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).

 

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for indicating that a defendant could be released to a behavioral health treatment provider after conducting an ex parte hearing in which the defendant’s father argued for the release. Hudson, Amended order (Arizona Commission on Judicial Conduct August 22, 2017).
  • The California Commission on Judicial Performance severely censured a judge for (1) during his 2012 campaign, making misrepresentations on his campaign web-site and candidate disclosure form, failing to resign from 3 political action committees, publicly opposing President Barack Obama’s re-election, omitting expenses from his campaign disclosure form, and using a personal bank account and credit card for campaign expenses; (2) after being sworn in as a judge, remaining as counsel of record in a federal action 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 in the courtroom, including drawing attention to an attorney’s ethnicity and accent and questioning her citizenship, using nicknames to address attorneys, commenting on the physical appearance of attorneys, disclosing intimate personal facts, using crude language, and speaking Spanish; (4) improperly responding to a “blanket” challenge from the city attorney’s office by telling deputy public defenders and public defender interns to “watch out;” (5) 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” or words to that effect; (6) stating during a proceeding, “I had a Filipino teacher who always used to ask for a shit of paper;” (7) improperly soliciting the legal opinion of attorneys in cases in which they did not represent a party; (8) 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; and (9) repeatedly interjecting his personal experience during a small claims case. Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).
  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court suspended a judge for 120 days without pay, fined him $3,000, and publicly reprimanded him for ordering a man to serve 6 months in a work center for a conviction he had already appealed to a higher court and for which he had already had satisfied his sentence. Commission on Judicial Performance v. Sheffield (Mississippi Supreme Court August 17, 2017).
  • The Nevada Commission on Judicial Discipline suspended a non-lawyer judge without pay for 1 year for (1) sealing her then son-in-law’s criminal records relating to his arrest for domestic battery of her daughter; (2) improperly ordering staff to conduct an illegal criminal records search of her friend’s boyfriend; (3) sentencing an unrepresented individual to 8 months in jail in violation of due process; (4) referring to men as “sperm donors;” (5) improperly running a juvenile diversion program; and (6) issuing orders regarding titles for abandoned vehicles in small claims cases. In the Matter of Haviland, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline August 29, 2017).
  • With the judge’s consent and conditioned on his agreement that the letter be public, the Pennsylvania Judicial Conduct Board issued a letter of counsel to a judge for being involved in a “support relationship” with the district attorney during his second divorce without disclosing the relationship when she and attorneys from her office appeared in his court. Letter to Grine (Pennsylvania Judicial Conduct Board August 20, 2017).
  • Denying in part and granting in part the judge’s petition for review of a decision of the 6th Circuit Judicial Council, the Judicial Conduct and Disability Committee of the U.S. Judicial Conference publicly reprimanded a judge for ordering a magistrate to show cause why he had not met the deadline for filing a report and recommendation in a social security case 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 (U.S. Judicial Conference Judicial Conduct and Disability Committee of August 14, 2017).