch is hardly immune from criticism in a free society. Rules against false statements about judges are not designed to shield judges from unpleasant or offensive criticism; they exist to preserve public confidence in the fairness and impartiality of the justice system. Legal officers in the political branches should complain even less readily about the rough-and-tumble of political argument.⁹

That balance explains the drafting. The rule punishes the lie and leaves honest criticism alone, however unwelcome it may be, and it imposes no duty of deference. The rule is easiest to see in a contrast that holds the harshness of the words constant and changes only the speaker's state of mind.