The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for June, 2014

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.

Advertisements

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).

Posted in Judicial Ethics Generally | Leave a Comment »

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 »