Throwback Thursday

10 years ago this months:

  • Based on a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge who pled guilty to driving under the influence of alcohol and volunteered his status as a judge to the DUI investigator. In re Nordquist, Order (Illinois Courts Commission August 9, 2007).
  • Based on the recommendation of the Judicial Standards Board, the Minnesota Supreme Court publicly reprimanded a judge for his ex parte handling of a traffic ticket belonging to the son of a court clerk and his attempt to influence the testimony of the clerk in the Board’s investigation. Inquiry into Murphy, 737 N.W.2d 355 (Minnesota 2007).
  • Based on the recommendation of the Board of Judicial Standards, the Minnesota Supreme Court publicly reprimanded a judge for his ex parte handling of a traffic ticket belonging to a clerk’s husband. Inquiry into Stacey, 737 N.W.2d 345 (Minnesota 2007).
  • Based on an agreed statement of facts and proposed recommendation, the Mississippi Supreme Court publicly reprimanded a judge who pled guilty to driving under the influence, first charge. Commission on Judicial Performance v. Westfaul, 962 So.2d 555 (Mississippi 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for failing to take any action in 1 small claims case, delaying hearings from 4 to 10 months in 5 small claims cases, and delaying decisions from 23 to 33 months in 2 small claims cases. In the Matter of Scolton, Determination (New York State Commission on Judicial Conduct August 1, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had delayed rendering judgments for up to 23 months in 10 cases and deciding motions in 12 cases and failed to report the delayed cases as required. In the Matter of Robichaud, Determination (New York State Commission on Judicial Conduct August 1, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge who presided over a case involving a defendant with whom she had a professional and social relationship and with whom she had discussed the facts ex parte, granted an adjournment in contemplation of dismissal without notice to the district attorney as required by law, and extended an order of protection after discussing the matter ex parte with the complaining witness. In the Matter of Valcich, Determination (New York State Commission on Judicial Conduct August 21, 2007).
  • Pursuant to the judge’s agreement, the North Carolina Judicial Standards Commission publicly reprimanded a judge for using his official position and influence to suggest a bond in a matter in which he had a personal interest. In re Jarrell, Public Reprimand (North Carolina Judicial Standards Commission August 14, 2007).
  • Based on the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for speaking ex parte with an attorney representing a defendant in an action to recover unpaid child support and striking an order entered by a different judge finding the defendant in contempt. In re Royster, 648 S.E.2d 837 (North Carolina 2007).
  • The Pennsylvania Supreme Court affirmed the decision of the Court of Judicial Discipline removing a judge from office for routinely using improper and offensive language with his staff. In re Berkhimer, 930 A.2d 1255 (Pennsylvania 2007).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a retired magistrate for helping out the county on 2 tickets. In the Matter of White, 650 S.E.2d 73 (South Carolina 2007).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for writing a letter to a sentencing judge on behalf of a defendant. In re Bonner, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct August 3, 2007).

Ethics vs. etiquette

Ethics opinions advise that a former judge who returns to the practice of law may not use a title such as “Judge,” “Honorable,” or “Hon.,” even modified by “Former,” “Retired,” or “Ret.,” in conjunction with his practice, including mediation or arbitration.

The Ohio advisory committee explained:

The typical justification provided when a former judge refers to himself or herself using a judicial title is the adage “once a judge, always a judge.”  This adage is referenced in social etiquette rules, usually on questions regarding the proper title to be used in correspondence or introductions.  The reliance on “once a judge, always a judge,” however, is misplaced in modern American legal and judicial ethics.  The adage is actually a restatement of the long-standing convention that British judges are generally not permitted to return to the practice of law. . . .

“’Judicial titles are not portable.  They stay with the position, not the individual.  Former judges must gracefully relinquish the prestige of judicial office when they step down to return to practice before the bench rather than behind it.’”

The committee concluded that a former judge should not refer to himself using a judicial title prior to his name when practicing law regardless whether the title is capitalized or modified by “former” or “retired.”  Ohio Advisory Opinion 2013-3.

