Can a lawyer publicly campaign through mass media against a judge the lawyer believes is unqualified?

Plain-English summary

An inquiring attorney asked whether he could properly make public statements, using any and all available mass media, that a judge seeking reelection was unqualified and incompetent and unable to provide a fair trial, giving examples from the attorney's personal experience.

The committee stated that an attorney has both the right and the duty to oppose the election or reelection of a judge believed unqualified, citing the Code of Professional Responsibility Canon 8 and EC 8-6. It expressed concern, however, about the use of mass media and personal examples, quoting EC 8-6's caution that a lawyer who criticizes officials publicly should be certain of the merit of the complaint, use appropriate language, and avoid petty criticisms, because unrestrained and intemperate statements tend to lessen public confidence in the legal system, and criticisms motivated by reasons other than improving the legal system are not justified. The committee also identified a problem of indirect solicitation of business, and urged the inquirer to stay within reasonable bounds of propriety consistent with EC 8-6 and not engage in conduct leading to advertisement or solicitation of his own services, noting that direct contact with mass media to conduct a public attack could potentially violate those proscriptions.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied Canon 8 and EC 8-6 of the former Code of Professional Responsibility (and Canons 2 and 27 of the prior Canons of Professional Ethics). A lawyer's statements about judges and judicial candidates are now addressed by Rule 4-8.2, and solicitation by Rule 4-7.18. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer publicly oppose a judge running for reelection?

A: Under this opinion, yes. The committee said a lawyer has both the right and the duty to oppose the election or reelection of a judge believed to be unqualified.

Q: What limits did the committee place on that criticism?

A: It said the lawyer should be certain of the merit of the complaint, use appropriate language, and avoid intemperate statements that lessen public confidence, per EC 8-6.

Q: Why did solicitation come up?

A: The committee saw a risk that a media campaign citing the lawyer's personal experiences could operate as indirect self-advertisement or solicitation, and urged the inquirer to avoid that.

Background and rules framework

The opinion applied Canon 8 and EC 8-6 of the former Code of Professional Responsibility, addressing a lawyer's role in improving the legal system and public criticism of officials, together with the concern about self-solicitation. Statements about judges are now addressed by Rule 4-8.2 and solicitation by Rule 4-7.18 of the Rules Regulating The Florida Bar. The Model Rule analogues are Rule 8.2 and Rule 7.3.

Citations and references

Rules of Professional Conduct:

• Canon 8, EC 8-6; Canons 2 and 27 [Code of Professional Responsibility and prior Canons; statements about judges now in Rule 4-8.2]

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-20/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-20-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 70-20
August 26, 1970
Advisory ethics opinions are not binding.
While an attorney has both the right and duty to oppose election or reelection of a judge believed by him to be unqualified, he should not act in such a way as to lessen public confidence in our legal system.
Canons: 2 and 27
CPR: Canon 8 and EC 8-6
Chairman Massey stated the opinion of the committee:
An inquiring attorney asks if he may properly make public statements, using any and all mass media available to him, concerning a judge who is seeking re-election, such statements being to the effect that the judge is unqualified and incompetent and is unable to provide a fair trial, giving examples from the attorney's personal experience.
An attorney has both the right and the duty to oppose election or re-election of a judge believed by him to be unqualified. See present Canon of Professional Ethics and Code of Professional Responsibility Canon 8. The Ethical Consideration 8-6 (CPR) is directly in point.
The committee is concerned, however, with the allusion to using mass media and the citing of personal examples to illustrate the attorney's position relating to the judge. EC 8-6 cautions that:
. . .While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.
Inherent in the proposed conduct also is the problem of indirect solicitation of business by the attorney. The inquirer is therefore urged to use reasonable bounds of propriety which do not avoid the suggestions of EC 8-6 and which will not lead to advertisement nor solicitation of the services of the attorney personally. Potentially, direct contact with representatives of the mass media to conduct a public attack may violate the proscriptions above noted.