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AMERICAN BAR ASSOCIATION JUDICIAL DIVISION

SPECIAL COMMITTEE ON JUDICLVL INDEPENDENCE

RECOMMENDATION

RESOLVED, That the American Bar Association encour^es all state, local and territorial bar 1 associations to adopt programs enabling timely and effective responses to criticism of judges 2 such as the "Model Program Outlme for State and Local Bar Associations: Suggested Program 3 for the Appropriate Response to Criticism of Judges and Courts," dated February 1998. 4

102 Model Program OntUne for State, Local and Territorial Bar Associations:

Suggested Program for the Appropriate Response to Criticism of Judges and Courts

(FEBRUARY 1998)

I. Policy Statement

A. Why a Plan Is Needed

The effectiveness of the administration of justice depends in a large measure on public

confidence. The reporting of inaccurate or unjust criticism of judges, courts, or our system of justice

by the news media erodes public confidence and weakens the administration of justice. It is vital

that nonlitigants as well as litigants believe that the courts, their procedures and decisions are fair

and impartial.

Generally, it is undesirable for a judge to answer criticism of her or his own actions

appearing in the news media This policy has been developed to insure die dignity of the

adnunisttation of justice, to prevent mterference with pendmg litigation, and to reaffirm die

comtnitment to an indqiendent judiciaiy, a judiciary dedicated to decisioiunaking based on fects and

law as presented.

The risk is apparent fliat a response by a judge to criticism of her or his own actions may be

perceived by the community as "self-servmg" and/or as a "defensive" position which M s for lack

of credibility. Also, since there invariably is more at stake than an individual judge's ego or

feelings, the bar shoidd recognize the negative reflection on the dignity of the administration of

justice i f a judge should make an mtemperate or emotional response to such criticism.

Further, a judge's comment contams the potential of reflecting on pendmg litigation and may

have an undesirable effect on litigants. In addition, an inappropriate response may give

encouragement to tiiose who would control flie judiciary by intimidation and thus weaken the

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102 independence of the judiciary.

Finally, judges subjected to criticism may be prevented from responding by ethical

restrictions relating to a judge's ability to eng^e in public commoit, a judge's need to maintain the

appearance of impartiality and the impropriety of et pane communications. Therefore, cooperation

of lawyers and bar associations is necessary to successfriUy meet and accurately, quickly and fakly

respond to criticism of judges and courts. This model plan implements the American Bar

Association Model Code of Professional Responsibility (EC 8-6) and the Model Rules of

Professional Conduct (Comment Model Rule 8.2) which entifle adjudicatory officials to the support

and the early and accurate response where their official actions are criticized.

B. When Action in Response to Criticism Should Be Taken by the Bar

Implementation of this plan is selective. To avoid infringing on die freedom of the press, this

plan is designed to effect a response on behalf of the judiciary and courts to criticism that is serious

as well as inaccurate or unjustified.

There should be no attempt to prevent criticism, but inaccurate or unjust criticism should be

answered through an organized public information program. Such criticism typically results from

a lack of understanding of the system - the reason for a decision, a sentence or a courtroom action.

The bar should r e^nd pubhcly to attacks iqjon a judge only in the following two instances:

1. a public utterance that is unwarranted or an unjust attack on a judge in relation to specific

cases, regardless of the source of the attack, or,

2. any "unwarranted" or "unjust" attack or series of attacks on a judge or court which may

adversely affect the administration of justice.

Guidelines to determine when a response to criticism is appropriate in a particular case are

provided in Section II.C. of the Bar Association Model Program below.

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C. Implementation of the Policy and Plan

Because of the restraints placed on judges both by tradition and by the Code of Judicial

Conduct, and the ethical obligations imposed by the ABA Model Code of Professional

ResponsibiUty and the ABA Model Rules of Professional Conduct for lawyers, it is reconunended

that state, local and territorial bar associations adopt a policy and program to provide appropriate and

timely responses to criticism of judges and courts. The following are suggestions for

implementation of such a policy and program:

1. Adopt a poUcy statement that supports the position that judges should generally not

respond to criticism and that the bar, state, local and territorial, should, when appropriate, respond

tocriticism of judges and courts.

2. Adopt a stracture and process for receiving, screening and evaluating criticisms of judges

and/or courts. (See Sections n.A. and B. for suggested program.)

3. Develop guidelines to determine when the bar association should respond. (See Section

n.C. for suggested guideUnes.)

4. Since timing is key to responding, provide a method whereby the bar can respond quickly,

accurately and witii aufliority. (See Section D.D.)

