Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for submitting a character reference letter on behalf of an attorney in a reinstatement proceeding without being duly summoned. Barth, Order (Arizona Commission on Judicial Conduct September 7, 2012).
  • Pursuant to the judge’s consent, the North Carolina Judicial Standards publicly reprimanded a judge for failing to enter an equitable distribution judgment for 46 months after the conclusion of the hearing. Public Reprimand of Edwards (North Carolina Judicial Standards September 17, 2012).
  • Adopting stipulated facts and violations, the Ohio Supreme Court suspended a former magistrate’s law license for 1-year (but stayed the suspension) for treating litigants and counsel in a divorce case with disdain, permitting the guardian ad litem to lecture the parties on the record, terminating hearings before the parties had presented all their evidence and made a record of their objections, acting on his own whims rather than inquiring into the best interests of the child, failing to resolve the matters for more than a year and a half, and failing to conduct hearings in a manner that would permit the judge assigned to the case to resolve the issues in his stead. Disciplinary Counsel v. McCormack, 977 N.E.2d 598 (Ohio 2012).
  • The Pennsylvania Supreme Court affirmed the decision of the Court of Judicial Discipline removing a judge for her work habits, her handling of truancy cases, her handling of landlord/tenant cases, and her demeanor in 6 cases. In re Merlo, 58 A.3d 1 (Pennsylvania 2012).
  • The Texas State Commission on Judicial Conduct publicly warned a judge because the public release of a videotape of him beating his daughter cast reasonable doubt on his capacity to act impartially as a judge and interfered with the proper performance of his judicial duties and for a pattern of incidents in which the judge displayed anger and poor judicial demeanor toward certain attorneys in his courtroom. Public Warning of Adams (Texas State Commission on Judicial Conduct September 4, 2012).

 

Judicial well-being

The National Task Force on Lawyer Well-Being has released The Path to Lawyer Well-Being:  Practical Recommendations for Positive Change, a report with 44 recommendations “for minimizing lawyer dysfunction, boosting well-being, and reinforcing the importance of well-being to competence and excellence in practicing law.”  (The task force was initiated by the ABA Commission on Lawyer Assistance Programs, the National Organization of Bar Counsel, and the Association of Professional Responsibility Lawyers.)  The recommendations have 5 central themes:  “(1) identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession, (2) eliminating the stigma associated with help-seeking behaviors, (3) emphasizing that well-being is an indispensable part of a lawyer’s duty of competence, (4) educating lawyers, judges, and law students on lawyer well-being issues, and (5) taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.”

The report includes several recommendations related to judges:

  • Communicate that well-being is a priority
  • Develop policies for impaired judges
  • Reduce stigma of mental health and substance use disorders
  • Conduct judicial well-being surveys
  • Provide well-being programming for judges and staff
  • Monitor for impaired lawyers and partner with lawyer assistance programs

For example, with respect to developing policies for impaired judges, the report explains:

It is essential that the highest court and its commission on judicial conduct implement policies and procedures for intervening with impaired members of the judiciary.  For example, the highest court should consider adoption of policies such as a Diversion Rule for Judges in appropriate cases.  Administrative and chief judges also should implement policies and procedures for intervening with members of the judiciary who are impaired in compliance with Model Rule of Judicial Conduct 2.14.  They should feel comfortable referring members to judicial or lawyer assistance programs.  Educating judicial leaders about the confidential nature of these programs will go a long way in this regard.  Judicial associations and educators also should promote CoLAP’s judicial peer support network, as well as the National Helpline for Judges Helping Judges.

Several recent events demonstrate that the adverse effect of judicial impairments on individual judges and the judiciary is not theoretical.  For example, in July, the New York City medical examiner’s office ruled that the death of New York Court of Appeals Judge Sheila Abdus-Salaam was a suicide; her body had been found in the Hudson River.

* * *
In October 2014, the Chief Justice of the 5th Circuit Texas Court of Appeals filed a complaint with the State Commission on Judicial Conduct alleging that one of the justices on the court had engaged in conduct that was inconsistent with his judicial obligations, including failure to participate in en banc consideration of cases, failure to prepare for oral arguments, committing to specific outcomes during oral argument, erratic behavior regarding the resolution of cases, failure to perform writ duty, combative interactions with staff and colleagues, attempting to defer his judicial authority to a staff member, exposing the court’s computer network to viruses, frequent unexplained absences, and behavior demonstrating incompetence.  Shortly after the Commission notified the judge that it intended to investigate the allegations, the judge was admitted to an alcohol treatment center where he stayed 6-8 weeks.  In an appearance before the Commission in October 2015, the judge testified about his past and present mental and physical health, including his continuing efforts to treat his alcoholism.  In November, the Texas Supreme Court granted an agreed motion to suspend the judge without pay.

