62 Pages Posted: 20 Mar 2016 Last revised: 19 Aug 2017
Date Written: May 16, 2017
The practice of judges issuing so-called benchslaps is both growing in popularity and concern. Such published decisions and orders seek to publicly shame lawyers for their alleged unethical or unprofessional lawyering. Legal blogs have picked up on this trend, celebrating and elevating benchslaps to become a part of legal popular culture. However, the practice of using embarrassing and belittling published decisions to punish or to deter unethical or professional conduct raises serious concerns that the issuing judge is violating his or her own ethical duties.
This article criticizes the practice and concludes that it must end based on three arguments: (1) benchslaps breach a judge’s ethical obligation to take appropriate action in response to attorney misconduct; (2) benchslaps by their nature breach a judge’s ethical obligation to treat those appearing in court with courtesy, respect, and patience; and (3) the lack of appeal rights from a benchslap compounds their inappropriateness.
The article concludes that it is possible to both retain the flexibility that judges need to manage attorney conduct and eliminate benchslaps as a disciplinary method. The article rejects radical approaches such as limiting judicial immunity and instead posits that current judicial ethical enforcement regimes — properly strengthened — are best equipped to address the issue and prevent future benchslaps.
Keywords: Legal ethics, judicial ethics, legal writing, due process
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By Leah Litman