Rules of Professional Conduct

I have an additional comment to RPC 8.2. Our judicial system consists of those appointed by politicians subject to senate confirmation. Those who choose those who choose also are subject to some political influence. Does this new rule mean that we cannot criticize legislators or governors because they are also part of the judicial system? Again, this is a very slippery slope trying to chill free speech just because we are regulated by a judicial system which in itself is highly political.

Are judges going to be encouraged to defend prosecutors? I believe this part of the rule is innappropriate. Are lawyers being asked to defend something that is not defense-able at times? This is America. If someone, even a judge, does something wrong, all should be free and feel free to speak out against such action. In America, it is a government “of the people” and “for the people” not a regime that is not to be questioned.

My primary concern is with the portion of the proposed rule that encourages lawyers “to defend the judicial system.” This requirement is completely unconstitutional. Does the rules committee really think that we should be required to surrender our first amendment rights to free speech in exchange for the ability to practice law in Utah? We as attorneys are in a position to see many of the shortcomings of the judicial system. Our system is good, but it is certainly not perfect. Who is more qualified to point out, and assist in correcting, problems in the judicial system then those who interact with it most frequently? It’s not hard to see glaring examples of the absurdity of this proposed rule. For example, this rule would arguably restrict any attorney from responding negatively on judicial performance evaluations, because judges are part of the judicial system. Why does the judicial system think that it should be exempt from legitimate critiques from individuals that work within it?
I also share the previously listed concern that the rule as a whole is extremely vague. Further, I believe that the rule would be extremely difficult to enforce in practice, gutting it of its usefulness.