In October 2016, the Commission filed a notice of formal proceedings alleging that the judge had committed misconduct or, alternatively, suffered from a permanent mental or physical disability that interfered with his ability to perform duties.  According to the notice, a doctor who had performed a physical and mental health evaluation found that the judge had demonstrated problems beginning as early as 2013 and displayed an impaired condition and intense feelings of anger in 2014.  Emphasizing “that brain atrophy, regardless of the etiology, is not likely to be reversed,” the doctor concluded that the judge “has some permanent damage that is apparent in his cognitive function . . . .  His psychological testing showed a mix of disinhibited response patterns, poor psychological boundaries and lapses in reasoning and thought processes that bordered on psychotic processing.”

The day after the Commission filed the notice, the judge resigned, and, based on his agreement never to seek or hold judicial office, the Commission agreed not to pursue disciplinary proceedings against him.  Inquiry Concerning Lewis, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 12, 2016).

* * *
Accepting the recommendation of a special committee, the Judicial Council for the U.S. Court of Appeals for the 5th Circuit concluded an investigation of a judge after she retired for disability.  In re Complaint Regarding Judge Minaldi, Order and memorandum of reasons (5th Circuit Judicial Council August 23, 2017).  A complaint that the judge might have a disability had been filed in April 2016.  A special investigating committee retained medical experts to evaluate the judge.  Based on the special committee’s report, the Council “reviewed the compelling and uncontroverted medical evidence pertaining to [the judge’s] permanent disability . . . .”

According to news reports, the judge had been on medical leave since December after reports of a pattern of unusual behavior and mistakes on routine matters on the bench.  The Chief Judge of the 5th Circuit had ordered the judge to get treatment for alcoholism, she went to rehab in January, and she had been in an assisted living facility specializing in “memory care” since February.  The judge had been diagnosed with “alcohol use disorder” and “severe Wernicke-Korsakoff syndrome,” a degenerative brain disorder linked to alcohol abuse.

* * *
Reviewing a decision of the Judicial Council of the 6th Circuit, the Judicial Conduct and Disability Committee of the U.S. Judicial Conference publicly reprimanded a judge for ordering a magistrate judge to show cause why a filing deadline in a social security case had not been met and for refusing to cooperate with the special investigating committee’s request that he undergo a mental health examination.  In re Adams, Memorandum of decision (Judicial Conduct and Disability Committee of the U.S. Judicial Conference August 14, 2017).  However, the Committee concluded that it could not affirm the Council’s order removing the judge’s docket because there was no evidence he was unable to adjudicate cases.

In 2011, the judge had issued a scheduling order requiring magistrate judges to file a report and recommendation in social security cases within 270 days.  Due to a clerical error, a magistrate judge missed the deadline in a case in early 2012.  Rather than trying to resolve the issue informally, the judge ordered on a Friday that the magistrate judge show cause by 4:00 p.m. the next Monday why the magistrate judge should not be held in contempt or otherwise sanctioned for failing to comply with the scheduling order.  In an e-mail to the judge on Saturday evening, the magistrate judge took responsibility for the mistake.  The magistrate judge also began arranging legal representation for a hearing and spent the weekend completing the report and recommendation.  In an order on Monday, the judge noted the clerical error and found the show cause order to be “satisfied.”

4 other judges filed a complaint alleging that Judge Adams’s show cause order and “other ongoing disruptive behavior directed at other judges in the Northern District of Ohio” constituted “conduct prejudicial to the effective and expeditious administration of the business of the courts.”  The Judicial Conference Committee noted that, after the court did not select Judge Adams’s preferred candidate for a vacant magistrate judge position in 2008, he had “repeatedly expressed hostility and contempt toward the court’s magistrate judges” and rejected communications with them, requiring that they go through his staff.  Judge Adams would not allow the ceremonial courtroom to be used for that magistrate judge’s investiture and did not attend the ceremony, interact with the magistrate judge, assign her any work, or meet with her despite her numerous attempts to initiate contact.  He also refused to meet with another new magistrate judge, instead sending an e-mail explaining he expected “prompt decisions” in social security cases and criticizing the “work ethic” of the other magistrate judges.

