The Judicial Ethics Forum (JEF)

Professor Strong (Missouri) just posted an interesting critique of judicial education in the United States.  Prof. Strong’s article is part of, and summarizes several other articles from, a great symposium on judicial education held last fall at the University of Missouri School of Law: Judicial Education and the Art of Judging: From Myth to Methodology.  Prof. Strong’s abstract follows:

Judges control virtually every aspect of judicial education in this country. While such behavior has traditionally been justified as the best if not only means to ensure judicial independence, it is not clear that self-regulation is either necessary or appropriate in matters that affect the public interest so deeply. Indeed, the current state of affairs might reasonably be described as involving a type of regulatory capture.

This Essay takes a novel and provocative view of judicial education by analyzing whether the current system promotes permissible values (such as judicial independence) or institutionalizes practices that are harmful to individual judges, the judiciary as an institution and the public at large. In so doing, this Essay considers a number of related issues, including judicial selection procedures, judicial impropriety and the proper role of judges in our society.

S.I. Strong, Judicial Education and Regulatory Capture: Does the Current System of Educating Judges Promote a Well-Functioning Judiciary and Adequately Serve the Public Interest?, J. Dispute Resolution (forthcoming 2015).

Cindy Gray and the Center for Judicial Ethics have kindly posted a recent edition of the Judicial Conduct Reporter.  Click here to view the edition (Winter 2015).  It is an informative read, including a summary of the 104 instances of public judicial discipline in 2014, a list of top judicial ethics stories in 2014, and a flyer for the 24th National College on Judicial Conduct and Ethics (which will be held in Chicago on October 28-30, 2015).

Two new pieces directly or indirectly addressing judicial ethics are now available:

(1) Professor Arthur Hellman (Pittsburgh) has posted here his detailed comments on the proposed revisions to the federal rules for handling judicial conduct complaints.  His abstract follows:

In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved a revised set of rules for handling complaints of misconduct or disability on the part of federal judges. Moving away from the decentralizing approach of the pre-2008 Illustrative Rules, the new rules were made binding on all of the federal judicial circuits.

On September 2, 2014, the Conference’s Committee on Judicial Conduct and Disability (Conduct Committee) issued a set of draft amendments to the Rules. The announcement invited comments on the proposed amendments. This statement was submitted in response to that invitation. The statement is in four parts. Part I provides some background. Part II discusses the policy changes proposed by the Committee. Part III addresses the special problems raised by “high-visibility” complaints. Part IV suggests some additional modest revisions in the Rules and flags issues that warrant the Committee’s attention in the future.

Most of the amendments in the published draft involve clarification or emphasis. But I have identified six revisions that do reflect changes of policy from the 2008 Rules. Five of the six reflect sound policy; they will serve to enhance transparency and strengthen procedural regularity. However, one proposed revision – an amendment that would allow tie votes in the Conduct Committee on petitions for review – is unwise. I urge the Committee to reconsider it.

Part IV addresses a variety of issues raised by the proposed draft and the Rules as originally adopted. These include: the chief judge’s obligation to “identify” a complaint based on public reports suggesting that a judge may have engaged in misconduct; judicial council authority to impose sanctions on complainants who abuse the process; disqualification of judges from proceedings under the 1980 Act; and making the Rules more user-friendly. The most detailed discussion involves two issues raised by the misconduct complaint against former District Judge Richard Cebull of Montana: judicial-council authority to conclude a proceeding and disclosure of judicial-council orders that have been vacated or modified.

(2) The prolific Bruce Green (Fordham) has just published an interesting article addressing whether, on balance, it is better to resist the urge to claim that implicit bias explains a judge’s ruling.  His article uses as context Judge Scheindlin’s disqualification in New York’s stop-and-frisk controversy:

One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To illustrate the problem with accusing judges of bias, given the term’s various meanings, the article focuses on recent federal litigation over NYC police stop-and-frisk policy in which (1) the district judge found “implicit bias” in police practices based on accumulated evidence and expert analysis, (2) the Second Circuit found that the district judge engaged in disqualifying judicial bias because of her comments in a prior related lawsuit and in the media, and (3) critics accused the Second Circuit of bias in making decisions that were hard to justify on either procedural or substantive grounds. The article concludes that, on balance, it is better to resist the temptation to import “implicit bias” rhetoric into critiques of individual judicial decisions.

