“[L]awyers are not soldiers atop the courts’ ramparts, defending and protecting the judiciary’s inner sanctum.”
Via Marcia Oddi at The Indiana Law Blog, Law.com has posted this lengthy, insightful, and timely article by Joel Cohen and Katherine A. Helm titled “The Propriety of Criticizing Judges,” from which the above quote is taken.
Cohen and Helm also write:
The problem arises in trying to draw the line between open criticism of judges or courts that is constructive and calls out what the law recognizes as a judicial impropriety or the appearance thereof, and disparaging aspersions cast by litigants, themselves tired of being perpetually judged, whose intemperate statements are not aimed at improving the legal system per se.
I don’t think there’s any way to draw any such line between putatively sanctionable and unsanctionable lawyer speech that wouldn’t chill valuable and/or constitutionally-protected speech. What about those litigants or their attorneys who are convinced that they’ve been judged unjustly by the judge? Perhaps a judge makes an irrational series of evidentiary rulings suppressing a whole lot of truth that winds up with an innocent man being convicted of a serious crime, and then at sentencing lectures that innocent man about what a bad person he is before imposing a steeply aggravated sentence. (I’ve seen this happen, up close.) Suppose such a defendant, or more pertinently here, his attorney on his behalf, pens an op-ed in the local paper explaining why what the judge did to the defendant was in fact as morally reprehensible as what the defendant was alleged to have done but didn’t do. We’re supposed to be always “temperate” in the face of injustice, or an injustice? Why should the propriety of such an op-ed depend on whether it was “aimed at improving the legal system per se”? Isn’t there value in simply calling a spade a spade, and in defending the reputation of a man wrongly tarnished by a criminal conviction and aggravated sentence? A judge doesn’t have to, and generally speaking can’t, know what was going on in a defendant’s mind when he pronounces his judgment on the defendant that winds up being published in the local newspaper. Why shouldn’t an attorney, convinced beyond a reasonable doubt that what was going on in the judge’s mind when he delivered his judgment was no good, be able to render his own opinion about the judge’s opinion? (This doesn’t mean that an attorney should render such an opinion if it’s not going to do his client or anybody else a damn bit of good, but it does mean that rendering such an opinion, even if it doesn’t appear to do anybody a damn bit of good, shouldn’t subject an attorney to sanctions.) After all, the attorney’s opinion, unlike the judge’s, isn’t going to put anyone in prison for decades of his life. If the defendant or a member of his family can say it, why can’t an attorney? What judges do is serious, deadly business, and shouldn’t be treated with kid gloves or as some kind of game.
Do not judge, or you too will be judged. For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you.
This famously misunderstood passage from Matthew 7:1 doesn’t mean that judges, or the rest of us for that matter, shouldn’t judge. What it means is that judgement is a two-way street.