Regarding proposed amendment RPC 08.02 to the Utah Rules of Professional Conduct, a rule that would prohibit lawyers from “knowingly making a false statement about the judicial system” and which would additionally “encourage lawyers to defend the judicial system,” I have the following comments and observations.
Having practiced law for 28 years and comparing the practice of law 28 years ago to now, it is disturbing to me to observe the Utah State Bar’s relentless efforts to exert more and more control over lawyers and the legal profession—and in ways that not only make no sense but in ways that may in fact harm the legal profession, the practice of law and the judicial branch of government.
As a practical matter, how does one disprove that he or she “knowingly made a false statement about the judicial system”? At a Screening Panel Hearing, will a lawyer be bullied into admitting that he didn’t have much basis for the statement for which he is being required to face charges? How far does the Bar really want to go to muzzle professional speech and opinion, all in order to insulate the judiciary from criticism? Is one of the new goals of the Rules of Professional Conduct to now insulate the judiciary from criticism by those persons uniquely competent to critique it?
Whoever is pushing this proposed amendment, this proposal seems to reveal a paranoid and totalitarian view of the world, namely, that the public at large is so stupid and ignorant that we need to do whatever is necessary to control the public’s view of the judiciary, even if that means silencing licensed professionals. Since when did the public’s view or impression of the judiciary become something that has to be controlled and manipulated by anyone, let alone the entire legal profession?
None of us should feel comfortable about the idea of a branch of government trying to insulate itself from criticism from those very people it essentially regulates and that is precisely what this new rule is directed at. What is the judiciary actually worried about anyway? So what if a lawyer says something false or exaggerated about a particular judge or the judicial system? Are members of the public who might hear such statements no longer able to think for themselves? Why should anyone even care?
The Bar has no business, it seems to me, trying to manipulate or censor, in advance, potential criticism of the judiciary by licensed professionals. That is what this proposed rule seeks to do and because a violation of it would be virtually impossible to prove or disprove, its purpose is obviously to empower the Bar to censor and discipline anyone it wishes to discipline and for just about anything it considers to be derogatory, offensive or slanderous. Is forcing us to all be “politically correct” the next step after this?
When I first began practicing law, judges were generally outgoing and cordial to lawyers outside of the courtroom. Judge David Winder would go out of his way to talk to you whenever you’d run into him. He would learn your first name and always call you by it when he saw you on the street. Many judges today, apparently on account of their collective fear of the Judicial Conduct Committee or whatever, are hard pressed to say “Hello” to a lawyer in the frozen foods section at the grocery store. And when they do, they look around to see if anyone saw them do so. This proposed rule would unfortunately separate us lawyers from the judiciary even further than we have become over the last several years and would surely give the judiciary even less reason to interact or be cordial with a practicing lawyer outside the courtroom. Is this what we want? A judiciary that lives in an even bigger and more fortified ivory tower and which shall be completely impervious to criticism or critical observation from those very persons who have firsthand experience with it?
I had a Constitutional law professor who used to say that Americans have a Constitutional right to lie. And what if we do? What if he was right?
It seems to me that if someone wants to knowingly disparage the judiciary or any other branch of government, that is his or her right. If the Bar, a particular judge or a judicial candidate wants to bring a slander or defamation suit in response, let them. And let them do so at their own expense just like the rest of us would have to do. The alleged defamer can face the consequences in a court of law. But to regulate professional speech, institutionally, through the back door because the judiciary, or the people in control of it, don’t want any criticism of themselves or their friends or Comrades is, quite obviously, an outrageous abuse of power. This proposed rule is a sterling example of what Alexis de Tocqueville meant when he spoke of “soft tyranny.”
In Abraham Lincoln’s time, there were strict slander laws, a reality that encouraged people to watch their mouths. Under the old common law, there are also criminal slander and libel. Under the common law, slandering a person in his business or profession is slander per se and does not require proof of damages. Damages are presumed. Last time I looked, this was still the law in Utah. The tort of slander per se, which has been around a few hundred years and which is already in place, is a far more effective way to regulate defamation by lawyers than creating some self-serving, arbitrary institutional rule or club to hold over everyone’s head, a rule that will likely know no bounds and which will eventually lead to abuse by those having the exclusive power to wield it at their leisure. Maybe not now but sooner or later.
I believe this is a dark and sinister rule that is trying to be foisted upon us while most of us aren’t paying attention (notice how innocuously it has been presented), a rule with enormous potential to be used for great mischief and harm. No one should be allowed to create an institution of government that can insulate itself from criticism from those very persons who know more about it than anyone else. How will the public ever become aware, from lawyers, that the judicial system is broken in some fashion if a rule like this is adopted and strictly enforced or enforced with a vengeance? Would not lawyers be afraid to speak up and be honest for fear of being disciplined?
As to the second part of the proposed rule, I have these questions: From where or from whom does the Utah State Bar get the power or other authority to affirmatively force lawyers to make members of the public FEEL GOOD about our judicial system? I didn’t know that any of us lawyers had an obligation to do that. That almost smacks to me of an effort to make us lawyers all Propaganda Ministers for the judiciary. Why should we be doing that? Is that one of the other purposes of this rule? If not, what it is? And if we are going to be forced to act as Propaganda Ministers for the judiciary, we ought to be paid as full-fledged Public Relations Agents. I see nothing in the rule to compensate us in that regard. If we are going to be conscripted and forced to act as PR agents, it seems to me that we should all get paid for it.

Silly. Such a vague and broad-based rule is a waste of ink. Sounds like judges trying to force attorneys to protect them when, perhaps, they don’t deserve it. Free speech?

The proposed amendments to USB 14-0516 should not be adopted. If the Bar is going to publish admonitions and public reprimands in the Bar Journal, then the entire contents of the file, including all responses in opposition to discipline, should be published as well. The entire story should be published. Publishing such actions will have an anticompetitive impact, and raises antitrust implications. Attorneys are increasingly abusing ethical rules by filing complaints for anticompetitive reasons.

This strikes me as excessively or obsessively over-controlling. Also, it looks certain to draw First Amendment-based challenges. The rule seems to target individual opinions about matters of public interest, which by nature are neither “true” nor “false.” Who will draw the unlucky task of enforcing this rule, and who will decide whether an accused lawyer has made a knowingly or recklessly false statement. -Kevin Murphy (5768)

In reviewing my last comment I should be grateful that this new rule is not yet in place. The next step will be to implement the rule ex post facto.

I’m strongly opposed to the adoption of RPC 08.02, for the following reasons:
1) Vague and ambiguous.
2) Violative of the First Amendment.
3) Hostile to public transparency.
The public, (which has a large stake in a fair and efficient courts system) relies in large part upon practicing lawyers to blow the whistle when problems arise within in the justice system; and a draconian rule of this order will not only chill constitutionally protected speech, but further result in placing a de facto gag order upon wary practitioners who’ll inevitably choose to keep their mouths shut, rather than to risk State Bar disciplinary proceedings involving fuzzy issues like determining what is “knowingly false.”
This proposed amendment to the Utah Rules of Professional Responsibility is the most extreme example of State Bar overreaching I’ve seen in quite a long while; and it should quickly and summarily have a stake driven through its heart.