5. Coordinate state, local and territorial bar association programs to broaden the base of the

response. In some cases, it may be appropriate for the state, local and territorial bar to respond. In

other cases, only one or the other should respond.

6. Coordinate the program with the appropriate federal, state, local or territorial judiciary

and recommend to other local bar associations the implementation of a comparable poUcy and

program.

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102 7. Provide federal, state, local and territorial judges and court officials with copies of the

program and encourage them to contact named bar officials to alert them to media criticism which

the judge(s) and/or court beheve to be deserving of an ̂ propriate bar association response,

n. Model Program for State and Local Bar Associations

A. Purposes and Functions of Program

The primary purposes and fimctions of the program are:

(a) To deal with errors in reporting or inaccmracies in rqwrting criticism of judges, courts

and/or the administration of justice, as further provided in this policy statement;

(b) To be available to the news media as a resource for obtaining information concerning

judicial activities, court process or other technical or legal information about the administration of

justice;

(c) To encourage broad dissemination of information to the public about noteworthy

achievements and improvements within the justice system;

(d) To suggest means by which judges and lawyers can improve the public image of the legal

system; and

(e) To generally seek a better understanding within the community of the legal system and

the role of lawyers and judges.

B. Referral Procedure

1. Assign the task of administering the program to an appropriate designee, conunittee

and/or contact person.

2. All referrals of criticism of judges and courts should be forwarded to the appropriate

contact person at the state, local and/or territorial bar association headquarters. The referral may be

oral or written, but in all cases the referring person must be available to assist in gathering

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background and facUial information and must present written material when requested. Al l referrals

should be undertaken with the specific permission of the judge or court criticized with the

understanding that the judge or court also will assist in gathering necessary information for the bar

association to evaluate.

3. The contact person assigned should inmiediately begin to gather all pertinent backgrotmd

and factual information including a copy of the text (whether in Uve or print media) of the criticism.

4. The contact person then should iimnediately notify the president of the state, local or

territorial bar association and the designee or chairperson of the committee assigned the overall

responsibility.

5. The designee or committee chairperson should promptly investigate the tmderlying facts,

discussing them to the extent possible with other committee members and the judge involved, and

then promptly prepare and release the response.

Upon securing ^proval of the president of the state, local or territorial bar association, the

designee or committee chairperson may speak in the name of the association.

C. Guidelines to Determine When the Bar Should Respond

1. The following are the kinds of cases in which respondmg to criticism is appropriate,

except in unusual circumstances:

(a) When the criticism is serious and will most likely have more than a passing or de minimis

negative effect in the conuntmity;

(b) When the criticism displays a lack of understandmg of the legal system or the role of the

judge and is based at least partially on such misunderstanding; and

(c) When the criticism is materially inacciuate; the macciuacy should be a substantial part

of the criticism so that the response does not appear to be "nitpicking".

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102 2. The following factors should be considered in determining whether a response should be

made in a close case and considered in every case in determining the type of response:

(a) Whether a response would serve a public information purpose and not appear

"nitpicking";

(b) Whether the criticism adequately will be met by a response &om some other appropriate

source;

(c) Whether die criticism substantially and negatively affects the judiciary or other parts of

the legal system, or whether continuing discussion of the controversy would serve to lower public

perceptions as to the dignity of the court, the judiciary or the judicial system;

(d) Whether the criticism is directed at a particular judge but unjustly reflects on the

judiciary generally, the court, or another element of the judicial system (e.g., grand jury, lawyers,

probation, bail, etc.);

(e) Whether a response provides the opportunity to inform the public about an important

aspect of the administration of justice (e.g., sentencing, bail, evidence rules, due process,

fundamental rights, etc.);

(t) Whether a response would appear defensive or self-serving;

(g) Whether the critic is so obviotisly uninformed about the judicial system that a response

can be made on a factual basis;

(h) Whether the criticism or report, although generally accurate, docs not contain all or

enough of the facts of the event or procedure reported to be fair to the judge or matter being

criticized;

(i) Whether the overall criticism is not justified or fair;

(j) Whether the criticism, while not appearing in the local press, pertains to a local judge or

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102 a local matter,

(k) Whether the timing of the response is especially important and can be best met by the

committee.

3. The following are the kinds of cases in which response to criticism IS NOT appropriate,

except in unusual circiunstances:

(a) When the criticism is a fair comment or opinion;

(b) When the feud is between the critic and the judge on a personal level;

(c) When the criticism is vs^e or the product of iimuendo, except when the innuendo is

clear;

(d) Where criticism raises issues of judicial ethics ̂ ropriate for presentation to the Judicial

Inquiry or Disciplinary body;

(e) When a lengthy investigation to develop the true facts is necessary;

(f) When the response would prejudice a matter at issue in a pending proceeding;

(g) When the controversy is insignificant;

(h) When the criticism arises during a political campaign and the bar's response may be

construed as an endorsement of a particular candidate for judicial office.

