Monthly Archives: September 2018

Throwback Thursday

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5 years ago this month:

  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission issued an informal adjustment to a judge for using her title in a threatening text to the ex-husband of a family member. Letter of Informal Adjustment (Hendricks) (Arkansas Judicial Discipline and Disability Commission September 20, 2013).
  • The Mississippi Supreme Court publicly reprimanded a judge and fined him $1,000 for a verbal altercation with a probation officer, including threatening to hold her in contempt of court and having police officers escort her from the clerk’s office. Commission on Judicial Performance v. Fowlkes, 121 So. 3d 904 (Mississippi 2013).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for acting as an attorney for an alleged rape victim and her family after presiding over proceedings in the underlying criminal case. In the Matter of Fleming, Determination (New York State Commission on Judicial Conduct September 30, 2013).
  • Accepting an agreement for discipline by consent in an attorney discipline proceeding, the South Carolina Supreme Court publicly reprimanded a former magistrate for, at the conclusion of a bond court session, kissing the clerk who had been working with him on the forehead. In the Matter of Hatcher, 748 S.E.2d 220 (South Carolina 2013).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for magistrating a woman with whom he had a romantic relationship. Public Reprimand of Nicholds (Texas State Commission on Judicial Conduct September 17, 2013).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for an ex parte communication with an attorney about a contested issue in the attorney’s suit for fees against a former client, which resulted a judgment in favor of the attorney without the former client being given the right to be heard. Public Admonition of Koetter (Texas State Commission on Judicial Conduct September 17, 2013).

 

“We do that all the time” is no excuse

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Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) ordering the search of a litigant in open court and the seizure of money found on him; (2) misrepresenting facts about his campaign opponent; (3) publicly pledging during a candidate forum to hold no statute unconstitutional; and (4) holding first appearance hearings without counsel present the Saturday of Memorial Day weekend during his re-election campaign.  Inquiry Concerning DuPont (Florida Supreme Court September 6, 2018).

Approximately 4 months into the judge’s first term, during a hearing involving child support, the father explained that he had not completed a parenting class because he did not have the necessary funds.  The judge then ordered his bailiff to search the husband for money.  The search yielded $180, which the man claimed he was holding for someone else.  The judge immediately turned the $180 over to the mother, ordering that it be credited to outstanding child support.

Law enforcement officers reported the search to Judge Terrill LaRue, then administrative judge for the circuit.  Thinking that the judge had simply made a rookie mistake, Judge LaRue explained to Judge DuPont that he had employed “a very poor procedure” that should not be used again.  Judge LaRue was taken aback when Judge DuPont insisted, “I can do that,” and “we do that all the time in St. Johns County.”

During the discipline proceedings, the judge argued that the search and seizure was appropriate because other judges in the circuit employed similar techniques; he testified that he had directed several such searches previously, but did not do so again after this incident.  Emphasizing that the search and seizure was not forceful, he stated that he had been acting in the best interest of children who are in need of support.

The Court concluded that the judge’s “motives in conducting the search may have been ‘pure’ as he claims,” but “condemned such unlawful, judicially ordered seizures in open court.”  The Court noted it had sanctioned similar conduct in a previous case, referring to Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).  In that case, the Court had removed a judge for, in addition to other misconduct, offsetting a juvenile’s court costs in exchange for the juvenile’s earring.  While questioning a juvenile appearing before him about the juvenile’s failure to pay costs, the judge noticed that the juvenile was wearing a “nice diamond earring.”  When asked, the juvenile said that it was fake and had cost $7.  The judge offered to give the juvenile a credit of $10 toward his court costs in exchange for the earring.  When the juvenile agreed, the judge instructed the deputy to take the earring from the juvenile and stated that he would credit $10 toward the juvenile’s outstanding court costs.

The Court held that, “although minor compared to his other transgressions, Judge Turner’s inappropriate conduct during a court-cost hearing . . . is further evidence of Judge Turner’s defective judgment. . . .  The courtroom is not a forum in which defendants may be required sua sponte by a judge to trade items of clothing or personal property in order to offset the costs assessed against them pursuant to our rules of court.”

