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Archive for the ‘Canon 3’ Category

A New and Rare ABA Opinion on Judicial Ethics

Posted by kswisher on Sunday, May, 31, 2015

There was a time when the ABA’s Ethics Committee seemed to neglect judicial ethics issues.  It went twenty-five years without issuing an opinion on judicial ethics.  Recent iterations of the Committee, however, have seemed to be more sensitive to judicial ethics issues: all four judicial ethics opinions have been published within the last eight years.

The newest opinion concludes: “A state supreme court judge may sign a letter printed on the judge’s stationery that is duplicated and mailed by the unified state bar association directed to all lawyers licensed in the state encouraging those lawyers to meet their professional responsibility under Rule 6.1 of the Model Rules of Professional Conduct and provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.”  That conclusion is mostly unsurprising in light of new(er) Model Code Rule 3.7(B), which permits judges to “encourage lawyers to provide pro bono publico legal services.”  The accompanying comment, moreover, offers non-exhaustive examples of “[s]uch encouragement,” “including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.”  The opinion is slightly surprising, however, in its narrowness: the facts are so specific that one might expect to find this opinion in a specific state addressed to a specific judge.  That said, given the country’s growing justice gap, this national opinion is for not only a good cause but a pressing cause.  The opinion also includes a helpful summary of prior state ethics opinions on this issue:

Alabama Jud. Inquiry Comm’n Adv. Op. 04-847 (2004) (judge may send letter asking lawyers to participate in state bar operated pro bono program); Florida Sup. Ct. Jud. Ethics Adv. Op. 2010-13 (2010) (judge may send general solicitation letter to “Members of the Bar” asking lawyers to participate in The Florida Bar’s One Campaign for pro bono legal service); Florida Sup. Ct. Jud. Ethics Adv. Op. 2012-26 (2012) (judge may ask a local bar association to host an event at which the judge will ask lawyers to provide pro bono legal services; however, judge must monitor tone and delivery of the request to ensure it is not coercive); Maryland Jud. Ethics Comm. Op. 1996-20 (1996) (judge may write personal letters to lawyers asking lawyers to provide pro bono services); Texas Comm. on Jud. Ethics Op. 258 (2000) (board of judges may send letter to lawyers asking lawyers to consider providing pro bono service hours to joint project of local legal service organizations). See also Alaska Comm’n on Jud. Conduct Adv. Op. 2004-01 (2004) (judge may not refer lawyers to a particular pro bono program); Kentucky Ethics Comm. of the Judiciary Op. JE-107 (2005) (while a generic letter to the bar is permissible, judge may not urge lawyers to volunteer with a specific pro bono organization). But see Michigan Stand. Comm. on Prof’l & Jud. Ethics Op. J-7 (1998) (judge may not solicit individual lawyer to perform pro bono); Nebraska Jud. Ethics Comm. Adv. Op. 02-3 (2002) (judge may not sign recruiting letter for bar association pro bono campaign).

In addition, the opinion offers judges some guidance as to when “encouragement” could cross the line into unethical “coercion:”

  • The number of lawyers who will receive the letter. In smaller jurisdictions or in limited-scope mailings that are targeted at lawyers who practice in a particular area of the law, a reasonable person might feel coerced into providing pro bono legal services.

  • The number of judges serving the jurisdiction. Again, in smaller jurisdictions with a limited number or only one judge, a lawyer who receives a letter from the judge encouraging that lawyer to provide pro bono legal services could feel coerced into doing so.

  • Whether the letter is a personalized correspondence or a general plea to the bar as a whole. A letter in which the recipient lawyer is identified by name in the salutation runs the risk of a reasonable person finding such a letter coercive.

  • Whether there will be some kind of post-letter monitoring. A letter in which a judge encourages a lawyer to perform pro bono legal services and then explains that the lawyer’s participation, or lack thereof, will be monitored runs the risk of a reasonable person finding such a letter coercive.

  • The tone of the letter. A letter in which the justice speaks in aspirational and encouraging language will have a much different impact than a letter that features dictatorial, condescending language.