D. The Response

1. Timing. To be effective, the respotjse must be prompt, but accurate. If at all possible, the

response should be made within 24-48 hours of publication of the criticism or report, especially

keeping in mind the deadline{s) of the news media that reported the original criticism. Ideally a

response can be more immediate and occur even before publication, for example, through direct

communication with a reporter or editor which may clarify the facts and serve to defuse the situation.

2. Form of Response. The form and manner of the response should be such diat it will

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102 receive the same exposure and notoriety as the criticism. A letter to the editor is an effective form

of response, because it is the most hkely to be printed iully and accurately. Press releases are usually

more subject to editing and are frequently viewed as less credible, and pamphlets are too elaborate.

Television or radio talk shows may be effective forms of response but should be used more

cautiously_and sparingly. In some circumstances, press conferences provide effective means to

disseminate a response. Direct communication with reporters and editors intended to clarify facts

and present another position is encouraged. Whenever possible, any response should be coordinated

with the court public information officer if one exists.

3. Drafting Considerations.

(a) The response should be a concise, accurate, "to the point" statement, devoid of

emotional, inflammatory or subjective language;

(b) The statement should be informative and not argumentative or condescending;

(c) The statement should include a correction of the inaccuracies, citing facts and relevant

authorities where appropriate;

(d) The statement should be written in lay terms suitable for inclusion in a newspaper story;

(e) Where sppropriate, the statement should include the point that the judge had no control

or discretion (e.g., decision required by state law);

(f) Where appropriate, the statement should include an explanation of the process involved

(e.g., sentencing, bail, temporary restraining order, etc.);

(g) The statement should not attempt to discredit the critic, that is, attack the competence,

good faith, motives or associates of the critic;

(h) The statement should not provide evidence that the critic has hit a nerve, causing

overreaction;

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(i) The statement should not defend the indefensible;

(j) The committee should consider the cause of the criticism or controversy, which might

not be immediately sqjparent.

4. Content of the Response. The following points may be included in a typical response:

(a) Identify the criticism and its source.

(b) We may frequently disagree with the decisions and actions of pubhc officials, including

judges. The federal and state constitutions protect our right to express that disagreement.

(c) We must remember that judges have no control over what cases come before them, but

they must decide each and all of those cases. Judges must follow the law as established by higher

courts. One side always loses in every lawsuit.

(d) Because of their position, judges are not wholly free to defend themselves and it is

ordmarily not appropriate for them to personally answer charges made against them or then-

decisions (C.J.C. 2.A., 3, 3.B.7., 3.B.9., 4.A.I., 4.B.; C.P.R., EC 8-6).

(e) Lawyers, under the Code of Professional Responsibility and the Model Rules of

Professional Conduct, have a dufy to defend judges against unjust criticism (EC 8-6; Comment M.R.

8.2).

(f) Avoid taking a position on the merits of the controversy, since to do so will probably

eliminate any educational benefit the balance of the points might have for those who agree with the

criticism.

(g) The need for independent judges, who will not be influenced by criticism of them or their

decisions, requires that the organized bar remind both lawyers and the public of these facts.

(h) The law has established ̂ ellate courts so that decisions of judges may be reviewed and,

if appropriate, corrected. Our present judicial system provides for change in the law through

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102 legislative action or by constitutional revision.

5. Recommended Education Programs. An expanded public education program could be

undertaken to familiarize the public with such fundamental concqjts as:

(a) The rule of law;

(b) The need to preserve judicial independence and integrity;

(c) The organization and responsibilities of the judicial system; and

(d) The role of the lawyer in society.

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102 REEQRX

Systemic Reasons Why die Model Program is Needed

hi 1986, die American Bar Association Judicial Division Lawyers Conference Subcommittee on Unjust Criticism of the Bench created the original "Model Program Outlme for State and Local Bar Associations: Suggested Program to Meet Inaccurate or Unjust Criticism of Judges and the Courts" ("original Model Program"). The original Model Program addressed the need to respond to criticism of judges and the legal community's obhgation to assist in that response. In the past decade, many state, local and territorial bar associations have also adopted programs to respond to criticism of judges. While many bar associations have adopted the original Model Program, other bar associations have used the original Model Program for guidance while crafting their own response mechanisms. Oth«: bar associations however, have yet to adopt any program of their own. In 1997, the original Model Program was revised and re-named '*Model Program Outline for State and Local Bar Associations: Suggested Program for the Appropriate Response to Criticism of Judges and Courts" ("the Model Program"). The Model Program, dated February 1998 closely resembles the original Model Program with some selective revisions and additions.

