by Katrina N. Neumann and Fred L. Wilks

The California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) published an ethics alert in response to the increasing prevalence of threats to judges and judicial officers in March of this year (the “Alert”). See COPRAC, ETHICS ALERT: Activities that Threaten the Safety of Judges and Judicial Officers, (Mar. 20, 2025), https://www.calbar.ca.gov/Portals/0/documents/ethics/COPRAC/Ethics-Alert_Rules-Activities-that-Threaten-the-Safety-of-Judges-and-Judicial-Officers.pdf. The Alert discusses the ethical obligations that attorneys must follow to avoid increasing the risks to the safety of judicial officers.

THE DEVELOPING PROBLEM
The rise in threats and attacks against judges and courtroom personnel has been an issue of increasing concern in recent years. The number of credible threats that require investigation by the U.S. Marshals Service (the “Marshals Service”) has been rising at alarming rates. According to a 2024 CBS News report, incidents targeting federal judges that were investigated by the Marshals Service rose sharply from 179 incidents in 2019, to 457 in 2023. See Robert Legare, Threats to federal judges have risen every year since 2019, CBS News (Feb. 14, 2024). We reached out to the Marshals Service to obtain updated statistics for 2024, which reflect that there were 364 investigations by the Marshals Service last year regarding incidents targeting federal judges. Although that figure represents a decrease from the prior year, it is more than double the number of threats against federal judges in 2019, and judicial threats continue to be of significant concern. An annual report issued by the Marshals Service, Fiscal Year (FY) 2024 Annual Report (Jan. 2025), emphasized that, “the number and intensity of concerning and potentially threatening electronic communications related to protected persons and locations have increased.” Moreover, in a recent survey by the National Judicial College that polled judges nationally, 70% of all judges reported that they have received inappropriate communication related to their position, 56% have received a threat, and 78% believe it is becoming more dangerous to be a judge. See Christine M. McDermott, Evan Murphy, Patrick Grimes & John Muffler, Perceptions and Experiences with Judicial Security Threats: A Survey of U.S. State Court Judges, Court Review, Volume 60, Issue 3 (2024).

The recent COPRAC Alert recognizes the increasing number of credible threats to judicial officers, and further notes that judges across the country have expressed safety concerns. COPRAC is not alone in recognizing this problem. Chief Justice John Roberts addressed the issue at length in his 2024 Year End Report on the Federal Judiciary, specifically calling out online promotion of violence against the judiciary and adding that “the modern disinformation problem is magnified by social media.” Chief Justice John Roberts, 2024 Year End Report on the Federal Judiciary, (Dec. 31, 2024). As U.S. District Chief Judge Richard Seeborg of the Northern District of California phrased it, “[w]hat is deeply wrong is when an adverse decision comes down the pike and the loser says, ‘That judge is corrupt and that judge needs to be removed.’” Jenna Greene, At a California Legal Conference, Judges Decry Threats to the Rule of Law, Reuters, (Mar. 21, 2025). The public has increasingly lost sight of the remedy where a litigant is dissatisfied with a ruling: appeal the decision.

In June 2024, the U.S. Senate attempted to address the problem by passing a bipartisan bill: the Countering Threats and Attacks on Our Judges Act. In April, members of the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights sent a letter to the Marshals Service raising concerns about elevated threats against the judiciary, urging further investigation, and requesting a briefing regarding these issues. For its part, the federal judiciary established a Judicial Security and Independence Task Force earlier this year. The purpose of the task force is to “‘identify, analyze, and propose responses to ensure the continued security and independence of courts and judges.’” See Nate Raymond, US Judiciary Launches Task Force on Security, Independence after Trump Criticism, Reuters, (Mar. 26, 2025).

PROPOSED CHANGES TO RULES 8.2 AND 8.4
The COPRAC Alert expresses the opinion that activities threatening or attempting to threaten the safety of a judge or judicial officer in a manner that deters or prevents them from performing their duties are prohibited by our code of ethics. As threats of violence against judges and judicial officers rise, lawyers must take seriously their ethical obligations pertaining to statements regarding the judiciary. Attorneys have a duty to “maintain the respect due to the courts of justice and judicial officers.” Cal. Bus. & Prof. Code Ann. § 6068(b) (West). California Rules of Professional Conduct (CRPC), Rules 8.2 and 8.4 provide more detail concerning the types of activities that may subject an attorney to discipline. On November 26, 2024, the California Judges Association requested of COPRAC that the State Bar of California modify the Rules of Professional Conduct in response to increased threats and violence against judges. In response to that request, COPRAC is considering proposing to the State Bar amendments to these rules and the comments thereto to further clarify that activities that threaten or attempt to threaten the safety of a judge or judicial officer in a manner that deters or prevents them from performing their duties may constitute conduct that is prejudicial to the administration of justice. On January 31, 2025, COPRAC approved proposed amendments to Rules 8.2 and 8.4 for a 60-day public comment period. See https://www.calbar.ca.gov/Portals/0/documents/publicComment/2025/Rules_8.2_8.4-Proposed_Amendments_CLEAN_REDLINE.pdf. Following that comment period, COPRAC revised the proposed amendments to Rule 8.2 and 8.4, and on May 22, 2025, the Board of Trustees approved those amendments for a 45-day public comment period. See https://www.calbar.ca.gov/Portals/0/documents/publicComment/2025/Proposed-Rules-8.2-and-8.4.pdf.