In addition, the Judicial Conference Committee noted “an increasingly strained relationship between Judge Adams and his colleagues” after 2008, with Judge Adams “withdraw[ing] from relations” with the other district judges and “routinely attempt[ing] to undermine” their administration of the court’s business.  When he had concerns at different times about the appointment of a new magistrate judge, the purchase of iPads, and reimbursement of travel expenses for judges to attend the unveiling of a senior district judge’s portrait, Judge Adams did not communicate directly with his colleagues but instead complained in letters to committees of the U.S. Judicial Conference, that, for example, filling a soon-to-be vacant magistrate judge’s position was “neither necessary, nor fiscally responsible.”

In response to the other judges’ complaint, the acting Chief Judge appointed a special investigating committee.  The scope of the investigation was subsequently expended to consider whether Judge Adams was suffering from an emotional or mental disability.  The special committee asked Judge Adams to provide records of any mental or emotional health testing or treatment he had undergone and to submit to psychological testing, but the judge refused.  The forensic psychiatrist retained by the special committee concluded that the available data suggested, not a mental state of psychotic proportions, but “significant personality traits that may have contributed to the current concerns.”

Based on the special committee’s report, the Judicial Council found that the judge’s issuance of the show cause order and his refusal to cooperate with the request that he undergo a mental health examination constituted misconduct.

On review, the U.S. Judicial Conference Committee rejected the judge’s argument that sanctioning him for the show cause order violated the ban on reviewing judicial decisions.  The Committee noted that the Judicial Council had found, not that the show cause order was not legal, but that it had been motivated by the judge’s hostility and animus toward the magistrate judges and had had prejudicial effects on the specific magistrate judge, the district’s magistrate judges’ performance generally, and the district as a whole.  The Committee concluded that the Judicial Council’s findings of fact were not clearly erroneous.

The Judicial Conference Committee also found that the special committee was justified in requiring Judge Adams to undergo a mental health examination and that his refusal to cooperate with the request constituted misconduct.  The Committee held that the special committee’s request was authorized by “the Judiciary’s inherent authority to regulate its affairs, . . . including the conduct and fitness for duty of federal judges, and from its broad investigatory powers and decisional discretion” under the Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.  The Committee concluded that the judge’s failure to cooperate “impeded the Judicial Council’s ability to conduct a thorough and conclusive investigation” and was, therefore, “prejudicial to the effective and expeditious administration of the business of the courts.”  The Committee acknowledged the judge’s “indisputable privacy interest relating to his mental health” but evaluated that “interest in the context of his role and responsibilities as a federal judge,” emphasizing that “a federal judge’s sound mental health is essential to his or her fulfillment of all judicial duties.”

The Committee also rejected the judge’s argument that the evidence was not sufficient to warrant the examination, noting “Judge Adams’s demonstrated hostility and animus toward the court’s magistrate judges, which has been ongoing for years” and his “unfounded suspicion of his colleagues and obstruction of effective court administration with respect to magistrate judges in the Northern District of Ohio.”  The Committee stated it shared the Judicial Council’s view that “input from an independent medical expert is necessary to fully and fairly assess Judge Adams’s mental condition and fitness to continue to serve as a judge.”

The Committee noted that it “anticipate[d]” that the judge would expeditiously comply with the order that he submit to a mental health examination.  On September 15, the organization Judicial Watch filed a federal lawsuit on behalf of Judge Adams challenging the decision.

 

Throwback Thursday

10 years ago this month:

  • Based on the recommendation of the Commission on Judicial Conduct to which the judge consented, the Arizona Supreme Court suspended a judge for 60 days without pay for arriving in the courtroom between 5 and 18 minutes after her calendar was scheduled to begin 20% of the time, blaming the clerks, and claiming the delays were caused by lost and incomplete files attributable to the relocation of her court; chastising staff in the administrative area; interrupting staff meetings to require administrators to look for files even when clerks were available; and criticizing clerks when files were not in order. In the Matter of McVay, Judgment and Order (Arizona Supreme Court September 25, 2007).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who confronted a court employee in the public street and made a hand gesture in an accusatory manner and who used an obscene expletive in open court. Cornelio, Reprimand (Arizona Commission on Judicial Conduct September 12, 2007).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who had quashed an arrest warrant based on the ex parte request of an attorney while the attorney was representing him in proceedings before the Commission. Morales, Order (Arizona Commission on Judicial Conduct September 28, 2007).
  • The California Commission on Judicial Performance publicly admonished a judge for 2 incidents in which he failed to be dignified, patient, and courteous with deputies from the county sheriff’s department. Public Admonishment of Westra (California Commission on Judicial Performance September 5, 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated findings of fact, the New Mexico Supreme Court publicly reprimanded a judge for endorsing a mayor for re-election and authorizing the use of his name in an endorsement that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge who had gratuitously repeated a defendant’s inappropriate comments about his attorney’s physical appearance and repeatedly joked about the comments. In the Matter of Caplicki, Determination (New York State Commission on Judicial Conduct September 26, 2007).
  • Pursuant to the judge’s agreement, the North Carolina Judicial Standards Commission publicly reprimanded a judge for finding defendants in a summary ejectment action in civil contempt due to their inability to pay a $2,480 award and ordering the defendants confined until the money was paid. In re Roemer, Public Reprimand (North Carolina Judicial Standards Commission September 4, 2007).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge who had pled guilty to common law misconduct in office for coercing defendants to surrender money and property to the town in exchange for having their criminal charges dismissed. In the Matter of Stephens, 650 S.E.2d 849 (South Carolina 2007).

