Lawyers who are actively involved in supporting the judicial
campaign efforts of a judicial candidate must be aware of a number of ethical concerns that can arise from significant financial or prominent public support. Rule 2.11(A)(4) of the Code of Judicial Conduct imposes a mandatory obligation upon a judge to recuse when “a party’s lawyer, or the law firm of a party’s lawyer has made contributions or given such support to the judge’s campaign that the judge’s impartiality might reasonably be questioned.” Comment [7] to RJC 2.11(A)(4) provides some reassurance, however, that a financial campaign contribution within the limits of Tenn. Code Ann. § 2-10-301 et seq. should not, absent other facts, be sufficient to trigger disqualification. Tus, lawyers should be mindful of the risk (small as it may be) that their active support of a judicial candidate based, for example, upon the belief that the person would be a better judge than the other candidate(s) or would be a judge more likely to rule favorably on the kinds of cases that the lawyer tends to handle could actually result in that judge being unable in the future to hear cases involving the lawyer’s clients because of the disqualification requirement of RJC 2.11(A)(4). And, when the candidate you are supporting happens to be an incumbent judge, depending on the role you are playing in the judicial campaign, you may also need to become familiar with the entirety of the judicial ethics rules given that RPC 8.4(f) makes it unethical for you to “knowingly assist a judge. . . in conduct that is a violation of the applicable rules of judicial conduct.” Finally, even if you are a lawyer who makes a conscious effort to not be an active participant or supporter in the campaign of any judicial candidate, it is helpful to remember the manner in which your ethical obligations impact your ability to comment upon the “qualifications or integrity” of judges and “candidates for election or appointment to judicial . . . office.” While Comment [1] to RPC 8.2 acknowledges that assessments made by lawyers are relied on and that the willingness of lawyers to express “honest and candid opinions” about judicial candidates “contributes to improving the administration of justice,” RPC 8.2(a) prohibits lawyers from making statements about the qualifications or integrity of a judicial candidate when they know the statement is false or when they have made the statement with “reckless disregard as to its truth or falsity.” Interestingly, RPC 8.2(a) would on its face make it just as
unethical to falsely tout the qualifications of an incompetent judicial candidate as to falsely disparage the integrity of a judicial candidate. Tough, as with the similar prohibition in RJC 8.1 on false statements made by the judicial candidates themselves, RPC 8.2 uses language mimicking the “actual malice” standard applied under the law of defamation as to public officials/public figures. Tus, while the age-old wisdom that if you have nothing nice to say about someone, you should say nothing at all may remain good advice generally, it won’t always rise to the level of an ethical imperative for Tennessee lawyers as to statements about judicial candidates.
ABOUT THE AUTHOR Brian S. Faughnan is Special Counsel with Tomason Hendrix Harvey Johnson & Mitchell, PLLC. Brian is a frequent author and speaker on a wide variety of is- sues surrounding legal ethics and professional respon-
sibility and serves as chair of the Tennessee Bar Association’s Stand- ing Committee on Ethics and Professional Responsibility.
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