WHEREAS, the need for independent judges who will not be influenced by unjust criticism of them or their decisions requires that the organized bar remind both lawyers and the public of the essential nature of an independent judiciary; and

WHEREAS, as an association of lawyers in the State of Tennessee, the Knoxville Bar Association, through its Board of Governors, has voted to adopt a formal policy addressing the appropriate means for responding to unjust criticism of judges and the appropriate circumstances under which such response shall be made;

NOW, THEREFORE, the Board of Governors of the Knoxville Bar Association adopts the following policy and implementing procedures:

Purpose and Functions of Policy

1. The primary purposes and functions of the policy are:

1. 1. To deal with errors in reporting and with inaccurate or unjust criticism of judges, courts and/or the administration of justice, as further provided in this policy statement; and,
1. 1. To be available to the news media as a resource for obtaining information concerning judicial activities, court process, or other technical or legal information about the administration of justice.

Referral Procedure

1. Administration of this program is vested in the Executive Committee. The Executive Director shall have staff responsibility.

1. All referrals of criticism of judges and courts should be forwarded to the Executive Director at the KBA headquarters. The referral may be oral or written, but in all cases the referring person must be available to assist in gathering background and factual information and must present written materials, if requested.

1. The Executive Director shall immediately begin to gather all pertinent background and factual information including a copy of the text (whether in live or print media) of the criticism.

1. The Executive Director shall then immediately notify the President of the Knoxville Bar Association and the members of the Executive Committee of the criticism. If necessary, a teleconference of the Executive Committee shall be convened to discuss the matter.

1. The Executive Committee shall promptly investigate the underlying facts, determine if a response is appropriate, and promptly prepare the release of the response.

1. If the Committee elects to respond, the response shall be promptly released on behalf of the Association in an appropriate manner, with a copy to the affected judge or tribunal.

1. Upon securing approval of the Executive Committee, the President of the association, or his or her designee, may speak in the name of the association.

Guidelines to Determine When the Bar Should Respond

1. The following are the kinds of cases in which responding to criticism is appropriate, except in unusual circumstances:

When the criticism is serious and will most likely have more than a passing or de minimis negative effect in the community.
When the criticism displays a lack of understanding of the legal system or the role of the judge or is based at least partially on such misunderstanding; and
When the criticism is materially inaccurate, the inaccuracy should be a substantial part of the criticism so that the response does not appear to be "nitpicking."

1. The following factors should be considered in determining whether a response should be made in a close case, and considered in every case in determining the type of response:

Whether a response would serve a public information purpose;
Whether the criticism substantially and negatively affects the judiciary or other parts of the legal system;
Whether the criticism is directed at a particular judge but unjustly reflects on the judiciary generally, the court, or another element of the judicial system (e.g., grand jury, lawyers, probation, bail, etc.);
Whether a response provides the opportunity to inform the public about an important aspect of the administration of justice (e.g., sentencing, bail, evidence rules, fundamental rights, etc.);
Whether a response would appear defensive or self-serving;
Whether the criticism or report, although generally accurate, does not contain all or enough of the facts of the event or procedure reported to be fair to the judge or matter being criticized;
Whether overall the criticism is not justified or fair;
Whether criticism is a fair comment or opinion;
Whether a lengthy investigation to develop the true fact is necessary;
Whether the response would affect a matter of issue in a pending proceeding; and/or
Whether the controversy is insignificant.

The Response

The response to the criticism shall take the following into consideration:

1. Timing.

To be effective, the response must be prompt, but accurate. If at all possible, the response should be made within 24 to 48 hours of publication of the criticism or report, especially keeping in mind the deadline(s) of the news media that reported the original criticism.

1. Form of Response.

The medium through which the response will be communicated shall be determined by the Committee, in consultation with the KBA Executive Director, on a case-by-case basis, and may include, though is not limited to any of the following: letters to the editor, “op-ed” pieces, press releases, appearance or comments on a radio or television program, and/or content posted to the KBA website.

1. Considerations for Responding

The response should be a concise, accurate "to the point" statement, devoid of emotional, inflammatory or subjective language;
The statement should be informative and not argumentative or condescending;
The statement should include a correction of the inaccuracies, citing facts and relevant authorities where appropriate;
The statement should be written in lay terms suitable for inclusion in a newspaper story;
Where appropriate, the statement should include the point that the judge had no control or discretion (e.g., decision required by state law);
Where appropriate, the statement should include an explanation of the process involved (e.g., sentencing, bail, temporary restraining order); and,
The statement should not defend the indefensible.

1. Content of the Response

Identify the criticism and its source.
Acknowledge where appropriate that people may frequently disagree with decisions and actions of public officials, including judges, and federal and state constitutions protect our right to express that disagreement.
Except where refusal is appropriate, judges have no control over what cases come before them, and must decide each and all of these cases. Handling a difficult or unpopular case is not grounds for removal. Judges must follow the law as established by higher courts. One side always loses in every lawsuit.
Because of their position, judges are not wholly free to defend themselves and, ordinarily, it is not appropriate for them to personally answer charges made against them or their decisions (RJC 2.2, 2.4, 2.10, and 2.11).
Lawyers under the Code of Professional Responsibility have the duty to defend judges against unjust criticism (TRPC 8.2 and Comment 3).
There is a need for independent judges, who will not be influenced by unjust criticism of them or their decisions. This requires that the organized bar remind both lawyers and the public of these facts.
The law has established appellate courts so that decisions of judges may be reviewed and corrected. Our present judicial system provides for change in the law through legislative action or by constitutional revision.
The reason why the particular criticism or attack is unjust.

NOTE: The Knoxville Bar Association should avoid taking a position on the merits of the controversy, if to do so would eliminate any educational benefit the balance of the points might have for those who agree with the criticism. In such situations, it may be best to omit discussion of why the particular criticism is unjust. This must be decided on a case- by-case basis.

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