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Archive for the ‘Judicial Ethics Generally’ Category

New Scholarship: Rotunda on Oversight of the Federal Judiciary

Posted by judicialethicsforum on Monday, November, 30, 2009

Professor Rotunda has recently published his proposal for an Inspector General for the Federal Courts, as part of a symposium issue on judicial ethics.  Here is an abstract: 

Many federal judges routinely fear criticism, but that fear is unwarranted. The public is rightly concerned that the procedure to investigate and discipline problem-judges is flawed, particularly in a few high-profile cases discussed in this article. Several recent indictments of federal judges add to the problem. As Judge Ralph Winter has acknowledged, the status quo is “not a confidence builder”. Judges should welcome an Inspector General for the Federal Courts, who could restore public confidence in the federal judicial discipline system. The Inspector General can investigate potential ethical violations and proceed in those few instances where more is needed. This solution is something that both the public and the judiciary should welcome. Congress can create an Inspector General with appropriate safeguards that will keep our judiciary independent (because no one favors a dependent judiciary) and will keep our judiciary accountable (because no one favors a judiciary that is above the law).

Ronald D. Rotunda, Judicial Transparency, Judicial Ethics, And a Judicial Solution: An Inspector General for the Courts, 41 Loy. U. Chi. L.J. 301 (2009).  A link to which can also be found in Articles.

Posted in Judicial Ethics Generally | Leave a Comment »

Torture and Humiliation in Ohio

Posted by kswisher on Monday, September, 14, 2009

Associated Press and other national media have seized on a story of an Ohio judge who ordered that a defendant’s mouth be duct-taped shut.  I have been avoiding blogging about the incident for several reasons, the most relevant of which is that such scandalous stories happen (too) often on the bench (and elsewhere), often within the lowest of court tiers within the state system.  (Think New York, for example, with its rather large number of discipline cases involving town and village court justices.)  In short, if we were to blog about every outlying wart of a judge, it probably would bog down the blog in negativity, and as negativity often hopes, little rational discussion would result.  (For a more rational discussion of outlier judges, see for example Geoffrey P. Miller, Bad Judges, 83 Tex. L. Rev. 431 (2004).)  This story, however, has caused me to lose too much sleep over the last two weeks to suppress it.  A disclaimer is in order, then: If you would like to avoid negativity today, or if you value your sleep more than I do, do not read on. 

The lead-in facts are simple, particularly because they are repeated in hundreds of criminal courtrooms every day.  A man charged with shoplifting, perhaps among other charges, is rotting in jail.  While there, he naturally wonders where is his court-appointed attorney, what is she doing, why is she not visiting him, and when (if ever) will he be released pending trial (or plea bargain).  Indeed, from the time that the defendant is jailed to the time of the preliminary hearing, his court-appointed attorney spends only “three minutes” with him.  One in his shoes would understandably be irate with the criminal justice system, if not with the attorney as well.  (I remember hearing something once or twice in the greatest-country-on-earth lines that we here are presumed innocent and, not surprisingly in such a country, we have an opportunity for bail.)  For our purposes, suffice it to say that a typical defendant, like Harry Brown (the part criminal defendant, part victim of our story), would be supremely irritated by the time his preliminary hearing arrived and no one had tried to secure his release (or at a minimum, explain why release would not be forthcoming).  At his next appearance before the court, he would almost surely voice his frustration with this court-appointed arrangement.  He would expect — perhaps be entitled? — to appear before a judge who is courteous and listens to his views.  See, e.g., Ohio Code of Judicial Conduct, R. 2.8(B) (2009) (“A judge shall be patient, dignified, and courteous to litigants, . . . and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.”).  Indeed, the “duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court.”  Id. cmt. 1; see also id. R. 2.6 (ensuring each party the right to be heard according to law).   

With that wind-up, you must listen for yourself to the audio recording of the proceeding, which is short and bitter.  It can be found here (click on the Audio tab after the page opens).  You will hear that (1) the judge attempted no less-humiliating alternatives than duct-tape (save one verbal warning); (2) the defendant, while frustrated, was not disrespectful or profane; (3) the defendant offered to sit back with the other in-custody defendants, but (4) the judge demanded that duct-tape be forced over the defendant’s mouth.  You will not hear (1) the judge concerned with whether duct-tape can suffocate a person (it can), (2) whether forcefully removing duct-tape, which the judge ordered a few minutes later, will inflict pain (it does), or (3) any clear indication that this judge respects human beings.  In closing, you will hear the judge add injury to injury by giving the defendant thirty days for contempt and then cracking a joke about the matter.  All of this is particularly shocking because the judge has a long history of formal legal training — he is not a nonlawyer lower-court justice who occasionally shoots from the hip and renders “rough justice.”  (The judge’s bio can be found here.)

