Wednesday, October 2, 2013

Attorneys Who Answer Election Judicial Surveys Risk Disciplinary Charges

I'd like to say I was the first to make the observation, but it was instead one of my alert readers.  Before every judicial election in Marion County, the Judicial Excellence Political Action Committee, an arm of the Indianapolis Bar Association, conducts a survey among its members to determine the qualifications of judges and candidates for judge who are up for election.  Other organizations conduct judicial surveys as well.

As I've argued before, the survey is a joke.  The "poll" of attorneys could not be less scientific and can be easily manipulated. Whenever a non-slated candidate is challenging a judge that has received the blessing of the establishment, the survey process is used to trash the challenger.  It's not hard to do.  Given the small number of surveys returned, all you need is an minuscule effort to get a large chunk of the 200 plus attorneys in a big establishment law firm like a Barnes and Thornburg to return surveys trashing a candidate's qualifications and that candidate's rating would sink like a rock.

But as pointed out by the aforementioned alert reader, if you denigrate a judge or judicial candidate's qualifications on a JEPAC survey, you are exposing yourself to a Rule 8.2 disciplinary violation.  Rule 8.2(a) says:
(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.
The Disciplinary Commission takes the position that under Rule 8.2, the burden rests on the attorney to prove that any disparaging statement about a judge's qualifications is true.  The DC also takes the position that that rule also applies to opinions about judges.  So if you answer on a survey that a judge running for re-election lacks good judicial temperament or does not rule in a timely fashion, you can be charged with a Rule 8.2 violation and then it becomes your burden to prove the judge lacks good judicial temperament and does not rule in a timely fashion.  If it turns out you can't, then it becomes your burden to show the false statement was not made "recklessly."   Good luck on that one.  The fact you made the statement without sufficient "evidence" will be deemed by the Commission as confirmation of recklessness.  
Don't think for a second that these surveys are private, just between the attorney and the Indianapolis Bar Association, and therefore Rule 8.2 doesn't apply  While the Disciplinary Commission's reasoning changes from day-to-day, it is clear the DC does not believe any private communications are outside the tentacles of Rule 8.2.  Nonetheless, as the JEPAC surveys are being conducted expressly for the purpose of publishing the results, an attorney would be hard-pressed to argue his or her survey responses about judges and judicial candidates were intended only for private consumption.

Down the road, the Disciplinary Commission could well demand that the JEPAC surveys and other judicial surveys be turned over to them as part of an investigation of attorneys for violating Rule 8.2.  That is no more a far-fetched scenario than the Commission filing a Rule 8.2 charge because an attorney sent a private email criticizing a judge.

Note:  See here an interesting take on judicial surveys by the "Irreverant Lawyer."

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