CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS Flashcards
rule // CONFLICTS INVOLVING JUDGES, ARBITRATORS, & MEDIATORS
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
4 canons of model code of judicial conduct // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS
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
Canon 2 // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS
CANON 2 = judge shall perform duties of judicial office impartially, competently, and diligently
Canon 3 // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS
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 // CONFLICTS INVOLVING JUDGES, ARBITRATORS, AND MEDIATORS
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)
endorsement // JUDICIAL CONDUCT CANON 4
- 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
Character witness // JUDICIAL CONDUCT CANON 3
R.3.3 = judge cannot voluntarily testify as character witness EXCEPT when “duly summoned” (AKA subpoena)
3 rules for judicial gifts // JUDICIAL CONDUCT CANON 3
- 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
R.3.13 tiered approach to judicial gifts // JUDICIAL CONDUCT CANON 3
- 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
fiduciary positions // JUDICIAL CONDUCT CANON 3
R.3.8 = cannot accept appointment to serve as fiduciary position (like executor, administrator, trustee) EXCEPT when doing so for family
practicing law // JUDICIAL CONDUCT CANON 3
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)
purview of canon 2// JUDICIAL CONDUCT CANON 2
CANON 2 = judge shall perform duties of judicial office impartially, competently, and diligently
(AKA rules that restrict judge’s official conduct)
R.2.4 // JUDICIAL CONDUCT CANON 2
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
R.2.9 ex party communications - rule // JUDICIAL CONDUCT CANON 2
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)
Disqualification // JUDICIAL CONDUCT CANON 2
- 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