For the full opinion, click here: ABA Ethics Op. 470 (2015).  For professor and former judge Ray McKoski’s commentary on the opinion and Rule 3.7(B), click here.  Finally, for the earlier ABA opinions on judicial ethics (addressing a judge’s use of social media, presiding over a case involving the judge’s personal lawyer, and fundraising for problem-solving courts), click here.

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Texas Judge Disciplined for Facebooking About a Trial Over Which She Presided

Posted by kswisher on Wednesday, April, 29, 2015

This week, the Texas State Commission on Judicial Conduct publicly admonished Galveston Judge Michelle Slaughter for posting about the criminal trial then-pending before her.  In the so-called “boy in a box case,” Judge Slaughter admonished the jurors not to post on Facebook (or other social media) about the case and then proceeded the next day to post about the status of the case and demonstrative evidence on her own Facebook account.  She also posted a link to this news article about the case.  (Of note, a member of the public posted the following comment in response to Judge Slaughter’s post: “One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor. . . .”  Judge Slaughter permitted, perhaps inadvertently, that comment to remain on her Facebook page for several months.)  In other posts, Judge Slaughter also commented on an unrelated child pornography case and called a defendant “very challenging.”  In light of her posts, a defendant moved to disqualify Judge Slaughter, and another judge granted the motion.  This mid-trial disqualification caused a mistrial in the defendant’s case.

The Texas Commission concluded that: “Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the [‘boy in a box’] case or in other high-profile cases. The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial.”  The full decision, which Judge Slaughter plans to appeal, is available here.  For other posts highlighting the need to approach social media cautiously (or to avoid it entirely as to pending cases over which the judge is presiding), see here and here.

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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 »

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).

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Scholarship: The Ethics of Judicial Opinion Writing

Posted by judicialethicsforum on Sunday, August, 4, 2013

The abstract puts it concisely: “This article discusses how judges can write honest judicial opinions.”

See Gerald Lebovits et al., Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008).

Posted in Canon 2, Canon 3, Judicial Ethics Generally | 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 »

Bigger Judges Attacking Littler Judges

Posted by kswisher on Sunday, January, 15, 2012

We rarely see the use of one very scary weapon to keep a trial judge in line — indirect criminal contempt.  The Supreme Court of the United States Virgin Islands, however, recently used it.  After a trial judge refused to follow the supreme court’s mandate, criticized the accompanying opinion, and recused himself from the case, the supreme court ordered a show cause hearing.  Even though the special master who then presided over that hearing recommended that the trial judge be acquitted on all counts, the supreme court — i.e., the same court that was repeatedly criticized by the trial judge in his allegedly offensive recusal order — disagreed, found him in contempt, and set a sentencing date.  Although the trial judge’s recusal order did contain overly critical language, the supreme court’s acts are questionable as a matter of due process, cf. Mayberry v. Pennsylvania, 400 U. S. 455, 465-66 (1971); In re Murchison, 349 U.S. 133, 137 (1955), and dangerous to decisional judicial independence (insofar as much of the supreme court’s decision is based on the language in the trial judge’s published order; contempt decisions involving only the act of failing to follow a superior court’s clear order are obviously less problematic).  Perhaps the justices should have recused themselves, or at a minimum, given the judge one warning.   

Hopefully, this weapon will continue to be a rarity.  For the supreme court’s opinion, click here; and for the trial court’s order that offended the supreme court justices enough to impose a criminal conviction on the trial judge, click here

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

New Scholarship: Bam on Judicial Recusal Regulation

Posted by kswisher on Sunday, December, 4, 2011

Dmitry Bam (Maine) has just published a provocative article on judicial recusal.  Prof. Bam claims persuasively that we in the field have been ineffectively emphasizing the substantive recusal standards and the actual recusal results in specific cases.  As he explains, “[f]ocusing on the final recusal decision, and considering appearances only at the time of that decision, places too much emphasis on an aspect of recusal that may not be so important, at least when it comes to public confidence in the impartiality and fairness of American courts.” 

