Judicial Conduct

Question 1

Are Supreme Court Justices subject to the Code of Judicial conduct for US judges?

Answer 1

No (This applies to other federal judges though)

Question 2

What are the 4 Canons of the Code of Judicial Conduct (CJC)?

Answer 2

1) Uphold and promote judiciary’s independence, integrity and impartiality by avoiding impropriety or the appearance of impropriety
2) Perform duties impartially competently and diligently
3) Limit extrajudicial activities to not conflict with the obligations of judicial office
4) Political and campaign activities

Question 3

To whom does the CJC apply?

Answer 3

Any judge what performs judicial activities at the state level (Retired judges, magistrates, those running for judicial office, etc)

Question 4

What is the standard for judges avoiding impropriety or violations of the CJC?

Answer 4

• Must avoid impropriety (inc. violating any law or the CJC) at all times
• Must avoid the appearance of impropriety (conduct that creates the reasonable perception that the judge has violated the CJC or conduct that reflects poorly on the judge’s honestly/impartiality/temperament/fitness)

Question 5

What are the guidelines for recommendation letters from judges?

Answer 5

• May be on official letterhead but cannot be perceived as attempting to exert pressure or abuse the prestige of the office

Question 6

Can a judge allow family members to leverage the prestige of the office?

Answer 6

No, also cannot through judicial weight around to try to influence others to the benefit of family

Question 7

What is an ex parte communication?

Answer 7

a communication between the judge and a representative from one side without the representative from the other side present

Question 8

When are ex parte communications allowed?

Answer 8

• When expressly authorized by law or court order
• to facilitate mediation or settlement with the consent of the parties
• Emergencies (circumstances require it, no substance and won’t give other side an advantage, and notify absent side with summary and chance to respond)

Question 9

What if a judge receives inadvertent ex parte communications?

Answer 9

Judge must promptly notify the parties and give them an opportunity to respond

Question 10

What are the conditions for emergency ex parte communication?

Answer 10

1) Circumstances require it (other side cannot be reached)
2) Matter discussed is emergency/scheduling/administrative and no merits discussed
3) Judge believes no party will get a procedural, substantive or tactical advantage
4) Judge notifies the other parties of the essence fo the communication and gives an opportunity to respond

Question 11

What are the limitations for a judge’s discussions with other judges and judicial personnel?

Answer 11

Can discuss the case but cannot discuss facts not on the record

Question 12

What are the limitations for a judge consulting legal experts?

Answer 12

• Advice must be in writing
• Expert must be disinterested
• Must notify the parties in advance

Question 13

What are the limitations on judges commenting on ongoing cases?

Answer 13

• Judge must not make comments about any case in any court that might affect the case’s outcome or interfere with the trial. Judge also cannot make any nonpublic comment that might substantially interfere with the a fair trial

This does not apply if the judge is a litigant in a personal capacity but does apply if the judge is a litigant in an official capacity (e.g. mandamus)

Question 14

What are a judge’s limitations for official appointments?

Answer 14

Must appoint impartially and without nepotism.
Cannot appoint any lawyer who has contributed more than a statutory dollar amount to the judge’s campaign unless the position is unpaid or chosen by rotation through a list

Question 15

Judge cannot commend or admonish jurors about their verdict

Answer 15

True

Question 16

Can a judge independently investigate facts?

Answer 16

No - must only consider the evidence presented

Question 17

What is the baseline rule for when a judge should disqualify themselves?

Answer 17

When impartiality might reasonably be questioned
(Judge should always disclose on the record any info that might be considered relevant to the question of disqualification even if the judge does not believe they are disqualified)

Question 18

What are grounds for disqualification of a judge? which are not waivable by the parties?

