The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for August, 2014

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.

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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.”

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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.

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