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Professional Responsibility > CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS > Flashcards

CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS Flashcards

1
Q

rule // CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS

A

o ABA Model Code of Judicial Conduct
o R.1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL
o R.3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
o R.3.1 MERITORIOUS CLAIM AND CONTENTIONS
o FRCP.11

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2
Q

4 canons of model code of judicial conduct // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS

A

Model code of judicial conduct = organized by 4 canons

  • CANON 1 = judge shall uphold and promote the independence, integrity, and impartiality of the judiciary AND shall avoid impropriety/appearance thereof
  • CANON 2 = judge shall perform duties of judicial office impartially, competently, and diligently
  • CANON 3 = judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligation of judicial office
  • CANON 4 = judge or judicial candidate shall not engage in political or campaign activity inconsistent with independence, integrity, or impartiality of the judiciary
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3
Q

Canon 2 // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS

A

CANON 2 = judge shall perform duties of judicial office impartially, competently, and diligently

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4
Q

Canon 3 // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS

A

CANON 3 = judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligation of judicial office

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5
Q

Canon 4 // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS

A

CANON 4 = judge or judicial candidate shall not engage in political or campaign activity inconsistent with independence, integrity, or impartiality of the judiciary

(JR.4.1 restrict political activities much more than political affiliations)

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6
Q

endorsement // JUDICIAL CONDUCT CANON 4

A
  • Judge cannot personally solicit campaign funds under JR.4.4
  • Also cannot personally accept campaign funds (CMT 1)
  • Judge should set up campaign committee that can do so
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7
Q

Character witness // JUDICIAL CONDUCT CANON 3

A

R.3.3 = judge cannot voluntarily testify as character witness EXCEPT when “duly summoned” (AKA subpoena)

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8
Q

3 rules for judicial gifts // JUDICIAL CONDUCT CANON 3

A
  • R.3.13(A) = judge can’t accept gift when prohibited by law or reasonable person would perceive to undermine judge’s independence, integrity, or impartiality
  • R.3.13(B) = list of items judge can accept without publicly reporting
  • R.3.13(C) = list of items judge can accept but must publicly report
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9
Q

R.3.13 tiered approach to judicial gifts // JUDICIAL CONDUCT CANON 3

A
  • MOST COMMONLY TESTED* =
  • B2 gifts from friends/relatives on special occasions
  • B4 commercial loan on same terms offered to public at large
  • C1 gifts incident to public testimonial
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10
Q

fiduciary positions // JUDICIAL CONDUCT CANON 3

A

R.3.8 = cannot accept appointment to serve as fiduciary position (like executor, administrator, trustee) EXCEPT when doing so for family

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11
Q

practicing law // JUDICIAL CONDUCT CANON 3

A

R.3.10 = judge generally cannot continue to practice law after being on the bench EXCEPT pro se or giving legal advice to member of her family (but still can’t represent family member in any forum)

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12
Q

purview of canon 2// JUDICIAL CONDUCT CANON 2

A

CANON 2 = judge shall perform duties of judicial office impartially, competently, and diligently
(AKA rules that restrict judge’s official conduct)

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13
Q

R.2.4 // JUDICIAL CONDUCT CANON 2

A

EXTERNAL INFLUENCE ON JUDICIAL CONDUCT

  • shall not be swayed by public clamor or fear of criticism
  • shall not permit family, social, political, financial, or other interest/relationships to influence judicial conduct or judgment
  • shall not convey or permit other to convey the impression that any person/organization is in a position to influence the judge
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14
Q

R.2.9 ex party communications - rule // JUDICIAL CONDUCT CANON 2

A

EX PARTE COMMUNICATIONS
= don’t do it
ALSO
- if receive unauthorized ex parte comm bearing on substance, make provision promptly to notify parties of substance and provide opp to respond
- can’t investigate facts independently, judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.
- gotta make reaonsbale efforts to make sure staff/official don’t mess these rules up neither

(corresponding duty of lawyer under R.3.5)

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15
Q

Disqualification // JUDICIAL CONDUCT CANON 2

A
  • JR.2.11 = judge shall disqualify himself if someone reasonably questions his impartiality
  • JR.2.11(c) allows exception for disclosures and waiver OTHER than for bias/prejudice = can
    1. disclose and
    2. ask parties and lawyers to consider
    4. outside the presence of the judge and court personnel
    5. whether to waive disqualification
    (if they agree without participation by judge or court personnel, that the judge should not be disqualified = judge may participate in the proceeding)*

*the agreement shall be incorporated into the record of the proceeding

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16
Q

Rule of necessity // JUDICIAL CONDUCT CANON 2

A
  • rule of necessity > rule of disqualification (CMT 3)

- judge is only available judge = must discloSe, rule, then transfer case

17
Q

general rule for former judge under R.1.12 // FORMER JUDGE

A

= may not participate in same matter after leaving the bench that she participated in “personally and substantially”
- ALSO applies to law clerks
- Very narrow prohibition = on the same matter
- Can be waived by informed consent of all parties confirmed in writing
= disqualification under R.1.12(a) is imputed BUT can get around it is screened and notice given to BOTH parties and tribunal

18
Q

duty to investigate under R.3.1 AND FRCP.11(b) // CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS

A
  • FRCP.11(b) = signature certifies inquiry into facts and non-frivolous legal theory
  • R.3.1 = prohibits filing of frivolous claims
19
Q

Frivolous // CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS

A
  • CMT 2 defines frivolous but keeps it vague
  • NOT frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery
  • BUT ya gotta inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions
  • NOT frivolous even though the lawyer believes that the client’s position ultimately will not prevail
  • BUT is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken OR to support the action taken by a good faith argument for an extension, modification or reversal of existing law
20
Q

impropriety

A

jena laughing

21
Q

impropriety

A

jena not laughing anymore

22
Q

tornado

A

watch out

23
Q

R.2.9 ex party communications - exceptions // JUDICIAL CONDUCT CANON 2

A
  1. scheduling, administrative, or emergency purposes, which does not address substantive matters allowed IF
    a. judge reasonably believes that no party will gain advantage AND
    b. judge makes provision promptly to notify all other parties of the substance and gives parties opp to respond
  2. judge may obtain the written advice of a disinterested expert on applicable law IF gives advance notice to parties of person consulted and subject matter AND affords reasonable opp to respond to notice and to advice received
  3. judge may consult with court staff and court officials whose functions are to aid the judge OR with other judges IF makes reasonable efforts to avoid receiving factual info that is not part of the record and does not abrogate the responsibility personally to decide the matter
  4. judge may, with the consent of the parties, confer separately with the parties and their lawyers to settle stuff
  5. can do it when authorized by law

Professional Responsibility (12 decks)

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