Answer 18

• Bias or personal knowledge of parties or facts (bias must be personal and from an extrajudicial source) - not waivable
• Prior involvement in the case (or involvement in a law practice which at the time of involvement worked on the case)
• Family member inside judge’s household has a economic interest (more than de minimis)
• Family member close than cousin involved in proceeding as atty, party, witness, etc
• Contributions to judicial campaign over a special judicial threshold
• Judge publicly committed to a position or a result

Question 19

What is the “rule of necessity”

Answer 19

If a disqualified judge is the only judge available to rule on an emergency motion, then the rule of necessity allows them to rule but the judge should still disclose on the record the conflict that would have disqualified them

Question 20

Can a judge be compensated for teaching, speaking, writing, etc?

Answer 20

Yes as long as compensation is reasonable and would not appear to undermine independence, integrity or impartiality. Can also be reimbursed for travel, registration fees, expenses

Question 21

What items must a judge publicly report?

Answer 21

Remember, can only accept if no appearance of impropriety

The amount or value of any extrajudicial compensation, reimbursement, and certain gifts/loans/bequests/other things of value. (Can only accept de minimis gifts anyway - no need to report gifts to spouse from which the judge benefits)

Question 22

What kinds of organizations can a judge participate in?

Answer 22

• Organizations concerned with law or the administration of justice
• educational religious, charitable fraternal or civil nonprofits
  All provided that this does not interfere with the judicial role

Question 23

How much can a judge be involved in fundraising?

Answer 23

Can help plan a fundraiser and attend events but cannot personally solicit or receive donations

Question 24

Can a judge testify at a government hearing or consult with an executive of legislative official?

Answer 24

Not unless it relates to the law, improving the law, or the administration of justice or it concerns the judges own personal interests. Going into public policy reasons why a certain legal change makes sense is fine

Question 25

When can a judge serve as an officer, director, manager, general partner, advisor, or employee of a business?

Answer 25

Can’t unless it is managing personal/family investments or personal/family businesses. Even for personal businesses can’t manage if it creates conflicts

Question 26

What are the rules for judges associating with organizations that practice invidious discrimination?

Answer 26

• Can’t be part of an org that invidiously (excluding people on a protected basis) discriminates. Can’t even use the facilities or benefits of such an organization unless its an isolated incident that can’t be seen as an endorsement.

Religious and cultural orgs are excepted

Question 27

When can a full time judge practice law?

Answer 27

When appearing pro se, can give legal advice to family, can draft legal document for family (can’t represent family in court)

Question 28

When can part time judges practice law?

Answer 28

Can practice including litigation and side gigs as mediator/arbitrator

Question 29

Can a full time judge serve as a third party neutral (outside of judicial capacity)?

Answer 29

Not unless authorized by law

Question 30

Can a judge be identified or endorsed by a political party in an election?

Answer 30

Yes if the election is partisan

Question 31

Can a judge hold an office in a political party?

Answer 31

No

Question 32

Can a judge endorse or oppose other candidates?

Answer 32

No

Question 33

A judge decides to run for a non-judicial office. What has to happen?

Answer 33

Judge must resign

Question 34

A judge receives information about a CPC or MPC violation . What does the judge have to do?

Answer 34

if the judge KNOWs the conduct for certain then must report. If judge isn’t certain, must take appropriate action (can include reporting or just talking with the person)

Question 35

A judge learns that another judge or lawyer is impaired by drugs, alcohol or mentally/physically/emotionally

Answer 35

Judge has discretion as to what to do - Appropriate Action

Question 36

Judge hears hearsay that convinces her there is a substantial likelihood that an attorney is violating an ethics rule outside of her jurisdiction. Can the judge talk to the lawyer about it? Can the judge talk to the relevant ethics disciplinary authority about it?

Answer 36

Yes, and Yes. Judge MUST take “appropriate action” The fact that a violation is in a different state makes no difference.

Appropriate action can include contacting the attorney directly or reporting a suspected violation

Question 37

Can a judge accept benefits associated with her spouse’s business activity that incidentally benefit her?

