LAWYERS RIGHT TO CRITICIZE POLICE, PROSECUTORS AND JUDGES

   In 1959 the U.S. Supreme Court upheld a lawyer’s right to criticize the conduct of police, prosecutors, and judges.  The Ky. Supreme Court upheld that right in 1980.  In 1990 the Ky. Supreme Court adopted a Supreme Court Rule (SCR 8.2) which appears to take away that right of free speech.

SCR 3.130(8.2) Judicial and legal officials

     (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.

     (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90

 

     SCR 3.130 (8.2) has been argued by the KBA Bar Counsel to prohibit even a polite rational argument by a lawyer concerning the legal basis for a finding of the Legislative Ethics Commission.  This argument by the KBA Bar Counsel seems to conflict with the U.S. Supreme Court ruling.

The U. S. Supreme Court has previously ruled:

“(A) lawyer may criticize the law-enforcement agencies of the government and the prosecution, even to the extent of suggesting wrongdoing on their part, without by that token impugning the judiciary….The court stated that a lawyer can properly criticize a judge’s view of the law. “if the judge was said to be wrong  on the law, it is no matter: appellate courts and law reviews say that of judges daily, and it impugns no disgrace. Dissenting opinions in our reports are apt to make the lawyer’s speech look like tame stuff indeed. (She) did not say the (Judge) was corrupt or venal or stupid or incompetent. The public attribution of honest error to the judiciary is no cause for professional discipline in this country.”   Sawyer 19, 20 1959, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed2d 1473 (1959), as quoted by the Kentucky Supreme Court in KBA v. Heleringer, 602 S.W.2d 165 (Ky. 1980).”

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