Of course, it almost goes without saying that you must judge this judge for yourself — these are just my opinions from listening to the audio recording.  But remember my earlier point about negativity and lack of rational discussion — if your opinion does differ from mine, this is one time in which your opinion, while welcome, will not sway mine.  In fact, I am teaching torts this semester, and we cover that great tort of outrage (aka intentional infliction of emotional distress).  This cruel ritual reminds me like no other of the Restatement’s famous formulation of that tort:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘‘Outrageous!’’

Although the judge is donned with judicial immunity and consequently cannot face judgment for the tort of outrage (or battery), trustfully the Ohio disciplinary regime is listening.  To close this vent, if we never again hear of a judge duct-taping another litigant, it will be too soon.     

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

Scalia and Death of the Innocent

Posted by judicialethicsforum on Tuesday, August, 25, 2009

The following is an exchange with a colleague about Dershowitz’s attack on Scalia regarding the death penalty for an innocent defendant (that Scalia betrayed his Catholicism). 

My colleague’s response:

Although I cannot, of course, speak for the Justice himself, I do think that I have managed to stumble upon a worthy response to Dershowitz’s attack.  Here goes.

For starters, one must distinguish (under traditional Catholic moral theology) between active cooperation in doing evil, versus merely failing to intervene in order to do some good.  The former is ordinarily prohibited; the latter is rarely mandated.

In the death penalty hypo set forth by Scalia, it would not be the Supreme Court ordering any particular individual to his or her death.  Rather, for the Supreme Court, we have instead the question of whether the Supreme Court ought to intervene in order to supercede some other court’s imposition of capital punishment.  Thus, I do not see here any question regarding active cooperation with evil, but rather simply the failure to intervene in order to do some good.  As stated, the obligation to so intervene is rarely mandated.

Moreover, Aquinas teaches that all of us must act within the limits of our authority – even when it comes to doing good:

If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.

Aquinas, Summa Theologica, II-II, q 64 art. 6, rep. ob. 3 (“Mirror of Justice” blog).

As Scalia sees it, under our federalist system, and under his interpretation of the constitution, the Supreme Court does not possess the authority to set aside a death penalty sentence in a situation where the defendant has had a fair trial.  Thus, even if he were inclined to intervene to “do good” here to spare an innocent man or woman his or her life, he is simply not authorized to do so.  An effort to go beyond his authority to achieve such a noteworthy aim would violate the fundamental natural law principle that the ends may not be used to justify the means.

Scalia has articulated the very same approach with regard to the issue of abortion, as he has made clear in several statements and audiences.  He believes that Roe v. Wade is bad law not because the constitution is a “pro-life” document, but rather because he interprets the constitution as being silent on the question of abortion.  For that reason he has said that he would uphold, and not strike down, a state law protecting a “women’s right to choose,” for he sees himself as unauthorized to act on the question of abortion one way or another.

Again, one could argue that as a professed Catholic, Scalia ought to do whatever he can to abolish or limit the practice of abortion.  But, again, Aquinas teaches that one ought not act beyond one’s authority – even to accomplish a perceived good.  This would justify Scalia’s “hands off” policy towards state abortion law.

Thus, although condemning an innocent man or woman to death certainly violates Catholic teaching (as does the procuring of an abortion), the Supreme Court is not actively cooperating with these “evils,” but rather merely failing to intervene to stop them.  Moreover, this failure to intervene is not, in Scalia’s mind, mandated by the Supreme Court’s limited authority within our federalist system of government.

In short, then, it would seem as though Scalia’s jurisprudence is consistent with the Catholic natural law tradition.

* * * * *

My reply:

Many thanks for an extremely thoughtful comment.

I was not comfortable with Dershowitz’s reference to Scalia’s religion.  Just as the Devil can cite Scripture, every religious person can interpret religious doctrine in a way that is consistent with a particular point of view.  I don’t mean that in a cynical way, but simply in recognition of the fact that there are so many denominations, sects, branches, and orders – all interpreting the same or similar texts, often in radically different ways.  I have no doubt that there are many Jews who support capital punishment, just as there are many who oppose it.  Also, many who would concur with Aquinas’ analysis, just as there are many who would oppose it.