Answer 37

Yes

Question 38

Are benefits/gifts received by the spouse of a judge subject to reporting requirements?

Answer 38

No

Question 39

What are a judge’s responsibilities with regard to bias, prejudice and harassment?

Answer 39

Must avoid them and must require others (including lawyers) who are under the judge’s direction and control to do likewise

Question 40

Can a judge have or consider any communications with third parties that are not involved in the case outside of the presence of the parties’ lawyers?

Answer 40

No except for court personnel (can’t discuss facts not on the record and must not abrogate responsibility to decide the matter) and disinterested legal experts (provided judge gives advance notice and gives the parties a chance to respond to the notice and the advice of the expert)

Question 41

What limitations must judges impose on those under their control with regard to comments on ongoing cases?

Answer 41

Judge must require that those under their control may not comment publicly in any way that might reasonably be expected to affect the outcome or impair the fairness of the trial (Judge must hold those under his control to the same standard that he must hold himself to)

Question 42

What is the procedure for remittal (waiving disqualification)?

Answer 42

~ Can’t waive personal bias against a party

1) Judge discloses on the record the grounds for DQ and asks the parties if they would like to discuss a waiver
2) Lawyers privately discuss with their respective clients
3) All of the parties and their lawyers meet (outside of the presence of the judge) and agree that the judge should not be DQ’d. Agreement must be incorporated into the record
4) If the judge is willing to do so, she may then proceed with the case

Question 43

Can a judge appear as a character witness?

Answer 43

No unless summoned

Question 44

Can a judge disclose nonpublic information acquired in her judicial capacity? What about use?

Answer 44

No and No

Question 45

What is the baseline rule for a judge accepting gifts?

Answer 45

May not accept gifts (or loans/bequests/benefits) if acceptance is prohibited by law or would reasonably appear to undermine the judge’s independence, integrity or impartiality

Question 46

What gifts can a judge accept without publicly reporting?

Answer 46

~ Remember a judge can only accept gifts that would not reasonably appear to undermine the judge’s independence, integrity, or impartiality

• items of little intrinsic value
• things of value from those persons whose appearance in a case would DQ the judge regardless of the gift (friends, relatives)
• Ordinary social hospitality (e.g. meal)
• Regular course of business at arms length transactions
• Rewards and prizes open to persons who are not judges
• books and journals supplied by publishers on a complimentary basis for official use
• Gifts awards or benefits associated with the business or separate activity of a spouse or other family member living in the judge’s house that incidentally benefit the judge

Question 47

What gifts must a judge publicly report?

Answer 47

~ Remember a judge can only accept gifts that would not reasonably appear to undermine the judge’s independence, integrity, or impartiality

• Gifts incident to public testimonials
• Invitations to the judge and spouse to attend a law (or permitted civic/fraternal) related event without charge
• Gifts if the source is a person who has come or is likely to come before the judge or whose interests have come or are likely to come before the judge
  ~ Reimbursement for attending law related events
• Extrajudicial compensation

Question 48

Can a full time judge act as an arbitrator or mediator as a side gig?

Answer 48

No

Question 49

Can a judge or judicial candidate make speeches on behalf of a judicial candidate?

Answer 49

No

Question 50

Can a judge solicit funds for or pay an assessment to or contribute to a political organization or a candidate for public office? What about buy a ticket to a dinner event?

Answer 50

No and No

Question 51

An opponent in an election makes derogatory remarks about a judicial candidate’s integrity, experience and fitness for office. What can the candidate do?

Answer 51

Make a factually accurate public response to the misleading statement. Can be direct, but if the statements relate to a pending case, it is preferable for a spokesperson to do so

Question 52

Can a judicial candidate announce their views on certain hot button legal issues without making a prohibited pledge to rule a certain way?

Answer 52

Yes. Prohibitions on a judge’s ability to announce their views on a subject violate the first amendment, but can’t pledge to reach a particular result to avoid making a prohibited promise or pledge