Rules of Professional Conduct

USBRPC 08.02. Judicial Officers. Amend. Prohibits knowingly making a false statement about the judicial system. Encourages lawyers to defend the judicial system.
The Advisory Committee on the Rules of Professional Conduct has withdrawn the proposed amendments to Rule 8.2 without submitting them to the Supreme Court.

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23 thoughts on “Rules of Professional Conduct
  1. R. Clayton Huntsman

    The amendment to RPC 8.2 goes way too far. It is appropriate to curb defamatory comments regarding a person, such as a judge. But to attempt to censor commentary about the judicial system smacks of totalitarianism and repression. If I were to say that the judicial system allows lawyers and investment bankers who are too rich and powerful to fail, or who can buy their way out of trouble, to get away with murder, I would be expressing an opinion which would violate this rule, because I know that not all social criminals who buy their way out of trouble have committed murder. There must be some anxiety by our regulators that people may damage the junior high school elusions of our judicial institutions requiring such a rule but I think it’s best to let people, including lawyers, not be chilled in their free expression regarding this imperfect judicial system.

  2. R. Clayton Huntsman

    I have an additional comment to RPC 8.2. Our judicial system consists of those appointed by politicians subject to senate confirmation. Those who choose those who choose also are subject to some political influence. Does this new rule mean that we cannot criticize legislators or governors because they are also part of the judicial system? Again, this is a very slippery slope trying to chill free speech just because we are regulated by a judicial system which in itself is highly political.

  3. Randy Dryer

    Although the rule is certainly a best practice lawyers should follow, I have serious questions about the constitutionality of the rule, as written. It is vague and overboaod, lacks sufficient specificity and could be interpreted as encompassing false opinions. I suggest revising the rule to prohibit “knowingly making a material false statement of fact about the judicial system.”

  4. Brandon P.

    Are judges going to be encouraged to defend prosecutors? I believe this part of the rule is innappropriate. Are lawyers being asked to defend something that is not defense-able at times? This is America. If someone, even a judge, does something wrong, all should be free and feel free to speak out against such action. In America, it is a government “of the people” and “for the people” not a regime that is not to be questioned.

  5. R. Clayton Huntsman

    I inadvertently left a typo in my first post. I, of course, am referring to junior high school “illusions” regarding the best most perfect judicial system in the world, and its protection of our civil liberties including speech.

  6. Richard Larsen

    My primary concern is with the portion of the proposed rule that encourages lawyers “to defend the judicial system.” This requirement is completely unconstitutional. Does the rules committee really think that we should be required to surrender our first amendment rights to free speech in exchange for the ability to practice law in Utah? We as attorneys are in a position to see many of the shortcomings of the judicial system. Our system is good, but it is certainly not perfect. Who is more qualified to point out, and assist in correcting, problems in the judicial system then those who interact with it most frequently? It’s not hard to see glaring examples of the absurdity of this proposed rule. For example, this rule would arguably restrict any attorney from responding negatively on judicial performance evaluations, because judges are part of the judicial system. Why does the judicial system think that it should be exempt from legitimate critiques from individuals that work within it?
    I also share the previously listed concern that the rule as a whole is extremely vague. Further, I believe that the rule would be extremely difficult to enforce in practice, gutting it of its usefulness.

  7. Mary Corporon

    I am very concerned about this proposed new Rule.
    Of course, we all think the justice system is a wonderful thing. We work in it. It is, in my personal opinion, the best system for the administration of justice and for the allowance of freedom and free private enterprise ever devised. I will say that to anyone who asks.
    With that said, there are also numerous problems with the system. Are we never to acknowledge the problems? Are we all to walk along now like the King’s tailors and insist that he has clothes when it is qhite evident he does not?
    As this may apparently be my last ethical opportunity to say that anything needs fixing at the Courts, let me give examples of what we may no longer be able to say:
    1. The courts are currently woefully understaffed. I am having problems with clerks’ offices that do not return calls, and filings lost in the courthouse. Lost fillings and unreturned calls are a big problem.
    2. The system is too slow in many kinds of cases. For instance, if you believe you are actually innocent of a misdemeanor charge and want a trial in the Justice Courts of Utah, it takes sometimes 6 or 8 trial settings, from which you are bumped by an older case or a defendant in custody, before a defendant can get to his own trial. A defendant may have to wait a year or more to prove himself innocent of charges. There should be more judges in Justice Court. A man should not have to wait a year for a trial.
    There. Have I been unethical? Is it wrong of me to say this stuff? I personally believe it all to be true. Others may disagree. I guess after this Rule is adopted, I will not be able to bring these issues up again.