However, about a year later, the Ohio Rules of Professional Responsibility were amended to add a provision (Rule 8.2(c)) that states, “[a] lawyer who is a retired or former judge or magistrate may use a title such as ‘justice,’ ‘judge,’ ‘magistrate,’ ‘Honorable’ or ‘Hon.’ when the title is preceded or followed by the word ‘retired,’ if the lawyer retired in good standing with the Supreme Court, or ‘former,’ if the lawyer, due to the loss of an election, left judicial office in good standing with the Supreme Court.”  A comment states that the rule controls if there is conflict with Ohio Advisory Opinion 2013-3.

The American Bar Association Model Rules of Professional Conduct and most state rules, however, do not have such a provision.  The ABA Committee on Ethics and Professional Responsibility concluded that a former judge who uses the title “Judge” or “The Honorable” when she returns to the practice of law violates several of the model rules.  ABA Formal Advisory Opinion 95-391.  Thus, the committee advised, a former judge may not have her law office telephone answered “Judge X’s office,” may not sign correspondence and pleadings “Judge X,” and may not have her name appear on a nameplate or firm letterhead as “Judge X” or “The Honorable.”

The committee reasoned that the use of the title “Judge” by a former judge in the practice of law was “misleading insofar as it is likely to create an unjustified expectation about the results a lawyer can achieve,” in violation of Rule 7.1, and stated or implied “an ability to influence improperly a government agency or official,” in violation of Rule 8.4(e).  The committee also advised that a former judge should not encourage others to refer to her as “Judge X” or “Your Honor” in the courtroom or in legal proceedings, stating the use of the title in that context may give the former judge’s client an unfair advantage “particularly in the courtroom before a jury.”  In fact, the committee noted, there appears to be no reason for a former judge to use the judicial title in the practice of law other than to create an justified expectation or to gain an unfair advantage.  (The committee did state that a former judge may inform potential clients about prior judicial experience, as long as the description is accurate and does not imply special influence.)

The advisory committee for federal judges concluded that sitting judges have the responsibility to ensure that a former judge appearing before them is not called “judge” in their courtroom or in pleadings unless that designation is necessary to accurately describe a status at a time pertinent to the lawsuit.  U.S. Advisory Opinion 72 (2009).  The committee explained:

Historically, former judges have been addressed as “judge” as a matter of courtesy. Until recently there have been very few former federal judges.  With federal judges returning to the practice of law in increasing numbers, ethical considerations arise.  The prospect of former federal judges actively practicing in federal courts turns what otherwise might be an academic question into a matter of practical significance.

. . .  A litigant whose lawyer is called “Mr.,” and whose adversary’s lawyer is called “Judge,” may reasonably lose a degree of confidence in the integrity and impartiality of the judiciary.  In addition, application of the same title to advocates and to the presiding judicial officer can tend to demean the court as an institution.

See also Arizona Advisory Opinion 2016-2 (a retired judge may not in advertisements for her private arbitration and mediation services use “Judge”, “Honorable” or “Hon.,” even in conjunction with “former,” “retired,” or “ret.,” or use a photograph of herself in judicial robes in connection with extra-judicial activities but may make accurate statements about her prior judicial experience in biographical information a customer would be entitled to know about a prospective service provider); Florida Bar Standing Committee on Advertising A-09-1 (a retired judge engaged in the practice of law may not use “Judge” as a title on letterhead, business cards, or in advertising regardless whether the title is modified by “former” or “retired” but may accurately indicate that he is a “retired judge” or a “former judge”); Maryland Advisory Opinion Request 2003-26 (a retired judge may not identify himself as a retired judge when signing off on decisions as a mediator or arbitrator or on letterhead used for related correspondence, but his past judicial service may be reflected on his résumé); Michigan Advisory Opinion RI-327 (2001) (a former judge may not retain the title “Honorable” after entering private practice by, for example, naming his law practice “Honorable XXX Doe and Associates” and placing this on the letterhead); South Carolina Advisory Opinion 21-1997 (a retired judge’s name may be included in a law firm’s Yellow Pages advertisement as long as it does not refer to her being a retired judge); Texas Advisory Opinion 155 (1993) (a retired judge subject to assignment may not use the title “judge” or “justice” on letterhead, in directories, or in any other pubic way related to the practice of law).  Cf., Washington Advisory Opinion 2002-17; (in advertisements offering mediation and arbitration, a former judge or justice may use a title such as “judge” or “justice” accompanied by “retired,” “ret.,” or “former” but may not refer to herself as “The Honorable” or “Hon.”).

