A word about B**chslaps

It’s a stupid and demeaning term.  In both contexts, whether you replace the asterisks with the original two letters, it, or the other two letters, en.  It is unfortunate that the second term was ever coined by this guy, and it is remarkable to think that this guy has included it for many years as a recognized and defined term in Black’s Law Dictionary.

My opinions on that front are what they are, and the reality is what it is.  As the once-prominent fictional lawyer Richard Fish would say, “Bygones.”

An associate professor at the Washburn School of Law has an article out, for now just available through SSRN, that you can read here.  It is an interesting read.  To me, the most interesting part of it was how I managed to agree pretty much completely with the central premise — judges should not issue opinions that include language that is designed to try to remedy a lawyer’s behavior (or deter other lawyers from engaging in the same behavior) through belittlement and, simultaneously, disagree with so much of the article itself.

Absolutely, judges should see the act of engaging in a “b**chslap” as beneath her/him, and it ought to be something that our profession, the loam from which judges grow, discourages for lots of different reasons.  The simplest basis for doing so would be the general principle I keep coming back to like something of a broken record . . . don’t be an ass.  Another pretty good concept from which to work to vigorously argue against the prevalance of the issuance of such rulings is an often articulated rule of satire…. always punch up, never punch down.

But, the article.  So many things with which to beg to differ.  Bullying?  Or even workplace bullying?  I get the instinct — frankly even the rule of satire I just reference speaks in terms of “punching down” as being an act of bullying — but, for some reason (n.b. it is probably fn. 1’s slightly over-the-top dedication of the piece “to all those who suffered under the thumb of a schoolyard or workplace bully”), the author’s decision to frame that as the issue in this article leaves me feeling like it diminishes the importance of the bullying topic in modern life.  Plus, if an author were truly insistent on taking that tack, then it is tough to justify deciding not to scrutinize the judge v. judge instances that are briefly discussed at page 11 and fn. 59 and then promptly cast aside.  Those instances, particularly in the context of reviewing courts, are (if anything in this arena is) actual workplace bullying.

As to the underlying questions of judicial ethics, I certainly agree that many of the examples referenced in the article raise serious questions of violations of provisions similar to Rule 2.8(b) of the ABA Model Code of Judicial Conduct.  Nonetheless, as to the notion that two new comments are needed to somehow empower judicial disciplinary authorities to take action, I again beg to differ.   The necessary judicial ethics provision is already there to remedy judicial conduct that crosses the line.  Adding explanatory comments won’t necessarily help things because, if there is a problem of enforcement flowing from the existing rules, it would seem to me to be a reluctance to use that provision because of the significant void-for-vagueness constitutional issue that also plagues those who would seek to make “professionalism” a discipline issue for lawyers.

I also disagree with the stated idea that taking the lawyer to task in a public opinion cannot be “other appropriate action” consistent with Rule 2.15 and the implied, if not actually stated, assertion that a judge should pursue such a communication about disappointment with a lawyer’s behavior through a private channel.

The author should acknowledge that any truly private communication from unhappy judge to poorly-performing lawyer while the case was ongoing would raise real ethical concerns for both parties over rules restricting ex parte communications between judges and lawyers.  Thus, presumably, the author would anticipate the court having to wait until the matter is concluded to reach out to the lawyer involved to privately chide them, but the timing of that would leave much to be desired in terms of likely effectiveness.  Although Rule 2.9 of the ABA Model Code permits otherwise prohibited ex parte communications when expressly authorized by law, the language of Rule 2.8 seems a far cry from providing clear cover for a private one-on-one chat session.

In fact, if there were to be any tinkering with the judicial code of ethics to address public belittling, I’d posit that undertaking to make crystal clear that rather than excoriate a lawyer in a published opinion for misconduct which the judge does not believes rises to the level of a required disciplinary report, the other appropriate action that the judge could take would include a truly private discussion with counsel notwithstanding the bar on ex parte communications under Rule 2.9.

I also am unconvinced by the author’s conclusion that judicial ethics rules must be insufficient because judges don’t seem to be punished for such writings.  Or, to quote from the author, “the current system of judicial ethical enforcement has proved either unwilling or unable to address the propriety of judges issuing benchslaps.”  The author appears to be  glossing over the fact that, disciplinary entities, for the most part are not in the business of commencing their own cases and instead react to the filing of complaints about judicial misconduct.  That can be one very likely reason  — no one ever complained to the appropriate authority — that none of the prominent examples the author focuses on in his article resulted in any punishment.

And, I’m going to presume the author is correct about that, as I don’t know (and suspect the author does not know either) whether any of those judges may well have received private discipline.  Another reason can be that where that line is, and when it has been crossed, is very much in the eye of the beholder.  One of the examples that the author uses of how a court can appropriately address something in a written opinion without turning into something that is a b**chslap is In re S.C., 138 Cal. App. 4th 396 (2006).  Yet, if you go back and reread the opening lines of that decision the author quotes from, and imagine the decision being issued in 2016 and not 2006, I suspect it too would get prominent attention at Above The Law as an example of the genre.

Finally, I fundamentally disagree with the idea that making it easier for lawyers to pursue appeal when attacked in this manner is not the answer.  In terms of workable, practical answers, it strikes me as the best, realistic answer.  There needs to be clarity that lawyers do so on their own dime and not at their client’s expense if the client otherwise has no interest in pursuing an appellate remedy, but clearer availability of obtaining appellate review could go a long way toward discouraging the belittling judicial conduct.

The best answer (though probably not at all realistic) would be for media coverage of such instances to adopt the critical tone of Judge Edith Jones’s email quoted in a footnote of the article.  If the judges who are prone to belittle with their rhetoric weren’t celebrated in the media for doing so, then they might be much less inclined to continue to crank out such writings.  In the meantime, perhaps the article and the public discussions of it and attendant publicity of the topic it is generating, will help such judges become more inclined to pursue the better angels of their nature and remove such items during the drafting process after they have had the private, cathartic benefit of having drafted the language in the first place.

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