We write to oppose the proposed changes to Rule 8.2 of the Rules of Professional Conduct because the changes would have a chilling effect on a lawyer’s participation in public discourse concerning government systems, they would uniquely harm lawyers who participate directly in governmental action concerning the judicial system, and the existing rule sufficiently addresses the harms caused by unfounded criticisms of judicial officers. Alternatively, we propose that the court adopt language that would clarify that the rule, as modified, does not apply to a lawyer’s advice to legislative or executive governmental entities or participation in official legislative or executive proceedings.
Changes Chill Appropriate Public Discourse
Open and critical discourse concerning government systems and programs has long proven to be not merely tolerable, but a valuable mechanism for improving those systems. Chilling such criticism is unwise. The public interest in the effective administration of an entire branch of state government is significant. Lawyers are uniquely positioned to shine light on the judicial system’s strengths and weaknesses. While we do not support false statements or those made with reckless disregard for their truth or falsity, we believe that the threat of professional sanction will chill a significant amount of criticism that falls far short of the standard of falsity or reckless disregard. This is especially so given the vagueness of the rule, both in terms of definition and methods of proof. If, indeed, defamatory statements are made that injure a person, a cause of action may exist under current law, with its accompanying well-developed standards of proof. However, when only a nebulous notion of faith in the system is at stake, a lawyer’s right of free speech, and the public’s interest in improvement of its government, ought not to be so quickly curtailed. The court should not squelch the free speech of those who have such a long history as its defenders. Not only would this institutional protection be unique, it is contradictory to the long tradition of open debate in this state and country.
A parallel to the legislative branch, while imperfect, is instructive. In the legislative setting, the Utah Supreme Court, under authority of Utah Constitution, Article VI, Section 8, has protected even defamatory statements made by members of the public in legislative proceedings. See Riddle v. Perry, 2002 UT 10, ¶9. This is because “the greater good is served by ensuring that citizens who want to participate in the legislative process may do so without fear of liability for defamation.” Id. at ¶10. While the Utah Constitution provides no judicial immunity, the rationale supporting the court’s decision in Riddle v. Perry may apply to public debate concerning the judicial system. One can easily conceive of a situation in which legislation concerning the judicial system is before a legislative committee and a lawyer testifies bluntly about the legislation resulting in an accusation of violating the rule. It seems unreasonable to provide immunity in line with Riddle v. Perry and yet subject the lawyer to professional sanction. Lawyers ought not to be in such fear of offering their perspectives on the administration of the judicial system. The inevitable diminishment of speech concerning the judicial system by those best-suited to provide valuable insight is one reason why the proposed rule should be disapproved.
Changes Likely to Harm Public Lawyers
An additional concern exists for those lawyers whose job it is to participate in the policymaking process concerning the judicial system. Many lawyers work or serve in government positions that require them to take positions on matters concerning the governance of the judicial system. The proposed rule places those lawyers in unique jeopardy because of its vagueness. The proposed changes should be disapproved or, at a minimum, revised to address the unique challenges that government lawyers face. Given the governor’s role in judicial appointments, this list could include a governor who is a lawyer or a lawyer representing the governor. It could include a lawyer who is a legislator or a lawyer representing a legislator or the legislature, given the legislature’s roles in funding the judicial system, confirming judicial appointments, and otherwise making law applicable to the judicial system. It could also apply to a local government lawyer.
If the court adopts the proposed changes, these lawyers are best served by greater clarity and protection than the changes provide. Whether by text or comment, the rule should be crafted in such a way so as to not prevent these lawyers from effective service in their office or representation of the officials or institution they serve. Clarifying that legislative immunity will apply to shield some of these lawyers from professional sanction is one example, but is not sufficient because both legislative and executive branch lawyers may be involved in various settings in connection with their official positions. One possible clarifying comment is suggested below:
