Model Rule 8.2 states that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth concerning the qualifications or integrity of a judge. The comment to the rule, on the other hand, encourages attorneys to express candid and honest opinions because it contributes to improving the administration of justice.
A new case, pending in Indiana provides an interesting venue for the discussion of the issues raised by the rule. In this case, an attorney has been charged with a violation of the rule for expressing his opinion about a certain judge in an e-mail he wrote to another attorney.
I am not familiar with all the details of the case, but from the little information I have gathered it seems to me there are several problems with the state's attempt to discipline the lawyer.
The rule's approach is obviously taken from the approach developed to deal with First Amendment concerns in defamation cases. And one of the most important principles in defamation law is that the statements at issue have to be statements of fact. Here the attorney's comments were clearly opinion. Imposing liability (or in this case discipline) for expressing opinions raises serious constitutional concerns. See for example, State v Semaan, 508 SW2d 429 (Tex App 1974) and Justices of Appellate Division v. Erdman, 301 NE2d 426 (1973) (isolated instances of vulgar or insulting disrespect for judges are not subject to professional discipline). Unfortunately, there are cases out there that have held differently, though.
The lawyer who wrote the email filed a counterclaim against the disciplinary authorities arguing that the case against him violates his First Amendment
right to free speech and that he’s being targeted. I don't know if he is being targeted but I do think the speech is protected.
Indiana University School of Law associate professor Margaret Tarkington has argued that the vast majority of states interpret rule 8.2 to mean something very different than what it actually says and that the interpretation is probably unconstitutional.
You can read more about the case here. It will be interesting to see how the case develops. I hope it eventually results in protecting the first amendment right to express our opinion about judges and the judicial system.
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