The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

In Memoriam: The Passing of Monroe Freedman and the Dimming of Legal Ethics

Posted by kswisher on Thursday, February, 26, 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.

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More Roy Moore and the Ethics of Refusing Same-Sex Marriages

Posted by kswisher on Thursday, February, 26, 2015

Unbelievably, Alabama Chief Justice Roy Moore is still in the news — “unbelievably” because this is the same Chief Justice Moore whose colleagues had to remove from the Alabama Supreme Court for his failure to comply with a direct federal court order to remove his Ten Commandments monument from the public courthouse.  As his colleague-justices later concluded, Moore’s actions back in 2001 to 2003 clearly violated the Code of Judicial Conduct, which requires (among other relevant conduct) that judges comply with the law.  Moore was nevertheless reelected and has since instructed probate judges not to issue marriage licenses for same-sex marriages.  At least two interesting and relevant pieces related to this development follow:

First, Professor Amanda Frost recently published a piece on whether state courts must or should follow lower federal court precedent on the meaning of federal law.  Although her work was written just before this recent controversy, it provides intriguing historical and other perspectives on this question.  See Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015).

Second, the Arizona Judicial Ethics Advisory Committee just issued Opinion 15-01, which concludes that judges cannot ethically refuse to marry same-sex couples out of religious or other objections.  Although judges may refuse to marry all couples or may marry only close family and friends, judges may not refuse to marry same-sex couples and thereby discriminate against them.  See Model Code R. 2.3(B).  (In a sense, the decision loosely parallels employment law to some extent in that an employer can generally hire or fire an employee for “no reason” but not for a “bad reason.”)

UPDATE: The Arizona Judicial Ethics Advisory Committee revised its opinion last month.  The new opinion reaches the same conclusions as above but (1) emphasizes that judges are not required to perform marriages at all (but if they do, they must not discriminate between same- and opposite-sex couples) and (2) deletes the reference to Rule 1.1 (which requires judges to comply with the law).  The revised opinion is available here.

Posted in Canon 2, Judicial Ethics Generally | Leave a Comment »

Roundtable: Williams-Yulee v. The Florida Bar

Posted by kswisher on Thursday, February, 26, 2015

Vanderbilt Law Review’s online forum (called En Banc) just published a fascinating list of short essays on the Supreme Court’s upcoming Williams-Yulee opinion (which will address to what extent the First Amendment shields elective judges who solicit campaign contributions personally):

The Absent Amicus: “With Friends Like These . . .”
PDF · Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).

Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
PDF · Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).

Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
PDF · Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).

Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
PDF · David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
PDF · Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).

The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
PDF · Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).

What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
PDF · Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).

Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
PDF · Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).

To highlight one particularly interesting essay of the lot, Prof. Ruthann Robson tells her story of being solicited (albeit indirectly) for a contribution, opines on the detrimental impact that Williams-Yulee could have on the interests of clients and lawyers, and discusses four cases, some expected (e.g., White and Caperton) and some unexpected (e.g., Shelley v. Kraemer), that should inform the result in Williams-Yulee.  Her work is available here.

Posted in Judicial Campaigns, Judicial Ethics Generally | Leave a Comment »

Supreme Court to Permit Judges to Solicit Campaign Contributions Personally?

Posted by kswisher on Tuesday, January, 20, 2015

Readers undoubtedly know that the Supreme Court of the United States will soon decide whether judges, or at least judicial candidates, may solicit campaign contributions personally (i.e., in lieu of, or in addition to, the customary campaign committee of “responsible persons”).  The Court heard oral argument today.  It was not a disaster for those in support of limiting the actual and apparent corrupting effects of money (and judges’ direct solicitation of that money from the lawyers and parties likely to appear before them), but perhaps the best possible outcomes would be either a 5-4 decision upholding the Canon or a narrow decision essentially carving out a First-Amendment-driven, mass-mailing-like exception to the Canon.  (Williams-Yulee directly solicited money through a mass mailing, which generally does present less harm than in-person, telephonic, or other real-time solicitation.)  Interesting reading follows on this case and the oral argument:

(1) The Brennan Center posted a good summary of the case and links to all of the briefs, including the ACLU’s amicus brief (supporting judges who plan to mass-solicit money directly from anyone, including the lawyers and litigants who will appear before those judges) and the ABA’s amicus brief (supporting the Canon prohibiting such solicitation, whether in person or in writing).