 

Throwback Thursday

20 years ago this month:

  • Pursuant to the recommendation of the Commission on Judicial Performance, a special tribunal publicly censured a justice of the Mississippi Supreme Court who had been charged with driving under the influence of alcohol. Commission on Judicial Performance v. McRae, 700 So. 2d 1331 (Mississippi 1997).

Appropriate courthouse debate

Dismissing a complaint filed by the Judicial Inquiry and Review Commission, the Virginia Supreme Court held that 2 judges did not violate the code of judicial conduct by opposing a referendum to move the courthouse.  Judicial Inquiry and Review Commission v. Bumgardner and Franklin (Virginia Supreme Court July 20, 2017).

The Augusta Citizens Coalition was established to defeat a public referendum on whether to move the Augusta County courthouse out of the City of Staunton.  The coalition was a referendum committee registered with the Virginia Department of Elections.

Both judges were member of the coalition and contributed money to it.  They spoke publicly on behalf of the Coalition and against the relocation of the courthouse in various settings, for example, town hall meetings, the Rotary Club, the county fair, and a tent outside the courthouse.  The judges wrote a joint opinion piece that appeared in the local newspaper regarding how the local court system functioned and how the relocation of the courthouse would affect the court.

The referendum was defeated.  According to news reports, the complaint against the judges was filed with the Commission by the county supervisor; the county board of supervisors had supported moving the courthouse.  After a hearing, the Commission found that the judges had violated Canon 5A(1) and recommended a censure.

The Court stated that the central question was whether the Coalition was a “political organization” within the meaning of Canon 5A(1), which prohibits a judge from acting as a leader or holding any office in a political organization, making speeches for a political organization, or soliciting funds for or making a contribution to a political organization.  The Virginia code of judicial conduct does not define the term “political organization.”

The judges asked the Court to adopt the definition in the 2007 ABA Model Code of Judicial Conduct:  “A political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office.”  In contrast, contending Canon 5 should be applied broadly, the Commission relied on a dictionary definition of “political” as “of or relating to government, a government, or the conduct of government affairs.”  The Commission argued that the coalition was clearly a political organization because it was organized and recognized as such under Virginia’s election laws and the federal tax laws.

The Court rejected both suggestions.

It concluded that the ABA definition was too narrow because it would exempt all referendum committees, noting that “many issue referenda are not specifically tied to a political party or the election of a candidate for public office, and yet involve issues where a judge’s public advocacy and membership in a referendum committee would be inappropriate.”

However, it concluded that the definition recommended by the Commission was too broad.  The Court acknowledged that “an issue referendum regarding the relocation of a courthouse is certainly of or relating to government, a government, or the conduct of government affairs,” but emphasized that “[t]he location and condition of court facilities . . . are issues inextricably intertwined with the administration of justice.”

The Court noted that the General Assembly has given judges the “extraordinary power” to issue a writ of mandamus to force local governments to cause the court facilities “to be made secure, or put in good repair, or rendered otherwise safe . . . .”  It concluded, “[i]f judges may initiate lawsuits against localities, and force localities to make improvements to court facilities, it would seem reasonable that a judge could speak about the impact a courthouse relocation would have on the administration of justice in that locality.”

Noting the canons are rules of reason, the Court explained:

The text of Canon 5, that “a judge shall refrain from political activity inappropriate to the judicial office,” presupposes that that there might be some things that constitute “political activity” but are nonetheless not “inappropriate to the judicial office.”  Considering judges’ responsibilities over court facilities … , the involvement of local judges in a public debate over the possible relocation of a courthouse is not “inappropriate to the judicial office.”

Curiously, the Court did not rely on the provision in the Virginia code of judicial conduct that states, “[a] judge shall not engage in any other political activity except in behalf of measures to improve the law, the legal system, or the administration of justice” (Canon 5A(3)), in other words, that allows a judge to engage in political activity “in behalf of measures to improve the law, the legal system, or the administration of justice.”  (That provision was deleted from the ABA model code in 2007, but Virginia has not adopted the 2007 revisions.)

