Words as weapons: Protecting the bench one word at a time

In contemporary times, members of the judiciary from local courts to the United States Supreme Court have been increasingly targeted and threatened with violence, illustrating the practice of using words as weapons. In California, proposed amendments to the California Rules of Professional Conduct were designed to address this situation.

The proposed amendments were prompted by a request made by the California Judges Association in November 2024 to the State Bar Committee on Professional Responsibility and Conduct (COPRAC), that the State Bar of California modify certain rules relating to the judiciary in response to an elevated level of public criticism which has led to threats and violence against sitting judges based on their rulings. They note this type of behavior endangers judicial independence as well as the level of public trust in our legal system.

The proposed amendments as well as the rationale are summarized on the State Bar website, which also links to the text of the proposed amendments. In both rules, they are designed to ensure greater clarity regarding the statements lawyers may make about judges.

Rule 8.2, Judicial Officials: Your opinion may not be worth as much as you think

This rule currently provides in paragraph (a) that 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." What exactly constitutes a qualifying statement under rule. 8.2(a) is frequently debated, due to the protection given to statements of personal opinion. However, it has long been recognized that one cannot necessarily escape liability by prefacing slanderous comments with "In my opinion."

Accordingly, the proposed amendments to rule 8.2 would seek to clarify through adding new Comment [1] that a statement that is an assertion of opinion can in fact form a basis for discipline if it "implies actual facts that are capable of objective verification." (citing In re Yagman (9th Cir. 1995), among other citations).

Rule 8.4, Misconduct: Words can be weapons

This rule provides a specific list of prohibited types of behavior that qualify as misconduct. The most important proposed amendment to rule 8.4 would appear as Comment [7], and would clarify that some categories of unprotected activities, including speech, may nonetheless form a basis for discipline under this rule.  Specifically, it warns that unprotected activities, including speech, that may form a basis for discipline under paragraph (c) or (d) of the rule include:

(1) a statement made "with the specific intent of producing imminent lawless action against a judge or judicial officer and likely to do so" (citing, among other cases, the 2023 case of Counterman v. Colorado 600 U.S. 66)

(2) A true threat of violence, defined as a statement that a reasonable observer would perceive as a "serious expression" that the speaker intends to "commit an act of unlawful violence" against a judge or judicial officer, made with "intent, knowledge, or reckless disregard that others could regard the statement as threatening violence" (again citing Counterman v. Colorado).

(3) A false statement of fact, or an asserted statement of opinion that "implies actual facts that are capable of objective verification" that are false, regarding a judge or judicial officer, and "made with knowledge or reckless disregard of the truth or falsity of the facts" (citations include In re Yagman (9th Cir. 1995), and Cal Bus. & Prof. Code, § 6068, subd. (b).)

The State Bar is seeking public input on Proposed Amended Rules of Professional Conduct 8.2 and 8.4 by the deadline of July 14, 2025.