(2) Adam Liptak from the New York Times just published a good summary of the oral argument.

(3) The transcript of the oral argument is here.  The Justices’ questions generally fall along anticipated ideological divides (e.g., the conservative Justices seem to support uninhibited solicitation of campaign contributions and the liberal Justices seem to support more regulation in judicial elections).  Justice Kennedy’s vote is key, and his few questions are not telling.  Stay tuned.

Posted in Canon 4, Canon 5, Judicial Campaigns | Leave a Comment »

New(er) Scholarship: Buhai on Disqualification and Wendel on Impartiality

Posted by kswisher on Tuesday, January, 20, 2015

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).

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Judicial Ethics Stories and Scholarship to Ring in 2015

Posted by judicialethicsforum on Wednesday, December, 24, 2014

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.

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The Supreme Court Has Again Agreed to Do Something Very Good or Very Bad to State Judicial Ethics

Posted by judicialethicsforum on Sunday, October, 5, 2014

The Supreme Court has agreed to hear another case on the Code of Judicial Conduct.  It has not explicitly done so since Republican Party of Minnesota v. White (and we all know how that one turned out; cf. also the Caperton and Carrigan opinions).  Judicial candidate Lanell Williams-Yulee signed a mass-mailing in which she solicited contributions to her campaign.  Not surprisingly for those who have read the judicial ethics code in effect in a majority of states, this conduct violated the prohibition against personally soliciting campaign contributions.  “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds. . . .”  Fla. Code of Judicial Conduct Canon 7C; see also 2007 Model Code R. 4.1; 1990 Model Code Canon 5C.  As the 2007 Model Code (but not the Florida Code) helpfully defines, moreover, “’Personally solicit’ means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication.”  The Florida Supreme Court thus publicly reprimanded Williams-Yulee for violating the Canon, notwithstanding her complaint that the Canon violates the First Amendment “in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.”  The circuits have split on the First Amendment issue, and Williams-Yulee sought cert on that basis.  (Of note, her petition relies in part on the Ninth Circuit’s recent split decision invalidating the personal solicitation canon as applied to non-judges, but the Ninth Circuit has since agreed to rehear the appeal en banc this December. See Wolfson v. Concannon en banc petition and panel opinion.)  In part because Williams-Yulee’s adversary (the Florida Bar) made the controversial decision to urge the Supreme Court to hear Williams-Yulee’s petition, the Supreme Court has agreed to do so.

Of potential interest, the cert petition, in Appendix D, includes a copy of Williams-Yulee’s solicitation letter.  In it, Williams-Yulee tells an unknown number of local lawyers, litigants, and others that:

I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. . . . Thank you in advance for your support.

As an editorial comment, let’s hope that at least five justices recognize the significantly coercive and corrupting effects of personal solicitation (both in reality and in appearance and both as to the judge and the contributor), particularly combined with the fact that the judges or prospective judges would be directly soliciting money from the same lawyers and parties who appear or will appear before them.

