Without more

Denying a petition for a writ of prohibition, the Florida 3rd District Court of Appeal recently held that a trial court judge’s Facebook “friendship” with a lawyer representing someone involved in litigation did not require the judge’s disqualification from the case.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida 3rd District Court of Appeal August 23, 2017).

The plaintiff, a law firm, sued a former corporate client for breach of contract and fraud, accused one of the defendant’s executives of witness tampering, and indicated that the executive was a potential witness and potential defendant.  An ex-circuit court judge was hired to represent the executive.  The plaintiff filed a motion to disqualify the trial judge because the ex-judge was listed as a “friend” on the trial judge’s personal Facebook page.  The test for determining the legal sufficiency of a motion for disqualification in Florida is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.”

The 3rd District relied on a decision by the Florida 5th District Court of Appeal holding that requiring disqualification in cases involving Facebook friends “does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.”  Chace v. Loisel, 170 So. 3d 802 (Florida 5th District Court of Appeal 2014).  Describing the word “friend” on Facebook as a “term of art,” the 5th District explained that a Facebook friend “could more aptly” be described as an “acquaintance and, sometimes, virtual stranger.”  The court noted that requiring disqualification in cases involving an acquaintance “is unworkable and unnecessary,” “[p]articularly in smaller counties, where everyone in the legal community knows each other, . . .”  (However, in the case before it, the 5th District held that a judge who sent a Facebook friend request to the wife in a dissolution of marriage case had engaged in an ex parte communication and was required to recuse herself.)

The 3rd District agreed that a “Facebook friendship does not necessarily signify the existence of a close relationship,” noting “some people have thousands of Facebook ‘friends,’” “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,’” and “many Facebook ‘friends’ are selected based upon Facebook’s datamining technology rather than personal interactions.”  The 3rd District explained:

To be sure, some of a member’s Facebook “friends” are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty.  The point is, however, many are not.  A random name drawn from a list of Facebook “friends” probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a “friend of a friend;” or even a local celebrity like a coach.  An assumption that all Facebook “friends” rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.

The 3rd District “respectfully acknowledge[d]” its “conflict with the opinion of our sister court” in Domville v. State, 103 So. 3d 184 (Florida 4th District Court of Appeal 2012).  In Domville, the 4th  District Court of Appeal had held that recusal was required when a judge was a Facebook “friend” with the prosecutor based on a judicial ethics opinion that advised that judges were prohibited from being “friends” on Facebook with lawyers who appear before them.   Florida Advisory Opinion 2009-20.

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion,” the 3rd District stated, “electronic social media is evolving at an exponential rate.  Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation.  Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”  The 3rd District held that, “[b]ecause a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, . . . the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”  The court did not discuss whether there was something “more” than the “mere” Facebook friendship that might require the judge’s disqualification in that case.

The decisions from the 3rd and 5th District Courts of Appeal in Florida are consistent with other state appellate caselaw holding that a social media connection does not require a judge’s disqualification, although only the Florida cases involve relationships with attorneys.  See State v. Forguson, 2014 WL 631246 (Tennessee Court of Criminal Appeals 2014) (a trial judge is not disqualified despite his status as “Facebook friend” with the state’s confidential informant who was a witness at trial); State v. Madden, 2014 WL 931031 (Tennessee Court of Criminal Appeals 2014) (a judge’s Facebook friendship with one of the witnesses did not require his disqualification from a criminal case); Youkers v. State, 400 S.W.3d 200 (5th District Texas Court of Appeals 2013) (a trial judge did not lack impartiality based on a Facebook friendship and communications with the father of the defendant’s girlfriend).  So far, no state supreme court has had to decide the issue.

In July, rejecting a challenge to a settlement, the U.S. Court of Appeals for the 9th Circuit also rejected the defendants’ argument that the district court judge should have recused himself because of an appearance of bias created by activity on his alleged Twitter account.  U.S. v. Sierra Pacific Industries, 862 F.3d 1157 (U.S 9th Circuit 2017).  The civil action by the U.S. was brought in the Eastern District of California against private forestry operators and individuals to recover damages to 2 national forests caused by a fire.

The court made no findings about whether the judge actually controlled the Twitter account at issue, which was an undeveloped issue in the district court.  (According to the blog “Above the Law,” the Twitter account, “@nostalgist1,” was controlled by Judge William Shubb who was presiding in the case.  The account was public at the time of the relevant tweets, but “[a]fter the government sent Judge Shubb a letter informing him that his Twitter usage was being raised on appeal, Judge Shubb changed his account from ‘public’ to ‘protected,’ meaning that only approved followers can see his tweets.”)