The North Carolina Supreme Court has also sanctioned a judge for ordering a bailiff to search a husband’s wallet and turn his money over to the wife.  In re Badgett, 666 S.E.2d 743 (North Carolina 2008).

Following a hearing in which Floyd Carreon was pro se, the judge indicated that he would grant the domestic violence order of protection against Mr. Carreon sought by Kathy Carreon.  Mrs. Carreon then stated that she had no money, was without electric power, and needed transportation.  The complaint had not sought spousal support, but, without making any findings, the judge ordered Mr. Carreon to pay $150 a week to Mrs. Carreon.

After Mr. Carreon objected, the judge asked how much money he had on his person.  Mr. Carreon replied that he had $140.  The judge then ordered the deputy sheriff to search Mr. Carreon’s wallet; when the deputy hesitated, the judge repeated his order.  The deputy took Mr. Carreon’s wallet, counted his money, and reported that the wallet contained $140, a driver’s license, and a Social Security card.  The judge directed the sheriff’s deputy to turn over Mr. Carreon’s cash to Mrs. Carreon.

In the discipline proceedings, the Court concluded that the judge misused his judicial power by awarding spousal support when none had been requested and by ordering the bailiff to search Mr. Carreon’s wallet and turn his money over to Mrs. Carreon.  The Court stated that it was telling that the deputy clerk, deputy sheriff, and plaintiff’s attorney had recognized that the judge had violated Mr. Carreon’s rights, while the judge, “the only individual in the courtroom who had sworn to justly adjudicate cases involving constitutional rights of our citizens, was the person who deprived Mr. Carreon of his rights without regard to notions of fairness and due process.”  The Court censured and removed the judge for this and other misconduct.

In the DuPont case, the judge had admitted only to “mistakes” and “carelessness” in making representations about his opponent and denied “knowingly” or intentionally disseminating false information, claiming he relied on a campaign consultant and opposition researcher.  However, the Court concluded that, not only did the judge “fail to verify the accuracy of the information he was provided as was his obligation, but it also appears that Judge DuPont actually manufactured some of the facts he disseminated in relation to that information.”  The Court stated that the judge’s assertion that he had no evil intent was irrelevant.

During a televised judicial candidate forum, the moderator asked each candidate to describe their judicial philosophy.  The judge responded:

I know that this sounds cliché, but-uh, my philosophy is to not legislate from the bench.  I don’t believe that the Constitution is living and breathing.  And I don’t believe that it evolves on its own.  I believe that our founders knew exactly what they were doing when they created it—and that they created a mechanism whereby it can be changed.  And to be quite honest with you, uh, there have been numerous [sic] where I have actually been asked by attorneys to find that [a] statute is unconstitutional.  I have refused to do that, because my thought process is there’s another way to do that.  If they don’t like the decision they can appeal it, and it can start going up the food chain to do it that way.  But even though I’ve been asked to find a statute unconstitutional as a sitting judge, I have refused to do so.  Because again, it’s not my job to legislate from the bench.

The Court rejected the judge’s argument that he had not meant that he would never find a statute unconstitutional, only that he does not go into a case looking to overturn a statute but instead presumes statutes are constitutional.  The Court stated that the judge “made the statement in a very public forum and failed to take any steps to correct the statement even after he realized that he ‘screwed up.’”

On May 26, 2016, at the judge’s direction, his judicial assistant notified necessary personnel, including attorneys from the state attorney’s and public defender’s offices, that the time for first appearances on Saturday and Sunday had been moved up from 9 a.m. to 7 a.m. during the upcoming Memorial Day weekend.  The time was changed due to the judge’s campaign-related obligations that weekend.

On Saturday, with no notice to anyone, the judge began the 7 a.m. first appearance hearings at 6:30 a.m. and conducted them without counsel present.  The judge admitted that he ignored the rule that requires the attendance of counsel at first appearance proceedings.  He was unable to explain why he started the proceedings early and admitted that he committed misconduct by holding first appearances without counsel present.