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Ethics Generally | Leave a Comment »

A Huge Loss for Fair Courts

Posted by judicialethicsforum on Sunday, October, 5, 2014

After 100-plus years, the American Judicature Society sadly will be closing its doors.  As the AJS President said in a press release:

A fair and impartial justice system is the foundation of American liberty. The American Judicature Society has fought to improve and preserve the fairness, impartiality, and effectiveness of our justice system for 101 years as a member-based entity. However, in the last several years, the membership model has become more challenging for many nonprofit organizations around the country, including AJS. At the same time, new nonprofit entities with organizational and financial structures more suited to the times have joined AJS in the fight. The American Judicature Society’s Board of Directors decided that rather than operate on a limited scale, and rather than duplicate the excellent work of other similar entities, AJS should find new homes for its core functions. To this end, AJS and the National Center for State Courts (NCSC) have entered into a Memorandum of Understanding that transfers AJS’s Center for Judicial Ethics (the CJE) to NCSC and ensures that the CJE will continue its very important work. AJS is also in the process of finding new homes for Judicature and AJS’s internet accessible resource known as Judicial Selection in the States.

Even after the American Judicature Society closes its doors, its legacy will live on as long as Americans recognize and support a fair and impartial justice system as essential to our freedom.

See also the National Center for State Court’s Press Release (noting the fortunate fact that AJS’s Center for Judicial Ethics will live on at the NCSC).

Posted in Judicial Ethics Generally, Judicial Selection | Leave a Comment »

New Scholarship: Kalhan on Judge Scheindlin’s Outster

Posted by judicialethicsforum on Sunday, October, 5, 2014

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).

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New ABA Resolution Addressing Judicial Disqualification and Campaign Contributions

Posted by judicialethicsforum on Tuesday, August, 12, 2014

In a time when money is flowing into judicial elections, the ABA has finally passed a resolution designed generally to address the often problematic results and appearances when lawyers and litigants contribute or otherwise expend significant sums of money to elect or retain a judge.  The ABA’s Judicial Division had defeated an earlier, more detailed resolution to address when judges should recuse themselves because the lawyers or litigants appearing before them had made significant campaign contributions or independent expenditures for (or against) those judges.  Although diluted, the new ABA Resolution 105C is still a step in the right direction because it addresses four key areas of improvement and urges training to address these often difficult disqualification questions:

RESOLVED, That the American Bar Association urges that states and territories adopt judicial disqualification and recusal procedures which: (1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge; and

RESOLVED FURTHER, That the American Bar Association urges all states and territories to provide guidance and training to judges in deciding disqualification/recusal motions.

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Judges Friending Lawyers

Posted by judicialethicsforum on Tuesday, August, 12, 2014

The latest issue of The Professional Lawyer was just published, and Prof. Ben Cooper (Mississippi) included a good article on how to deal with the divisive issue of whether judges should be permitted to “friend” lawyers and litigants on Facebook, and if so, what disclosure obligations result.  Prof. Cooper’s article can be found here, and the abstract follows:

A wave of recent judicial ethics opinions from the states and the ABA offers direction on navigating the ethical minefield of social media use by judges. The author, an ethics professor, surveys opinions on point and argues that although they provide helpful guidance on a number of issues, they fall short in terms of providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media “friend.”

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Judicial Disqualification Standards in Canada

Posted by judicialethicsforum on Tuesday, August, 12, 2014

Profs. Philip Bryden (Alberta) and Jula Hughes (New Brunswick) just revised their lengthy work on judicial recusal standards in Canada.  Click here to download the full paper, and here is a partial abstract:

Beginning with a review of a number of leading Canadian and other common law decisions on judicial disqualification, we explore the implications of the divergent strands of thinking that emerge in the jurisprudence to improve our understanding of the Canadian jurisprudence and then move to a discussion of the substantive rules governing judicial disqualification in six categories of cases. We argue that the conceptual tools we use in addressing issues of judicial impartiality tend to fail us precisely in the analytically marginal cases where, based on the jurisprudence or policy, plausible arguments could be advanced for suggesting both that a judge should or should not be disqualified. This uncertainty puts pressure on judges to recuse themselves in marginal situations in which it would be better from the standpoint of the efficient administration of justice for them to sit.

