The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for February, 2013

The Third ABA Judicial Ethics Opinion in Three Decades

Posted by judicialethicsforum on Thursday, February, 21, 2013

The ABA Standing Committee on Ethics and Professional Responsibility has just issued a new formal opinion on a timely judicial ethics topic.  The Ethics Committee has not addressed judicial ethics in its formal opinions for over four years (indeed, in the last thirty years, it has done so only three times; for the previous opinions, see here).  The next question almost automatically becomes — to what issue does the Model Code owe this attention?

Answer: Judges and Social Media.  For example, you may recall the controversial Florida judicial ethics opinion stating that judges cannot “friend” (on Facebook) lawyers who may appear before them; you may have seen elective judges (and their campaign committees) using social media to promote themselves; or you may have seen or heard about judges publicly endorsing candidates for public office through social media.  The brand new opinion speaks to all three of these examples (and a few others).  In light of the many judicial ethics considerations when judges communicate publicly (whether through social media or older methods), however, the opinion understandably offers very few bright-line rules.  The opinion does, however, generally take a pro-social media tone:

Judicious use of ESM can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.

For the full opinion, click here.

Advertisements

Posted in Canon 2, Canon 4, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

New Scholarship: White on Judicial Disqualification in Perspective

Posted by judicialethicsforum on Thursday, February, 21, 2013

Professor and former Tennessee Supreme Court Justice Penny White has published an interesting new essay on judicial disqualification, in which she asserts “that robust disqualification provisions can serve as a powerful antidote to the harmful effects of [the White and Citizens United] decisions, particularly when judges view disqualification requests from the public’s perspective.”  For the full essay, click the link below:

Penny J. White, A New Perspective on Judicial Disqualification: An Antidote to the Effects of the Decisions in White and Citizens United, 46 Ind. L. Rev. 103 (2013).

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

New Scholarship: Goldschmidt and Stalans on Self-Represented Litigants and Perceived Fairness

Posted by judicialethicsforum on Thursday, February, 21, 2013

This piece features an interesting survey of Canadian lawyers and their perception of judges’ impartiality when judges assist self-represented litigants.  In addition to that continuing question of the appropriate level of assistance, the piece offers some comparative observations on the American and Canadian law and experience:

How much assistance should a trial judge provide a self-represented litigant [SRL] before the judge’s impartiality will be reasonably questioned? This question has been of continuing concern to both the bench and bar ever since the rise of the pro se litigation movement in the late 1990s, particularly in the context of “mixed” cases involving an SRL and a represented party. Case law and ethics codes provide inconsistent decisions and vague guidelines for judges, who must balance their duty to provide reasonable assistance with their duty to ensure a fair trial for all parties. This paper reports the results of a survey administered to 210 Canadian family law practitioners who were presented with 16 hypothetical scenarios involving an SRL and a represented party. Respondents indicated their views regarding the impartiality and helpfulness of the trial judge in each scenario, involving various procedural defaults by the SRL and different forms of judicial assistance or lack thereof. The results indicate that lawyers’ perceptions of a judge’s impartiality are affected, inter alia, by the favourability of the outcome for the SRL, and whether the assistance provided dealt with procedural or substantive matters. Future research is needed to determine whether a consensus can be established regarding perceptions of lawyers, lay persons, and judges regarding which forms of assistance are reasonable and required, permissible, or impermissible.

Jona Goldschmidt & Loretta Stalans, Lawyers’ Perceptions of the Fairness of Judicial Assistance to Self-Represented Litigants, Windsor Yearbook of Access to Justice, Vol. 30, No. 1, 2012.

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

New Scholarship: Lubet and Diegel on Supreme Court Ethics Reform

Posted by judicialethicsforum on Thursday, February, 21, 2013

This fairly recent research paper seeks ethics and disqualification reform in the Supreme Court:

The United States Supreme Court is the only court in the United States without a clearly defined ethics code. In the wake of the controversy over possible leaks from justices’ chambers following the decision in NFIB v. Sebelius, and in light of legislation recently introduced in Congress, this paper suggests two reforms for the Supreme Court. First, the time has finally come for the Court to adopt a comprehensive Code of Conduct. Second, the Court should alter its current recusal practice – in which decisions are made exclusively by individual justices – and instead resolve disqualification motions by a vote of the full court.

Steven Lubet & Clare Diegel, Stonewalling, Leaks, and Counter-Leaks: Scotus Ethics in the Wake of NFIB v. Sebelius (Sept. 10, 2012).

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