The Twitter account allegedly controlled by the judge followed the Twitter account of the U.S. Attorney for the Eastern District of California.  The day that the district judge denied the defendants’ motion for relief from the settlement, the U.S. Attorney posted 8 tweets about the case on its Twitter account.  That evening, the judge’s alleged Twitter account tweeted a link to “an allegedly erroneous news article” about his decision.  (It was allegedly erroneous because the settlement did not provide that the defendants were “liable” and the title for the article was, “Sierra Pacific still liable for Moonlight Fire damages.”)

The 9th Circuit held that, under the plain error standard, the allegations did not warrant retroactive recusal even if the judge was the owner of the account.  The Court rejected the defendants’ argument that the judge’s “following” of the U.S. Attorney’s office Twitter account created an appearance of bias.  Noting “news organizations, celebrities, and even high-up government officials use Twitter as an official means of communication, with the message intended for wide audiences,” the Court held that, “[w]ithout more, the fact that an account holder ‘follows’ another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.”

The Court also rejected the defendants’ arguments that disqualification was required because the U.S. Attorney’s tweets about the case were an improper ex parte communication and the judge’s tweet linking to the newspaper article was an inappropriate public comment.  The Court concluded that the U.S. Attorney’s tweets were not ex parte communications because they were not “specifically directed” to the judge, but were “released to the general public, intended for wide distribution to an anonymous public audience.”  Finally, the Court held that a single tweet consisting “only of the title and link to a publicly available news article about the case in a local newspaper, without any further commentary” was not a public comment on the merits of the matter and did not require recusal.

Although concluding that retroactive recusal was not warranted, the 9th Circuit noted that the “case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases” and reiterated “the importance of maintaining the appearance of propriety both on and off the bench.”

As discussed in the spring issue of the Judicial Conduct Reporter, judicial ethics committees also advise that disqualification is not necessarily required when an attorney with whom a judge has an on-line connection appears in a case, but that that connection is one factor a judge should consider in deciding whether her impartiality might reasonably be questioned.  For example, the Arizona committee stated that there is no “per se disqualification requirement in cases where a litigant or lawyer is a ‘friend’ or has a similar status with a judge through social or electronic networks” but that there may be “facts and circumstances” related to the social media relationship that might disqualify the judge.  Arizona Advisory Opinion 2014-1.  See also Maryland Opinion Request 2012-7; Missouri Advisory Opinion 186 (2015); New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2013-39; Ohio Advisory Opinion 2010-7; Utah Informal Advisory Opinion 2012-1.

Even the Massachusetts committee, which has advised judges not to “friend” attorneys who may appear before them, stated that disqualification may not be required if “[d]espite a judge’s best efforts, . . . unexpectedly, a lawyer whom the judge knows to be a Facebook friend appears before the judge.”  Massachusetts Letter Opinion 2016-1.  But see California Judges’ Association Advisory Opinion 66 (2010) (if a judge approved a connection to a lawyer on a social media site because he believed it was highly unlikely the attorney would ever appear before him, the judge should disqualify himself if that lawyer does appear).  Cf., In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017) (public admonishment of judge who was Facebook friends with attorneys who were appearing regularly before him without disclosing the relationship, in addition to other misconduct).

Because disqualification is not automatically required, a judge must consider whether an on-line connection — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever a person with whom a judge has a social media connection appears in a case.  The relevant factors for making that determination include:

  • The frequency of the judge’s social media contacts and communications with the individual;
  • The substance of the judge’s social media contacts and communications with the individual;
  • The scope of the social media friendship;
  • The nature of the social networking page (for example, whether it is more personal or professional);
  • The number of “friends” the judge has on the page;
  • The judge’s practice in deciding whom to “friend” (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add);
  • Whether the social media connection was established before the case came before the judge; and
  • Whether the judge and the friend have frequent, personal contacts in real life, not just on-line.

(Some of those factors identified by California Judges’ Association Advisory Opinion 66 (2010) as relevant to the determination whether a judge should friend an attorney and seem just as pertinent to the question of disqualification.)

Thus, if the judge’s social media page primarily has posts about personal activities, his connections are mainly family and personal friends, the judge is very selective when adding to his “friend” list, the judge and the attorney comment on each other’s posts, and the judge and the “friend” and their families socialize in real life, the judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when that “friend” appears in a case.  In contrast, if the page is focused more on court business and professional activities, the judge has more “friends” on the page, those friends are primarily professional acquaintances, the judge allows anyone to follow the page, and the judge and the “friend” only interact in court or at bar meetings, the judge’s impartiality is not likely to be questioned, and disqualification is not likely to be required.