  8. J. Michael Coombs

    Regarding proposed amendment RPC 08.02 to the Utah Rules of Professional Conduct, a rule that would prohibit lawyers from “knowingly making a false statement about the judicial system” and which would additionally “encourage lawyers to defend the judicial system,” I have the following comments and observations.
    Having practiced law for 28 years and comparing the practice of law 28 years ago to now, it is disturbing to me to observe the Utah State Bar’s relentless efforts to exert more and more control over lawyers and the legal profession—and in ways that not only make no sense but in ways that may in fact harm the legal profession, the practice of law and the judicial branch of government.
    As a practical matter, how does one disprove that he or she “knowingly made a false statement about the judicial system”? At a Screening Panel Hearing, will a lawyer be bullied into admitting that he didn’t have much basis for the statement for which he is being required to face charges? How far does the Bar really want to go to muzzle professional speech and opinion, all in order to insulate the judiciary from criticism? Is one of the new goals of the Rules of Professional Conduct to now insulate the judiciary from criticism by those persons uniquely competent to critique it?
    Whoever is pushing this proposed amendment, this proposal seems to reveal a paranoid and totalitarian view of the world, namely, that the public at large is so stupid and ignorant that we need to do whatever is necessary to control the public’s view of the judiciary, even if that means silencing licensed professionals. Since when did the public’s view or impression of the judiciary become something that has to be controlled and manipulated by anyone, let alone the entire legal profession?
    None of us should feel comfortable about the idea of a branch of government trying to insulate itself from criticism from those very people it essentially regulates and that is precisely what this new rule is directed at. What is the judiciary actually worried about anyway? So what if a lawyer says something false or exaggerated about a particular judge or the judicial system? Are members of the public who might hear such statements no longer able to think for themselves? Why should anyone even care?
    The Bar has no business, it seems to me, trying to manipulate or censor, in advance, potential criticism of the judiciary by licensed professionals. That is what this proposed rule seeks to do and because a violation of it would be virtually impossible to prove or disprove, its purpose is obviously to empower the Bar to censor and discipline anyone it wishes to discipline and for just about anything it considers to be derogatory, offensive or slanderous. Is forcing us to all be “politically correct” the next step after this?
    When I first began practicing law, judges were generally outgoing and cordial to lawyers outside of the courtroom. Judge David Winder would go out of his way to talk to you whenever you’d run into him. He would learn your first name and always call you by it when he saw you on the street. Many judges today, apparently on account of their collective fear of the Judicial Conduct Committee or whatever, are hard pressed to say “Hello” to a lawyer in the frozen foods section at the grocery store. And when they do, they look around to see if anyone saw them do so. This proposed rule would unfortunately separate us lawyers from the judiciary even further than we have become over the last several years and would surely give the judiciary even less reason to interact or be cordial with a practicing lawyer outside the courtroom. Is this what we want? A judiciary that lives in an even bigger and more fortified ivory tower and which shall be completely impervious to criticism or critical observation from those very persons who have firsthand experience with it?
    I had a Constitutional law professor who used to say that Americans have a Constitutional right to lie. And what if we do? What if he was right?
    It seems to me that if someone wants to knowingly disparage the judiciary or any other branch of government, that is his or her right. If the Bar, a particular judge or a judicial candidate wants to bring a slander or defamation suit in response, let them. And let them do so at their own expense just like the rest of us would have to do. The alleged defamer can face the consequences in a court of law. But to regulate professional speech, institutionally, through the back door because the judiciary, or the people in control of it, don’t want any criticism of themselves or their friends or Comrades is, quite obviously, an outrageous abuse of power. This proposed rule is a sterling example of what Alexis de Tocqueville meant when he spoke of “soft tyranny.”
    In Abraham Lincoln’s time, there were strict slander laws, a reality that encouraged people to watch their mouths. Under the old common law, there are also criminal slander and libel. Under the common law, slandering a person in his business or profession is slander per se and does not require proof of damages. Damages are presumed. Last time I looked, this was still the law in Utah. The tort of slander per se, which has been around a few hundred years and which is already in place, is a far more effective way to regulate defamation by lawyers than creating some self-serving, arbitrary institutional rule or club to hold over everyone’s head, a rule that will likely know no bounds and which will eventually lead to abuse by those having the exclusive power to wield it at their leisure. Maybe not now but sooner or later.
    I believe this is a dark and sinister rule that is trying to be foisted upon us while most of us aren’t paying attention (notice how innocuously it has been presented), a rule with enormous potential to be used for great mischief and harm. No one should be allowed to create an institution of government that can insulate itself from criticism from those very persons who know more about it than anyone else. How will the public ever become aware, from lawyers, that the judicial system is broken in some fashion if a rule like this is adopted and strictly enforced or enforced with a vengeance? Would not lawyers be afraid to speak up and be honest for fear of being disciplined?
    As to the second part of the proposed rule, I have these questions: From where or from whom does the Utah State Bar get the power or other authority to affirmatively force lawyers to make members of the public FEEL GOOD about our judicial system? I didn’t know that any of us lawyers had an obligation to do that. That almost smacks to me of an effort to make us lawyers all Propaganda Ministers for the judiciary. Why should we be doing that? Is that one of the other purposes of this rule? If not, what it is? And if we are going to be forced to act as Propaganda Ministers for the judiciary, we ought to be paid as full-fledged Public Relations Agents. I see nothing in the rule to compensate us in that regard. If we are going to be conscripted and forced to act as PR agents, it seems to me that we should all get paid for it.

