Tips from a Judge on Properly Criticizing Judicial Decisions

Vol. 15 No. 10

By

The Honorable Walter C. Kurtz served as a Circuit Judge for Davidson County, Tennessee, from 1982 to 2008, and is currently a Senior Judge for the State of Tennessee. Prior to joining the bench, he was the Metropolitan Public Defender for Nashville and Davidson County and Director of Legal Services of Nashville. He has taught at both Vanderbilt University Law School and the University of Tennessee College of Law.

ABA Model Rule of Professional Conduct 8.2(a) prohibits a lawyer from “mak[ing] 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, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” This rule is consistent with the longstanding premise that attorneys are officers of the court and, therefore, are charged with maintaining the integrity of the system. Making false and reckless allegations about a judge undermines the rule of law and can lead to ethical and professional problems for any lawyer, young or seasoned.

Below are some considerations for a lawyer to bear in mind before criticizing any court’s decision, whether in the course of representing a client or simply commenting generally about developments in the law.

Criticism of a judicial decision should be based on facts that are reasonably verifiable. Rumor, insinuation, and exaggeration of the type that is common in much general public and political discourse will open the door for ethical and professional trouble for a lawyer. For example, a lawyer should not assert or imply that a judge is “corrupt,” “bought off,” or otherwise influenced by improper motives unless the lawyer has evidence for this assertion, in which case the judge should be reported to the appropriate disciplinary authorities for misconduct. If the lawyer is unwilling to carry an allegation that far, then it is probably not appropriate to make it in the first place.

Similarly, a lawyer must also be careful with allegations that a judge was “distracted,” “confused,” or otherwise not paying attention in rendering a decision. While not as serious as charges against the fundamental honesty or integrity of the judge, these assertions nonetheless go to the judge’s character and qualifications and so must be made with extreme caution.

There is never an occasion for defamatory statements in describing the conduct or rulings of the trial judge or the appellate courts. Criticism or displeasure with a prior ruling is no excuse for bad manners. Also, even when a decision might be worthy of strong criticism, it is usually best to maintain a level of emotional detachment in describing it. Emotionalism is usually inconsistent with professionalism, and zealous advocacy should not degenerate into mere zealotry.

It must be remembered, though, that legitimate criticism strengthens the rule of law and is often necessary to properly represent the interests of a client. Most judges do not have a problem with criticism of their decisions. The responsibilities of advocacy require a lawyer to make nonfrivolous arguments for the extension, modification, or reversal of existing law. Judges expect lawyers to “push” and expand the law, and this necessarily involves showing where prior decisions are inadequate or even just wrong.

The lawyer crosses the line of inappropriate comment when he or she personalizes or exaggerates the argument. Every lawyer knows an anecdote about another lawyer who crossed the line into impertinence because this is when the lawyer runs the risk of being sanctioned by a court or disciplined by the state bar. A dressing down in open court because of the lawyer’s misconduct is also not unheard of.

Remember, too, that appellate judges may take offense when an attorney on appeal falls into invective and baseless criticism of the judge below. This is often a distraction to the appellate court, and it can undermine the advocate’s credibility. If the trial judge’s decision was truly appalling, present the facts and the law in such a manner as to clearly demonstrate how the judge erred. This will do far more to persuade the appellate court than hyperbole from counsel.

No judge worth his or her salt begrudges the questioning of a prior ruling, and a “thick skin” is a necessary component to the character of a judge. My advice, after 29 years on the trial bench, is to not be shy, but instead to temper your questioning of prior rulings or cases with a bit of tact.

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