May a judge publicly respond to an attorney’s letter to the editor about a case in the judge’s court?

Plain-English summary

A circuit judge asked whether replying to an attorney’s letter to the editor about a DWI case would be retaliation. He also asked whether the attorney’s statements violated lawyer Rule 8.2. The Committee declined the second question because its authority covers judicial conduct, not the lawyer rules.

The Committee said the judge should not comment on the letter. It did not decide whether a reply would be retaliatory because it had not seen a response. It instead relied on Judicial Conduct Rule 2.10(A), reasoning that an attorney conduct complaint could become an impending matter and public comments could be construed as seeking to affect its outcome.

The opinion also cites Rule 1.2 and the Code’s preamble concerning public confidence and the appearance of impropriety.

In practice

For the proposed letter to the editor, the Committee’s answer was no public comment. Its reasoning concerned a possible pending or impending matter; it did not resolve whether the attorney had violated a professional conduct rule.

Common questions

Q: Did the Committee find that a reply would retaliate against the attorney?

A: No. It said it could not decide that without knowing the judge’s proposed response.

Q: Did it decide whether the attorney violated lawyer Rule 8.2?

A: No. The Committee said it had no authority to decide that question.

Background and rules framework

The Committee applied Arkansas Code of Judicial Conduct Rule 2.10(A) to the possible effect of a public statement on pending or impending matters. It also cited Rule 1.2 and referred to the Code’s preamble.

Citations and references

• Arkansas Code of Judicial Conduct Rules 2.10(A), 1.2.
• Arkansas Judicial Ethics Advisory Opinion 2000-02 (cited without further discussion).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2013-04/
• Original PDF: https://media.ark.org/jddc/Crow-2-6-14.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Honorable Gerald Kent Crow
Circuit Judge

124 North Main Street
Berryville, Arkansas 72616

Re: Advisory Opinion 2013-04
Dear Judge Crow:
You have requested an opinion of this committee concerning two questions:

1. If you respond to an attached letter to the editor of a local newspaper written by an attorney
   practicing in the district you represent, does it constitute retaliation against the attorney?

2. Does the attorney’s comment in the letter constitute a violation of Rule 8.2 of the Rules of
   Professional Conduct prohibiting a lawyer from making a “statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”

Your request contained several exhibits and consumed 60 plus pages.

In answer to the second question, this committee has no authority concerning the Rules of Professional Conduct. JEAC considers only the proposed conduct of judges under the Rules of Judicial Conduct. See Procedural Rules For The Arkansas Judicial Ethics Advisory Committee.

As to the first question: The letter to the editor written by the attorney concerns matters surrounding a DWI case in your court. The letter to the editor was written by an attorney actively involved in that case. It is your position that certain matters asserted therein are incorrect. Specifically, your request asserts the letter to the editor incorrectly stated you have disparaged one of the attorneys involved in the case; that the charge was DWI #1 in Boone County; and, that you conducted your own investigation.

Your letter outlines other matters which you believe are incorrect but which need not be detailed in this opinion.

Tower Building * 323 Center Street « Suite 1060 + Little Rock, AR 72201 © (S01) 682-1050 The Committee is of the opinion you should not comment on the letter to the editor. This is not because we conclude it would be retaliatory. No such conclusion could be made until your response or proposed response is known. On the other hand, our opinion is based on Rule 2.10(A) which states: “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court .....” While the committee does not know the status of the criminal case from which your request arose, it is clear that a complaint may be filed with the OPC concerning the conduct of members of the bar, creating an impending matter. Under the Arkansas Code of Judicial Conduct, Terminology, “impending matter” is a matter that is imminent or expected to occur in the near future. The ultimate authority presiding over such a complaint is the Supreme Court of Arkansas. Your public comments would doubtless be construed as intended to affect the outcome of any such complaint.

Moreover, Rule 1.2 requires a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary...”. The Preamble to the Judicial Code sets forth that “An independent , fair and impartial judiciary is indispensable to " our system of justice”....and....” Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives”.

In situations such as this, judges, unlike other citizens, cannot tell their side of the story. On the other hand, the foremost concern of the judge should be to uphold the integrity of the judiciary and avoid all appearances of impropriety by accepting the restrictions on the judge’s conduct.

Also, see Advisory Opinion 2000-02.

For the Committee

Judge John Cole (retired)