But let’s apply Aquinas to Scalia.  As you say with reference to Aquinas, one ought not act “beyond one’s authority.”  In addition, Aquinas said that the judge should exercise “great care” in attempting to free the innocent man.  Only if the judge “cannot” succeed in freeing the innocent man – only if doing so is “impossible” – does the judge not sin.

The question then becomes whether it was “impossible” for Scalia to vote to free the innocent man within the bounds of his authority.  Only then would he be escaping sin.

Scalia opposes using the Due Process Clause to limit the states’ use of punitive damages in tort cases.  See, e.g., BMW of North America v. Gore, 116 S. Ct. 1589 (1996) (Scalia, J., dissenting).  Nevertheless, in a later case he recognized that he had the discretion, on the basis of stare decisis, to limit the punitive damages against Exxon for a major oil spill, and he voted to do so even though he continued to believe that the holding was in error.  Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2634 (2008) (Scalia, J., concurring).

Moreover, Scalia has recognized that the Supreme Court has an established “death is different” jurisprudence.  He disapproves of it, but he recognizes it as stare decisis.  In addition, the Court has held that it is a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment to put someone in jail for the “crime” of being addicted to drugs, analogizing it to the cruel and unusual punishment of putting someone in jail for a single day for the “crime” of having a common cold.  Robinson v. California, 82 S.Ct. 1417, 1421 (1962).

Accordingly, it would not have been “impossible” for Scalia, to vote to free the innocent man.  All he would have had to do would have been to exercise his admitted power, through stare decisis, to recognize that death is different, that saving a life is therefore more important than saving a corporation money (when, indeed, Exxon was not innocent), and that it is cruel and unusual punishment to put a man to death for the “crime” of having had a fair trial.

According to Aquinas, therefore, since Scalia failed to exercise great care, within his authority, to save an innocent human life, he sinned against Church doctrine.  More important, entirely apart from religious doctrine, he failed as a human being and as a Supreme Court Justice.  [To view Scalia’s dissent in full, click here.]

By: Monroe Freedman, Hofstra Law

Posted in Judicial Ethics Generally | 1 Comment »

Call for Papers

Posted by graycynthia on Wednesday, August, 5, 2009

The Drake Law Review and the American Judicature Society are pleased to announce the Seventh Annual American Judicature Society-Drake Law Review Symposium Issue:  The State of Recusal: Judicial Disqualification, Due Process, and the Public’s Post-Caperton Perception of the Integrity of the Justice System.

The United States Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. settled that due process requires an objective analysis of the question of judicial impartiality.   However, like most Supreme Court decisions, it raised as many questions as it answered.   Most obviously, the Caperton decision raised questions about the effects of judicial campaign spending on judges’ perceived and actual impartiality.  In addition, Caperton presents questions about the role of federal courts in ensuring impartiality in state courts.  And at the deepest level, the debate about judicial disqualification raises questions about due process guarantees in the context of elected judiciaries.   The debate over judicial disqualification should be broadened in light of these issues.   The Drake Law Review is seeking articles that address issues implicated by judicial disqualification, including, but not limited to, the following considerations:

• The First Amendment implications of the decision in Caperton;

• How state courts should implement the holding in Caperton in their codes of judicial conduct;

• The answers to Chief Justice Roberts’s 40 questions;

• The balance between the various competing values implicated by judicial disqualification;

• Issues relating to standards and procedures for judicial disqualification;

• The unique challenges relating to judicial disqualification in small jurisdictions and on appellate courts;

• The effect of judicial disqualification on the popular legitimacy of the judicial system.

Articles from all backgrounds will be considered, from academic evaluations of the law to empirical studies on judicial disqualification rules and procedures.   The Drake Law Review invites you to participate in this collaboration by submitting an article to be published in this highly regarded issue of the Review.   If you would like to participate in this unique collaborative effort, please contact the Editor in Chief of the Drake Law Review as soon as possible.   All general topic proposals must be submitted by December 4, 2009.   The deadline for completed articles is January 29, 2010.   Final decisions regarding publication are made by the Drake Law Review.  Drake Law Review, 2507 University Avenue Des Moines, Iowa 50311 Phone: (515) 271-2930; Fax: (515) 271-4926; email: law.review@drake.edu; http://students.law.drake.edu/lawreview

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

To Send a Message

Posted by judicialethicsforum on Tuesday, June, 30, 2009

I’m interested in whether others share my (and Kant’s) concern with sentencing Madoff to the max in order to “send a message,” as Judge Chin said.

