Concept
Defending Judges Unjustly Criticized
Criticism of judges and adjudicating officials
Defending Judges Unjustly Criticized
Most of Rule 8.2 restrains lawyers. Comment [3] reverses direction and asks them to act: "To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized."1 The concern behind the sentence is the one behind the prohibition in Rule 8.2(a). Comment [1] explains that false statements by a lawyer can unfairly undermine public confidence in the administration of justice.2 An unjust attack on a judge or court threatens that confidence in the same way, and the comment asks lawyers to help repair the damage.
Lawyers are suited to this work for the same reason their criticism carries weight. Their advanced legal education and familiarity with how the law operates leave them especially well positioned to give an informed critique of the legal system and its participants.3 An informed look at the record can show that a judge is wrong, and it can equally show that a judge has been treated unfairly. A lawyer who knows the record can supply facts that the critic left out. The same expertise supports both halves of the rule. Lawyers may not use their standing to spread falsehoods about judges, and they are encouraged to use it to answer criticism that is unjust.
The word "encouraged" marks the limit of the comment. Rule 8.2(a) speaks in the language of command: a lawyer "shall not" make the forbidden statements.4 Comment [3] speaks in the language of aspiration, and nothing in the text of the rule makes a lawyer's silence a violation.5 A mandatory duty to defend would also sit uneasily beside the value Comment [1] places on honest and candid opinions from the bar.6 A lawyer who sincerely believes a critic is right should not be compelled to speak for the judge. The comment's own word "unjustly" confines the encouragement to criticism that lacks merit.
The encouragement invites a defense of judges, but it does not license any statement that favors them. Rule 8.2(a) bars a statement the lawyer knows to be false, or makes with reckless disregard for its truth or falsity, concerning the qualifications or integrity of a judge. The text draws no line between praise and criticism, so a defense built on invented facts meets the same prohibition.7 Read together, the rule and its comments ask lawyers to protect public confidence in two ways: never lie about a judge, and speak up when others attack a judge unjustly.