Posted in Judicial Disqualification & Recusal | Leave a Comment »

New Guidance for Judges and Judicial Employees Using Social Media

Posted by judicialethicsforum on Tuesday, June, 24, 2014

In addition to the recent ABA Ethics Opinion taking a generally pro-social-media tone, two new judicial ethics advisory opinions have been issued for federal and state judges.

First, for federal judges, the Committee on Codes of Conduct issued Opinion 112 in March.  It generally condemns various behavior on social media (e.g., “maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the [judge’s or judicial] employee’s own court,” “any use of a judge’s or judicial employee’s court email address to engage in social media or professional social networking,” and “‘liking’ or becoming a ‘fan’ of a political candidate or movement”).  The full Opinion 112 can be found here.  The link is also helpful because it contains the full text of the Committee’s opinions from the past five years.

Second, the Arizona Judicial Ethics Advisory Committee issued Opinion 14-01 in May.  It examines in a fair amount of detail the ethical issues arising from LinkedIn and Facebook (among other platforms) for both judges and judicial employees.  For example, it concludes that both judges and judicial employees generally should not recommend (or arguably endorse) attorneys on LinkedIn who appear in the court.  Turning to Facebook, it concludes that being a Facebook friend with a lawyer does not necessitate recusal in every case involving that lawyer, but the relationship might need to be disclosed to the parties, and if the judge is actually biased or if the judge’s impartiality might reasonably be questioned, simply “defriending” the lawyer will not fix the disqualification problem.  Similar to the federal opinion above, this state opinion also concludes that “a judge may not be a ‘friend’ of or ‘like’ [a legislator’s] or another judge’s reelection campaign Facebook page because Rule 4.1(A)(3) prohibits judges from endorsing another candidate for any public office.”

UPDATE: The Arizona opinion was slightly revised shortly after this post.  The revised opinion can be found here.  Many of the revisions are minor; probably the largest addition follows:

As to friending or liking the websites of political candidates, judicial employees other than a judge’s personal staff, courtroom clerks, and court managers may do so subject to the restrictions set forth in Rule 4.1. A judicial employee should not identify him or herself as a judicial employee in so doing and should avoid conduct that may give the impression the employee’s political activities are on behalf of the judiciary. Members of judges’ personal staff, courtroom clerks, and court managers are subject to the same political limitations as judges contained in Canon 4 of the Code of Judicial Conduct, except as provided in Rule 4.3 (Elective Judicial Department Office).

By the way, for an interesting Facebook-based disqualification case, see Chace v. Loisel, 2014 WL 258620 (Fl. Dist. Ct. App. Jan. 24, 2014).  There, the judge had tried to friend a litigant on Facebook, and the litigant essentially rejected the request based on advice from the litigant’s attorney.  The litigant claimed that the judge thereafter issued retaliatory rulings against her because she had rejected the judge’s friend request, and the litigant moved for disqualification.  The appeals court concluded that these facts were facially sufficient to warrant disqualification.

Posted in Canon 4, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

New Scholarship: Judicial Error Correction, Performance Review, Lobbying, and Federal Regulation

Posted by judicialethicsforum on Tuesday, June, 24, 2014

Judge McKoski’s article (see post below) is part of a judicial ethics issue of the Arizona Law Review, which is dedicated to an exemplary and impactful lawyer, Mark Hummels, who was recently murdered after a mediation.  The issue includes good articles on the following topics, with links:

(1) Andrew D. Hurwitz, When Judges Err: Is Confession Good for the Soul?, 56 Ariz. L. Rev. 343 (2014).

(2) Rebecca White Berch & Erin Norris Bass, Judicial Performance Review in Arizona: A Critical Assessment, 56 Ariz. L. Rev. 353 (2014).

(3) Dr. Roger E. Hartley, “It’s Called Lunch”: Judicial Ethics and the Political and Legal Space for the Judiciary to Lobby, 56 Ariz. L. Rev. 383 (2014).

