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“Respect the robe even if you do not respect the person in the robe”

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Seemingly antithetical to a free and democratic society, lawyers’ ethics rules require lawyers to hold their tongues to a point about judges in ways that do not apply to lawyers’ comments about non-judge politicians. Then again, the Constitution guarantees a republic rather than a democracy, even though the United States has some significant democratic elements; the appellate courts have never granted people unfettered liberty; and the obligations for lawyers to measure their criticisms of judges seem to be part of an unwritten quid pro quo for the anticompetitive protection of lawyers’ incomes that comes from bans on the unlicensed practice of the law. Some might say, also, that as officers of the court, lawyers cannot be permitted to verbally pillory judges as much as non-lawyers are permitted to do.

Clearly, a black robe does not automatically convert a person who is unqualified for a judgeship into a qualified judge. Yet, lawyers are still required by governing ethics rules to treat judges with decorum both inside and outside the courtroom. This did not prohibit a legion of lawyers, for instance, pushing hard and spiritedly against Ronald Reagan’s nomination of Robert Bork to the Supreme Court, but might have prohibited lawyers from calling him a jack*ss.

How does a lawyer reconcile strong views that a judge is incompetent, bigoted, or heartless, with the requirement that lawyers treat the court and judges with decorum and respect? One great suggestion came recently from an experienced criminal defense lawyer/ listserv member, who said, in advising the importance for new lawyers (if not all lawyers) to develop credibility with judges and the courthouse staff: "Respect the robe even if you do not respect the person in the robe."

This reminds me of a comment about a late Supreme Court justice who deeply respected the office of the presidency, whether or not s/he respected the individual occupying the office. The respect for the governmental office — rather than respect for the person holding the office — might help explain why some people serve presidents and other officials whom they find abominable in their jobs, if the respect for the office is strong.

In any event, lawyers give a judge respect less grudgingly when the judge treats lawyers with respect, as well.