NEW PROGRAM EXAMINES LAWYERS’ ETHICAL DUTY TO DEFEND THE JUDICIARY

As threats against judges continue to rise nationwide, Florida lawyers have an ethical duty not only to maintain civility, but to defend the judiciary, report misconduct, and help educate the public about the rule of law, according to a new free CLE from the Bolch Judicial Institute of Duke Law School with support from Scott Atherton of Atherton Galardi Mullen & Reeder in West Palm Beach.

The 42-minute program, “Your Ethical Duty to Defend the Judiciary and Promote Civility,” hosted on the The Florida Bar's Henry Latimer Center for Professionalism's website, explains how lawyers can respond when criticism of judges crosses the line into intimidation, threats, or violence. It also provides practical guidance and resources for attorneys who want to support a fair and impartial judiciary and promote public understanding of the courts.

The video explains what lawyers can do to combat the rise of activity that crosses the line from protected speech to what U.S. Supreme Court Chief Justice John Roberts calls "illegitimate activity: violence, intimidation, disinformation, and threats to defy lawfully entered judgments," and provides resources for individuals to act.

Judge Paul W. Grimm (ret.) of the U.S. District of Maryland outlines the threat, saying in the fiscal year ending in 2025, the U.S. Marshals Service reported 562 credible threats made against sitting federal judges, with 395 judges identified as targets. The threats ranged from verbal statements, voicemail messages, emails, doxxing, stalking, and AI-generated animations of graphically violent acts posted on social media, to murder attempts.

Judge Grimm cites the cases of Maryland Circuit Court Judge Andrew Wilkinson who was shot and killed in his driveway, U.S. District Judge Esther Salas whose son was murdered and husband seriously wounded at their home, and a foiled attempt on the life of U.S. Supreme Court Justice Brett Kavanaugh.

Since ethics rules caution against and even prohibit judges from explaining their decisions, Judge Grimm says “the courts need private lawyers, community leaders, and private citizens to speak up for them to defend the judiciary and the rule of law.”

Moreover, he says lawyers are ethically required by professional responsibility rules “to defend the judicial system and judges who are unfairly attacked.”

Scott Atherton of Atherton Galardi Mullen & Reeder in West Palm Beach addresses the impact of actions by Bar members, asserting that professional incivility breaches the Florida Bar Oath of Admission, which states that attorneys “will maintain the respect due to courts of justice and judicial officers,” and may violate rules governing lawyers.

Rule 4-8.2(a) (Impugning Qualifications and Integrity of Judges or Other Officers,) prohibits lawyers from making false or reckless statements against judges, and Rule 4-8.4(d) (Misconduct,) from disparaging court personnel. Atherton shares recent examples of disciplinary actions taken against attorneys who have violated these rules, ranging from 30-day suspensions to public reprimands to two-year suspensions.

Rule 4-8.3(a) (Reporting Misconduct of Other Lawyers,) also requires lawyers to report violations by other attorneys, regardless of whether the information was learned “in professional or personal life,” says Atherton. He offers reminders from the mandatory CLE video, Professionalism Expectations: A Mandatory CLE for Members of The Florida Bar available on the LegalFuel website.

U.S. Southern District of Florida Judges Beth Bloom and Robin L. Rosenberg offer guidance about the duty to report, as well as resources for attorneys and others who want to speak up for the judiciary and the rule of law. They say educating the public is the best way to combat misconceptions at the root of dissatisfaction and prevent people from veering into violence.

Judge Rosenberg and Judge Bloom urge lawyers to educate the public about the role of the courts, emphasizing that judges do not choose the cases they hear, must apply the law even when they personally disagree with it, and are subject to appellate review. When the law itself is flawed, they note, it can be changed through the legislative process or constitutional amendment.

They remind Bar members to reach out to local law enforcement and/or the U.S. Marshals Service if they become aware of potential threats.

Noting surveys show one in three American adults do not understand basic civics, the judges compiled a list of resources lawyers can use to educate the public.

• Federal Bar Association’s Courts and Civility Program — a national program created by Bloom and Rosenberg to inform adults about the rule of law and what courts do to promote civility and respect for the rule of law and the judiciary.

• The U.S. Courts’ Civil Discourse and Difficult Decisions program, a three-hour program that brings high school, college, and law school students into federal courthouses for legal proceedings that arise from situations in which young people can find themselves, providing start-to-finish package of resources for educators and facilitators.

• Duke Law School Bolch Judicial Institute’s Civics Break program — online videos on the role of courts in American democracy, which can be presented in a courtroom, community group, classroom, or your workplace. There are also opportunities for lawyers to lead civics education initiatives as part of five work groups: juror education, court communication, public outreach, retired judges, and civics education.

• Article III Coalition — a bipartisan, retired federal district and circuit court judges can provide talking points and information to educate your community.

• American Board of Trial Advocates (ABOTA) Judicial Independence Committee chapters — offer “written protocols for responding to unfair and unjust criticism of judges.”

• American College of Trial Lawyers Rule of Law Committee [formerly known as the Judicial Independence Committee] — responds to unfair criticism at chapter level.