Can a lawyer publicly defend a judge against unfair media criticism if the lawyer has a case pending before that judge?

Plain-English summary

A judge had been accused in the media of impropriety on the bench. A lawyer who believed the accusations unfounded asked whether the lawyer could publicly express support for the judge, individually or as one of several signatories to an open letter, while having a case pending before that judge (¶ 1, ¶ 2).

The committee began with the long tradition, reflected in Comment [3] to Rule 8.2, that lawyers are encouraged to defend judges who are unjustly criticized, tracing the principle through the 1970 Code, the 1908 Canons, and the 1887 Alabama Code (¶¶ 3-5). It explained that accurate responses by lawyers matter because judges generally cannot answer criticism about pending or impending matters themselves, and that defending the judiciary supports public confidence in the courts (¶ 6, ¶ 7).

The committee then addressed the effect on the lawyer's own appearances. A lawyer's public support might be seen as a reason for the judge to favor the lawyer, raising the kind of concern that arises with campaign contributions. Under the Code of Judicial Conduct, the judge must decide whether his or her impartiality might reasonably be questioned, and the committee noted that whether the lawyer must withdraw or the judge must be disqualified is primarily governed by the Code of Judicial Conduct, with the judge bearing the duty to consider disqualification (¶ 8, ¶ 9). The pivotal rule for the lawyer is Rule 1.1(c)(2), which bars a lawyer from intentionally prejudicing or damaging the client during the representation. If the lawyer's defense of the judge is likely to cause the judge's recusal on impartiality grounds, and that recusal is likely to prejudice or damage the client (for example, a matter long pending or on the eve of trial where reassignment would cause harmful delay), the lawyer may not publicly support the judge (¶ 10). Where the lawyer has no pending matter before the judge, Rule 1.1(c) does not apply, because it reaches only conduct "during the course of the representation," and recusal in a future matter is unlikely to prejudice a client (¶ 11).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion permits a lawyer, individually or with the bar collectively, to respond to unfair media criticism of a judge. Per the opinion, the limit comes from Rule 1.1(c)(2): a lawyer with a case pending before the judge must consider whether public support is likely to make the public reasonably question the judge's impartiality and so cause recusal, and whether that recusal would prejudice or damage the client. If both are true, the opinion concludes the lawyer may not publicly support the judge. The committee identifies the relevant factors as a long-pending matter or one near trial combined with harmful delay from reassignment. Where the lawyer has no pending matter before the judge, the opinion finds Rule 1.1(c) inapplicable.

Common questions

Q: May a lawyer publicly defend a judge who has been unfairly criticized in the media?

A: Ordinarily yes. The committee noted the long tradition, reflected in Comment [3] to Rule 8.2, of lawyers defending judges unjustly criticized (¶ 3, ¶ 12).

Q: Does it matter that the lawyer has a case pending before that judge?

A: Yes. If the support is likely to cause the judge's recusal and that recusal would prejudice or damage the client, Rule 1.1(c)(2) bars the lawyer from publicly supporting the judge (¶ 10).

Q: When is recusal likely to prejudice the client?

A: The committee gave the example of a matter long pending or on the eve of trial where reassignment to a new judge would cause delay to the client's prejudice (¶ 10).

Q: What if the lawyer has no case before the judge?

A: Then Rule 1.1(c) does not apply, because it covers conduct during a representation, and recusal in some future matter is unlikely to prejudice a client (¶ 11).

Background and rules framework

The opinion interprets New York Rule 8.2 (statements concerning judges, and the encouragement to defend judges unjustly criticized) and Rule 1.1(c)(2) (a lawyer shall not intentionally prejudice or damage the client during the representation), alongside the Code of Judicial Conduct provisions on judicial disqualification. The analysis turns on whether the lawyer's public support is likely to cause the judge's recusal and whether that recusal would prejudice the client.

Citations and references

Rules of Professional Conduct:

• MR 8.2 / NY RPC 8.2 (statements about judges; defending judges unjustly criticized)
• NY RPC 1.1(c)(2) (not intentionally prejudicing the client during the representation)

Other opinions cited:

• N.Y. State 574 (1986): disqualification where lawyer and judge have prior connections is primarily the judge's duty
• N.Y. State 548 (1983) and N.Y. State 602 (1989): circumstances bearing on a judge's disqualification
• N.Y. City 1996-1 (1996): boundaries of a lawyer's criticism of a judge

See also

• NY State Bar Op. 1099: No duty to report judicial misconduct
• NY State Bar Op. 1115: Public defender appearing before a colleague judge
• NY State Bar Op. 1064: Former-judge conflict and firm screening

Source

• Landing page: https://nysba.org/ethics-opinion-1040/