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Perhaps the most counter-intuitive truth involving lawyers is that in order to practice law, lawyers are required to partly relinquish their First Amendment Right to Free Speech. Beyond the justifiable commercial free speech constraints on lawyer advertising, there’s the more significant restraint on what lawyers can say about judges and the court system.
Oaths of Admission as well as canons of professional responsibility mandate lawyers to maintain respect for the legal system and for those that serve it. See, for instance, “Ethical Responsibility of Lawyers to Uphold the Judiciary.”
And although lawyers are uniquely qualified to opine on the judicial process or to weigh in on the judiciary, they do so at their peril since their opinions must not undermine public confidence in the courts. See, for example, "Standing Committee on Discipline v. Yagman: The Ninth Circuit Provides Substantial First Amendment Protection for Attorney Criticism of the Judiciary.”
So when it comes to what lawyers think about judges, they must exercise the greatest degree of care and concern since the ethical rules obligate them to accord the respect due to courts of justice and to judicial officers.
There’s a simple but important reason for this, it’s to preserve the rule of law. To create and safeguard the public’s confidence in the integrity of its judiciary, lawyers consent to restricting their free speech rights in favor of supporting the state’s interest in maintaining the public’s trust in its legal institutions and processes.
But what about the value lawyers can bring, for example, during a judicial election campaign by promoting an informed electorate? As insiders, lawyers are well-positioned to comment and to weigh in on the merits or demerits of a judicial officer. But should they do so, especially when such candor comes with considerable risk?
Some believe they should. Lawyers are uniquely qualified by their experiences in court to accede to a higher duty to share that knowledge with the public, especially when it implicates a matter of public concern. But are the benefits gained by divulging matters of public concern subsumed by the risk of diluting if not damaging the equally important interest in upholding judicial integrity? Which duty is more important? Is it the duty to the judiciary or the duty to the public?
Limited free speech in court.
And what about the even more compelling argument that lawyer free speech ought not be constrained in court proceedings, especially when it disserves the overriding interests and constitutional claims of a lawyer’s client?
Brigham Young University Law professor Margaret Tarkington argues for just such an expanded free speech right for lawyers to impugn judicial integrity in court proceedings in a provocative law review article, “A Free Speech Right to Impugn Judicial Integrity in Court Proceedings,” at Social Science Research Network (SSRN).
Professor Tarkington’s most compelling arguments on why a lawyer’s free speech right to impugn judicial integrity must be recognized are grounded on: the necessity of protecting a litigant’s right to an unbiased judiciary, on a litigant’s right to access to courts, on the preservation of a litigant’s protections such as due process, and on advancing the judicial system’s proper functioning.
Furthermore, she makes a cogent case against muzzling lawyer free speech rights concerning judges because it “ frustrates democracy by denying the right of the attorney speakers to contribute to the robust, uninhibited, and wide-open debate regarding public officials that is central to our ability to self-govern.”
Moreover, she asserts that suppressing the informed views of those best equipped by dint of “education, training and exposure” amounts to a “manipulation of public debate” that “frustrates the ability of the public to employ democratic correctives to check the abuse of judicial power and allows for judicial self-entrenchment.” But notwithstanding Professor Tarkington, the weight of custom and prudence, juris or otherwise, will continue obviating against foreseeable lawyer boldness when professional livelihood hangs in the balance.
When it comes to testing the limits of attorney free speech, apt is the adage,"only fools rush in where angels fear to tread."
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