Bruce Green, Legal Discourse and Racial Justice: The Urge to Cry “Bias!”, 28 Geo. J. Legal Ethics 177 (2015).

With nothing but sadness, I must report that Professor, Dean Emeritus, and now Judicial Ethics Forum Emeritus Monroe Freedman passed away today.  In addition to the inherent sadness, anything reported about Monroe — a founder of modern legal ethics — will be an understatement.  Fortunately, of the many tributes to Monroe over his storied career, two particularly fitting and detailed tributes have already been published: see Ralph Temple’s 1988 piece here; and a Hofstra Law Review Symposium dedicated to Monroe’s work here (including works from Alan Dershowitz, Steve Gillers, Tom Morgan, Deborah Rhode, Roy Simon, among others).   Monroe was an advocate and scholar of firsts, as Hofstra Law School reports (citations omitted):

Freedman was the first legal scholar to argue that the Bar’s restrictions on lawyer advertising violate the First Amendment and to point out that the anti-advertising rules blocked information about lawyers’ services from less educated and less sophisticated people who most need the information.  He was also the first to attack restrictions on trial publicity by defendants and defense attorneys, to argue that lawyers should be permitted to reveal information necessary to prevent death or serious bodily harm, to argue that law professors’ sexual relations with students should be recognized as unethical conduct; to argue that the lawyer’s decision to represent a client is a moral decision and subject to the moral scrutiny of others, and to analyze the ethics of coaching witnesses and to discuss the relevance of scholarship in behavioral psychology.

Moreover, many readers will have used Monroe’s canonical scholarly works, which included Lawyers’ Ethics in an Adversary System (1975) and Understanding Lawyers’ Ethics (4th ed. 2010) (with Prof. Abbe Smith).  Monroe taught me (and countless other lawyers, professors, and judges) an irreplaceable amount about confidentiality norms, legal advertising, and the due process implications of judicial elections and judicial recusal.  (A personal favorite of mine from Monroe’s judicial ethics scholarship is Judicial Impartiality in the Supreme Court — The Troubling Case of Justice Stephen Breyer.)  Monroe was so well-known in the field — and for so many notable accomplishments — that listing only a few items admittedly paints a misleadingly understated picture, but to mislead out of the terrible necessity of the occasion:

• Monroe became the fifth recipient of the ABA Michael Franck Award, which is the ABA’s highest honor in ethics and professionalism, following Michael Franck himself, Father Drinan, Mark Harrison, and Lewis Van Dusen;
• Monroe’s advocacy and scholarship received, in addition to the customary scholarly and popular praise, a call for investigation and disbarment by (among others) Chief Justice Warren Burger of the Supreme Court of the United States;
• Monroe advocated, championed, guided, enlightened, and otherwise supported thousands of causes, particularly in capital defense and other criminal law matters (indeed, Alan Dershowitz called on Monroe as Alan’s legal ethics expert in criminal cases); and
• Monroe famously articulated the perjury “trilemma” of the criminal defense lawyer: the lawyer is impossibly required “to know everything, to keep it in confidence, and to reveal it to the court.”

As legal ethicists attempt to move forward in Monroe’s absence, a new trilemma will present itself over and over: to acquire Monroe’s integrity and spirit of public service . . . without Monroe.

UPDATE: Professor Susan Saab Fortney, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Monroe’s Hofstra Law School, just kindly shared this news and link:

Thanks to everyone for their reflections and words of condolence related to the passing of Monroe.  From the day I arrived at Hofstra, Monroe was a supportive friend and mentor.

Before Monroe’s death, the Professional Responsibility Section of AALS had approved of the following program for the January 2016 annual meeting: “Ethics in Criminal Practice — The Three Hardest Questions Today:  A Conversation in Honor of Monroe Freedman.”  Monroe was very pleased to know about the program.  Bruce Green and I are organizing the program and trying to make it a  double session. We are now deeply saddened that this will be now be a memorial tribute, but honored to continue the discourse that Monroe started fifty years ago with his seminal work.

Although admittedly not hot-off-the-press, the following two judicial ethics works deserve highlighting (even belatedly):

First, for an impressive descriptive study of judicial disqualification appeals from 1980 to 2007, see Sande L. Buhai, Federal Judicial Disqualification: A Behavioral and Quantitative Analysis, 90 Or. L. Rev. 69 (2011) (noting, among other interesting things, the “surprising” failure of certain district court judges to recuse themselves despite relatively clear and objective grounds compelling their recusal).

