The Commission takes the position that Rule 8.2 applies to any public or PRIVATE criticism of a judge, that it applies to even opinions about those judges and that it will be the the burden of any attorney charged with misconduct to prove that his criticism, again even the expression of an opinion, is true. The hearing officer in my case also takes the position that Rule 8.2 applies to private criticism. Attorneys need to know that even though Rule 8.2 might look the NY Times v. Sullivan actual malice standard, it is not interpreted that way. If you criticize a judge, in a public or private forum, that criticism (again even statements of opinions) is assumed false unless the attorney who makes the comment can prove it to be true.
I would strongly advise attorneys not to answer the survey, but if they do, not to offer any critical comments with respect to judges or judicial candidates. The Disciplinary Commission would have no problem getting its hands on those surveys and can obtain emailed responses from attorneys as well. I know very well that the Commission has no problem charging attorneys for criticism in private emails.
Below is the survey:
The Indianapolis Bar Association ("IndyBar") has played a vital role in educating our community about the judicial system since 1878. Today this continues through our effort to evaluate the qualifications of candidates for judicial office in 2014.Please accept this invitation to review our survey and, if appropriate, complete it. The candidates identified in the survey have indicated their intent to seek judicial office in Marion County in the 2014 election. Your answers should be based upon your knowledge of the candidates' qualities, taking into consideration your direct professional contact with them within the past three years. Please know your responses will be confidential and optional comments, if any, will remain anonymous.The survey is self-explanatory, and it will remain available to you for completion until 5:30 p.m. Monday, January 20, 2014. Only one response per recipient of this survey will be accepted and only responses from email addresses receiving this survey directly from IndyBar will be counted. This is to protect the integrity of the survey group.We appreciate your candor and trust your responses will accurately reflect your own opinions. The response of each survey recipient is critical to the success of this survey.We thank you for your insight, assistance, and recommendations.....
The Indianapolis Bar Association Judicial Excellence CommitteeChair: Andrew MallonMembers: Tamara McMillian, Ryan Vaughn, Alex Will, Ahmed Young Counsel to the Committee: Tom John Indianapolis Bar Association President: Jeffrey Abrams
Not to distract from the point of this article, but I can't help but roll my eyes at some of the members of the committee, including the current IBA President. It's always been easy to rig these surveys to trash certain candidates and given the committee makeup I have no doubt that would happen this year.
Back to the subject, I have also obtained copies of the questions on the surveys. Again, a warning. Answering these questions can subject an attorney to discipline, including suspension or disbarrment.