chevron-down Created with Sketch Beta.
August 04, 2023 Feature

Recent Efforts and the Role of Lawyers in Promoting Judicial Security

By Daniel F. Gourash

Violence and threats against the judiciary are never appropriate. They undermine the independence of the judiciary and threaten the constitutional rights the judiciary must apply and protect. Nevertheless, such violence and threats unfortunately are seemingly all too common. The foiled attempt on the life of U.S. Supreme Court Justice Brett M. Kavanagh, the killing of a former Wisconsin judge by an individual he had sentenced, and the killing of U.S. District Court Judge Esther Salas’s son and critical wounding of her husband are tragic examples.

Not only are our nation’s judicial officers at risk, but so too are their families, the staff who work at courthouses, and the public who enter them for hearings or merely to observe courtroom proceedings. The importance of protecting those involved in the judicial system cannot be overstated. Fortunately, steps have been taken to address these judicial security concerns.

Last year, Congress passed the Daniel Anderl Judicial Security and Privacy Act of 2022 (S. 2340). Named after the son of Judge Esther Salas who was murdered when a former litigant in her courtroom obtained her home address on the internet and came to her home posing as a deliveryman, the act is designed to bolster efforts to protect the judiciary and their immediate families by safeguarding the personally identifiable information (PII) of federal judges.

In its findings, the act recognizes that the ease of access to free or inexpensive sources of judges’ PII considerably lowered the effort required for malicious actors to discover where individuals live and where they spend their leisure hours and to find information about their family members. It notes the drastic increase in the number of personal threats to which the federal judiciary have been exposed in connection with their roles—from 926 in 2015 to approximately 4,511 in 2021.

To address these concerns, the act prohibits commercial data collectors from knowingly selling, trading, licensing, transferring, or purchasing a judge’s PII. Such information includes home addresses, including primary and secondary residences, home or cell phone numbers, personal email addresses, social security numbers, driver’s license numbers, license plate numbers, full date of birth, bank account or credit or debit card information, and the identity of children of judges under the age of 18. The act also allows federal judges to redact PII displayed on federal government internet sites and prevents publication of judges’ PII by business and individuals when there is no legitimate news media or other public interest. The act further establishes programs to protect such information at the state and local level and to enhance security for judges.

States have also taken steps to address judicial security concerns. Several states’ supreme courts have created judicial security committees to assess, review, and address courthouse security and judges’ personal security needs. The Chief Justice of the Ohio Supreme Court created the Advisory Committee on Court Security in 2011 for the purpose of developing statewide rules and uniform standards for court security programs in all Ohio courts, including training programs for judges and court personnel. In 2017, the Texas legislature enacted the Judge Julie Kocurek Judicial and Courthouse Security Act of 2017 to establish security policies and procedures for courts in Texas. And, most recently, in July 2022 the Illinois Supreme Court announced the creation of the Committee on Judicial Security and Safety, which was tasked with providing the Court with recommendations to assess the judicial threat environment and available protective operations. The committees typically involve not only members of the judiciary but also members of the law enforcement agencies charged with protecting courthouses and judges and members of the administrations of the counties and municipalities where the courthouses are located and where the judges are living.

Beyond these steps, what role can lawyers play in protecting the judicial system? Fundamentally, lawyers can lead by example by respecting the judicial system and all who are involved in it. This means showing respect for judges and courtroom personnel at trials, hearings, and other proceedings whether in person or virtual. It means respecting and following the rules by which we govern procedures and the admissibility of evidence. It means treating opposing parties and counsel with respect while advocating on behalf of clients. It also means not unfairly criticizing judges, courtroom personnel, or the judicial system itself in public or private commentary. Intemperate criticisms or personal attacks of judges and the way legal disputes are resolved can undermine the integrity of the judicial system and erode public confidence in the independence and fairness of the judiciary. When that occurs, frustration that one cannot get a fair shake creep in, which all too often results in violence or threats.