The American Bar Association (ABA) has continually demonstrated its support of the concept of judicial independence. Among other past and current actions and pohcies, in 1996, the A B A created a Commission on Sq>aration of Powers and Judicial Independence ("the Commission") which operated during the 1996-7 Association year. The Commission focused on judicial mdependence issues affecting the federal judiciary, hi 1997, flie A B A created a Special Committee on Judicial Independence which will operate during the 1997-8 Association year. The Special Committee is focusing on flie problems of judicial mdependence in the state and administrative judiciaries. It was created as a result of testimony given before the Commission arguing that the judicial mdependence problems affecting the state and administrative judiciary are as great or greater than those affecting flie federal judiciary. Encouraging adoption of the Model Program, dated February 1998 will nicely comphment the ABA's vigorous efforts toward protecting judges firom one-sided and/or unwarranted criticism. By encouraging state, local and territorial bar associations to adopt flie Model Program, dated February 1998 die ABA can help ensure that judges are not defenseless when faced with one sided criticism of them. Knowing that they have guaranteed support, assuming certain circumstances exist, judges will be able to go about their work with less fear that they will have to personally respond to criticism of them and thus break then ethical obUgations.

As the least powerful branch of government, the judiciary depends on pubUc confidence and respect for its authority and stqiport. This confidence and respect are equally necessary to ensure effective administration of justice, the rule of law and judicial independence. Without it, the comts become subject to the potentially dangerous whims of temporary factions and thus may be rendered less able to effectively protect the liberties of all who appear before them.

At the same time, American citizens and politicians are free to criticize individual public officials and the institutions in which they serve. That right is an essential component of the American experiment in self government. Criticism is a key part of beneficial and educational debate

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102 leading to better government for the American people. In the case of criticism of individual judges or the judicial branch, however, special considerations exist that make responding by those affected a more complex issue than for those affected in the executive or legislative branches. While members of the latter branches of govennnent are free and often encouraged to respond to criticism leveled against them or their req>ective branches, judges' and the judicial branch's abihty to respond are more restricted, hideed, there are many reasons why it is difficult, in^ropriate and undesirable forjudges to adequately respond to criticism of his or her actions qjpearing in the news media.

Despite these restrictions and limitations, responses to criticism of judges or the judiciary are often necessary and proper to ensure a fiill and fair debate. Responses serve to educate die pubUc about an issue or the way the courts fiinction. American judges do inqwrtant work that is not always clearly understood or fiilly appreciated. Criticism leveled against individual judges or the judiciary which is not countered by a response may be unjust and has the potential to misinform the public i f not corrected.

While in Umited situations an individual judge may be able to respond to criticism, it is generally more desirable and necessary for other persons or entities to formulate a response. The Bar, especially, has a qjecial responsibiUty in this context. Comment three to Rule 8.2 of the ABA Model Rules of Professional Conduct states:

To maintain die feir and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

As formal organizations of members of the legal community, bar associations are both able and appropriate institutions to formally respond to criticism of judges and the judiciary. Given the many members of the local, state, territorial or national Bar who are members of the various bar associations, these organizations carry significant infiuence in thek respective jurisdictions. They are dius enable of issumg well informed responses that will be afforded respect by the news media and the public at large and can help to clarify issues that may have b ^ i misrqnresented or inaccurately reported.

Judicial Independence Reasons for the Model Program

Judicial indqjendence is jeopardized when criticism of judges or the judiciary is iiuq)propriate or misleading and goes unchecked or underchecked. From a systemic standpoint, f e d ^ judges generally enjoy the greatest degree of judicial indqjendence because of Constitutional provisions granting them life tenure and protections fixim reductions in salary. At the state, local and territorial levels, protections of judicial independence generally are less institutionalized so that the potential for undermining judicial authority through inappropriate criticism is substantially greater.

Increasingly, criticism of judges seems intended to deter judges from indepaident decision making. A striking example of the damage that a campaign of misinformation can have is seen in the recent defeat of Teimessee Supreme Court Justice Peimy White in her retention election.