  9. Mike

    Silly. Such a vague and broad-based rule is a waste of ink. Sounds like judges trying to force attorneys to protect them when, perhaps, they don’t deserve it. Free speech?

  10. Shane Johnson

    So, if I’m not mistaken, the purpose of the rule (or at least one of them) is to protect the reputation/feelings of the “system”? Is this an Orwellian slip? Or an Onion headline?

  11. Richard King

    The proposed amendments to USB 14-0516 should not be adopted. If the Bar is going to publish admonitions and public reprimands in the Bar Journal, then the entire contents of the file, including all responses in opposition to discipline, should be published as well. The entire story should be published. Publishing such actions will have an anticompetitive impact, and raises antitrust implications. Attorneys are increasingly abusing ethical rules by filing complaints for anticompetitive reasons.

  12. Richard King

    Regarding proposed USBRPC 08.02, the proposed rule unnecessarily and unreasonably chills the first amendment rights of attorneys. The requirements that an attorney intentionally lie, and defend a justice system that many attorneys believe to be seriously flawed, is repulsive. There is no justification to require an attorney to participate in a fraud on the public. This is a return to the notorious Alien and Sedition Acts, which President Thomas Jefferson wisely allowed to expire. The proponent of this rule apparently believes that Utah is in the former USSR or the People’s Republic of China.