Without doing any research on it, my recollection is that a prosecutor isn’t supposed to say that in closing argument, but that a judge is understood to be able to take general deterrence into account in sentencing.  But it troubles me.

By: Monroe Freedman, Hofstra Law

Posted in Judicial Ethics Generally | 2 Comments »

On Empathy in Judging

Posted by judicialethicsforum on Sunday, May, 24, 2009

President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law.  Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied.  “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says.  “It may also lead to a veritably religious veneration for the rules and their imagined author.  The sovereign and his command may be deified.”  When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law.  The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.

Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:                 

To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence.  The question for the judge is:  “Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?”

Similarly, former N.Y. Chief Judge Judith Kaye observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them. . . .  [A] far greater danger exists that they do not.”

By: Monroe Freedman, Hofstra University School of Law

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

The Federal Judicial Ethics Code Gets a Makeover

Posted by kswisher on Monday, March, 23, 2009

The Judicial Conference of the United States has (gently) amended the Code of Conduct for United States Judges.  The revisions, inspired in part by the 2007 Model Code of Judicial Conduct, can be found here and will take effect on July 1, 2009.

It has been reported in the press that the new federal code contains for the first time a definition of the appearance of impropriety.  To be sure, the new code does contain a definition of the appearance of impropriety: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”  Code of Conduct for United States Judges Canon 2 cmt. (2009).  The “old” (but currently in effect) code, however, contains a similar definition: “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”  Code of Conduct for United States Judges Canon 2 cmt. (2000).  To me, the juxtaposition shows that the only significant change is the explicit inclusion of “temperament” in the test for the appearance of impropriety in the new code, but that trait certainly is not “new” to impropriety analysis.  The new definition also omits the word “perception,” which arguably dilutes a true “appearance” standard.

 

Posted in Judicial Ethics Generally | Leave a Comment »

Applying the Code to Judge “Killer”

Posted by kswisher on Tuesday, February, 24, 2009

The Texas State Commission on Judicial Conduct has filed formal charges against Judge Keller (harshly dubbed Judge “Killer” by proponents of her removal from office) of the Texas Court of Criminal Appeals.  (In Texas, the Court of Criminal Appeals is the state’s highest court with respect to all criminal matters.)  The disciplinary prosecution presents an interesting case of dueling trivial procedures, yet the real issue is anything but trivial. 

Judge Keller is accused of the following sinister acts: While knowing that a death-row inmate’s lawyers were scrambling to seek a stay of execution because the Supreme Court of the United States had just agreed to decide whether execution by a particular lethal injection procedure was constitutional — and the inmate, Michael Richard, was slated to be executed that night by that same procedure — Judge Keller effectively denied the lawyers’ request to have the clerk’s office accept the motion to stay approximately twenty minutes late.  She did so while knowing that other judges of the Court of Criminal Appeals were waiting to address the anticipated filing, yet she communicated nothing to them.  Mr. Richard was executed that night, despite the fact that other similarly situated inmates were granted stays pending the Supreme Court’s decision and despite the fact that this same clerk’s office had accepted late filings in previous death-penalty cases.  (Although irrelevant to the judicial conduct matter, the Supreme Court denied relief on the lethal injection issue six months later.  See Baze v. Rees.)