(4) Russell R. Wheeler, A Primer on Regulating Federal Judicial Ethics, 56 Ariz. L. Rev. 479 (2014).

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New Judicial Ethics Scholarship: McKoski on Improving Disqualification Law

Posted by judicialethicsforum on Tuesday, June, 24, 2014

Judge/Prof. Ray McKoski has just finished an interesting piece arguing against the common disqualification test (i.e., when the judge’s impartiality might reasonably be questioned) and arguing for preemptory challenges in its place.  The abstract and link follow:

All state and federal courts require the disqualification of a judge when the judge’s “impartiality might reasonably be questioned.” Created by the ABA in 1972, this disqualification standard was intended to help restore public confidence in the judiciary by instilling uniformity and predictability in the recusal process. Unfortunately, the “might reasonably be questioned” test has been an utter failure. It has not decreased the arbitrariness or increased the predictability of recusal decisions. On the contrary, the vague and unworkable standard (1) prevents a disqualification jurisprudence from developing, (2) renders it impossible for ethics advisory committees to provide meaningful advice to judges on recusal issues, and (3) provides a vehicle upon which litigants and non-litigants can shamelessly attack a judge’s impartiality on the basis of the judge’s religion, race, ethnicity, sex, or sexual orientation.

This Article proposes a new disqualification regime for trial court judges. The proposal suggests replacing the “might reasonably be questioned” test with the peremptory removal of a trial judge upon the perfunctory request of a party. After exercising the right to an automatic change of judge, a litigant could challenge the successor judge if the judge is disqualified under a statute or court rule. Finally, the successor judge could be challenged under the Due Process Clause when the circumstances create a serious risk of partiality on the part of the judge. A peremptory challenge system, coupled with a list of disqualifying factors, and the right to challenge a judge’s impartiality on due process grounds, will provide a superior disqualification process.

Raymond J. McKoski, Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard, 56 Ariz. L. Rev. 411 (2014).

Posted in Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

State Judicial Discipline in 2013

Posted by graycynthia on Wednesday, February, 5, 2014

In 2013, as a result of state disciplinary proceedings, five judges (or former judges in two cases) were removed from office.  (Two additional removal decisions were pending on appeal at the end of the year.)  In addition, one judge was suspended without pay until the end of his term, and two former judges were barred from serving in judicial office.  (One of those former judges was also censured; one was suspended from the practice of law for one year.)  Two judges were involuntarily retired due to disabilities.  17 judges resigned or retired in lieu of discipline and agreed not to serve in judicial office again pursuant to public agreements with conduct commissions.

80 additional judges (or former judges in 10 cases) received other public sanctions.  (Approximately half of the sanctions were entered pursuant to the judge’s agreement.)

Eleven judges were suspended without pay for from 30 days to one year.  (Two of the suspensions was stayed entirely or in part; one also included a censure; three included reprimands; one included a reprimand and a $1,000 fine; one included a reprimand and order not to run for re-election.)  One judge was ordered to reimburse the court the pay she had received for almost four months while she was suspended with pay pending criminal charges.

Thirteen judges were publicly censured.  40 judges were publicly reprimanded.  (Three of the reprimands also included fines of $500, $1,000, or $2,500.)  11 judges were publicly admonished.  One judge received a public warning.  Two judges received letters of informal adjustment.  One judge was privately reprimanded, but the reprimand was made public with the judge’s consent.

[To compare 2010 and 2009 figures, click State Judicial Discipline 2010 and State Judicial Discipline 2009.]

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A Twin Victory for Transparency in Federal Judicial Misconduct Proceedings

Posted by judicialethicsforum on Friday, January, 24, 2014

To the credit of the Committee on Judicial Conduct and Disability (of the Judicial Conference of the United States), it just issued two opinions refusing to hide judicial misconduct.  The first involved former Chief Judge Cebull (D. Mont.) who had forwarded hundreds of racist, sexist, homophobic, and political emails from his court email address.  Because of an intervening event (namely, Judge Cebull’s decision to retire), the Ninth Circuit Judicial Council had effectively redacted portions of its earlier order detailing Judge Cebull’s misconduct and imposing several sanctions.  The Committee on Judicial Conduct and Disability concluded that the Council had erred and republished the full order here.

