Can a lawyer or district attorney hold a press conference after a trial to call the judge's actions unethical, illegal, and grounds for reversible error?

Plain-English summary

After a robbery trial in which the assistant district attorney asked the jury for a 10,000-year sentence, the trial judge orally instructed the jury not to "embarrass the court by bringing back a ridiculous sentence like a million or a thousand years." The jury returned 16-year sentences. The district attorney then held a press conference calling the judge's admonishment "unethical and illegal and grounds for reversible error." The Sixth District Grievance Committee asked whether such a statement, made after the conclusion of trial, violated the Code, whether the answer differed for a private attorney in the case or an uninvolved attorney, and whether more "intemperate and unrestrained" language (calling for impeachment, etc.) would change the result.

The Committee concluded that the statement did not violate any Disciplinary Rule. It read DR 8-102(B) as prohibiting only knowingly false accusations against a judge, and cited Garrison v. Louisiana, 379 U.S. 64 (1964), limiting state power over such criticism to false statements made with actual malice and reckless disregard for the truth, and State Bar v. Semaan, 508 S.W.2d 429, holding similar communication not subject to reprimand. It answered all the questions "no" as to a Disciplinary Rule violation, stating that the Canons give a district attorney no more leeway than a private attorney. It added, however, that the quoted language was of questionable good taste under EC 8-6, which discourages inappropriate, unrestrained, and intemperate statements that tend to lessen public confidence in the legal system. The Committee noted that a different result might obtain had the remarks been made before the conclusion of trial, citing DR 7-107 (Trial Publicity) and EC 7-33.

Currency note

This opinion was issued in 1974, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. A lawyer's statements about the qualifications or integrity of judges are now governed by Texas Rule 8.02 and ABA Model Rule 8.2, and trial publicity by Texas Rule 3.07 and Model Rule 3.6 (the constitutional limits on trial-publicity rules were later addressed in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)). 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: Could a district attorney publicly call a judge's actions unethical and illegal after trial?

A: The Committee concluded that such a post-trial statement does not violate any Disciplinary Rule, because DR 8-102(B) prohibits only knowingly false accusations against a judge.

Q: Did the answer differ for a private attorney or an uninvolved attorney?

A: No. The Committee answered all three scenarios the same and said the Canons give a district attorney no more leeway than a private attorney.

Q: Was the statement entirely free of concern?

A: Not quite. The Committee said the quoted language was of questionable good taste under EC 8-6, which discourages intemperate statements that lessen public confidence in the legal system.

Q: Would the timing of the statement matter?

A: Yes. The Committee said a different result might obtain if the remarks were made before the conclusion of trial, citing DR 7-107 on trial publicity and EC 7-33.

Background and rules framework

The opinion interprets DR 8-102(B) of the former Texas Code of Professional Responsibility, barring knowingly false accusations against a judge, together with EC 8-6 (criticism of adjudicatory officials) and DR 7-107 (trial publicity) with EC 7-33. It read these against the First Amendment limits of Garrison v. Louisiana. The modern analogs are Texas Rule 8.02 and ABA Model Rule 8.2 (statements about judges) and Texas Rule 3.07 and Model Rule 3.6 (trial publicity).

Citations and references

Rules of Professional Conduct:

• MR 8.2 (statements about the qualifications or integrity of judges and legal officials), as the modern analog
• MR 3.6 (trial publicity), as the modern analog
• DR 8-102(B), DR 7-107; EC 8-6, EC 7-33 (former Texas Code of Professional Responsibility)

Statutes:

• Tex. Code Crim. Proc. arts. 36.16 (oral instructions to a jury), 44.01 (state's right of appeal), 2.03 (fair trial)

Cases:

• Garrison v. Louisiana, 379 U.S. 64 (1964), state power over criticism limited to false statements made with actual malice
• State Bar v. Semaan, 508 S.W.2d 429 (writ ref'd n.r.e.), similar communication not subject to reprimand
• Sills v. State, 472 S.W.2d 1119; Ward v. State, 474 S.W.2d 471; Yeager v. State, 482 S.W.2d 637; Knox v. State, 487 S.W.2d 332, long-sentence requests not reversible error