CRPC Rule 8.2(a) provides 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.” Cal. R. Prof’l Conduct, rule 8.2. COPRAC has proposed adding the following comment [1] to the above rule: “A statement that is asserted as opinion may be the basis for discipline if the ‘statement implies actual facts that are capable of objective verification,’ those facts are false, and the statement is made with knowledge or reckless disregard of the truth or falsity of those facts. (See In re Yagman, 55 F.3d 1430, 1441 (9th Cir. 1995).” Meanwhile, the pre-existing comment [1] would be re-numbered as comment [2], which provides: “To maintain the fair and independent administration of justice, lawyers should defend judges and courts unjustly criticized. Lawyers also are obligated to maintain the respect due to the courts of justice and judicial officers. (See Bus. & Prof. Code, § 6068, subd. (b).)”

CRPC Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation; [and] (d) engage in conduct that is prejudicial to the administration of justice.” Cal. R. Prof’l Conduct, rule 8.4(c), (d). The most significant amendment to this rule proposed by COPRAC is the proposed addition of comment [7], which clarifies activities that are not subject to First Amendment protections and may be the basis for discipline under paragraph (c) or (d):

(1) a statement made with the specific intent of producing imminent lawless action against a judge or judicial officer and likely to do so (Counterman v. Colorado, 600 U.S. 66 (2023); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam));
(2) a true threat of violence, that is, a statement that a reasonable observer would understand to be a “serious expression” conveying that the speaker means 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 (Counterman v. Colorado, 600 U.S. at 74); and
(3) a false statement of fact, or a statement asserted as opinion that “implies actual facts that are capable of objective verification” that are false, regarding a judge or judicial officer made with knowledge or reckless disregard of the truth or falsity of the facts (In re Yagman, 55 F.3d 1430, 1441 (9th Cir. 1995)), using an objective standard to determine “what a reasonable attorney, considered in light of all [their] professional functions, would do in the same or similar circumstances.” (United States Dist. Ct. v. Sandlin, 12 F.3d 861, 867 (9th Cir. 1993). See also rule 8.2(a); Bus. & Prof. Code, § 6068, subd. (b).)

As the existing CRPC Rule 8.4(a) makes clear, not only is it is misconduct for a lawyer to make the types of statements discussed above, but it is also misconduct to induce a client or third party to make such statements. Cal. R. Prof’l Conduct, rule 8.4(a).

BALANCING FREE SPEECH WITH PROTECTING THE JUDICIARY
As the comments to Rule 8.4 acknowledge, the U.S. and California Constitutions both protect the right to free speech. Thus, comment [7] attempts to clarify the boundaries between protected and unprotected speech and cites to federal authorities for guidance. The California State Bar has recently grappled with the protections and limitations of free speech as applied to threats against judges and has reached different decisions regarding, on the one hand, baseless assertions that appear to be factual (which is misconduct) and, on the other hand, “rhetorical hyperbole” (which may be protected free speech). See Alert, discussing Matter of Pavone, No. SBC-20-O-30496, 2023 WL 2300626 (Cal. Bar Ct. Feb. 21, 2023) (“Pavone”).

In Pavone, the court found an attorney’s public statement constituted protected speech where the attorney characterized a judge’s ruling as “disgraceful” and a “succubustic adoption of the defense position and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt[ing] one to entertain reverse peristalsis unto its four corners.” Pavone, at *7. In contrast, the court affirmed a finding that statements by the same attorney violated § 6068(b) where the statements (1) included specific and factual allegations that accused the judge of engaging in judicial advocacy and intentionally refusing to follow the law due to improper bias, and (2) where these statements were verifiably false. Id. at *8. The court determined that these statements were made with reckless disregard for the truth and that sanctions and a thirty-day suspension, among other things, were appropriate. Id. This recent decision is a colorful illustration of where public speech crosses the line between protected speech and misconduct.

Regardless of whether the proposed amendments to Rules 8.2 and 8.4 and the comments thereto are adopted, the increasing prevalence of threats against members of the judiciary, and the escalating seriousness of many threats, is alarming. It is incumbent upon attorneys to strengthen, not undermine, the judiciary for our system of justice to function properly. Attorneys who fail to adhere to this principle and the existing ethical rules may subject themselves to discipline.

Katrina N. Neumannis a litigation attorney at Hodel Wilks LLP in Irvine, California, and can be reached at kneumann@hodelwilks.com. Fred L. Wilks is a business litigation partner at Hodel Wilks LLP in Irvine, California, and can be reached at fwilks@hodelwilks.com.