  13. Kevin Murphy

    This strikes me as excessively or obsessively over-controlling. Also, it looks certain to draw First Amendment-based challenges. The rule seems to target individual opinions about matters of public interest, which by nature are neither “true” nor “false.” Who will draw the unlucky task of enforcing this rule, and who will decide whether an accused lawyer has made a knowingly or recklessly false statement. -Kevin Murphy (5768)

  14. Roger A. Kraft

    Are we really heading down this path? Really? What a waste of valuable time in preparing and proposing the rule. Just try enforcing it and see that waste of time magnified ten fold. What is a false statement about the judicial system? I assume we will require the judicial system to appear in court to prosecute a complaint. Remember, truth is a viable defense.
    What blows my mind is the fact that lawyers are actually proposing this rule!! I should not be surprised to find, upon examination of their credentials and law school transcripts, these lawyers failed terribly in their constitutional law classes and in their attempts to secure meaningful employment upon their accidental passing of the bar exam.

  15. Roger A. Kraft

    In reviewing my last comment I should be grateful that this new rule is not yet in place. The next step will be to implement the rule ex post facto.

  16. Charles Schultz

    The proposed addition RPC 08.02, the Utah Rules of Professional Conduct to prohibit knowingly making a false statement about the judicial system and requiring lawyers to defend the judicial system, should not be adopted. It is unconstitutionally vague and ambiguous, at best.
    Who determines when a statement about the judicial system is ‘knowingly false?” Who is to say that whatever person, committee, panel, or other entity that decides a statement about the judicial system is false, much less “knowingly false,” is more qualified to determine if the statement is false or “knowingly false” than the person making the statement?
    When I became a lawyer, I never dreamed that it meant giving up my Constitutional right to free speech under the First Amendment to the Constitution of the United States. However, it is very apparent that in Utah lawyers are a subclass of citizens who have no rights under the First Amendment to the Constitution of the United States.
    What is next? Will lawyers be required to kneel before entering court buildings? Will CLE mandate that lawyers take a class on how wonderful, marvelous, and perfect the judicial system is? Will a lawyer’s letterhead be required to contain a reference stating how lucky he or she is to be permitted to be associated with such a wonderful and marvelous institution as the judicial system. 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?
    Will lawyers be required to call judges “Your Worship, Your Holiness, Your Majesty,” or some other reverent term?”
    I also hope the proposed Rule does not include “revenue courts.” Although I know it does, and in fact, the motivation of this proposed rule is in response to the various articles written about what a joke and mockery of the legal system “revenue courts” are.
    I shall never say anything good about “revenue courts!” I will accept any punishment rather than say anything good about “revenue courts!” In fact I will be disbarred before I will say anything good about “revenue courts!”
    It is a very sad commentary on the state of the legal system in Utah when the powers that be feel the need to adopt a rule requiring lawyers to lie about the legal system.
    Well, at least the proposed change does not use the phrase “Justice System.” That would truly be an oxymoron.

  17. TL Feeny

    I’m strongly opposed to the adoption of RPC 08.02, for the following reasons:
    1) Vague and ambiguous.
    2) Violative of the First Amendment.
    3) Hostile to public transparency.
    The public, (which has a large stake in a fair and efficient courts system) relies in large part upon practicing lawyers to blow the whistle when problems arise within in the justice system; and a draconian rule of this order will not only chill constitutionally protected speech, but further result in placing a de facto gag order upon wary practitioners who’ll inevitably choose to keep their mouths shut, rather than to risk State Bar disciplinary proceedings involving fuzzy issues like determining what is “knowingly false.”
    This proposed amendment to the Utah Rules of Professional Responsibility is the most extreme example of State Bar overreaching I’ve seen in quite a long while; and it should quickly and summarily have a stake driven through its heart.