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This came after private groups and pubhc officials attacked her for reversing a death penalty decision against defendant Richard Odom (see. State v. Odom, 928 S.W.2d 18 (Tenn. 1996)) and after they raised a fimjr over the feet that Tennessee had not executed anyone for the past 36 years. Actually, the case against Odom was reversed and remanded for a new sentencing hearing based on at least one legal error. Neither the Court nor Justice White ever mentioned that the death penalty was improper in this case. In fact, this was the only cjqiital case that Justice White faced as a Tennessee Supreme Court Justice and she did not write the majority, concurring or dissenting opinions in diis case. In a retention election dominated by misinformation. Justice White lost her seat on the Tennessee Siqweme Cotut.

Prior to her defeat, the Executive Committee of the Tennessee Bar Association tried to counter the criticism of Justice White. It wrote a Letter to the Editor in which it tried to explain: 1) that judges are ethically prohibited fiom coimnenting on pubhc matters; 2) what the court actually did in this case compared with what was reported and stated; and 3) that while judges may make unpopular decisions, their independence is necessary to ensure good judging. Unfortunately, this letter was unable to effectively combat the misinformation which had akeady been aired.

In Mississippi, Supreme Court Justice James Robertson was voted off the Court in 1992 after his opponent in the Democratic primary attacked him for writing a concurring opinion stating that the Constitution did not allow the death penalty in rape cases where there was no loss of Ufe. See, T.eatherwnnd v Stafe 548 So.2d 389,403-06 (Miss. 1989) (Robertson, J., concumng). What Justice Robertson's opponent did not mention was that the U.S. Supreme Court held, ten years earlier, that the Eighth Amendment did not permit the death penalty in such cases. See, Cokerv. (reorgia, 433 U.S. 584 (1977). Thus, Justice Robertson was foUowmg precedent, which he was bound to do. Justice Robertson's opponents also clauned that Robertson beUeved "a defendant who 'shot an unarmed pizza delivery boy in cold blood' had not conmiitted a crime serious enough to warrant the desOh penalty." Actually, Justice Robertson had written a dissenting opinion in the case arguing that the case be remanded for a new sentencing hearing because the trial court did not define the "heinous, atrocious or cruel" elements for the jury as required by law. See, Clemons v State, 535 So.2d 1354,1367-8 (Miss. 1988) (Robertson, J., dissenting). Further, Justice Robertson never claimed that the death sentence would be improper in this case.

Justice Robertson was left generally defenseless during these unwarranted attacks. The Mississippi Bar neither had nor has any formalized mechanism to respond to criticism of judges. Like many other bar associations, the Mississippi Bar may issue a response to criticism of a judge or die judicial system, but it is done on an ad hoc basis. No ad hoc response was issued in this instance. While it would be speculation to say whether Justice Robertson would have retained his seat i f responses to criticism of him ware issued, it is very possible that some, if not all of the mistakes and misrepresentations leveled against him, would have been corrected if a program like or similar to the Model Program were in place. Thus an even, two-sided debate would have been aired in the pubhc eye. Moreover, tiie citizens of Mississippi would have been better able to make an educated assessment of the criticism and Justice Robertson.

Other examples from around the country abound. Judges in Texas, Nebraska, California and

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102 elsewhere have been removed from office or at least subjected to serious criticism on the basis of misinformation propounded by the media, politicians, pohtical groups and otiiers. The pubhc's knowledge about these situations and circumstances are being framed by misinformation and innuendo that serve only to undermine the pubhc's confidence in the institutions upon which the public should be able to rely for fair and just resolutions. Events in New York are illustrative. In 1995, Governor George Pataki began to criticize die New York Court of Appeals for decisions that go too far in protecting criminal defendants and lack "common sense." However, as a recent article in The Jnrfgps' .Toumal documents, this criticism of the New York Court of Appeals by the Governor, which has been echoed by tiie New York State Attorney G o i ^ , otiier public officials and media, simply is not supported by the facts. In a comparative statistical study of criminal cases and search and seizure issues that came before the coiuts of last resort in New York, Vermont, Massachussets, Coimecticut, New Jersey and Pennsylvania, New York was actually fotmd to be well within the mainstream-neitha- overly pro-defense nor pro-prosecution. See Vincent Martin Bonventre and Judi A. DeMarco, "Court Bashing and Reality: A Comparative Examination of Criminal Dispositions at die New Yoik Court of Appeals and Neighboring High Courts," The JiiHges' Toumal, Winter 1997.