He instead recommends that we shift our emphasis in two steps: “The first part requires that attention shift away from the outcome-based recusal jurisprudence that focuses on the substantive recusal standard and the actual recusal decision. The second requires that attention shift toward the rules, regulations, and procedures that precede the recusal decision: namely, (1) ex ante regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place, and (2) new recusal procedures to govern the processes by which judges make recusal decisions.  The recommended shift of attention to ex ante regulation of judicial conduct and appearance based recusal procedures will promote the appearance of judicial impartiality.”

As Prof. Bam himself notes, “[i]t may seem odd at first glance that in this Article about recusal, the key jurisprudential change that I recommend is not actually a change to recusal rules at all, but rather a new approach to regulating judges and aspiring judges.”  But his aim is well-intended and one we should keep in mind in reform: “I hope to show that to maximize the appearance of impartiality, the time to think about recusal is before the appearance of bias arises in the first place.”

Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 BYU L. Rev. 943.

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

New Drug Court Study and the Effectiveness of Ethics

Posted by kswisher on Sunday, August, 7, 2011

An ambitious study of drug courts was recently completed.  Funded by the National Institute of Justice, several collaborating organizations analyzed more than twenty drug courts over a five-year period.  Not surprisingly, the study contains many interesting observations, but what is particularly noteworthy is the correlation between judicial ethics and the effectiveness of those drug courts.  That is, almost all of the following findings would have been required or (at a minimum) encouraged as a matter of judicial ethics:

Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated them more fairly than the comparison group, including demonstrating greater respect and interest in them as individuals and greater opportunities to express their own voice during the proceedings. Furthermore, when offenders have more positive attitudes toward the judge, they have better outcomes. This was true across all offender subgroups when examining demographics, drug use history, criminality, and mental health. A separate analysis drawing upon the results of structured courtroom observations found, similarly, that drug courts whose judge was rated by members of the research team as exhibiting a more positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic, consistent/predictable, caring, and knowledgeable) produced better outcomes than other drug courts. Both analyses reaffirmed the central role of the judge.

Judges may well have performed these duties as a matter of principle, but it is doubly rewarding to see the principles leading to good results.  In light of the above conclusions, the study recommends these four points for drug court judges:

  • Hold frequent judicial status hearings; in light of previous research on this topic, consider increasing the frequency of status hearings for “high risk” participants in particular.
  • If the jurisdiction allows it, choose drug court judges carefully. Drug courts will be best served if administrators intentionally assign judges to the drug court who are committed to the model and interested in serving in this role.
  • Monitor “client satisfaction” with the judge.
  • Train judges on best practices regarding judicial demeanor and regarding how to communicate effectively with program participants.

The study can be found here.

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New Scholarship: McKoski on Actual v. Apparent Impartiality

Posted by judicialethicsforum on Sunday, March, 27, 2011

Judge McKoski (recently ret.) has again contributed to the corpus of judicial ethics scholarship.  His thought-provoking new work can be downloaded here, and the abstract follows: 

The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.

The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.

Raymond J. McKoski, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from “Big Judge Davis”, 99 Ky. L.J. 259 (2010-2011). 

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Judicial Ethics in the News

Posted by judicialethicsforum on Sunday, March, 27, 2011

Here are two noteworthy items in the world of judicial ethics:

(1) Adding heat to the recent law professors’ letter to Congress calling for ethical regulation of the Supreme Court, Representatives Chris Murphy and Anthony Weiner have introduced a bill named the Supreme Court Transparency and Disclosure Act.  In essence, the resulting law would (1) apply the Code of Conduct for United States Judges to the Supreme Court Justices, (2) require Justices to issue reasons for recusing or failing to recuse themselves, and (3) provide a procedure for review whenever Justices deny motions to disqualify.   [For some critical commentary, see here, where Brookings asserts that similar reform proposals would transgress  Article III, § 1, vesting judicial power in “one Supreme Court.”]

(2) There has been yet another disappointment from one of the most disappointing cases in Wisconsin.  After the Wisconsin Supreme Court Justice Gableman approved a misleading judicial campaign ad, after he then refused to recuse himself in a criminal matter in which his impartiality was questioned, and after the Wisconsin Supreme Court split straight down the conservative-liberal divide both in deciding whether to discipline Gableman and in deciding whether to review his failure to recuse himself (see here for details), we now learn that another Justice (Prosser) called the Chief Justice (Abrahamson) a “total bitch.”  He allegedly topped off this statement with a threat: “I will destroy you.”  If true, it should be noted that state judges on lower courts are often disciplined for such “intemperate” behavior. 

