Judicial Ethics Legal ethics

Sauce for the goose but not for the gander

A quick and also rare weekend post because I’ve been tied up a bit and am about to be tied up again and unable to post for a week or so.

I’ve sallied forth at length here about what I see to be pretty disingenuous attacks based on First Amendment arguments against adopting ABA Model Rule 8.4(g) in various states. You can catch up on some of those posts here and here and here for example if you want.

But this story from Colorado that I stumbled upon is a good opportunity to remind everyone how problematic it is that states don’t have rules in place that would clearly allow for discipline if a lawyer did to a judge what this (former) judge just got disciplined for doing to an attorney in Colorado.

For Colorado lawyers, the story of Lance Timbreza being publicly censured for sexually harassing a lawyer at a Colorado Bar Association conference is likely more noteworthy as being the first use in Colorado of newly adopted procedures for disciplining judges.

Timbreza had resigned from his judicial position during the disciplinary investigation.

For lawyers elsewhere, it should be a real reminder that for as long as jurisdictions continue to be unwilling to adopt something similar to Model Rule 8.4(g) if the roles in the scenario were reversed then there would really be no disciplinary case to be brought.

If a lawyer made drunken unwanted sexual advances toward a judge at a state bar event in Tennessee, for example, there is no real ethics rule that would impose any disciplinary liability for such conduct. If Tennessee had adopted the proposed RPC 8.4(g) several years ago, its language would have applied to such a situation. But as things stand, since the conduct would not involve representing a client and was occurring in a setting outside of a courtroom, then beyond embarrassment and problems any time that lawyer ever tried to appear before that judge in the future, there would be no basis for pursuing discipline against that lawyer’s license.

Now some people might think the embarrassment and problems would be enough, but if we can all get comfortable with the idea that judges do not have a First Amendment right to engage in the kind of conduct that resulted in a public censure in Colorado, it’s hard to fathom that we can’t reach consensus that lawyers don’t have a First Amendment right to do likewise.

(Editor’s Note: The Denver Post story now appears to be behind a paywall. You can also find the story on Law360 if you have a subscription there. Or you can take a gander at this non-paywall story about the public censure.)