Following is the 66th post in a series from Parker Taylor Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 8 – “Maintaining the Integrity of the Profession” and focuses on judicial officials.
This Rule of Professional Conduct, as revised, is as follows:
Rule 8.2 Judicial Officials
(a) A lawyer shall not make a statement of fact 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 or judicial officer, or of a candidate for election or appointment to judicial office.
(b) A lawyer who is a candidate for judicial office in California shall comply with canon 5 of the California Code of Judicial Ethics. For purposes of this rule, “candidate for judicial office” means a lawyer seeking judicial office by election. The determination of when a lawyer is a candidate for judicial office by election is defined in the terminology section of the California Code of Judicial Ethics. A lawyer’s duty to comply with this rule shall end when the lawyer announces withdrawal of the lawyer’s candidacy or when the results of the election are final, whichever occurs first.
(c) A lawyer who seeks appointment to judicial office shall comply with canon 5B(1) of the California Code of Judicial Ethics. A lawyer becomes an applicant seeking judicial office by appointment at the time of first submission of an application or personal data questionnaire to the appointing authority. A lawyer’s duty to comply with this rule shall end when the lawyer advises the appointing authority of the withdrawal of the lawyer’s application.
Half of the revised version of this rule – found in subdivisions (a) and (c) – is new. The part that has NOT changed – subds. (A) and (B) in Rule 1-700 (from the previous RPC) – is now contained entirely in subd. (b). One addition to this rule, as set forth above, warns against a lawyer either lying about or, with reckless disregard, making a damaging statement about a judge’s integrity or qualifications. (The rule also applies to statements about candidates for the position of judge.) The other addition says a lawyer who announces his or her candidacy for a judicial office must comply with Canon 5 of the California Code of Judicial Ethics, which states: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”
The name of the rule also changed. Formerly, the rule was titled “Member as Candidate for Judicial Office.”
Rule 8.2 of the American Bar Association (ABA)’s Model RPC mirrors the first part of Rule 8.2 in CBA’s revised RPC. The wording in subd. (a) of the ABA’s rule matches subd. (a) in the CBA’s rule. And subd. (b) in the ABA rule matches the first sentence of subd. (b) in the CBA rule.
Benefit: The warning at the beginning of this rule, about false or reckless statements regarding judicial candidates or incumbents, should – generally speaking – help clarify an attorney’s potential liability in this area.
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Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Slander, Judges, Judicial Candidates, Parker Taylor Law Group, Port Parker