Thus, it seems greatly due that Judge Keller is facing extreme scrutiny for this questionable conduct.  One of the questionable aspects about the prosecution itself, however, is its focus (or to be more precise, the focus of the charging document).  According to the charges, the violation of the Code, if any, is the failure to follow a local court rule concerning death-penalty cases.  That rule requires, in short, that these last-minute, “execution day” matters are initially handled by one assigned judge (and Judge Keller was not the assigned judge for Mr. Richard’s case) and that if a non-assigned judge receives information about the case (as Judge Keller did concerning the late filing), such “communications regarding the execution shall be first referred to the assigned judge.”  It is apparently undisputed that the lawyers’ communication about the late filing was never referred to the assigned judge.  The prosecution certainly has a good argument that Judge Keller breached this local rule (although I have no information, one way or the other, whether the local rule was properly promulgated and routinely followed) – so much so that three out of the five charges rest exclusively, and the remaining two charges rest at least partially, on the violation of this local rule.  But now we have each side hanging its hat on a technical procedural rule: The prosecution claiming that Judge Keller should have referred the communication to the assigned judge pursuant to the local court rule; Judge Keller undoubtedly claiming that the clerk’s office’s hours and means of accepting filings are bright and independent rules that must be followed in order to maintain an orderly and manageable filing system.  But neither rule violation addresses the real problem with Judge Keller’s conduct; the local rule is simply a way to discipline the real problem by pouring the facts over an existing Canon.  See Model Code of Judicial Conduct 2A (2004) (requiring compliance with the law), 3B(7) (requiring that each party be heard according to the law).  The real problem is that Judge Keller was willing to (and in fact, did) let a man die despite a meritorious motion to stay so that her clerk’s office did not have to remain open an extra twenty minutes (or spend the mental capital to figure out an alternative filing solution; faxes or emails come quickly to mind).  That is the unethical (indeed, seemingly inhumane) conduct, not the violation of a local rule.  Were it the other way (i.e., if the inmate’s meritorious motion to stay was technically in violation of a local procedural rule banning twenty-minute-late filings on execution night), I would expect that a serious judge would look for an exception to the rule, and if none, perhaps even waive its application.  I do not know, and it is not entirely clear from the charges, whether Judge Keller believed that her conduct violated the local rule; what I do know is that her actions violated virtually any meaningful notion of “integrity and impartiality.”  Model Code of Judicial Conduct Canon 1; see also id. Terminology (defining “impartiality” and “integrity”).  Leaving independence aside (although an argument could be made that even independence is at issue), those are the core duties echoed throughout every Canon in the Code.  It is just somewhat perplexing that there is not a more direct disciplinary rule for this conduct.  Any ideas?  As it stands, it seems a bit like prosecuting Al Capone for income-tax evasion.  Or is that comparison unjustified? 

The above reservations notwithstanding, I do believe that this prosecution is a good start; that ensuring compliance with “execution-day” protocols is not just “trivial” procedure; and that practically speaking, it might be wise to prosecute the conduct most easily established in a disciplinary hearing, even if that conduct is a step or two removed from the real problem. 

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

State Judicial Discipline in 2008

Posted by judicialethicsforum on Wednesday, February, 4, 2009

In 2008, as a result of state discipline proceedings, 12 judges were removed from office.  In addition, one judge was permanently disbarred (effectively removing him from office), one former part-time judge was permanently barred from serving in any judicial capacity, one judge was found to be permanently disabled, one judge was permanently retired, and two judges were suspended without pay until the end of their terms.  11 judges resigned (or retired) in lieu of discipline pursuant to agreements with judicial commissions that were made public.  114 additional judges (or former judges in approximately 23 cases) received other public sanctions in 2008.  In 77 of those cases, the discipline was imposed pursuant to the consent of the judge.

 

There were 12 suspensions without pay in 2008, with the length of the suspensions ranging from three days to three years (three suspensions also included censures; one also included a public reprimand and $2,000 fine).  In addition, there were 17 public censures, 41 public reprimands (one also included a $7,780 fine), 28 public admonishments, four public warnings (one was a dismissal with warning made public with the judge’s consent), three cease and desist orders, two required public apologies, one case in which a judge accepted a commission’s finding that he had committed misconduct, and one decision ordering a judge to take corrective action.  Bar discipline authorities sanctioned three former judges for conduct on the bench and two judges for pre-bench conduct.  (For further details, click here.) 

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By: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society

  

 

Posted in Judicial Ethics Generally | Leave a Comment »

ABA Ethics Committee Remembers the “Other” Ethics Code

Posted by kswisher on Wednesday, February, 4, 2009

I presumably speak for the profession when I say that I generally hold the ABA Standing Committee on Ethics and Professional Responsibility (aka the Ethics Committee) in high esteem.  That said, when it recently revisited the Model Code of Judicial Conduct, it reminded me how rare those visits can be.  It appears that the Committee has directly addressed judicial ethics only two times in the last twenty-five years.  (I did not check prior to 1984.)  By any measure, then, the Code is suffering from a lack of attention.  Interestingly, the Ethics Committee even has an adjunct component dedicated to Code insight, the Judges Advisory Committee.  Interestingly as well, the only two opinions were both issued within the last two years.  That is cause for optimism, as it seems that the current Committee (although the roster has changed slightly) is more sensitive to judicial ethics problems. 

