A California State Bar committee is weighing rule changes aimed at reminding attorneys of their duty not to make public statements criticizing the actions of judges in a way that could pose safety risks for the judges and their families.
The State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) has drafted an ethics alert cautioning attorneys not to make disparaging remarks about judicial officers. The advisory, which says such remarks may subject attorneys to disciplinary proceedings, could be approved as soon as this week by the committee.
“Judges and judicial officers are increasingly the subject of personal attacks, unfounded allegations of improper conduct and threats to their personal safety and the safety of their families,” the ethics alerts states, indicating that “credible threats” to judges have increased from 175 in 2019 to 500 in 2023.
The panel’s consideration of rule changes that emphasize attorneys’ responsibilities when making public statements began last year, when the president of the California Judges Association (CJA) proposed in a letter to COPRAC members rule changes to better protect judges.
“... I was asked as the president of CJA to comment upon two cases in opposite ends of the state where bench officers were being criticized by attorneys for their rulings,” CJA President Erica Yew told the committee in an April 26, 2024, letter. “The criticism played out in the media and in one case, the bench officer was receiving death threats and was forced to hear a subsequent proceeding remotely due to public protest.”
Yew suggested modifying the California Rules of Professional Conduct to stress that attorneys should be cognizant that they don’t have the right to condemn judges’ actions when such statements pose safety risks.
“While we very much support freedom of expression, we want to ensure the safety and independence of our judicial officers,” she said in her letter. “We also want to ensure that all persons associated with a proceeding, from court personnel to litigants, attorneys and witnesses, as well as their families, remain safe.”
A State Bar statement provided to the Southern California Record indicated that COPRAC might put its proposed rule amendments up for a public comment period this week.
“Please note that currently, an attorney’s actions and statements – including statements to the media or via social media – must comport, at a minimum, with the attorney’s duties under California Rules of Professional Conduct 3.6, 8.2, and 8.4,” the statement says.
The ethics alert under consideration by the panel is advisory only and would carry less weight than formal ethics opinions approved by the State Bar’s Board of Trustees, according to the statement.
“It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar,” the statement says.
The ethics alert contains statements by other judges around the nation who have expressed concern about current threats against judges.
“While judges have always lived with a certain level of risk, we have never experienced risk on the scale that we currently see today,” Matthew Fader, chief justice of Maryland’s Supreme Court, said. “We are facing an entirely new threat environment that drives to the very heart of the rule of law and the fair administration of justice under law.”