 

Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a full-time justice of the peace and a pro tem justice of the peace for filing amicus briefs in 2 superior court cases in which the full-time judge’s decisions were being reviewed; the pro-tem judge had written and signed both briefs and urged the full-time judge to sign. Frankel, Karp, Order (Arizona Commission on Judicial Conduct August 21, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for improperly conducting initial appearances and arraignments, treating civil and criminal matters interchangeably, and failing to review defendants’ constitutional rights. Woolbright, Order (Arizona Commission on Judicial Conduct August 21, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for continuing to serve as the secretary of her local Republican Women’s group after she took office. Umphress, Order (Arizona Commission on Judicial Conduct August 21, 2012).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for holding a hearing on a motion for disqualification alleging a conflict between the attorney and the judge’s wife, communicating ex parte with his wife about the motion, calling his wife as a witness, questioning the attorney’s clients, and threatening to file a complaint with The Florida Bar. Inquiry Concerning Cohen, 99 So. 3d 926 (Florida 2012).
  • The Massachusetts Commission on Judicial Conduct publicly reprimanded a judge for repeatedly failing to follow well-established procedural requirements, specifically, failing to engage criminal defendants in legally sufficient plea colloquies in minor motor vehicle criminal offenses. Press Release (Merrick) (Massachusetts Commission on Judicial Conduct August 31, 2012).
  • Accepting the recommendation of the Judicial Tenure Commission, to which the judge consented, the Michigan Supreme Court publicly censured a judge for bringing “shame and obloquy” to the judiciary by his flippant manner in an interview with a reporter about a digital image of himself he had sent to others. In re McCree, 821 N.W.2d 674 (Michigan 2012).
  • The New York State Commission on Judicial Conduct removed a former judge for a sexual encounter with his 5-year-old niece in 1972, before he was a judge. In the Matter of Hedges, Determination (New York State Commission on Judicial Conduct August 17, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge who had (1) approved his own application for a pistol permit and (2) accidentally discharged his gun in his chambers while attempting to repair it. In the Matter of Sgueglia, Determination (New York State Commission on Judicial Conduct August 10, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge who failed to expeditiously transfer from her court tickets issued to herself and her sons for violations of a dog-control ordinance, sent improper messages to the judges of the transferee court, and failed to maintain proper records of the tickets. In the Matter of Van Woeart, Determination (New York State Commission on Judicial Conduct August 20, 2012).
  • Pursuant to the judge’s agreement, the North Carolina Judicial Standards Commission publicly reprimanded a judge for impaired driving. Public Reprimand of Carraway (North Carolina Judicial Standards Commission August 9, 2012).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for intervening in a landlord-tenant dispute when no case was pending in his court and asserting that there was no need for the landlord to file an eviction action in the absence of a written lease agreement. Public Warning of De La Paz (Texas State Commission on Judicial Conduct August 3, 2012).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for issuing a capias pro fine warrant that resulted in a woman’s arrest and incarceration without following the law and failing to treat her in a patient, dignified, and courteous manner. Public Reprimand of Billingsley and Order of Additional Education (Texas State Commission on Judicial Conduct August 3, 2012).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s stipulated public reprimand for a former judge who had revoked a defendant’s probation without following proper procedures. In re Peters, Order (Utah Supreme Court August 22, 2012).

 

 

 

“A friendly courtroom environment”

Adopting findings made by 3 masters, the California Commission on Judicial Performance has severely censured a judge for (1) conduct while running for office in 2012, including misrepresentations on his campaign web-site, failing to resign as the officer of 3 political action committees, publicly opposing President Barack Obama’s re-election, and violations of the state’s election laws; (2) after being sworn in as a judge, remaining counsel of record in a federal case for approximately 6 weeks and issuing 4 checks from his law office account; (3) improper courtroom decorum, poor demeanor, bias, and/or a lack of impartiality; (4) improperly responding to a “blanket” challenge from the city attorney’s office; (4) telling an African-American court employee who had participated in a Halloween costume contest that she should not say she “didn’t win due to racism;” (5) stating during a proceeding, “I had a Filipino teacher who always used to ask for a shit of paper;” (6) improperly soliciting the legal opinions of attorneys in cases in which they did not represent a party; (7) giving a small claims plaintiff the choice of dismissing his case and filing it as a civil case or having the judge decide based on evidence that the judge said was insufficient to support his claim of damages; and (8) repeatedly interjecting his personal experience during a small claims case.  Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).

