JUDICIAL ETHICS Flashcards
Interplay with Lawyer’s Ethics
A lawyer may not induce a judge in the violation of judicial ethics.
- In the hope of currying favor, Larry offered Judge Williams tickets to the hit Broadway musical Burr, in exchange for a few conversations about his upcoming trial before the judge.
- NOT PERMISSIBLE – Ex Parte Comm.
Model Code of Judicial Conduct (CJC)
Structure
- Cannons – GENERAL PRINCIPLES
- Rules – SPECIFIC RULES
- Comments – SUGGESTIONS
Judicial Integrity
Unlike a lawyer, a judge must avoid the APPEARANCE of IMPROPRIETY
No abuse of office for gain
- Judge Williams is a self-described foodie. When he couldn’t get a reservation at Crouton, the city’s hottest new restaurant, he called the owner and said, “I’m a federal judge. I get a table tomorrow night.” This is NOT permitted.
- Judge Williams calls Lorraine to recommend one of his clerks for an open associate position at Lorraine’s firm. This is PERMISSIBLE
Impartiality and Diligence
Impartiality and Diligence – A judge is required to perform the duties of judicial office impartially, competently, and diligently. This includes an obligation to interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.
- Judges must be diligent and IMPARTIAL (no favoritism)
- Justice must be BLIND
Ex Parte Communications
Generally prohibited –
- The prohibition applies to judges as well as lawyers.
- Staff control—the judge is responsible for controlling her staff, particularly in the area of ex parte communications.
- Reasonable efforts
Permitted ex parte contacts—
1) Scheduling, administrative, or emergency reasons which do not address substantive matters, but only if:
- (i) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and
- (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond
2) Disinterested legal expert
- if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and
- gives them a reasonable opportunity to object and respond to the notice and to the advice received.
3) Consulting with court staff
- court staff / court officials whose functions are to aid the judge in carrying out her adjudicative responsibilities, or
- Other judges – Judges are permitted to consult with other judges (unless previously disqualified from matter or have appellate jurisdiction over the matter) as long as judge makes reasonable efforts to avoid receiving factual information that is not part of the record and does not abrogate the judge’s personal responsibility to decide the matter
4) Settlement efforts
- Only with the consent of the parties.
5) When expressly authorized by law
- A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with the Code of Judicial Conduct.
Judge as detective—a judge MAY NOT conduct an independent factual investigation of any matter before the court
- must only consider the evidence presented and any facts that may properly be judicially noticed
Public Comment
Judges should NOT make public comments on PENDING or IMPENDING cases.
- Ex: After the Court’s term is over, Justice Bornstein gives a speech at a law school outlining his view of the decisions handed down that term.
- Is this a violation? NO, case is over
Reccomendation/Referral Letters
A judge may provide a reference or recommendation for an individual based upon the judge’s personal knowledge
The judge may use official letterhead for a reference letter if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to use the judge’s official position to exert pressure.
Recusal
Judges are presumed to be able to put aside general preferences, and to follow the law. Therefore, judges are not required to recuse themselves simply because of:
- past professional experience working on behalf of a particular policy;
- a prior association with an organization that reflects particular political, social, or philosophical preferences; or
- previously expressed opinions on the generally applicable law.\
Mandatory Recusal — Even if none of the specific grounds for disqualification enumerated below are met, a judge is still required to disqualify herself if the judge’s “impartiality may reasonably be questioned.” (All are waivable by parties EXCEPT 1 and 2)
- Personal BIAS toward a party or lawyer; —(NOT waivable)
- Personal knowledge of FACTS in the case; —(NOT waivable)
- Judge or spouse’s Relationship to party, witness, or lawyer
- Economic interest for the judge or the judge’s family;
- Excessive Political Contribution
- Judicial conflict—judge has previously served as (i) a lawyer in the matter (ii) prior official, or (iii) prior judge in a matter before the court
Exception—rule of NECESSITY
- If no judge can hear the case, someone has to do it.
WAIVER of Judge’s Disqualification
- Judge MUST disclose all information that is useful to ascertain whether recusal is appropriate
- The judge must ask the parties and their lawyers to consider outside the presence of the judge and court personnel, whether to waive the judge’s disqualification
Squealing
Judges MUST report KNOWN violations of the rules by another lawyer that implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
Duty to inform appropriate authority — Must inform appropriate authority (snitch) if:
- judge has actual knowledge of lawyer’s/judge’s ethical violation and
- violation raises substantial question regarding lawyer’s/judge’s honesty, trustworthiness, or fitness as lawyer/judge
Duty to take appropriate action – Must take appropriate action—e.g., confer with lawyer/judge or report to appropriate authority—if:
- judge lacks actual knowledge of lawyer’s/judge’s ethical violation BUT receives information indicating substantial likelihood of such violation
Impairment
- Judges MUST take appropriate action if they have a reasonable belief that a lawyer is impaired
Extra-Judicial Activities
Extra-Judicial Activities – Judges cannot engage in activities that UNDERMINE the INTEGRITY of the judge or of the court.