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

Judicial Discipline Case of the Week: Judge gets no “professional courtesy” for DUI

Posted by judicialethicsforum on Sunday, January, 9, 2011

The well-regarded New York State Commission on Judicial Conduct recommended censure for family court Judge Gerard Maney after the judge performed an illegal u-turn to avoid a sobriety checkpoint and repeatedly informed the officers of his judicial position.  The Judge requested that the officers give him a “professional courtesy” as a result of his judgeship.  The Commission found this conduct to be in violation of the New York Rules Governing Judicial Conduct §100.2(C), which states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  (The Commission also found the judge to have violated Rules 100.1, 100.2(A), 100.4(A)(2), and 100.4(A)(3).)  Despite the judge’s twenty-year-long-incident-free record, the Commission determined that a censure was appropriate.   

In addition to the “professional courtesy” bit, the case is interesting in two further ways.  First, three members concurred in the result, but wrote separately to express remorse about the Commission’s decision to draw negative inferences from the judge’s decision not to testify at the hearing.  That is indeed a controversial inference, but the New York Court of Appeals has blessed it.  See, e.g., In re Reedy, 475 N.E.2d 1262 (N.Y. 1985).  The second interesting feature of the case is the point of the two-member dissent.  As the dissent noted, the Commission can decide either to (as here) censure a judge or remove a judge (suspension is not an option).  All members seemed to agree that a censure was too lenient, but the majority apparently believed that the next step up (removal) was too harsh.  For middle-ground conduct, then, the majority assumed that the Commission should round down (to censure), while the dissent argued that the Commission should round up (to removal). 

The full opinion can be read here.

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A Judge, An Exotic Dancer, Some Hard Drugs, and a U.S. Attorney

Posted by kswisher on Thursday, December, 2, 2010

I resisted posting on federal Judge Jack Camp’s (N.D. Ga.) problems when they came to public light.  To be sure, the scandalous facts were magnetic (see here), but his alleged conduct was so plainly improper — and frankly dumb — that a post felt too obvious and too much like shooting someone in a deathbed.  But thanks to the Georgia U.S. Attorney, there is now something worth noting here.  In a relatively quick timeframe and proactive manner, the U.S. Attorney (Sally Yates) has announced that any defendant who was sentenced under Judge Camp — or at least the bad version of Judge Camp, who was using drugs and carrying weapons for a proven five-month period — can request an unopposed resentencing (unopposed in obtaining a resentencing, that is, not in a request for probation).  She noted that the federal investigation had uncovered accusations of Judge Camp’s impairment (via “marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers” and “some may have been taken while Camp was also consuming alcohol”) and racial bias (in that Judge Camp suggested to an informant that he had sentenced an African-American male more harshly and a caucasian female more leniently owing to race).  Again, as a matter of judicial ethics, such allegations, if true, are easily categorized as unethical.  What is laudable, however, is the U.S. Attorney’s proactive attempt to remedy even the appearance of incompetence and bias, rather than engage in protracted litigation about what, in fact, Judge Camp had on his mind (e.g., drugs or racism) at the time of the sentencings.  The U.S. Attorney prefaced her remarks with, and was apparently pointed in the right direction by, her “one responsibility — to seek justice.”   The local news has her full statement here.      