  18. The American Civil Liberties Union of Utah

    The proposed changes to USBRPC 8.02 would make this rule substantially overbroad and vague and thus unconstitutionally speech-restrictive. The Utah Supreme Court and Utah Judicial Council should not adopt these proposed amendments.
    In the amended form currently proposed, USBRPC 8.02 would read, in relevant part, “(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.”
    These amendments, if adopted, would unconstitutionally restrict the First Amendment and due process rights of Utah lawyers through their substantial overbreadth and vagueness.
    The current form of 8.02 restricts, perhaps appropriately, false statements about identifiable individuals: judges, adjudicatory officers, or a candidate for election or appointment to judicial office. The proposed amendments, however, widen the restriction to encompass general criticism of “the judical system.” These amendments exponentially widen the scope of this restriction and would make the rule unconstitutionally overbroad by encompassing speech unambiguously protected by the First Amendment. BYU Law Professor Margaret Tarkington recently addressed this issue in her article The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, in which she argues that “Speech critical of the judiciary falls within the central purposes and core protection of the First Amendment. As Cass Sunstein has stated: ‘There can be little doubt that suppression by the government of political ideas that it disapproved, or found threatening, was the central motivation for the [speech] clause. The worst examples of unacceptable censorship involve efforts by government to insulate itself from criticism.’ ” *
    The current form of USBRPC 8.02 incorporates language from the Supreme Court’s New York Times v. Sullivan holding, where the Court established that public officials could not recover for defamation unless the “statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. 254, 279—80 (1964). The proposed amendments, however, do away with a crucial piece of the defamation doctrine: identification. Utah, like most if not all states, requires a plaintiff to prove identification as an element of the tort: “To state a claim for defamation, [the plaintiff] must show that defendants published the statements concerning him.” West v. Thomson Newspapers, 872 P.2d 999, 1007 (Utah 1994). When, for example, a complaint about a statement made by a lawyer about a judge is filed under the current form of 8.2, the Utah State Bar must determine whether the lawyer made a statement about an identifiable individual: “a judge, adjudicatory officer or a candidate for election or appointment to judicial office.” This is a relatively simple finding of fact and narrowly tailors the rule to meet the interest in protecting the reputation of judicial officers from false accusations. If the lawyer’s statement was directed at one of the listed individuals, the Bar must then examine whether the lawyer knew the statement was false or acted in reckless disregard of its falsity.
    It is difficult to imagine, however, how (1) the Bar could possibly identify the boundaries and limits of “the judicial system” and (2) how any lawyer could know whether a given statement about “the judicial system” was true or false. Unlike a judge or an adjudicatory officer, “the judicial system” is not easy to identify. Utah’s judiciary is a complex network with connections to the administrative and legislative functions of the state, as well as long-established contractual ties to the private sector. The term “system” is inherently vague, which raises additional due process constitutional concerns. The United States Supreme Court has repeatedly held that “a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.” Bagget v. Bullitt, 377 U.S. 360, 367 (1964). It is not difficult to see how people applying the proposed amendments would have to “guess at its meaning and differ as to its application.”
    Moreover, it would be even more difficult for a lawyer to determine the truth or falsity of a statement made about a “system.” If, for example, a lawyer accused a certain judge of accepting bribes, that lawyer, and the Bar, could easily perform some sort of investigation into the judge’s conduct, establishing a basis for the truthfulness or falsity of the accusation. On the other hand, if a lawyer accused the judicial system of being “corrupt,” the entire network of courts, judges, clerks, paralegals, police officers, ad infinitum, would have to be investigated to demonstrate the falsity of the accusation. Such an investigation would be, of course, both impossible and impracticable for disciplinary purposes. Any reasonable lawyer, fearing disciplinary action under the rule, would likely refrain from making any statement about the judicial system at all, even if he or she was certain the statement was not false. The proposed amendments, therefore, would undoubtedly chill truthful speech protected by the First Amendment and would thus be unconstitutionally overbroad.
    In Broadrick v. Oklahoma, the United States Supreme Court set the standard for challenging a governmentally-imposed regulation as facially overbroad. 413 U.S. 601 (1973). In Broadrick, the Court emphasized that “the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Id. at 611—12. A law that sweeps in protected speech along with unprotected speech is unconstitutional if its overbreadth is not only “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615.
    The overbreadth of the proposed amendments is both real and substantial. These amendments would destroy the legitimate sweep of USBRPC 8.02 and cause the rule to be facially overbroad and thus unconstitutionally speech-restrictive, exposing the Utah State Bar to potential lawsuits and sullying its reputation throughout the country. For these reasons, the Utah Supreme Court and Utah Judicial Council should reject the proposed amendments to USBRPC 8.02.
    * Margaret Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, Geo. L.J. (forthcoming), available at