 

A sampling of recent judicial ethics advisory opinions

  • Subject to several conditions, a judge may meet with private vendors to procure or investigate services or products for use by the court or parties pursuant to court order but may not meet with vendors about developing or promoting their services. California Formal Opinion 2017-9.
  • When giving a speech at a court-sponsored Law Day event, a judge should focus on the law and not on comments by the President that she believes are critical of the role of an independent judiciary. New York Opinion 2017-54.
  •  To determine whether to unsubscribe from e-mails about political issues she receives on her personal e-mail account, a judicial official should consider whether the sending organization is concerned with the law, the legal system, or the administration of justice; whether the organization is a “political organization;” the extent to which the judicial official’s identity would be revealed to other recipients; and whether the e-mails concern a matter pending or impending in any court. Connecticut Informal Opinion 2017-8.
  • A judge may not meet with attorneys who represent criminal defendants for a “defense perspective” on the court’s handling of discovery, diversion, and disposition of cases. New York Opinion 17-101.
  • When a judge’s alleged misstatement of the law is the basis for an appeal but the judge does not recall her exact words, the judge may not advise the parties that she believes she correctly stated the legal standard and that the transcript is erroneous. New York Opinion 2017-61.
  • A judge may not appoint her sibling as a master commissioner. Kentucky Opinion JE-128 (2017).
  • A judge may not appoint her brother as a special prosecutor or guardian ad litem even when the appointment is governed by a rotating list. Nebraska Opinion 2017-2.  
  • A judicial nominee may provide a letter to clients stating that, as a result of her appointment to the bench, she will no longer be representing them, but that her law firm will continue the representation. Connecticut Informal Opinion 2017-2
  • A new judicial officer must advise his former law firm that his name needs to be removed from the firm name as soon as reasonably possible. Connecticut Informal Opinion 2017-5.  
  • A judge may not solicit funds for a non-profit drug treatment center or allow court employees to do so. Ohio Opinion 2017-6.  
  • A judicial association may accept $200 worth of appetizers from a restaurant for a cultural celebration open to the public. New York Opinion 2017-80.
  • A group of judges may not accept free tickets to sit in the governor’s box at Baltimore Orioles games. Maryland Opinion Request 2017-12.
  • A judge may be a housing resource for a relative on parole, but should not seek an exception to the parole board’s standard procedures based on his judicial status. New York Opinion 2017-77.  
  • A judge may appear in a family photograph on her first-degree relative’s campaign literature provided she does not wear a judicial robe and is not identified as a judge. New York Opinion 2017-79.  
  • A judicial official may not belong to the Connecticut Criminal Defense Lawyers’ Association. Connecticut Informal Opinion 2017-7. 

 