Throwback Thursday

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10 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for driving a vehicle in a reckless manner while under the influence of alcohol and with a blood alcohol level of approximately 0.09%. Public Admonishment of Guy-Schall (California Commission on Judicial Performance September 5, 2008).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for denying motions for disqualification in a murder case without giving counsel a reasonable time to prepare the motions in writing and threatening counsel with contempt. Inquiry Concerning Aleman, 995 So. 2d 395 (Florida 2008).
  • Approving the finding and recommendation of the Judicial Qualifications Commission to which the judge stipulated, the Florida Supreme Court publicly reprimanded a judge for calling the police to secure a defendant’s release in response to a phone call from the defendant’s brother, with whom the judge had previously practiced law. Inquiry Concerning Maxwell, 994 So. 2d 974 (Florida 2008).
  • Pursuant to the judge’s consent, in lieu of filing formal disciplinary proceedings, the Indiana Commission on Judicial Qualifications publicly admonished a judge for accusing a prosecutor of using drugs. Public Admonition of Jessup (Indiana Commission on Judicial Qualifications September 18, 2008).
  • Based on a stipulation and joint recommendation, the Mississippi Supreme Court Commission on Judicial Performance suspended a judge from office for 60 days without pay, publicly reprimanded him, and fined him $2,000 for engaging in ex parte communications with members of the community regarding removal of part of a fence around a cemetery plot, threatening the person who removed the fence pieces, and, although there were no criminal or civil charges, ordering that person to return the fence pieces to the cemetery. Commission on Judicial Performance v. Carr, 990 So.2d 763 (Mississippi 2008).
  • Based on joint stipulations of fact, the Oklahoma Supreme Court disbarred a former judge for (1) submitting travel claims that misrepresented that his personal travel was for court business; (2) contacting a judge who would be sentencing his son, requesting department of corrections employees to testify on his son’s behalf, and writing a letter on court letterhead that criticized a probation officer who wrote an unfavorable report in his son’s case; (3) submitting requests for reimbursement of personal expenses that should not have been paid by the state; and (4) interfering with the arrest on drug charges of his assistant, with whom he was involved in a romantic relationship. State ex rel. Oklahoma Bar Association v. Lile, 194 P.3d 1275 (Oklahoma 2008).
  • The Oklahoma Supreme Court disbarred a former judge based on his conviction on 4 felony counts of indecent exposure for acts in the courthouse while he was a district judge. State of Oklahoma ex rel. Oklahoma Bar Association v. Thompson, 194 P.3d 1281 (Oklahoma 2008).
  • The South Carolina Supreme Court publicly reprimanded a former judge for (1) referring to his judicial office in a dispute with a motorist and (2) his actions during a foreclosure action on his residence. In the Matter of Anderson, 668 S.E.2d 413 (South Carolina 2008).
  • Accepting the findings and recommendation of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court publicly reprimanded a former judge for denying due process to defendants in 3 criminal cases in flagrant disregard of the law. State Bar Association v. Goldie, 894 N.E.2d 1226 (Ohio 2008).

Friendship and favors

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When a judge’s relationship with someone involved in a case is close enough to require disqualification or at least disclosure may sometimes be difficult to pinpoint.  But the question is easy when a judge vacations with a litigant, posts pictures of them together on Facebook, and receives a caution from a conduct commission.  Further, any appearance of partiality becomes an obvious impropriety when the friend gets favorable treatment in court, as a recent discipline case from Indiana illustrates.

Based on a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for failing to recuse from a case in which his friend had received a ticket and securing favorable treatment for his friend.  In the Matter of Johanningsmeier (Indiana Supreme Court August 10, 2018) .

The judge is close friends with B.K., who received a speeding ticket in April 2015.  In early June 2015, the judge and B.K. vacationed together.  On June 18, B.K. failed to appear in court on the ticket; a default judgment was entered, and his license was suspended.

On June 30, B.K. filed a petition for a trial de novo in the judge’s court.  The judge granted the motion the same day and reinstated B.K.’s license, without disclosing the relationship or giving the prosecutor an opportunity to respond, contrary to the trial de novo rule.

