Tuesday, June 15, 2010

Rule would bar lawyers' 'false statements' about the system

A commercial for a law firm alleging that divorce courts are unfairly stacked against fathers has prompted a proposal that many lawyers say would violate their free speech rights.

The proposal would prohibit lawyers from knowingly making false statements about the judicial system.

The attorneys say the proposed amendment to the Utah State Court Rules of Professional Conduct is overly broad and too vague. They question who would decide if a statement is false when a lawyer directs criticism at the judicial branch in general, rather than at an individual judge.

"By discouraging criticism of an imperfect system (no system is perfect), the judicial system stands to lose critical information that can help it improve," wrote lawyers with the Office of Legislative Research and General Counsel, who were speaking for themselves, not the Legislature.

The American Civil Liberties Union of Utah said it would be difficult for a lawyer to determine the truth or falsity made about a "system."

At the close of the comment period on Monday, the proposal to change Rule 8.2 -- posted at www.utcourts.gov/resources/rules/comments -- had no online defenders. Several lawyers who commented on the rule change online said they were not told about the reasons behind it.

Lawyer Michael Coombs said the change has "enormous potential to be used for great mischief and harm." Attorney R. Clayton Huntsman said attempting to regulate comment "smacks of totalitarianism and repression."

And attorney Charles Schultz asked: "Before they are permitted to enter a court building, will lawyers be required to kneel, and give thanks for being permitted to associate with such a holy and venerated institution as the judicial system?"

Rick Schwermer, assistant administrator of the Administrative Office of the Courts, said the amendment was drafted by a subcommittee of the Supreme Court's Advisory Committee on the Rules of Professional Conduct.

The Supreme Court has not seen the proposal, Schwermer said, and taking comments is just the first step in the process. The amended rule will go to the advisory committee, which could forward it to the high court as written, rewrite it or drop it.

The amendment also encourages attorneys to defend the judicial system when it is unjustly criticized.

Utah State Bar President Stephen Owens said the group's leadership has not taken a stand on the issue yet.

"I have been contacted by several members of the bar concerned about the potentially overly broad language of the rule change," Owens said.

He also said, "In general, as officers of the court, lawyers are expected to respect our judicial system and its judges."

Proposed rule amendment

A proposal has been made to amend a professional conduct rule governing attorney behavior. The proposed additions to Rule 8.2 are in italics.

Rule 8.2. Judicial Officials.

(a) A lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the judicial system, or the qualifications or integrity of a judge, an adjudicatory officer or a candidate for election or appointment to judicial office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.


[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges, and courts, and the judicial system whenever they are unjustly criticized.

[3a] Utah has not adopted ABA Model Rule 8.2 because the Utah Rule 8.2 provides appropriate protection to the judiciary.

By Pamela Manson, The Salt Lake Tribune

Source: Salt Lake Tribune

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