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for unreasonable delay in deciding 2 cases and failing to file required quarterly reports. Letter to Choate (Arkansas Judicial Discipline & Disability Commission September 19, 1997).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for calling the victim, the police officer, and the prosecuting attorney on behalf of a defendant who was involved in building the judge’s house and then presiding over the arraignment. Letter to Davis (Arkansas Judicial Discipline & Disability Commission September 19, 1997).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for voluntarily appearing as a character witness. Letter to Adams (Arkansas Judicial Discipline & Disability Commission September 19, 1997).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for calling the police after witnessing an individual run a stop sign, locating the driver with the police officer, directing the officer to issue a ticket for reckless driving, telling the individual that his driver’s license was suspended and he would be put in jail and not released until the court date if he was caught driving, and later presiding at the trial, convicting the individual, and fining him $100. Letter to Hayes (Arkansas Judicial Discipline & Disability Commission September 19, 1997).
  • Pursuant to the agreement of the judge, the California Commission on Judicial Performance publicly admonished a judge who, in a series of telephone calls to law enforcement agencies, had repeatedly invoked her judicial position to attempt to obtain the release from custody of a personal friend. Inquiry Concerning Austin, Decision and Order of Public Admonishment (California Commission on Judicial Performance September 23, 1997).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge who, while a candidate, had mailed a brochure to voters that gave the unmistakable impression that he would favor tenants over landlords in housing matters. In the Matter of Birnbaum, Determination (New York State Commission on Judicial Conduct September 29, 1997).
  • The New York State Commission on Judicial Conduct publicly censured a judge who (1) had driven his automobile into a tree and pleaded guilty to driving while intoxicated; (2) had presided over an ex parte request for a temporary order of protection while under the influence of alcohol; and (3) had confronted 2 sheriffs’ officers and demanded to know why his son, the court officer assigned to his court, had been removed from the courthouse and stated, loudly and angrily, “How can you do this to me? Why are you doing this to me?  After all the support I’ve given you and your department, this is the way your deputies treat me.”  In the Matter of Purple, Determination (New York State Commission on Judicial Conduct September 29, 1997).

 

Social media and judicial ethics: Part 2 — New issue of the Judicial Conduct Reporter

The summer issue of the Judicial Conduct Reporter is now available to be downloaded.

The issue is Part 2 of a two-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  It covers off-bench conduct: conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Part 1, in the spring issue, was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  The 2 parts will be combined in a comprehensive paper that will be posted on the Center’s web-site in late 2017.

The code of judicial conduct’s restrictions on judges’ off-bench activities apply equally on social media as in other contexts.  For example, under the general ethical standards of the code regarding promoting public confidence in the judiciary, judges have been disciplined for sexual misconduct on social media and for posting injudicious, negative, or unfairly critical comments.  Similarly, as anytime a judge is writing or speaking, a judge must avoid social media posts on legal and other topics that might raise reasonable questions about her impartiality.

The prohibition on judges’ practicing law precludes judges from giving legal advice on social media, either in response to a specific question or in a general post that could be construed as legal advice. Judges are prohibited from disclosing non-public information on social media even in a broad, general post.

When using social media, judges must not post anything that could be construed as using the prestige of office to advance their private interests.  For example, that rule may limit a judge’s ability to “like,” review, or recommend lawyers, events, businesses, and movies on social media at least when her judicial identity is disclosed.

Just as judges may be members and officers of, volunteer with, or attend events for most non-profit organizations, they may also “like” or “follow” most civic or charitable organizations on social media as long as the organization is not discriminatory and its goals and activities do not undermine judicial independence, integrity, or impartiality.  A judge may not, however, solicit funds for organizations on social media through, for example, posts that encourage people to attend fund-raising events.  The restrictions on judges’ political activities apply on-line as well as in traditional forums.  For example, to comply with the prohibition on political endorsements, a judge should not “like” the Facebook page of a political organization or candidate.

Social media is an approved communications and fund-raising tool for judicial candidates, but all the rules apply on social media that apply to traditional campaigning.  Therefore, a judicial candidate should delegate at least the fund-raising aspects of a social media page to his campaign committee or staff to comply with the prohibition on personal solicitation.   candidate must also review and approve the content of all campaign statements before posting to ensure compliance with the rules limiting campaign speech.

You can sign up here to receive notice when a new issue is available.  All past issues of the Reporter are also available on-line as free downloads; there is an subject index of Reporter articles here.

Throwback Thursdays

25 years ago this month:

  • The New York State Commission on Judicial Conduct publicly admonished a judge who drove while impaired by alcohol, tried to prevent his arrest because he was a judge, and threatened that the arresting office would “regret this” and should “watch out.” In the Matter of Winkworth, Determination (New York State Commission on Judicial Conduct September 23, 1992).
  • The New York State Commission on Judicial Conduct publicly censured a judge who made anti-Arab statements to a defendant’s lawyer in an off-the-record conference in a robing room. In the Matter of Ain, Determination (New York State Commission on Judicial Conduct September 21, 1992).
  • Pursuant to the stipulation of the judge, the Washington State Commission on Judicial Conduct publicly admonished a judge who had stated on the record about a defendant on a traffic charge, “You don’t think Mr. Breckenridge drives around baiting officers do ya, just hoping to get stopped so he can get a little debate going. What it looks like to me.”  In re Clough, Stipulation and Agreement and Order (Washington State Commission on Judicial Conduct September 4, 1992).