Lawyers as Leaders and Guides
Because of their special education, training, and experience, lawyers are uniquely positioned to help stem the tide. The preamble to the ABA Model Rules of Professional Conduct recognizes in its very first sentence that “a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Section 6 of that same preamble urges that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Indeed, the Comment to ABA Model Rule 8.2 directly advocates that “[t]o maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”
None of this is intended to shield the courts from fair and informed criticism. All human institutions are fallible, and courts owe the public duties of responsibility and transparency as well as diligence and independence. As Thomas Paine famously cautioned in 1791, “[a] body of men holding themselves accountable to nobody ought not to be trusted by anybody.”
Perhaps for that reason, lawyers are also expressly reminded in the comment on ABA Model Rule 8.2 that “[a]ssessments by lawyers are relied on in evaluating [court officials and offices]. Expressing honest and candid opinions on such matters contributes to improving the administration of justice.” The Model Rules thus balance these twin objectives in the preamble at 5, by noting that “[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”
Countering Public Confusion or Unfair Misperception
And make no mistake, the norms and institutions of the American legal process are under continuous public criticism—particularly on social media—and not always in a way that is objectively fair or informed. Consider, for example, whichever was the most recent high-profile courthouse story published by your hometown newspaper to its social media page. If it was a criminal process story about a defendant granted bond, a significant percentage of the public commentary likely presumed the defendant’s ultimate guilt and conflated pretrial processes with the punitive aspects of post-conviction sentencing.
And to be clear—I’m not at all suggesting that individual bond decisions should be beyond public reproach or critique. Nevertheless, the constitutional presumption of innocence and case-specific questions of flight risk and public safety are necessarily part of the discussion at the courthouse but rarely find their way into the social media discourse that follows. And arguments centered on punishment will almost always be uninformed or misplaced in the context of pretrial bond calculations.