And the public does not approve of potiticians criticizing judges to enhance their own public image. Moreover, when «iucated as to both sides of the issue which gave rise to the criticism of flie judge, the pubUc is better able to qipreciate the threat posed to judicial independence. A 1996 poll conducted by the Quinnipiac College Polling Institute found that 64 percent of New YoAers beUeve that Governor Pataki should not pubUcly criticize judges' decisions. The poll also fotmd that 75 percent of respondents believe that it would be a bad thing if Pataki's comments chilled judicial mdqiendence. hi a sunilar vem, a 1996 ABA-sponsored poll, conducted by Lotus Harris & Associates, fotmd that 84 percent of respondents beUeve that it is not reasonable for the President or Members of Congress to try to influence or try to affect a judge's decision during a case. Eighty-three percent of respondents beheved that it was also inappropriate for the decisions of federal judges to be used to try to advance political canqtaigns.

Unfortunately, over the years, many times when individual judges or the judiciary were criticized and a response would probably have been educational and helpfiil, i f not the only means to guarantee a fair debate, the state, local or territorial bar association had no such response program in place to handle the situation and no representative from flie legal community formally responded. In some instances the only response to criticism has come fiom individual lawyers who wrote of their own accord.

State, local and territorial bar associations need to be encouraged to adopt programs to respond to criticism of judges or the judiciary to help ensure judicial mdqwndence. Through such a formal mechanism judges can be less concerned that criticism, mistakes or misinformation concerning them will be wantonly permitted. They may therefore be less inclined to break their ethical obUgations not to comment on pubUc matters or other criticism of them to which they ethically should not respond. They may also be less inclined to rule with public sentiment rather than as the law requires. Likewise, it is important for the public to be protected from the erosion of judicial independence that may result when unjust or unwarranted criticism of judges or the judiciary goes unchecked. A formal response to criticism program in place in the state, local or

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teiritorial bar association, modeled after or in accord Avith the Model Program, dated February 1998, should guarantee both that otdy criticism which fells into certain categories is formally responded to and diat the response will fakly and objectively address die criticism at issue. The public will thus be assured the opportunity to see and understand both sides of the debate and make a body informed decision of their own on the matter.

State and Local Bar Association's Programs in Practice

Many bar associations with some sort of formal program to respond to criticism of judges have put diose programs into action. Aside fiom flie example of the Tennessee Bar Association's Letter to die Editor in the Justice Penny White situation, anotiier example where this took place was in Arizona where a "President's Quick Response Team" was estabhshed by tiie Arizona Bar Association. In 1996, an attomey's remarks printed in an article in The A r i r n n a R e p H h l i c stated diat a certam federal judge was "an mdustty shill" and that he "has absolutely no respect for representative democracy." The President's Quick Response Team responded with a Letter to the Editor in which it addressed the principle of separation of powers and the need for judicial independence. The letter specifically refiised to address the merits of the judge's decision which teiggered the attomey's critical comments or the substance of those comments. While tiie Letter to the Editor is unlikely to have ended all criticism of judges in Arizona, it did rq)resent an equally visible check to flie criticism it was written m response to. Moreover, die Letter to the Editor Ukely had the effect of affording the public an opportunity to examine both sides of the issue die criticism raised, allowed members of the public to leam about the judiciary and the judicial system and served as a reassurance to all judges m Arizona that they are not individually nor collectively defenseless against criticism of them.

Similarly, die West Virginia Bar Association has used its response mechanism over die years in addressing criticism of judges. The program was recently used when then United States Presidential candidate Robert Dole criticized a federal judge sitting in West Virginia. Again, these responses represented a visible effort to correct mistakes and misrepresentations and helped to guarantee a fair and more even debate. They also served to reassure judges that they need not necessarily break their ethical obligations and personally respond to criticism as the only means by which to defend themselves against mistakes and misrepresentations.

The New Yoric State Bar Association ("NYSBA") has focused on educating die public, government officials and the media in addition to its Letters to the Editor. This education is part of an extensive outreach effort by the Bar Association. These efforts have included magazine articles on the subject of judicial independence, creating guidehnes for fair comment on judicial conduct and speeches and forums for the public, government officials and the media on the subject of judicial independence. Such efforts by NYSBA represent much of the best that the Model Program, dated Fdjruary 1998 actually provides for and, m spirit, encourages. NYSBA's responses to criticism of judges have been timely and visible; NYSBA has demonstrated a continuous and firm stance supporting the concept of judicial independence while always mindful not to discourage any opportunity to provide for constructive criticism and achieve judicial accountability; and NYSBA has made concerted, real efforts to educate die public, pubUc servants and the media about the judicial system, the value of judicial independence and

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102 the ways in which to appropriately criticize judges.