In March 2016, in a private caution letter, the Commission advised the judge that his close friendship with B.K. would cause a reasonable person to question his impartiality.  Nevertheless, the judge did not recuse or set the matter for hearing.  The case remained in limbo.

Shortly before Christmas 2016, the judge posted on Facebook a photo of himself, his sister, and B.K. at a party in the judge’s home.  The photo was visible to the public.  B.K. “liked” the photo.

On March 6, 2017, the prosecutor moved for a bench trial in B.K.’s case.  Instead of recusing, the judge set the motion for hearing on March 20.  At the hearing, he stated on the record that the case involved “a friend of mine” and “I was hoping we could just get the State to dismiss it.”  The prosecutor immediately orally moved to dismiss the case, and the judge granted the motion.

The Court found that the judge’s failure to recuse and other actions were “obvious violations of a judge’s most basic ethical duty—impartiality,” diminished public confidence in the judiciary, and “’erode[d] the public’s perception of the courts as dispensers of impartial justice.’”

Throwback Thursday

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20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for delaying a decision in a case for approximately 2 years. Admonition of Keaton (Arkansas Judicial Discipline & Disability Commission September 22, 1998).
  • The Arkansas Judicial Discipline & Disability Commission imposed an informal adjustment on a judge for presiding over a trial in which one of the litigants was represented by an attorney who leased office space in a building owned by the judge and his wife without disclosing the relationship. Informal Adjustment of Ford (Arkansas Judicial Discipline & Disability Commission September 22, 1998).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) making numerous rude and improper remarks in 6 cases; (2) refusing to recuse himself in 4 cases until the party filed a petition for writ of prohibition or the court of appeal granted the party’s petition; (3) in 1 case when he did recuse himself, going beyond the legal sufficiency of the recusal motion and making derogatory comments about counsel who filed the motion; and (4) making comments in 2 cases that the parties perceived to be rude and insensitive and that caused them humiliation and embarrassment. In re Wood, 720 So. 2d 506 (Florida 1998).
  • Approving the report of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court removed a former judge for (1) virtually abandoning her law practice and neglecting several client matters while she ran for county court judge; (2) giving inaccurate, incomplete, and misleading testimony in a domestic violence proceeding against her ex‑husband; and (3) in her dissolution of marriage action, failing to produce the tapes when ordered by the court to do so and failing to provide a sufficient reason for her failure. Inquiry Concerning Hapner, 718 So. 2d 785 (Florida 1998).
  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge from office for using his position to benefit a corporation, engaging in the practice of law, engaging in ex parte communications, and being financially and legally involved in a matter pending before him. Commission on Judicial Performance v. Jenkins, 725 So. 2d 162 (Mississippi 1998).
  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge from office for engaging in ex parte communications; demonstrating outrageous, erratic conduct and hostile demeanor toward litigants, court staff, witnesses, lawyers, and others; failing to perform his duties, and sexually harassing court staff. Commission on  Judicial Performance v. Spencer, 725 So. 2d 171 (Mississippi 1998).

