Indiana Supreme Court: Attorney’s Criticism of Judge is “Good Faith Professional Advocacy”

In Indiana, Rule 8.2(a) prohibits the making of statements 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.” Recently, in the case of In re Dixon, the Indiana Supreme Court decided that the extent to which the attorney discloses accurate facts to support such a statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity. The Court held that such statements should be analyzed under an objective test that compels the courts to consider whether the attorney lacks any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made. Additionally, the court held that the extent to which the attorney discloses accurate facts to support the statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity.

In this case, an attorney filed a Motion for Change of Judge and in support of his motion, made statements that criticized the judge’s impartiality. For example, the attorney characterized the judge’s connection to the case as one that “…calls into profound question her ability to navigate the waters of defendants’ legal defenses” and noted that one of the judge’s ruling exemplified the fact that,“… she did not feel duty bound to apply the [appropriate] rule because she was biased…” 

The Indiana Supreme Court decided that the lawyer did not, in fact, violate Professional Conduct Rule 8.2(a). The court’s primary justification was that the lawyer was engaged in “good faith professional advocacy in a legal proceeding requiring critical assessment of a judge” and, therefore, Rule 8.2(a)’s limits must be interpreted to be the least restrictive. The court provided several additional reasons. First, it cited to Comment [1] of Rule 8.2, which stipulates, “[e]xpressing honest and candid opinions on such matters contributes to improving the administration of justice.” Second, the court explained that there was no rule violation because the attorney’s statements related to his allegation of personal bias or prejudice as required by Criminal Procedure Rule 12(B). Third, the court stated that the attorney’s statements were not sanctionable because they had to be considered in the entire context in which they were made, including the supporting facts that the attorney provided.

As illustrated in this case, this test attempts to balance the public interest in candid discussions about a judges’ qualifications against competing interests in maintaining public confidence in the administration of justice.

The decision can be read in full here.

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