Advisory opinions offered on statements made by judicial candidates, lawyers commenting on pending legal matters

The Indiana Commission on Judicial Qualifications and Indiana Supreme Court Disciplinary Commission have issued advisory opinions regarding statements targeted at opponents made by candidates running for judicial office and public statements made by lawyers regarding pending disputes, including on social media.

With election season right around the corner, the Commission on Judicial Qualifications offered an advisory opinion on how to comply with Judicial Conduct Canon 4, which outlines how judges and candidates for judicial office “shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”

Three questions are addressed in the advisory opinion:

• May a judicial candidate comment on the qualifications (or lack thereof) or background of an opponent?
• May a judicial candidate attribute positions or philosophies to an opponent based on the manner in which the opponent handled a particular type of case?
• May a judicial candidate make comments in campaign communications attributing certain events (e.g. an increase in the local crime rate or an increased caseload) to an opponent?

In its conclusion, the Commission on Judicial Qualifications wrote that “when engaging in campaign conduct and speech about opponents, judges and judicial candidates must be cognizant of their duties to protect the integrity, independence, and impartiality of the judiciary.”

The commission wrote that statements made by judicial candidates should be fair, accurate and truthful; factual rather than speculative; are pertinent and material to the office; and do not unfairly question the impartiality of the opponent or the judiciary.

Since the topic is sensitive, the commission encourages judicial candidates to consult with their staff to evaluate campaign statements regarding opponents.

Regarding public comments on pending legal disputes, the Disciplinary Commission laid out five ethical “minefields” lawyers could face regarding publicity or extrajudicial comments, including on social media platforms.

The “minefields” include: commenting on inadmissible evidence or credibility; commenting on prejudicial matters outside the public record; expressed opinions on guilt of defendant or suspect; commenting on matters extending beyond exception (adverse publicity); and the “reactive post.”

In its advisory opinion, the Disciplinary Commission pointed to Indiana Rules of Professional Conduct 1.6, 3.6 and 3.8, concluding “A lawyer with a high-profile case who intends to engage in pretrial publicity would be well advised to review Indiana Professional Conduct Rule 3.6, in addition to other applicable ethics rules, to ensure ethical compliance”