Posted in Canon 1, Canon 2, Canon 3, Judicial Ethics Generally | 1 Comment »

Judicial Ethics in Understanding Lawyers’ Ethics

Posted by monroefreedman on Monday, November, 29, 2010

The new (4th) edition of Understanding Lawyers’ Ethics has a 40-page chapter on Judges’ Ethics.  Sections include (among others):

THE PRACTICAL ADVANTAGES OF AN APPEARANCES RULE

SOME IMPLIED EXCEPTIONS TO DISQUALIFICATION
[1] The Judicial Source Exception
[2] Disqualification Based on a Judge’s Prior Commitment to Issues or Causes
[3] Disqualification Based on the Judge’s Religion, Race, or Gender
[4] Disqualification Based on an Implied Bias for or Against a Class of Litigants
[5] The Rule of Necessity
[6] Friendships Between Judges and Lawyers Appearing Before Them

ELECTED JUDGES AND DENIAL OF DUE PROCESS

JUSTICE SCALIA’S DENIAL OF RECUSAL IN THE CHENEY
CASE

JUSTICE SCALIA’S FAILURE TO RECUSE HIMSELF IN
BUSH v. GORE

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

Warning the Public About Judge Keller

Posted by kswisher on Saturday, July, 17, 2010

In a surprising, but just, twist, the Texas Commission of Judicial Conduct  — contrary to the ambivalent findings of its special master — has issued a “public warning” against Presiding Judge Sharon Keller for the time when she let a capital defendant be executed notwithstanding meritorious grounds for a stay (for a more detailed account of her actions, see the earlier post here).  Among other violations, the Commission found that Keller violated Canon 3B(7) (renumbered 3B(8) in the Texas Code), for failing to accord the defendant and his lawyers the right to be heard according to law.  She may appeal.  In addition to this public shaming, this controversy ultimately caused the Texas Ethics Commission (a separate regulatory body) to investigate Keller’s financial disclosure statements, and on finding significant failures to disclosure, it levied a record fine of $100,000 against her.  

Read the public warning here; and read the order imposing the fine here

UPDATE: In yet another twist, a Texas special court of review dismissed the charging document on the ground that the state constitution does not permit the sanction of “public warning,” only “censure” (and recommendations for retirement or removal).  The court did not “express an opinion concerning the merits of the accusations against Judge Keller,” but its disposition effectively precludes the Texas Commission on Judicial Conduct from re-charging her.  That disposition makes little sense to me in this context, provided that the re-charging and prosecution were to accord her due process (an issue obviously not addressed or perhaps even ripe).  The local news station has linked to the full opinion here

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Two Comments on Extrajudicial Comments

Posted by kswisher on Wednesday, December, 16, 2009

There have been (at least) two interesting developments of late in the world of judges’ extrajudicial commentary about their pending cases.  First, Massachusetts loosened its former prohibition on extrajudicial comments in primarily two ways: (1) judges may now respond publicly about their “conduct” in a pending matter, so long as their response is unrelated to the merits of the matter; and (2) judges may now issue an explanatory memorandum, in which they elaborate on their reasons for a previous ruling, so long as the memorandum is not “issued solely to respond to public criticism of the decision” and does “not rely on any information that was not within the record before the judge at the time of the underlying order.”  It might be disputed whether these amendments substantively change black-letter canon law to any significant extent, but they certainly make what is permitted more explicit.  The chief change to the text of the Massachusetts Code is new subsection (D) of Canon 3B(9):

A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge’s impartiality and do not address the merits of any pending or impending judicial decision. 

The full text of the amendment can be found here, and the reports of the ad hoc committee that inspired the amendment can be found here (that committee, however, split on its recommendation to the Supreme Judicial Court, with a majority of the committee recommending a more dramatic loosening of the rules than what the court ultimately adopted).  For a favorable discussion of the Massachusetts’ amendment and a somewhat unfavorable discussion of the amendment’s counterpart in the new Model Code of Judicial Conduct, Rule 2.10(E), see Mark I. Harrison & Keith Swisher, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 N.Y.U. Ann. Surv. Am. L. 559 (2009).  Coincidently, that article was cited by the Eighth Circuit’s recent decision in the Michael Vick case — White v. NFL, 585 F.3d 1129 (8th Cir. 2009) — which brings me to the second development in extrajudicial commenting.