The Commission and the masters characterized various examples of the judge’s courtroom demeanor as inappropriate, offensive, crude, reflecting bias, discourteous, demeaning, too informal, inappropriately familiar, indecorous, undignified, disrespectful, unbecoming, gratuitous, or insensitive.  Noting that, when he started as a judge, the presiding judge had “told him to create a friendly courtroom environment,” the judge argued that many of his remarks were attempts at humor, that he was “[t]rying to get a laugh” and “put people at ease.”  As in previous cases, the Commission was not persuaded by that defense, explaining:

Creating an accessible and welcoming atmosphere does not include the type of inappropriate remarks made by Judge Kreep . . . .  The commission appreciates that each judge has his or her own style and that a certain level of levity or humor is not necessarily improper.  “However, the cultivation of a particular judicial personality may not be used as an excuse for unethical conduct. . . .  [R]egardless of the judge’s style, she or he must respect the litigants and attorneys who appear in her or his court.”  Moreover, judicial humor should never be used in a courtroom in “a manner that diminishes the dignity of the judicial process.”  “Judges are expected to administer justice and resolve serious issues, not to provide entertainment.”

(Citations omitted).

For example, when Deputy Public Defender Leticia Hernandez appeared before the judge to enter a change of plea in a criminal case, the following exchange took place:

THE COURT:  I love her accent.

HERNANDEZ:  I’m Mexican.

THE COURT:  Are you a citizen of the country of Mexico, Ms. Hernandez?

HERNANDEZ:  No.

THE COURT:  Okay.  Okay.  There is an attorney in town that I know that is actually a citizen of the – of Mexico who does immigration work here in California.

HERNANDEZ:  Oh no, your Honor.  I am a U.S. citizen and proud of it.

THE COURT:  The — I wasn’t planning on having you deported.

The Commission found:

Drawing attention to a person’s ethnicity and questioning a person’s citizenship when these are not issues in the matter before the judge, can reasonably be perceived as offensive and reflecting bias.  Additionally, a judge should be sensitive to the possible impact of such comments on the attorney-client relationship when made in the presence of the attorney’s client.  Judge Kreep maintains that his comments were not meant to be offensive.  However, as noted by the masters, regardless of his intent, “the comments were likely to offend members of the public and could be construed as discourteous, demeaning, or as suggesting bias based on ethnic or national origin.”

The Commission also agreed with the masters’ conclusion that the judge’s “unilateral creation and use of nicknames for attorneys and interns,” such as Bun Head, Shorty, and Ms. Dimples, “was discourteous and did not convey proper respect for them.”  The Commission found that his use of nicknames “created an atmosphere in the courtroom that was too informal and lacked appropriate decorum” and could suggest a lack of impartiality or a sense of inappropriate familiarity.

The judge had also made comments such as, “She’s a pretty girl, you know you could smile,”  and “We’ve got all sorts of very attractive, young PD’s around here, so.”  He said to a defendant, “the lovely attorney next to you went over the form, correct?”  He also referred to a deputy public defender as “the pretty brown one.”  The Commission agreed with the masters’ conclusion that, “Judge Kreep’s comments about the physical appearance of persons appearing in his courtroom were not relevant to the court proceedings, made others in the courtroom uncomfortable, did not afford proper respect to the individuals, diminished the dignity of the judicial process, and may have created the appearance of bias or impartiality.”

The Commission also found that the judge “used language that was crude and undignified.”  The judge had said, for example, “I’ll kick her in the butt,” if a deputy city attorney was late to a hearing.  He told a defendant in an abusive relationship, “Just so you know, ma’am, I grew up in a relationship where I used to get the crap beat out of me on a regular basis by a stepfather [unintelligible] my mother.  So I have some understanding of what you’re going through, okay?  From a child’s perspective.”  The Commission concurred with the masters’ findings:

The words “butt” and “crap” may be relatively tame examples of crude language, particularly when compared to the vulgar language rampant in culture, social media, and entertainment.  But a higher standard of conduct is required in our courtrooms, and for good reason. . . .  Casual conduct and crude language are inconsistent with those requirements. . . .  Judge Kreep’s statements were indecorous and undignified, and in some cases did not convey proper respect for the individuals appearing in his courtroom.

 

 

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).