That exception to the rule against judges’ engaging in political activity has been interpreted to allow judges to advocate on issues related to courthouse facilities.  For example, the Washington judicial ethics committee advised that a judge may, on her own time and without using any public resources, speak in favor of and urge others to support a ballot measure regarding additional taxes that would, in part, fund the replacement of an obsolete juvenile court facility and fund court operations as long as she confined her comments to the impact on court funding and did not address any other governmental services.  Washington Advisory Opinion 2010-2. See also Arkansas Advisory Opinion 1994-1 (a judge may take a public stand in favor of or opposed to a bond election on whether to increase the sales tax to pay for a new courthouse and jail and be a member of a committee formed to promote passage of the sales tax); New York Advisory Opinion 2014-135 (a judge may publicly support the passage of a bond to up-grade the local court facility by appearing at city council meetings and being interviewed by newspapers and on cable television); New York Advisory Opinion 2007-109 (a judge may publicly advocate for passage of a bond to fund a new court facility by writing an op-ed and speaking at public informational forums); Oklahoma Advisory Opinion 2002-4 (a judge may be involved in a campaign organized by the county commissioners for a county-wide sales tax to finance a new county jail); South Carolina Advisory Opinion 17-2008 (a judge may advocate for a new judicial center and the sales tax needed to fund its construction); Texas Advisory Opinion 163 (1993) (a judge may actively support and campaign for voter approval of a bond issue to build a criminal justice center by speaking at civic clubs, writing letters, and preparing material in support); Washington Advisory Opinion 2000-3 (a judge may publicly support a bond levy that would fund seismic retrofitting of a courthouse); Washington Advisory Opinion 1993-32 (a judicial officer may be a member of a committee supporting the bond issue for the construction of a new juvenile court facility).

Throwback Thursday

25 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge for (1) ticket fixing; (2) failing in over a dozen cases to sentence criminals in accordance with the statutes; (3) dismissing 7 misdemeanor cases without requiring the payment of court costs as required by statute; (4) failing to require the forfeiture of money seized in a gambling raid as required by statute; (5) amending a sentence after part of the sentence was served, in response to ex parte communications with the father of the defendant, and writing to the defendant’s employer that no charges were pending; (6) seeking favorable treatment for the defendants in 3 cases assigned to other judges; (7) on 27 occasions, ordering a party to pay a judgment in installments or partial payments and setting up a payment schedule and in some instances ordering payment within 5 days from judgment, preventing appeals; and (8) having the highway patrol officer the judge thought had filed a complaint about his ticket-fixing arrested for contempt for returning to the courthouse after leaving at the judge’s order. Commission on Judicial Performance v. Chinn, 611 So. 2d 849 (Mississippi 1992).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly admonished a judge for tolerating inappropriate and disruptive demeanor and comments by defense counsel in a case, demonstrating a lack of patience and courtesy towards defense counsel, and making inappropriate comments to one of the defense counsel during another case. In re Bruhn, Stipulation and agreement (Washington State Commission on Judicial Conduct August 7, 1992).

 

 

Recent cases

  • Based on a stipulation for discipline by consent and the judge’s agreement to tender his irrevocable resignation effective December 5, 2017, and to not seek or hold judicial office in the state, the California Commission on Judicial Performance censured a judge for taking 2 business card holders from a club. Inquiry Concerning Williams, Decision and order (California Commission on Judicial Performance July 17, 2017).
  • The Michigan Supreme Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Judicial Tenure Commission. In re Simpson (Michigan Supreme Court July 25, 2017).
  • The Michigan Supreme Court publicly censured a judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding in a custody case. In re Gorcyca (Michigan Supreme Court July 28, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for delay issuing decisions in 3 cases. In re Rawson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 5, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for signing an order that allowed a law school graduate who was not licensed in the state to practice in his court. In the Matter of O’Briant, Amended public admonishment (West Virginia Judicial Investigation Commission July 5, 2017).