In the White (Vick) case, the court was faced with the question whether the district judge should have recused himself from the proceedings.  The reasons for that question included that the judge (i) had posed for a press picture holding a football in his robe, (ii) had claimed publicly that the NFL team owners (i.e., one of the parties) complain about his rulings “yet even though they complain about it, . . . all they’ve done is make tons of money,” and (iii) had met ex parte with team representatives (but not team owners) before several proceedings.  Interestingly, the Eighth Circuit concluded that — although there was a “danger” in the judge’s behavior and although the judge would have been “well advised not to opine publicly about his role” in related proceedings — he did not violate the prohibition on extrajudicial comments.  Id. at 1140-41.  In judicial ethics opinions, this dichotomy arises quite frequently; a judge’s conduct will be held “inadvisable” under the Canons, but not violative of them.  There is some support for this two-track system — namely, that some violations are violations and some are just “inadvisable” or “imprudent” — in the Preamble to most Codes, but is this two-track system transparent and fair?  Would and should, for instance, a criminal or civil defendant receive the benefit of this vague second track for some lesser violations of criminal or civil law?   

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Facebooking in Florida

Posted by judicialethicsforum on Wednesday, December, 16, 2009

Prof. Ilya Somin has posted some interesting commentary on the new(er) Florida judicial ethics opinion addressing judges “friending” attorneys on Facebook.  Prof. Somin’s commentary can be found here (at the Volokh Conspiracy); and the full text of the judicial ethics opinion can be found here.  The opinion has already received national attention, and consequently, the point of this post is primarily just to give the readers the preceding links in the somewhat unlikely event that they have not yet heard of this controversial opinion. 

UPDATE: For the contrary view, see Ohio’s advisory opinion here.  To learn about a judge who crossed the line with Facebook, among other things, through ex parte contacts and other transgressions in a pending matter, see here

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Pro se litigants

Posted by graycynthia on Wednesday, August, 19, 2009

In a recent judicial discipline decision, the Louisiana Supreme Court gave a persuasive description of the importance of respectful judicial demeanor in the courtroom, particularly in cases involving pro se litigants. In re Ellender (Louisiana Supreme Court July 1, 2009). Based on a statement of stipulated uncontested material facts and stipulated conclusions of law, the Court suspended a judge for 30 days without pay for his treatment of the petition at a hearing on a petition for protection from abuse for suggesting that the pleading alleging domestic abuse was inconsequential, suggesting approval of the infliction of severe corporal punishment on a child, and acknowledging he did not appropriately address the father’s statement about whipping his child.

Most of the current justices on the court have experience on the trial bench so they understand the challenges faced by trial court judges.

Judges are called upon to render difficult decisions in sensitive and emotional matters. . . . Often a judge’s patience is tested when simultaneously confronted with crowded dockets to be managed and countless difficult decisions to be made. Litigants occasionally lash out at the judge if their side does not prevail, inappropriately casting aspersions on the judge. . . .

In donning the judicial robe, judges are not suddenly cloaked with faultlessness. Thus, judges cannot be subjected to discipline merely because someone mistakes decisiveness, forcefulness, or sternness for a lack of patience, dignity, or courtesy.

However, the justices were also able to empathize with those on the other side of the bench.

Being in court is a common occurrence for judges, but for litigants, especially pro se litigants, a courtroom appearance can be an immensely difficult experience. Litigants appear before judges to have their disputes resolved. Judges serve the public, in part, by setting an example in how to resolve these disputes in a patient, dignified, and courteous manner. If a judge acts belligerently, those before the judge believe belligerence is acceptable. Judges have an opportunity to teach by example and demonstrate those attributes which all should strive to possess.

* * * The lack of patience exhibited in this matter prevented a full consideration of the legitimacy of the allegations in the pleading, especially considering some of the complaints in the pleading were not addressed before the matter was summarily dismissed. There was a potential risk of serious harm stemming from this judicial misconduct in that the complainant was seeking protective relief from threatened violence in a domestic matter. Mrs. Warren appeared before Judge Ellender, unrepresented by counsel, asking the court for protection based on allegations of domestic abuse. The record is clear that Judge Ellender not only failed to treat this matter seriously, but he also acted in a condescending and demeaning manner toward Mrs. Warren and treated her with a lack of patience. While such behavior should not be tolerated with respect to any litigant, or attorney, the impact on domestic abuse litigants, and others who allege a need for the court’s protection, can be devastating.

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