Second, for a strong jurisprudential inquiry into impartiality, the relevant differences between civil and common law judges, the nature of adjudication and law, and the justification for positive legal restrictions on judges’ conduct, see W. Bradley Wendel, Impartiality in Judicial Ethics: A Jurisprudential Analysis, 22 Notre Dame J.L. Ethics & Pub. Pol’y 305 (2008).

As J.E.F. nears its seventh year, we just wanted to wish our readers Happy Holidays and an Ethical New Year.  Although not of the typical Holiday variety, here are some stories and scholarship for your reading list:

(1) After well-known Pennsylvania Supreme Court Justice Seamus McCaffery was suspended and separately criticized by his colleagues on the high court, and chose to retire as a result, for sending pornographic emails to the state attorney general’s office employees (among others) on his personal email account, a new report from the court’s own special counsel has apparently cleared the other justices of any involvement in the email scandal.  The debacle is another good reason to mind the appearance of impropriety in all communications and to treat email messages, even ones sent from personal accounts, as possible front page news.

(2) Professor Alain Roussy explores some of the many stirred issues in the now long-running controversy involving Canadian Justice Lori Douglas (whose lawyer husband posted nude pictures of her online and sent copies of the pictures to a client who in turn sued and eventually filed a judicial conduct complaint).  Prof. Roussy’s essay is forthcoming in the great international journal, Legal Ethics:

The Douglas Inquiry, involving allegations against Manitoba’s Associate Chief Justice Lori Douglas, is the Canadian judicial ethics story that keeps on giving. The allegations all stem from the fact that ACJ Douglas’ husband posted nude photos of her on the internet back in 2002-2003, before her appointment to the bench. There have been a number of recent developments in this matter and many interesting legal questions are at play. These include: the role of the Attorney General of Canada in applications for judicial review of decisions made by the Inquiry Committee of the Canadian Judicial Council, the jurisdiction of the Federal Court to hear such applications, the existence (or not) of a solicitor-client relationship between Independent Counsel (counsel specifically hired to impartially present the case to the Inquiry Committee) and the Canadian Judicial Council, and the appropriate roles of Independent Counsel and Committee Counsel. Clearly, the Douglas inquiry has shone the light on the inadequate complaint-resolution processes of the Canadian Judicial Council.

Alain Roussy, The Continuing Saga of the Douglas Inquiry, Legal Ethics (forthcoming).

(3) Judicial ethics expert Steve Lubet published an interesting, entertaining, and brief reaction to Justice Scalia’s apparent acceptance of torture techniques.  Prof. Lubet points out the practical problems and logical fallacies with Justice Scalia’s infatuation with the fictional agent Jack Bauer on the television series 24 and Justice Scalia’s twist on, and stretch of, the Trolley Car thought experiment.

(4) Two Prague professors (at Charles University) just posted this interesting study on judicial discipline in the Czech Republic:

The article analyses all judicial disciplinary decisions issued by the disciplinary court in the Czech Republic since 2008, when the reform of the disciplinary court took place. The authors, after introducing the Czech disciplinary system, describe the conduct of the judges which was found inappropriate by the court. In the second part of the paper they offer analysis of the cases tried by the disciplinary court in which the court found no substantial breach of the standards of professional judicial ethics or which were suspended before a decision was reached. In the last part of the paper, the authors summarise their findings, offer their interpretation and place their findings in a broader Czech context. The article thus offers an overview of the most recent practice of the Czech disciplinary court, which may be used for international comparison with the judicial disciplinary practice in other states.

Tomas Friedel & Michal Urban, Are Czech Judges Angels or Devils? The Practice of Judicial Disciplinary Authorities in the Czech Republic (2014).

Looking forward to 2015 and the always interesting and evolving (but occasionally degenerating) world of judicial ethics.  Thank you.

Many presumably will be familiar with the Second Circuit’s reassignment of the New York “stop and frisk” controversy from Judge Scheindlin to another district court judge.  See, e.g., Ligon v. City of New York, 736 F.3d 166, 171 (2d Cir. 2013) (“A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.”).  Now, Prof. Kalhan (Drexel) has written a lengthy criticism about the Second Circuit panel’s process, orders, and opinions:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

Anil Kalhan, Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances, 27 Geo. J. Legal Ethics (forthcoming 2014).