Your next question might understandably be — what problems managed to catch the Committee’s eye after all of these years?  The first is Formal Opinion 07-449, which addresses both the Model Rules and Model Code.  With respect to judges, the Committee concludes:

Pursuant to Model Code of Judicial Conduct Rule 2.11(A), the judge in . . . a situation [in which she is being represented in an unrelated matter by an attorney appearing before her] must disqualify herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer.  This disqualification obligation also applies when it is another lawyer in her lawyer’s firm who is representing a litigant before her. However, absent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge’s disqualification.

If a judge is obligated to make disclosures in compliance with Judicial Code Rule 2.11(C), refuses to do so, and insists upon presiding over the matter in question, the lawyer’s obligation of confidentiality under Model Rule 1.6 ordinarily would prohibit his disclosing to his other client his representation of the judge without the judge’s consent, rendering it impossible to obtain the client’s consent to the dual representation, as required by Model Rule 1.7(b). The lawyer’s continued representation of the judge in such a circumstance constitutes an affirmative act effectively assisting the judge in her violation of the Judicial Code, and thereby violates Model Rule 8.4(f). The lawyer (or another lawyer in the lawyer’s firm), in that circumstance, is obligated to withdraw from the representation of the judge under Model Rule 1.16.

The second opinion, Formal Opinion 08-452, is even more remarkable, in that it addresses only judicial ethics.  Although the opinion gives no clear cut answers, its conclusion is easy to summarize: “A judge who participates in fundraising activities on behalf of a court, including a ‘therapeutic’ or ‘problem-solving’ court, must limit the participation to activities permitted by Model Code of Judicial Conduct Rule 3.7(A).  The judge also must ensure that her conduct does not violate Judicial Code Rules 3.1 [general limitations on extrajudicial activities], 1.2 [promoting confidence in the judiciary], or 1.3 [avoiding the abuse of the prestige of judicial office].”  Perhaps the clearest answer is contained in Rule 3.7(A)(2), which permits direct solicitation for contributions “only when the persons being solicited are [a] members of the judge’s family or [b] other judges over whom the judge has no supervisory authority.”

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

Communications Crossing Lines

Posted by judicialethicsforum on Friday, January, 9, 2009

Coincidentally on the same day, in two public reprimands, the Florida Supreme Court and the Massachusetts Supreme Judicial Court found that two judges crossed the line between acceptable and unacceptable communications.  The Florida court found that Court of Appeal Judge Michael Allen “crossed the line” between the use of “intemperate or colorful language” in evaluating another judge’s opinion and a personal attack motivated by animus when he wrote a concurring opinion accusing the other judge of corruption.  Inquiry Concerning Allen, 2008 WL 5245846, 33 Fla. L. Weekly S984 (Dec. 18, 2008).  The Massachusetts court found that former judge Ernest Murphy “plainly crossed the line” with the content and emphasis of two letters he sent on judicial stationery to the publisher of the Boston Herald in pursuit of settlement in a person libel suit the judge had filed against the paper.  Inquiry Concerning Murphy, 52 Mass. 796, 2008 WL 5235634 (Dec. 18, 2008).

by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society

 

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

Comparative Judicial Discipline

Posted by kswisher on Sunday, November, 16, 2008

I am looking for works or research on comparative judicial discipline, with a particular (but not exclusive) interest in anything addressing England and/or other European countries.  Any citations or other information would be appreciated (click Comment below).

Posted in Judicial Ethics Generally | 1 Comment »

Ninth Circuit Judicial Council Investigation

Posted by kswisher on Wednesday, September, 10, 2008

The ABA Journal just ran a rather interesting, feature-length story concerning a judicial ethics inquiry involving Judge Manny Real (C.D. Cal.).  The Ninth Circuit Judicial Council is reportedly reviewing dozens of his cases for alleged errors of adjudication and problems of temperament.  For the full article, click here.  For my own views of whether bad criminal law adjudications warrant discipline (they can, and often do), click here.  (Because others undoubtedly know more about the judicial ethics implications of Judge Real’s saga — which apparently has a history of at least several years — please comment below for our collective benefit.)      

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

Under Construction

Posted by kswisher on Friday, July, 4, 2008

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