See also

• TX Ethics Op. 683: Media Statements About a Case Pending on Appeal
• TX Ethics Op. 631: Prosecutor Publishing the Names of DWI Arrestees
• TX Ethics Op. 460: Employing a Public Relations Agency to Publicize a Law Firm

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-369/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_369.pdf

Original opinion text

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

QUESTION PRESENTED

Does the Code of Professional Responsibility prohibit a district attorney from holding a press conference after the conclusion of a trial to state that "The actions of the judge were unethical and illegal and grounds for reversible error?"
Would a private attorney involved in a civil or a criminal case violate the Code of Professional Responsibility if he held a press conference, after the conclusion of a trial, to state that "The actions of the judge were unethical and illegal and grounds for reversible error?"
Would an attorney not involved in a particular case violate the Code of Professional Responsibility if, following the conclusion of the trial, the attorney held a press conference to state "The actions of the judge were unethical and illegal and grounds for reversible error?"
Would there be a violation of the Code of Professional Responsibility in any of the three situations just stated if the language used had been "intemperate and unrestrained" such as statements that the judge should be impeached, the judge was perverse and prostituted, etc.?

STATEMENT OF FACTS

A practice grew up in Texas for prosecuting attorneys to seek extremely long sentences, e.g. 5000 years, since in many crimes the Penal Code did not provide any maximums. This practice was held not to be reversible error in Sills vs. State (1971) 472 SW 2nd 1119; (1000 years), Ward vs. State (1971) 474 SW 2nd 471; (101 years for robbery), Yeager vs. State (1972) 482 SW 2nd 637; (500 years for murder), and Knox vs. State (1972) 487 SW 2nd 332; (1000 years for rape). The new Penal Code effective January 1, 1974, contains maximum sentences so the problem should not arise hereafter.

During jury argument of a trial for robbery, Judge [ ] of [ ] orally instructed the jury not to "embarrass the court by bringing back a ridiculous sentence like a million or a thousand years." The assistant district attorney has asked the jury in his argument for a 10,000 year sentence. The jury returned a sentence of 16 years on each of four cases. District Attorney [ ] at a called press conference denounced the Judge's admonishment to the jury, calling it "unethical and illegal and grounds for reversible error," according to newspaper accounts of the press conference.

The Sixth District Grievance Committee requested a formal opinion by the Ethics Committee to the above questions.

Disciplinary Rule 8-102 (B) provides: "A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer."

Ethical Consideration 8-6 in part provides: "Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified."

Oral instructions to a jury are prohibited by Art. 36.16, C.C.P. The state has no right of appeal. Art. 44.01, C.C.P. The trial court should insure a fair trial to the state and the defendant. Art. 2.03, C.C.P.

Garrision vs. Louisiana 379 U.S. 64, 85 S.Ct. 209, 13 L. Ed. 2nd 125 (1964) holds under much stronger statements by a district attorney against judges which had been punished as criminal defamation: that state power is limited to false statements made with actual malice and reckless disregard for the truth.

Similar communication was held not subject to reprimand in State Bar vs. Semaan 508 SW 429, Writ ref. N.R.E.

We believe that all of the questions should be answered Αno≅ as not being in violation of any Disciplinary Rule. The Canons do not give a district attorney any more leeway than a private attorney.

Apart from a violation of the Canons and the Disciplinary Rules, which alone provide for discipline, attorneys should be guided by Ethical Considerations. The quoted language is of questionable good taste under Ethical Consideration 8-6 which prohibits inappropriate language, and unrestrained and intemperate statements which tend to lessen public confidence in our legal system.

Had the questioned remarks been made prior to the conclusion of the trial, a different result might obtain. Disciplinary Rule 7-107 (Trial Publicity) and Ethical Consideration 7-33.

The action of a district attorney in criticizing a trial judge at a press conference after trial by stating, "The actions of the judge were unethical and illegal and grounds for reversible error" does not violate any Disciplinary Rule, but is questionable under Ethical Consideration 8-6.

Tex. Comm. On Professional Ethics, Op. 369 (1974)