Can a lawyer give a newspaper an opinion about whether a sitting judge is competent, even if the lawyer has never appeared before that judge?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A newspaper interviews a lawyer about the competence of a judge who is running for reelection. The lawyer has never appeared before that judge. The opinion asks whether the lawyer may express an opinion about the judge's competence.
The opinion answers yes, qualified. It applies Oregon RPC 8.2(a), which bars a lawyer from making a statement 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, an adjudicatory officer, or a candidate for judicial or other adjudicatory office.
The opinion concludes that as long as the lawyer does not knowingly make false statements of fact about the judge, the lawyer's conduct is permissible. The rule reaches false statements of fact made knowingly or recklessly; it does not bar a lawyer from voicing an opinion about a judge's competence.
In practice
The opinion holds that, under Oregon RPC 8.2(a) as it stood at the time of the opinion, a lawyer may publicly express an opinion about a judge's competence, including to the press and during a reelection campaign, and the absence of any prior appearance before the judge does not change the analysis. The limit the opinion identifies is RPC 8.2(a)'s prohibition on knowingly or recklessly false statements of fact about the judge's qualifications or integrity. Verify the current text of Oregon RPC 8.2 before relying on any specific point.
Common questions
Q: Can I tell a reporter that I think a judge is not competent?
A: Yes, qualified. The opinion concludes a lawyer may express an opinion about a judge's competence as long as the lawyer does not knowingly or recklessly make false statements of fact about the judge.
Q: Does it matter that I have never appeared before the judge?
A: The opinion treats that fact as part of its scenario and still answers yes. The controlling limit under RPC 8.2(a) is whether the lawyer knowingly or recklessly states a falsehood, not whether the lawyer has firsthand courtroom experience with the judge.
Q: What kind of statement about a judge would cross the line?
A: A statement of fact about the judge's qualifications or integrity that the lawyer knows to be false, or makes with reckless disregard for its truth or falsity. Per the opinion, that is what RPC 8.2(a) prohibits.
Background and rules framework
The opinion interprets Oregon RPC 8.2(a), which corresponds to Model Rule 8.2. The rule prohibits a lawyer from making statements about the qualifications or integrity of judges and judicial candidates that the lawyer knows to be false or makes with reckless disregard for truth or falsity. The opinion's analysis turns on that knowledge-or-recklessness standard.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 8.2(a) / Model Rule 8.2 (statements concerning judges and judicial candidates)
Other authorities cited:
- In re Snyder, 472 US 634, 105 S Ct 2874, 86 L Ed 2d 504 (1985) (limits on disciplining a lawyer for statements critical of judges)
See also
- NYC Bar Ethics Op. 1996-1: Statements Concerning Judges
- NYSBA Ethics Op. 912: Publishing Criticism of Other Attorneys
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-64.pdf
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