  19. Chris Parker

    We write to oppose the proposed changes to Rule 8.2 of the Rules of Professional Conduct because the changes would have a chilling effect on a lawyer’s participation in public discourse concerning government systems, they would uniquely harm lawyers who participate directly in governmental action concerning the judicial system, and the existing rule sufficiently addresses the harms caused by unfounded criticisms of judicial officers. Alternatively, we propose that the court adopt language that would clarify that the rule, as modified, does not apply to a lawyer’s advice to legislative or executive governmental entities or participation in official legislative or executive proceedings.
    Changes Chill Appropriate Public Discourse
    Open and critical discourse concerning government systems and programs has long proven to be not merely tolerable, but a valuable mechanism for improving those systems. Chilling such criticism is unwise. The public interest in the effective administration of an entire branch of state government is significant. Lawyers are uniquely positioned to shine light on the judicial system’s strengths and weaknesses. While we do not support false statements or those made with reckless disregard for their truth or falsity, we believe that the threat of professional sanction will chill a significant amount of criticism that falls far short of the standard of falsity or reckless disregard. This is especially so given the vagueness of the rule, both in terms of definition and methods of proof. If, indeed, defamatory statements are made that injure a person, a cause of action may exist under current law, with its accompanying well-developed standards of proof. However, when only a nebulous notion of faith in the system is at stake, a lawyer’s right of free speech, and the public’s interest in improvement of its government, ought not to be so quickly curtailed. The court should not squelch the free speech of those who have such a long history as its defenders. Not only would this institutional protection be unique, it is contradictory to the long tradition of open debate in this state and country.
    A parallel to the legislative branch, while imperfect, is instructive. In the legislative setting, the Utah Supreme Court, under authority of Utah Constitution, Article VI, Section 8, has protected even defamatory statements made by members of the public in legislative proceedings. See Riddle v. Perry, 2002 UT 10, ¶9. This is because “the greater good is served by ensuring that citizens who want to participate in the legislative process may do so without fear of liability for defamation.” Id. at ¶10. While the Utah Constitution provides no judicial immunity, the rationale supporting the court’s decision in Riddle v. Perry may apply to public debate concerning the judicial system. One can easily conceive of a situation in which legislation concerning the judicial system is before a legislative committee and a lawyer testifies bluntly about the legislation resulting in an accusation of violating the rule. It seems unreasonable to provide immunity in line with Riddle v. Perry and yet subject the lawyer to professional sanction. Lawyers ought not to be in such fear of offering their perspectives on the administration of the judicial system. The inevitable diminishment of speech concerning the judicial system by those best-suited to provide valuable insight is one reason why the proposed rule should be disapproved.
    Changes Likely to Harm Public Lawyers
    An additional concern exists for those lawyers whose job it is to participate in the policymaking process concerning the judicial system. Many lawyers work or serve in government positions that require them to take positions on matters concerning the governance of the judicial system. The proposed rule places those lawyers in unique jeopardy because of its vagueness. The proposed changes should be disapproved or, at a minimum, revised to address the unique challenges that government lawyers face. Given the governor’s role in judicial appointments, this list could include a governor who is a lawyer or a lawyer representing the governor. It could include a lawyer who is a legislator or a lawyer representing a legislator or the legislature, given the legislature’s roles in funding the judicial system, confirming judicial appointments, and otherwise making law applicable to the judicial system. It could also apply to a local government lawyer.