Recent cases

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  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a judge for knowingly permitting his bailiff to work for 2 court service providers. In the Matter of Roberts, Order (Arizona Supreme Court August 28, 2018).
  • Based on a stipulation, the California Commission on Judicial Performance publicly censured a former commissioner and barred him from receiving an assignment, appointment, or reference of work from any California state court for (1) posts and re-posts on his public Facebook page that reflected, among other things, anti-Muslim sentiment, anti-immigration sentiment, anti-Native American sentiment, anti-gay marriage and transgender sentiment, anti-liberal and anti-Democrat sentiment, anti-California sentiment, opposition to then-presidential candidate Hillary Clinton, praise for Donald Trump, accusations against then-President Barack Obama, a lack of respect for the federal justice system, and contempt for the poor and (2) representing to his presiding judge and the Commission that he had taken the posts down when that was not true, although he believed the posts were no longer publicly viewable. In the Matter Concerning Gianquinto, Decision and order (California Commission on Judicial Performance August 22, 2018).
  • Agreeing with the findings of the 3 special masters following a hearing, the California Commission on Judicial Performance publicly censured a former judge and barred him from seeking or holding judicial office for (1) modifying a contempt sentence to deny good time credits to a defendant based on an ex parte communication with the sheriff’s department and subsequently granting good time credits for reasons unrelated to the merits and (2) offering advice to a prosecutor on an issue related to the trial outside the presence of defense counsel while the jury was deliberating. Inquiry Concerning Mills, Decision and order (California Commission on Judicial Performance August 28, 2018).
  • Following a hearing on a complaint filed by the Judicial Inquiry Board, the Illinois Courts Commission publicly reprimanded an appellate judge for soliciting paid speaking engagements using his judicial position. In re Steigman (Illinois Courts Commission August 13, 2018).
  • Based on a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for failing to recuse from a case in which his friend had received a ticket and securing favorable treatment for his friend. In the Matter of Johanningsmeier (Indiana Supreme Court August 10, 2018).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for calling court personnel “heifers” and “DW” (double wide) and using the probate court account for personal financial dealings. In the Matter of Peeler (South Carolina Supreme Court August 22, 2018).
  • Following a trial de novo, a Special Court of Review Appointed by the Texas Supreme Court publicly admonished a former judge for issuing a writ of attachment that resulted in a witness’s involuntary confinement for 28 days without the legal prerequisites being met or due process for the witness. In re Bond (Texas Special Court of Review August 10, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) twice modifying a protective order based on ex parte communications and (2) ordering a couple incarcerated for contempt without due process; the Commission also ordered that the judge obtain 2 hours of instruction with a mentor. Public Warning of Buck and Order of Additional Education (Texas State Commission on Judicial Conduct August 9, 2018).

Throwback Thursday

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25 years ago this month:

  • In a letter issued with the judge’s consent, the California Commission on Judicial Performance publicly reproved a judge for deflating a tire on a van parked in his parking space at the courthouse. Letter to Slater (California Commission on Judicial Performance September 13, 1993).
  • Affirming the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge and fined him $5,000 for failing to resign from his judicial office while running for the office of circuit clerk. Commission on Judicial Performance v. Ishee, 627 So. 2d 283 (Mississippi 1993).
  • Accepting the recommendations of the Commission on Judicial Performance based on stipulated facts, the Mississippi Supreme Court publicly reprimanded a judge for failing to pay part of a hospital bill and his involvement in a dispute about the sale or trade of a car. Commission on Judicial Performance v. Cantrell, 624 So. 2d 94 (Mississippi 1993).
  • The New York State Commission on Judicial Conduct removed a judge for (1) during a break in a case, stating that he recalled a time when it was safe for young women to walk the streets “before the blacks and Puerto Ricans moved here” in order to hurt an attorney in the case whom the judge believed was Hispanic and who was involved in a controversy with the judge’s friend, another judge; (2) making comments indicating that he had ruled against a part-time judge’s law firm after the part-time judge had found a driver who had been in an accident with the judge not guilty in the traffic case arising out of the accident; and (3) failing to keep adequate records of the disposition of more than 600 criminal cases and to take prompt action to remedy the inadequate records or remit surplus money despite repeated requests to do so from his court clerk and from the police chief. In the Matter of Schiff, Determination (New York State Commission on Judicial Conduct September 15, 1993).
  • The South Carolina Supreme Court publicly reprimanded a former magistrate who had pled guilty to embezzlement of public funds. In the Matter of Carmichael, 437 S.E.2d 63 (South Carolina 1993).
  • The South Carolina Supreme Court publicly reprimanded a former judge who had been convicted for conspiracy to commit extortion and extortion under color of official right, had pled guilty to conspiracy and possession of cocaine, and had entered a plea of nolo contendere to other charges relating to the knowing and intentional possession of cocaine. In the Matter of Ferguson, 437 S.E.2d 72 (South Carolina 1993).