Lawyers also may be in the best position to anticipate and address threats of violence within the judicial system. As noted in the Official Comment to ABA Model Rule of Professional Conduct 1.6, Confidentiality of Information, “Almost without exception, clients come to lawyers in order to determine their rights, and what is, in the complex of laws and regulations, deemed to be legal and correct.” In this context, lawyers can help their clients understand the ramifications of their past conduct and help plot a course of action to achieve the best result possible under the circumstances presented. It also provides the opportunity to manage client expectations of what is and is not possible. It is often when unrealistic expectations are not addressed and ameliorated that frustrations about the legal system arise that can lead to lashing out at those in the system.

When open lines of communication between lawyers and clients are genuinely established, trust is developed that allows a lawyer to address problems that may arise. By listening carefully to how clients react to a judge’s ruling on a critical motion, for example, a lawyer may be able to discern expressions of dissatisfaction or frustration with the legal system that can be addressed. In those situations, it is imperative for the lawyer to explain clearly what next steps can be taken to address the perceived harm. It is similarly imperative to explain not only likely outcomes but also others that may occur. Avoiding surprises is another way to avoid the frustrations that can lead to violence.

There also may be times when client frustrations go beyond mere expressions of feelings and evolve into more concrete statements of threatened action. For example, after attending the deposition of an opposing party, a client may be offended by the testimony offered, or, after receiving an unfavorable decision from a judge, a client may be emotional and upset about the impact of such decision on his life and may make statements within an attorney-client communication about harming the opposing party or judge. When stated generally and without any imminent threat to reasonably certain death or substantial bodily harm, the lawyer can use the information provided in the confidential discussion to advise the client to refrain from any such wrongful conduct. It is precisely because of the protections of confidentiality that clients make such statements to lawyers. It is in the role of lawyers to use that confidentiality to dissuade the client from undertaking such harmful conduct. After all, the client has come to the lawyer for advice, and there is no better advice a lawyer can offer than to dissuade a client from wrongful conduct. And experience has shown that clients typically follow the advice of their lawyers. But that is not always the case.

In the event threats of violence cannot be dissuaded, what can lawyers do ethically to disclose a threat expressed during a confidential attorney-client communication? Under Model Rule of Professional Conduct 1.6(b), certain exceptions are made to the presumption of attorney-client confidentiality to protect important public policy concerns. One exception exists regarding threats of violence or death. The exception permits a lawyer to disclose threats of violence the lawyer deems reasonably certain to occur:

(b) A lawyer may reveal information related to the representation of a client, including information protected by attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary for any of the following purposes:

(1) to prevent reasonably certain death or substantial bodily harm; ....

Importantly, by stating that the lawyer “may” disclose information they “reasonably believe” to prevent “reasonably” certain death or substantial bodily harm, the rule is discretionary and not mandatory. It leaves it to the lawyer to determine whether the threat is real and imminent. The Official Comment [6] provides guidance in making that determination:

Although the public interest is usually best served by strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosures reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm if the lawyer fails to take action necessary to eliminate the threat.

This limited disclosure exception under the Model Rules of Professional Conduct provides lawyers with the ethical basis for exercising their discretion to disclose a real and imminent threat to opposing counsel or the courtroom law enforcement authorities of such threat. This ethical authority also can be used by lawyers to bolster efforts to dissuade a client from taking any violent action by telling the client of the potential need to disclose the threat to the other party or the court. In this critical way, lawyers can do their part to diffuse frustrations and heated emotions and reduce threats of violence in the justice system.

Our democracy, based on the rule of law, requires an independent judiciary that is respected and protected. Threats of violent attacks on judges are never appropriate. Continued efforts need to be made to further promote judicial security, and lawyers must play a vital role in those efforts.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Daniel F. Gourash

Seeley Savidge Ebert & Gourash Co., LPA

Daniel F. Gourash is chair of the Judicial Division Lawyers Conference and director of the Insurance Coverage and Complex Litigation Groups of Seeley Savidge Ebert & Gourash Co., LPA in Cleveland, Ohio.