Can a lawyer publicly criticize a sitting judge after the Commission on Judicial Conduct declines to act on the lawyer's complaint?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer had complained to the Commission on Judicial Conduct about a sitting judge, and the Commission declined to pursue the complaint. The question was whether the lawyer could nonetheless make public statements criticizing that judge's conduct. The Committee concluded the lawyer could, provided the criticisms were well-founded.
The opinion grounded the limits on such speech in DR 8-102(B), which addresses false accusations against judges, and in the Ethical Considerations directed at improving the legal system and the administration of justice (ECs 8-1, 8-6, and 9-6). The Committee concluded that the Commission's decision not to act on the complaint did not bar the lawyer from voicing well-founded criticism.
The Committee qualified the conclusion: the statements should be intended to improve the legal system, not to serve some other purpose, and should be expressed in a dignified and temperate manner. On that basis the lawyer's proposed public criticism was permissible.
Currency note
This opinion was issued in 1996, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer publicly criticize a judge's conduct?
A: The opinion concluded that a lawyer may make public statements critical of a particular sitting judge's conduct as long as the criticisms are well-founded.
Q: Does the Commission on Judicial Conduct's refusal to act stop the lawyer from speaking?
A: No. The Committee concluded that the Commission's declining to pursue the complaint did not preclude the lawyer from making well-founded public criticism.
Q: How should such criticism be expressed?
A: The opinion concluded the statements should be intended to improve the legal system and made in a dignified, temperate manner.
Background and rules framework
The opinion was decided under New York's then-governing Code of Professional Responsibility, principally DR 8-102(B) (which bars knowingly false accusations against a judge), read with ECs 8-1, 8-6, and 9-6 on improving the legal system and the administration of justice. The Model Rules analogue is Rule 8.2 (statements concerning judges and judicial candidates).
Citations and references
Rules of Professional Conduct:
- New York Code DR 8-102(B); ECs 8-1, 8-6, 9-6 (Model Rule 8.2 analogue)
See also
- NY State Bar Op. 1040: Publicly Defending a Judge Against Unfair Criticism
- NY State Bar Op. 912: Publishing Criticism of Other Attorneys
Source
- Landing page: https://www.nycbar.org/reports/formal-opinion-1996-1-statements-concerning-judges/
- Original PDF: http://www2.nycbar.org/pdf/report/ethics_opinion_1996_1.pdf
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