 

Abusing, lending, or exploiting the prestige of office

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In Canon 2B, the 1990 American Bar Association Model Code of Judicial Conduct provided:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .”  In the 2007 revisions to the model code, “lend” was changed to “abuse;” thus, Rule 1.3 provides:  “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

According to the ABA reporter’s explanation of the 2007 changes, “the term ‘lend’ created unnecessary confusion,” causing some judges to decline to write letters of recommendation for their clerks and suggesting judges should not identify themselves as judges on the covers of their books to bolster credibility and increase sales.  The ABA did not consider either of those uses to be problematic and concluded “abuse” rather than “lend” more accurately characterized the conduct being prohibited.   (The confusion reported by the ABA is puzzling as a comment to the old canon explicitly stated that “a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation” as long as the judge remains “sensitive to possible abuse of the prestige of office.”  And advisory opinions have consistently allowed judges to use their titles on books they author, particularly if the judicial title is relevant because the book is law-related.)

As illustrated by an article in the summer 2018 Judicial Conduct Reporter, different advisory opinions have interpreted the term “abuse” differently in the context of promotional campaigns for alma maters and other organizations.

Emphasizing that Rule 1.3 prohibits “abuse,” not simply “use,” the Arizona judicial ethics committee advised, with some caveats, that a judge may participate in a recorded interview about the role his college played in his professional development and career achievements.  Arizona Advisory Opinion 2018-1.  The opinion identified several contexts in which the code permits judges to “use” the prestige of judicial office in extra-judicial activities:  writing letters of recommendation on judicial letterhead in certain circumstances; using judicial titles at fund-raising events concerning the law, the legal system, and the administration of justice; endorsing projects and programs related to the law, the legal system, and the administration of justice; and including a judge’s title and judicial office on letterhead for educational, religious, charitable, fraternal, or civic organizations “if comparable designations are used for other persons.”  Concluding that the code “implicitly deems such extra-judicial activities proper ‘uses’ of the prestige of judicial office, as opposed to ‘abuses,’” the Arizona committee advised that, similarly, allowing judges to participate in recorded interviews to promote the not-for-profit educational institutions they attended interprets “Rule 1.3 as a ‘rule of reason,’ focusing on ‘abuse” of the prestige of judicial office, and giving meaning to the Code’s encouragement of community involvement . . . .”

In contrast, based on its analysis of the meaning of “abuse,” the Massachusetts judicial ethics committee advised that a judge may not participate in a university’s video profile series featuring prominent alumni discussing how their undergraduate education helped them identify goals, aspire to a career, and achieve success.  Massachusetts Advisory Opinion 2017-2.  The opinion stated that “abuse” does not require “a bad purpose or bad effect” but only that the use be in any way “incompatible with the judicial role,” emphasizing that any collateral misuse of the judicial office to advance personal or economic interests undermines public confidence in the integrity and impartiality of the judiciary.  The committee concluded that the university’s clear wish “to benefit from [the judge’s] esteemed position in the legal profession” constituted an abuse of the prestige of judicial office.

Committees interpreting the term “lend” have also advised judges not to participate in university promotional campaigns.  See California Judges Association Advisory Opinion 72 ( 2016) (a judge may not participate in a university’s video entitled “Our Successful Graduates” that would be posted on the university’s web-page to be viewed by potential students); Kansas Advisory Opinion JE 159 (2007) (a judge may not allow the university the judge attended to use a picture of the judge in a newspaper advertisement); Wisconsin Advisory Opinion 2005-1 (a judge’s image, name, and title may not be featured on a billboard as part of an advertising campaign by one of the University of Wisconsin System campuses).


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The Illinois code of judicial conduct still has the lend version of the rule, and the Courts Commission recently reprimanded an appellate judge for soliciting paid speaking engagements using his judicial position, finding he not only lent the prestige of office to advance his private interests, but exploited his judicial office in financial and business dealings, engaged in financial and business dealings with persons likely to come before his court, and had an active role in managing a business.  In re Steigman (Illinois Courts Commission August 13, 2018).

The judge testified that he had been writing and speaking on legal topics for decades to share his love of the law and educate the public.  He began soliciting paid speaking opportunities after an organizer of continuing legal education seminars for prosecutors offered to pay him $1,250 for a 2-day presentation.  The judge’s income was $32,000 to $34,000 for over 24 presentations over 2 years.

