Rule 8.2. Judicial and Legal Officials

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

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

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004 and has not been amended since. This rule is identical to the ABA Model Rule of Professional Conduct 8.2 (2002).

Comments to ABA Model Rule 8.2

[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 and to public legal offices, such as attorney general, prosecuting attorney and public defender. 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 unjustly criticized.

Annotations

Generally

A lawyer must refrain from knowingly or recklessly making a false statement¹ about the integrity of a judge, adjudicatory officer, public legal officer or candidate for judicial or legal office. La. Rules of Prof’l Conduct r. 8.2(a); Restatement (Third) of the Law Governing Lawyers § 114 (2000); In re Labadie, 255 So. 3d 558 (La. 2018); In re Cooper, 32 So. 2d 221 (La. 2010); In re Larvadain, 664 So. 2d 395 (La. 1995); Fox v. LAM, 632 So. 2d 877 (La. Ct. App. 2d Cir. 1994); In re Moity, No. 07-0001, 2008 WL 104209, at *1 (W.D. La. Jan. 9, 2008). A lawyer violates this rule if the lawyer knowingly airs a false or misleading television advertisement (or at the very least acts with reckless disregard for the veracity of the statements made) against an opponent in a judicial campaign. Bruno v. Medley, 310 So. 3d 580 (La. Ct. App. 4th Cir. 2020). A lawyer also violates this rule if the lawyer knowingly or recklessly files an affidavit in the public record on behalf of another person that refers to the integrity of a judge, adjudicatory officer, public legal officer or candidate for judicial or legal office. See In re Wells, 36 So. 3d 198, 201 (La. 2010) (disciplining lawyer who filed an affidavit from a felon that stated the district attorney conspired in a murder-for-hire scheme). The mere fact that a lawyer subjectively believes statements about a judge or judicial candidate are true will not exonerate the lawyer. In re Mire, 197 So. 3d 656 (La. 2016); In re Lee, 977 So. 2d 852 (La. 2008); In re Simon, 913 So. 2d 816, 824 (La. 2005); see La. State Bar Ass’n v. Karst, 428 So. 2d 406 (La. 1983). Indeed, a lawyer violates this rule if the lawyer has exhibited “reckless disregard” for the truth irrespective of any subjective belief that he was not speaking falsely. See La. Rules of Prof’l Conduct r. 8.2(a). This is so because the Louisiana Supreme Court has “adopted an objective standard, rather than a subjective standard, in analyzing whether a statement is . . . a violation of the rule.” In re Simon, 913 So. 2d 816, 824 (La. 2005); In re Mire, 197 So. 3d 656 (La 2016). False statements about the judiciary are arguably protected by the First Amendment if made neither knowingly nor recklessly. See Garrison v. Louisiana, 379 U.S. 64 (1964), overruled on other grounds by Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967). Therefore, the constitutionality of the Louisiana Supreme Court’s decisions in Simon and Mire remains an open issue. See generally David L. Hudson, Jr., How Far Can Criticism of Judges Go Under Ethics Rules, ABA Journal, Dec. 1, 2016 (http://www.abajournal.com/magazine/article/criticism_judges_ethics_rules).

This rule is directed primarily to statements of fact made to the public at large that would undermine public confidence in the administration of justice. See United States v. Brown, 72 F.3d 25, 29 (5th Cir. 1995); In re Palmisano, 70 F.3d 483 (7th Cir. 1995). However, this rule should not stand as an obstacle to a nonfrivolous challenge to a judge’s partiality, if there is a need for recusal in an appropriate proceeding. See id.

Finally, this rule does not prohibit a lawyer from expressing a personal opinion regarding a judge. Comment 1 to Model Rule 8.2 states that “[e]xpressing honest and candid opinions on such matters contributes to improving the administration of justice.” See Model Rules of Prof’l Conduct r. 8.2 cmt. 1 (Am. Bar Ass’n); see also State Bar of Tex. v. Semaan, 508 S.W.2d 429, 432 (Tex. Civ. App. 1974). Of course, the distinction between a statement of personal opinion and a statement of fact is often evanescent.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice: disbarment, when a lawyer, with intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding; suspension, when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party or to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding; reprimand, when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding; and, admonition, when a lawyer engages in an isolated instance of neglect in determining whether submitted statements or documents are false or in failing to disclose material information upon learning of its falsity, and causes little or no actual or potential injury to a party, or causes little or no adverse or potentially adverse effect on the legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions stds. 6.1-6.14 (1992) (False Statements, Fraud, and Misrepresentation); id. std. 6.1.

Notes

This page was updated on January 10, 2020.