The second instance involved former Sixth Circuit Chief Judge Boyce Martin who had asked the Judicial Council to remove his name from its published order and not to refer him to the Department of Justice for further investigation into his problematic travel reimbursements.  In the face of the judicial misconduct investigation, Martin retired and agreed to pay back $138,500 in reimbursements.  Notwithstanding these steps, the Committee saw no reason to overturn the Judicial Council’s decision to publish Martin’s name and to refer the misconduct to prosecutors; see here.

[Somewhat ironically for a post applauding the federal judiciary’s transparency of late, the website on which it posts its decisions has been unavailable several times over the past few days.  The links above are therefore courtesy of other websites.]

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New Scholarship: Richmond on Judicial Plagiarism

Posted by judicialethicsforum on Friday, January, 24, 2014

When a judge unreflectively copies and pastes a colleague’s or party’s work into the judge’s opinion, that conduct can be ethically problematic.  Doug Richmond explores the problem:

Judicial opinions are the core work product of judges; they should be tangible proof to the parties that the court analyzed their claims or defenses and independently reached a reasoned decision. Yet courts often request that parties prepare proposed findings of fact and conclusions of law and thereafter adopt the prevailing party’s findings and conclusions verbatim or nearly so. In other cases, courts copy portions of the winning party’s brief or legal memorandum into their opinions or orders without attribution. These practices are fairly described as “judicial plagiarism.” The limited case law on-point establishes that if a court’s verbatim adoption of a party’s positions or its replication of a party’s brief reflects a lack of independent analysis or reasoning, or an apparent abdication or delegation of the court’s judicial function, it may furnish grounds for reversal. Grounds for reversal should also exist if judicial plagiarism reasonably evidences a court’s alleged bias or partiality. This Article goes farther, however, to argue that judicial plagiarism may constitute judicial misconduct for which the offending judge may be disciplined under the Model Code of Judicial Conduct. Deciding whether judicial plagiarism rises to the level of judicial misconduct or whether it is simply a judge’s ill-considered stab at efficiency is a difficult inquiry. To aid in this important determination, the Article identifies factors that higher courts and judicial conduct authorities should consider in the process. The Article also explains why courts’ and scholars’ long-standing defenses of judicial plagiarism fail.

Douglas R. Richmond, Unoriginal Sin: The Problem of Judicial Plagiarism, 45 Ariz. St. L.J. 1077 (2013).

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Pennsylvania Adopts a New Code of Judicial Conduct

Posted by judicialethicsforum on Friday, January, 24, 2014

As reported in the press (with an interesting account of the state judiciary’s setbacks over the past few years), Pennsylvania has recently adopted a new Code of Judicial Conduct in the image of the 2007 Model Code.  Among other notable features, the new PA Code now prohibits service on corporate, and to a lesser extent non-profit, boards.  The Code also addresses party and attorney judicial campaign contributions, requiring judicial recusal whenever:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

The PA Code of Judicial Conduct can be viewed here.

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

New Scholarship: Richmond on Bench Bullies

Posted by kswisher on Friday, August, 9, 2013

Doug Richmond recently wrote an interesting article (1) summarizing several striking instances of judges bullying lawyers (by, e.g., subjecting the lawyers to public ridicule or mean-spirited jokes) and (2) explaining why that bullying violates the Code of Judicial Conduct and is otherwise improper.

See Douglas R. Richmond, Bullies on the Bench, 72 La. L. Rev. 325 (2012).

Posted in Canon 2, Canon 3 | Leave a Comment »


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