    If the court adopts the proposed changes, these lawyers are best served by greater clarity and protection than the changes provide. Whether by text or comment, the rule should be crafted in such a way so as to not prevent these lawyers from effective service in their office or representation of the officials or institution they serve. Clarifying that legislative immunity will apply to shield some of these lawyers from professional sanction is one example, but is not sufficient because both legislative and executive branch lawyers may be involved in various settings in connection with their official positions. One possible clarifying comment is suggested below:
    “This rule may not be applied against a lawyer who honestly and candidly participates in an official executive or legislative proceeding at the state or local level concerning the judicial system or provides advice to an executive or legislative client. A government lawyer’s clients deserve frank and candid advice when the subject of the advice is the governance of the judicial system. A government lawyer’s honest and candid advice and participation in official proceedings are means by which the lawyer can contribute to improving the administration of justice and should not be discouraged or chilled by an unjust application of this rule.”
    Current Rule Provides Adequate Protection
    The existing Rule 8.2 is designed to prevent inappropriate criticism of judicial officials, not systemwide criticism that serves the valid public purposes of identifying areas of concern and helping address them. There are good reasons for the existing rule’s protections, including the protection of public faith in individual judicial decisions. Public faith in the individual decisions rendered by courts is essential to the effective rule of law. Public faith in the administration of the judicial system is less related to the effective rule of law and should not be divorced from the forms of criticism that apply to the administration of other government institutions. Criticism poses much less jeopardy to faith in the fair administration of justice than the proposed changes seem to contemplate. Our system of government is designed to encourage, not stifle, broad discourse. The robust public debate is meant to sift the truth from the lies, misapprehensions, and differences of opinion. Subjecting the judicial system to the same forces of criticism and correction as the other branches of government bolsters, rather than diminishes, the public’s faith in the institution. The proposed changes should be disapproved because they would unwisely extend the current, appropriate protection for individual judicial officials to insulate an entire branch of government from criticism.
    By discouraging criticism of an imperfect system (no system is perfect), the judicial system stands to lose critical information that can help it improve. While some may abuse the right of speech, lawyers ought not to have to tread so carefully at the risk of professional sanction for criticizing the judicial system when speaking on matters concerning the administration of the judicial system. The proposed changes will prevent lawyers’ speech and deprive the public and the judicial system of valuable insight. Further, the proposed rule creates unique uncertainty for many government lawyers whose jobs may require a firm stand on matters concerning the judicial system. Lastly, the current rule sufficiently protects against the harms of unfounded criticism. For all of these reasons, we oppose the proposed changes to Rule 8.2 of the Rules of Professional Conduct. In the event the proposed changes are adopted, we propose that additional text or a clarifying comment be added to exempt from the rule’s application a lawyer’s advice to an executive or legislative client and participation in official executive or legislative proceedings concerning the administration of the judicial system.
    John Fellows
    General Counsel, Office of Legislative Research and General Counsel (OLRGC)
    Eric Weeks
    Deputy General Counsel, OLRGC
    Susan Allred
    Associate General Counsel, OLRGC
    Victoria Ashby
    Associate General Counsel, OLRGC
    Emily Brown
    Associate General Counsel, OLRGC
    Esther Chelsea-McCarty
    Associate General Counsel, OLRGC
    Gretchen Lee
    Associate General Counsel, OLRGC
    Patricia Owen
    Associate General Counsel, OLRGC
    Chris Parker
    Associate General Counsel, OLRGC
    Robert Rees
    Associate General Counsel, OLRGC
    Rebecca Rockwell
    Associate General Counsel, OLRGC
    Angela Stallings
    Associate General Counsel, OLRGC
    Thomas Vaughn
    Associate General Counsel, OLRGC
    Jim Wilson
    Associate General Counsel, OLRGC