Free Speech Concerns

The Model Program, dated February 1998, is not at odds with protections of freedom of speech. As indicated above, criticism of governmental instimtions and individual civil servants has an essential and proper place in the American democratic system. Judges and the judiciary are not and should not be spared from warranted criticism. But, just as important as this right to criticize is the need for ̂ jpropriate responses to such criticisms so as to guarantee that the pubUc is able to understand the arguments on all sides of the particular debate to make fiilly informed decisions. The Model Program, dated February 1998, recognizes that state, local and territorial bar associations are able to make these appropriate responses and thus provides an example of how each can formally create a system of its own. However, the Model Program, dated February 1998, makes clear that not all criticism of judges or the judiciary warrants a formal response. Rather, the Model Program, dated February 1998, explicitly states:

To avoid mfrmging on the freedom of the press, this plan is designed to effect a response on behalf of the judiciary and couits to criticism that is soious as well as inaccurate or unjustified.

The Model Program, dated February 1998, fiirther states:

There should be no attempt to prevent criticism, but inaccurate or unjust criticism should be answered through an organized public mformation program. Such criticism typically results fiom a lack of understanding of the system-the reason for a decision, a sentence or a courtroom action.

The Model Program, dated February 1998, says a pubUc response by a bar association is generally appropriate when an unwarranted pubUc comment, an unjust attack on a judge in a pending case or an unwarranted or unjust attack or series of attacks on a judge or court which may adversely affect the administration of justice is made. Careful consideration was taken in formulating this clause of the Model Program, dated February 1998, so as not to create unnecessary intrusions xtpaa free expression rights of individuals and institutions such as the press.

What the Model Program Provides

The Model Program, dated February 1998, has five stated purposes and fimctions. Generally, these provisions ensure accurate reporting and debate as well as educate and mform the public, building a better imderstanding witii the public and improving the public image of die legal system.

The Model Program, dated February 1998, outlmes a referral procedure, ensuring that flie proper persons within tbe bar association are informed of the criticism that has garnered attention. At this point, the Model Program, dated February 1998, encourages gatiiering and investigating all

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pertinent information. Once this information is gathered and investigated for accuracy, the Model Program, dated February 1998, assists the bar association in its response.

The Model Program, dated February 1998, Ksts three instances where responding to criticism is ^ropriate: "when the criticism is serious and will most likely have more than a passing or de minimis negative effect in the community;" "when the criticism displays a lack of understanding of the legal system or the role of the judge and is based at least partially on such misunderstanding;" and "when the criticism is materially inaccurate; the inaccuracy should be a substantial part of the criticism so that the response does not appear to be "ni^icking.'"

By the same token, the Model Program, dated February 1998, Usts eight instances in which responding to criticism of judges would be inappropriate: "when the criticism is a fair comment or opinion;" "when the feud is between the critic and the judge on a personal level;" "when the criticism is vague or the product of iimuendo, except when the iimuendo is clear;" "where the criticism raises issues of judicial ethics appropriate for presentation to the Judicial Inquiry or DiscipUnary body;" "when a laigfliy mvestigation to develop the true facts is necessary;" "when the response would prejudice a matter at issue in a pendmg proceeding;" "when the controversy is insignificant;" and "when the criticism arises during a political campaign and the bar's response may be construed as an endorsement of a particular candidate for judicial office."

If the criticism does not fall into one of the instances in which a response is generally appropriate or mappropriate, the Model Program, dated February 1998, outiines factors for determining whether a response is necessary, as well as what such a response should be issued. These factors are concerned with ensuring a factual and fair debate as well as avoiding the damage to the legal profession, individual judges or the judicial system that could potentially occur when a response is issued.

Once decided tiiat a response to criticism is warranted, the Model Program, dated February 1998, explains several issues that must be considered in formulating that response. Factors include the timing of the response, the form and manner of the response, drafting considerations, the content of the response and recommended education programs.

Influences of and on state, local and territorial bar associations

Since its creation, many state, local and territorial bar associations have adopted the original Model Program or similar programs to respond to criticism of judges or the judiciary. Examples include the programs of the Ohio, Rhode Island, Utah and Denver bar associations. Several oflier state, local and territorial bar associations, such as die Florida, Maryland, West Virginia and Erie Coimty, New York bar associations have also adopted programs which are almost identical to the origmal Model.

Production of the original Model Program and the revisions were composed with careful outside research. The Lawyers Conference Subcommittee on Unjust Criticism of the Bench tiiat created the original Model Program relied heavily on provisions in existing programs in place in Alaska, Florida, the Illinois Judges Association, St. Louis, New York and Pennsylvania. The revisions to

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102 the origmal Model Program also rely on an examination of state, local and territorial bar associations' innovations and experiences and hopes to influence bar associations with no program of then: own or bar associations with existing programs that may benefit fiom some of the new provisions of the Model Program, dated February 1998.