“This rule may not be applied against a lawyer who honestly and candidly participates in an official executive or legislative proceeding at the state or local level concerning the judicial system or provides advice to an executive or legislative client. A government lawyer’s clients deserve frank and candid advice when the subject of the advice is the governance of the judicial system. A government lawyer’s honest and candid advice and participation in official proceedings are means by which the lawyer can contribute to improving the administration of justice and should not be discouraged or chilled by an unjust application of this rule.”
Current Rule Provides Adequate Protection
The existing Rule 8.2 is designed to prevent inappropriate criticism of judicial officials, not systemwide criticism that serves the valid public purposes of identifying areas of concern and helping address them. There are good reasons for the existing rule’s protections, including the protection of public faith in individual judicial decisions. Public faith in the individual decisions rendered by courts is essential to the effective rule of law. Public faith in the administration of the judicial system is less related to the effective rule of law and should not be divorced from the forms of criticism that apply to the administration of other government institutions. Criticism poses much less jeopardy to faith in the fair administration of justice than the proposed changes seem to contemplate. Our system of government is designed to encourage, not stifle, broad discourse. The robust public debate is meant to sift the truth from the lies, misapprehensions, and differences of opinion. Subjecting the judicial system to the same forces of criticism and correction as the other branches of government bolsters, rather than diminishes, the public’s faith in the institution. The proposed changes should be disapproved because they would unwisely extend the current, appropriate protection for individual judicial officials to insulate an entire branch of government from criticism.
Conclusion
By discouraging criticism of an imperfect system (no system is perfect), the judicial system stands to lose critical information that can help it improve. While some may abuse the right of speech, lawyers ought not to have to tread so carefully at the risk of professional sanction for criticizing the judicial system when speaking on matters concerning the administration of the judicial system. The proposed changes will prevent lawyers’ speech and deprive the public and the judicial system of valuable insight. Further, the proposed rule creates unique uncertainty for many government lawyers whose jobs may require a firm stand on matters concerning the judicial system. Lastly, the current rule sufficiently protects against the harms of unfounded criticism. For all of these reasons, we oppose the proposed changes to Rule 8.2 of the Rules of Professional Conduct. In the event the proposed changes are adopted, we propose that additional text or a clarifying comment be added to exempt from the rule’s application a lawyer’s advice to an executive or legislative client and participation in official executive or legislative proceedings concerning the administration of the judicial system.
John Fellows
General Counsel, Office of Legislative Research and General Counsel (OLRGC)
Eric Weeks
Deputy General Counsel, OLRGC
Susan Allred
Associate General Counsel, OLRGC
Victoria Ashby
Associate General Counsel, OLRGC
Emily Brown
Associate General Counsel, OLRGC
Esther Chelsea-McCarty
Associate General Counsel, OLRGC
Gretchen Lee
Associate General Counsel, OLRGC
Patricia Owen
Associate General Counsel, OLRGC
Chris Parker
Associate General Counsel, OLRGC
Robert Rees
Associate General Counsel, OLRGC
Rebecca Rockwell
Associate General Counsel, OLRGC
Angela Stallings
Associate General Counsel, OLRGC
Thomas Vaughn
Associate General Counsel, OLRGC
Jim Wilson
Associate General Counsel, OLRGC

I oppose amending rule 8.2 to prohibit lawyers from making “false” public statements concerning “the judicial system.”
The proposed amendment seriously threatens to deter lawyers from exercising the right “to communicate freely [one’s] thoughts and opinions” Utah Const. art. I, § 1 and to criticize government, whether it be the executive, legislative, or judicial branch.
Our democratic society relies on vigorous political debate to improve our system of government and to effect necessary reform. Threatening to discipline lawyers for speaking up about perceived problems in the judicial system will serve only to silence the one group of people best able to note those problems.
It is one thing to discipline lawyers—as the rule now allows—for knowingly or recklessly making a public false statement about “the qualifications or integrity of a judge” or judicial candidate. Such statements are both factual and defamatory in nature. But comments—whether or not true—about a branch of government cannot be considered defamatory. Nor are they likely to be purely factual. Rather, such comments are opinion and the kind of political speech protected by both the First Amendment and article I, § 15 of the Utah Constitution.
I don’t believe any other state has adopted such an ill-conceived and dangerous threat to our free speech rights. I urge the Committee not to recommend this amendment to the Utah Supreme Court and I urge the Court not to adopt it.