- e.g. Hosting an illegal gambling ring in the basement of his townhouse.
Character witness
- A judge CANNOT be a voluntarily character witness.
- ONLY IF if summoned to testify.
Mediator/Arbitrator
- if expressly authorized by law
Fiduciary
- NO fiduciary appointments (e.g., trustee, executor) UNLESS FAMILY MATTER
Outside business
- NO outside buisness UNLESS FAMILY BUSINESS and does not interfere with judicial work.
Practice of law– A Full-Time Judge may NOT practice law UNLESS
- Acting PRO SE
- Legal Advice / Draft/Review documents for FAMILY without compensation
Gifts to Judges
Non-reportable gifts
- Gifts made in the ordinary course.
- ex: East legal publisher sends Judge Williams—as well as every judge on the court—a complimentary copy of its updated Professional Responsibility desk book, for use in official matters
Gifts from Parties who would otherwise require disqualification by Judge
- a judge may accept a gift without publicly reporting it from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending or impending before the judge would in any event require disqualification of the judge.
- Rationale: it would not have effect the judge’s independence, integrity, or impartiality
Reportable gifts
- Large gifts are subject to reporting rules.
Conventions—reimbursement for judge’s attendance at a convention
- Recreation—the judge must report
- Education—the Judge need not report
Politics for Judges
A judge must STAY OUT of politics (endorsements)
- including endorsement of political candidates, even family members
Impartiality—NO pledges, promises, or commitments
Candidate for judicial office (issues v. parties)
- General comments about ISSUES—ALLOWED
- In a speech to high school students, Judge Williams says “I am a firm believer in strict campaign finance regulations.”
- Specific comments about PARTIES—NOT allowed
- Asked by a reporter about the campaign finance case before the Supreme Court, Judge Williams says “The defendants have no chance in that one.”
- Keep in mind!—Judge comments might be the basis for recusal.
Judge running for judicial post in an election
- A judge can have a campaign committee.
- A judge can endorse candidates for the same office.
Judge running for ELECTIVE OFFICE other than judgeship (e.g., legislature)
- Judge MUST QUIT the Judgeship
Judge seeking appointment to NON-ELECTIVE office (e.g., federal court judge)
- Judge does not need to quit the Judgeship
Prohibited Political Activity in General
Except as permitted by law or other MCJC rule, judges & judicial candidates must STAY OUT OF POLITICS — The MCJC prohibits judicial candidates from engaging in POLITICAL activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.
- lead, hold office in, or make speeches for political organizations
- publicly endorse or oppose candidates for public office
- solicit or make financial contributions to political organizations or candidates for public office
- attend or buy tickets for events (e.g., dinners) sponsored by political organizations or candidates for office
- publicly identify as candidate for political organizations
- seek, accept, or use endorsements from political organizations
- personally SOLICIT or ACCEPT CAMPAIGN CONTRIBUTIONS outside authorized campaign committee
- use or permit use of campaign contributions for private benefit of judge, candidate, or others
- use court resources (e.g., staff, facilities) in campaign for judicial office
- knowingly or recklessly make any false or misleading statement
- make statement reasonably expected to affect outcome or impair fairness of matters before court or
- make pledges or promises (e.g., commitments) inconsistent with impartial performance of judicial duties relating to cases, controversies, or issues likely to come before court
Partisan Elections
- A judicial candidate in a partisan public election may seek, accept, and use endorsements of a political organization and/or party.
- A judicial candidate in any election may seek, accept, and use an endorsement from any person, including candidates for the same judicial office
Judges & judicial candidates must also take reasonable measures to ensure that other persons do not undertake any prohibited activities on behalf of the judge or judicial candidate.
Judge’s participation in educational, religious, charitable, fraternal, or civic organizations
Judges may participate in activities sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit.
- But a judge’s participation in such activities is subject to several limitations (see below table). For example, a judge is generally prohibited from personally soliciting—e.g., directly requesting contributions such as financial assistance—on behalf of such organizations.
- However, a judge may personally solicit contributions from members of the judge’s family or judges over whom the judge does not exercise supervisory or appellate authority.
Judge may:
- solicit Contributions from family members or from judges over whom judge has no supervisory or appellate authority
- serve as Officer of organization, unless likely that organization will be: engaged in proceedings ordinarily before judge or engaged frequently in adversarial proceedings in court of which judge is member or any court subject to appellate jurisdiction of court of which judge is member
- solicit Membership for law-related organizations
- assist in Planning related to fundraising & participate in management & investment of organization funds
- Appear or speak at & receive award or other recognition at organization’s event, but if fundraising event, may participate only if event is law-related
- make Recommendation to fund-granting organization if organization is law-related
- Encourage lawyer participation in pro bono legal services
A judge may serve on the board of an organization concerned with improving the law, as here, where the judge’s service will not interfere with the performance of judicial duties and the organization will not engage in litigation before the judge or the judge’s court.