Provisions in state, local and territorial bar associations' programs to respond to criticisms of judges or die judiciary dealmg with educating the public had a strong mfluence of the Judicial Division Lawyers Conference members who undertook the job of revising the original Model Program. The newly added section n.D.5. of the revised Model Program, dated Febraary 1998 incorporates the final section of the Florida Bar's response to criticism program, entitied, "Recommended Education Programs." Section n.D.5. of flie Model Program, dated February 1998 reads:

Recommended Education Programs. An expanded pubUc education program could be undertaken to famiUarize the pubUc with such fimdamental concepts as: (a) the rule of law; (b) flie need to preserve judicial mdependence and mtegrity; (c) the organization and responsibilities of the judicial system; and (d) the role of the lawyer in society.

Section n.D.5.b. was not included in the Florida Bar's corresponding section. This subsection notes recent criticisms of individual judges tiiat threaten judicial indq)endence.

This reliance on state, local and territorial bar associations' luiique program provisions and practical experiences is m recognition of flie unportant and valuable mnovations that are a natural resuU of so many bar associations existing side by side. In the same vein, having mcorporated so many different bar associations' unique provisions, the Model Program, dated February 1998, serves as a nationally represraitative proto^e embodying the best ideas for responding to criticisms of judges and the judiciary currently existing.

It should be recognized that adoption of the Model Program, dated February 1998, is merely the initial stq) in combating this problem. Many other efforts will and must be made. Some of these actions will include creating suggested model responses for civic groups, corporate counsel, pubUc interest groups and others to issue in response to criticism of judges. More action is sure to follow.

Conclnsion

As the largest organization of lawyers and judges in the world, the ABA's encouraging all state, local and territorial bar associations to adopt programs enablmg tunely and effective responses to criticism of judges such as the Model Program, dated February 1998, will underscore the importance of the need for all bar associations to implement their own program to respond to criticism of judges. This need comes as a result of judges' general inabiUty to respond to criticism and the threats to judicial independence and the judicial system that inevitably result firom one-sided debates filled with misiiiformation. With bar association response to criticism of

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102 judges programs a standard feature, a formal mechanism will exist to protect judges and the judiciary and guarantee full and fair debate of issues involving them.

February 1998

Respectfiilly submitte4

Honorable Richard L. Fruin, Jr. Chair, ABA Judicial Division

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102 GFNFRAI. INFORMATTQN FORM

To Be Appended to Reports with Recommendations (Please refer to mstructions for completing this form.)

Submitting Entity: Judicial Division

Submitted By: Charles E. Patterson

1. Stimmary.ofRecommendatiQn(s).

That the American Bar Association encourages all state, local and territorial bar associations to adopt programs enabling timely and effective responses to criticism of judges such as the "Model Program Outline for State and Local Bar Associations: Suggested Program for the Appropriate Response to Ciiticism of Judges and Courts," dated February 1998.

2. Approval hy .Suhmitting Entity.

Approved by the Judicial Division Lawyers Conference Executive Committee, August 2, 1997 and the Judicial Division Council, August 3,1997.

3. Has this nr a similar rarommendatinn heem siihTnitted tn the Hniise or Board previously?

No.

4. What existing Association policies are relevant to this recommmdation and how would they be affected by its adoption?

None.

5. What urgency exists which requires action at this meeting of thft House?

Increasingly, criticism of judges seems intended to deter judges fiom independent decision making. Adoption of this recommendation will help persuade state, locd and territorial bar associations to develop a means to counter this growing problem.

6. .States of Legislation (If applicable.)

N/A

7. Co-st to the Association. (Botii direct and indirect costs.)

1

102 N/A

8. Disclosure of Interest. (If ^plicable.)

N/A

9. Referrals

Several A B A Sections, Divisions and Standing and Special Conunittees have received a copy of the Recommendation and Report and have been asked if they wish to be listed as co-sponsors.

10. Contact Person. (Prior to die meeting.)

Hon. Richard L. Fruin, Jr. The Superior Court 200 W.Compton Blvd. Compton,CA 90220

11. Contact Person. (Who will present die report to the House.)

Charles E. Patterson Pillsbuiy, Madison & Sutro 725 S. Figueroa Sti-eet, Suite 1400 Los Angeles, CA 90017

12. Contact Person Regarding Amendments to This RRrnmnifindarinn (Are there any known proposed amendments at this time? If so, please provide the name, address, telephone, fax and ABA/net number of die person to contact below.)

No.

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