 

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for advertising wedding services on his web-site. Jayne, Order (Arizona Commission on Judicial Conduct July 9, 2012).
  • Adopting the findings, conclusions, and recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court removed a judge for asking the court manager to move his vehicle to avoid a process server attempting to serve him with an order of protection, continuing to hear cases involving such orders, invoking his position repeatedly with law enforcement authorities, and sending threatening texts to his wife. In the Matter of Woolbright, Order (Arizona Supreme Court July 23, 2012).
  • Pursuant to a stipulation, the California Commission on Judicial Performance publicly censured a judge for seeking preferential treatment from a court commissioner for a traffic citation issued to his wife. Inquiry Concerning Sarmiento, Decision and Order (California Commission on Judicial Performance July 5, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for ordering an attorney to remain in the courtroom for over an hour and a half without adjudicating an alleged contempt and ordering the attorney to “spend every waking moment” working on the case until the preliminary hearing. Public Admonishment of Jacobson (California Commission on Judicial Performance July 11, 2012).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for driving under the influence and crashing the vehicle she was driving. Inquiry Concerning Nelson, 95 So. 3d 122 (Florida 2012).
  • The Georgia Judicial Qualifications Commission, with the consent of the judge, made public the fact that it had privately reprimanded a judge but not the content of the reprimand; the report states that the matter originated with media reports that the judge had been arrested based on allegations he engaged in a physical altercation with his wife; subsequently, the judge and the prosecutor agreed that the charges would be dismissed based upon his pre-trial diversion agreement to attend marital and stress counseling. In re Weaver, Report of Disposition (Georgia Judicial Qualifications Commission July 18, 2012).
  • With the judge’s consent, in lieu of filing formal disciplinary proceedings, the Indiana Commission on Judicial Qualifications publicly admonished a judge for granting an ex parte motion for custody filed by a child’s maternal grandparents without notice to the non-custodial father or an opportunity for him to be heard. Public Admonition of Johnston (Indiana Commission on Judicial Qualifications July 5, 2012).
  • The Kentucky Supreme Court affirmed the Judicial Conduct Commission’s removal of a judge for (1) advocating at a county meeting that $500,000 donated by criminal defendants under a plea agreement be used to fund a water park; (2) making misstatements in an order; (3) establishing a special grand jury to discredit the judge-executive; (4) viewing videotapes regarding the sheriff’s investigation of the judge-executive; (5) presiding over 2 criminal cases that he had urged the state police to investigate and the commonwealth’s attorney to pursue; (6) urging the utility company to donate $12,500 for playground equipment at his children’s elementary school and raising funds for the equipment; and (8) removing an assistant public defender as counsel in cases without giving her an opportunity to be heard. Alred v. Judicial Conduct Commission, 395 S.W.3d 417 (Kentucky 2012).
  • Affirming the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) inappropriate financial transactions and practices, including misappropriating public funds; (2) failing to ensure that a business-attire policy was properly enforced and did not deny people access to the court; (3) knowingly rehiring an unqualified magistrate, misrepresenting that he was qualified, and requiring him to sign bench warrants, contrary to statute; (4) hiring her niece; and (5) making misrepresentations during the investigation and hearing, including lying under oath. In re James, 821 N.W.2d 144 (Michigan 2012).
  • Based on a stipulation of facts and consent, the Oregon Supreme Court publicly censured a judge for a 16-month delay in issuing a decision in a divorce case. Inquiry Concerning Avera, 283 P.3d 923 (Oregon 2012).
  • The Pennsylvania Court of Judicial Discipline removed a former judge and barred him from serving in judicial office based on his guilty plea to charges that he had taken sexual liberties with 2 women appearing in his courtroom. In re Cioppa, 51 A.3d 923 (Pennsylvania Court of Judicial Discipline 2012).
  • The Pennsylvania Court of Judicial Discipline suspended a judge for 1 month without pay for failing to docket a citation received by her son and instructing her office manager not to docket it until the judge told her to do so; transferring the citation to another judge’s court in violation of county administrative rules that require a transfer order from the president judge; making false statements in a report to the president judge; and instructing her court manager to testify falsely at a deposition. In re Arnold, 51 A.3d 931 (Pennsylvania Court of Judicial Discipline 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for denying a motion to recuse in an order that recited facts that he should not have considered and accused the moving attorneys of misconduct. Re Gasaway (Tennessee Court of the Judiciary July 2, 2012).
  • Following a trial de novo, a Special Court of Review Appointed by the Texas Supreme Court publicly admonished a judge to use only names and titles when referring to individuals appearing in his courtroom and to refrain from referring to individuals’ appearance or parts of their body unless the reference was appropriate and necessary under the circumstances. In re Adams, Decision (Special Court of Review Appointed by the Texas Supreme Court July 3, 2012).