  20. Mark L. Shurtleff

    Dear Members of the Advisory Committee on the Utah Rules of Professional Conduct:
    I write on behalf of the Utah Attorney General’s office to oppose amending rule 8.2 to prohibit lawyers from making “false” public statements concerning “the judicial system.”
    The hallmark of any democracy is the right “to communicate freely [one’s] thoughts and opinions.” Utah Const. art. I, § 1. And the hallmark of American democracy is the right to criticize government, whether it be the executive, legislative, or judicial branch. The proposed amendment seriously threatens to deter lawyers from exercising both those rights.
    It is one thing to discipline lawyers—as the rule now allows—for knowingly or recklessly making a public false statement about “the qualifications or integrity of a judge” or judicial candidate. Such statements are both factual and defamatory in nature. But comments—whether or not true—about a branch of government cannot be considered defamatory. Nor are they likely to be purely factual. Rather, such comments are most likely to be opinion and, as such, quintessentially the kind of political speech protected by both the First Amendment and article I, § 15 of the Utah Constitution.
    Our democratic society relies on robust political debate to improve our system of government and to effect necessary reform. Threatening to discipline lawyers for speaking up about perceived problems in the judicial system will serve only to silence the one group of people best able to note those problems.
    While it is true that the proposed amendment prohibits only “false” statements, the amendment will still have a chilling effect on lawyers’ rights to freely express their thoughts and opinions on the judicial system for two reasons. First, the prohibition is vague. A lawyer may believe that the judicial system is too slow, too inefficient, or biased against minorities. But if that belief—based on the lawyer’s personal experience—is rebutted by statistical data or other evidence, that lawyer has arguably recklessly expressed a falsehood about the system and could, therefore, be subjected to discipline. Second, the very system that the lawyer is criticizing will be the system that judges whether or not the statement was knowingly or recklessly false. It is difficult to believe that very many lawyers will be willing to put their bar license and livelihood on the line in order to criticize the judicial system, whether or not they believe their statements about the judicial system are true. Indeed, the comments already posted in opposition to this amendment bear this out.
    Tellingly, no state in the country has adopted such an ill-conceived and dangerous threat to our free speech rights. I urge the Committee not to recommend this amendment to the Utah Supreme Court and I urge the Court not to adopt it.
    Mark L. Shurtleff
    Utah Attorney General

  21. carolyn nichols

    I oppose amending rule 8.2 to prohibit lawyers from making “false” public statements concerning “the judicial system.”
    The proposed amendment seriously threatens to deter lawyers from exercising the right “to communicate freely [one’s] thoughts and opinions” Utah Const. art. I, § 1 and to criticize government, whether it be the executive, legislative, or judicial branch.
    Our democratic society relies on vigorous political debate to improve our system of government and to effect necessary reform. Threatening to discipline lawyers for speaking up about perceived problems in the judicial system will serve only to silence the one group of people best able to note those problems.
    It is one thing to discipline lawyers—as the rule now allows—for knowingly or recklessly making a public false statement about “the qualifications or integrity of a judge” or judicial candidate. Such statements are both factual and defamatory in nature. But comments—whether or not true—about a branch of government cannot be considered defamatory. Nor are they likely to be purely factual. Rather, such comments are opinion and the kind of political speech protected by both the First Amendment and article I, § 15 of the Utah Constitution.
    I don’t believe any other state has adopted such an ill-conceived and dangerous threat to our free speech rights. I urge the Committee not to recommend this amendment to the Utah Supreme Court and I urge the Court not to adopt it.

  22. Jeffrey J. Hunt

    I write in opposition to the proposed amendment to Rule 8.2 of the Rules of Professional Conduct. The constitutional and policy reasons for opposing this amendment are congently stated by the previous commentators, and I will not repeat them here. Simply put, political speech, including, in particular, speech that is critical of government, lies at the core of the First Amendment and deserves the highest level of protection. Expanding the reach of this rule to statements about the “judicial system” poses a substantial risk of chilling such speech, to the detriment of the bar and the public. This flaw is fundamental, not a drafting problem that can be fixed by tweaking the language of the rule, as a few commentators suggest.
    The best way to “defend” the judicial system is to defend and protect the freedom of lawyers, judges, and the public to speak freely about that system. As Justice Black said in Bridges v. California, 314 U.S. 252, 62 S.ct. 190 (1941):
    “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, soley in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”
    I urge the Judicial Council and the Supreme Court to reject this proposed amendment.
    Jeffrey J. Hunt