The judge made over 120 solicitations.  The judge used judicial letterhead for most of his solicitations to law enforcement groups.  The judge initially sent solicitations to medical societies and hospitals by his work e-mail but switched to judicial letterhead because the response to the e-mail solicitation was “tepid.”  If he did not receive a response with either method, he sometimes followed up by telephone.  He had his secretary assist him with the letters and e-mail solicitations by dictating them for her to transcribe as he would any other correspondence.  He paid all the postage for the letters himself.

Noting that the code prohibits judges from soliciting donations for charitable organizations, the Commission stated that, “[t]he same principles apply with even greater force when the ‘cause’ for which the judge is soliciting is a business or commercial activity that serves the judge’s own financial benefit.”  The Commission found that the judge’s use of stationery and other judicial resources to advance his “burgeoning speaking business was an exploitation of his judicial office . . . .”  It explained:

Respondent pursued the opportunity to give paid presentations on the law with energy, using judicial letterhead stationery to increase the likelihood of a positive response to his solicitations and making follow-up calls to recipients who had not responded.  Respondent’s zeal in this pursuit arose primarily from his genuine belief that he was providing a public benefit by explaining legal concepts to non-lawyers.  Nevertheless, while his motives may have been pure, the fact that the “public service” he was providing also enriched him financially created the danger that recipients of his solicitation might feel coerced to hire him, or might think that hiring him to give a presentation would cause him to favor their interests in cases that came before him.

Further, although the Commission agreed that merely being paid to speak or teach may not constitute actively managing a business and emphasized that it was not criticizing or trying to inhibit the practice of judges educating the public regarding the law, it concluded that, by directly soliciting paid speaking engagements and following up to urge reluctant recipients to hire him, the judge “went beyond simply earning a fee for permitted activity, and instead actively sought to increase his extrajudicial sources of revenues.”


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The Texas code of judicial conduct also still has the “lend” version of the rule, and a Special Court of Review Appointed by the Texas Supreme Court recently publicly admonished a judge for referring to his judicial title and position to promote a project with his wife called “divorce in peace” that included a book, website, and an on-line referral service.  In re Roach, Judgment and public admonition (Texas Special Court of Review July 24, 2018).

The judge and his wife, an attorney who conducts mediations in family law cases, co-authored the book Divorce in Peace:  Alternatives to War from a Judge and Lawyer.  The book’s front cover lists “John and Laura Roach” as authors.  The back cover has a photo of the authors together, next to the statement:  “John and Laura have spent their careers, as lawyers and a judge, trying to help couples avoid the pitfalls of high conflict divorces.”  An “About the Authors” section describes John Roach as “a Texas district court judge with a true passion for the law” and states that, “[a]s a judge, he has had a front row seat to over 10,000 family law cases.”  The book’s text does not refer to “Judge John Roach” or “Judge Roach,” but the book has sections entitled “Judge’s Perspective” and “Mediator’s Perspective” that offer additional comment on particular topics.

The book’s introduction refers to the “attorneys, financial planners, mental health professionals and others — who are committed to the same principles of peaceful resolution” and “are listed at our website, http://www.divorceinpeace.com.”  Professionals can be listed on the website without charge with a photo, resumé, practice-area description, and e-mail address.  Professionals who choose a subscription option, which ranged from $59.99 a month to $199 a month, post additional information such as client reviews, blog posts, articles, and videos.

When the book was published, a brochure was mailed to some 18,000 recipients, including about 12,000 Texas attorneys who identified themselves with the State Bar as family law practitioners.  The brochure repeated the website address several times and described the benefits for attorneys who paid fees to subscribe to the network.

A series of promotional videos were made for the project.  For example, in 1 video, entitled “About Us,” the judge and his wife were featured with a picture of a gavel; the judge discusses his expertise as an elected state district court judge who has presided over 10,000 family law cases.  The judge decided not to use the videos after viewing them because he was concerned that portions may violate the canons.  However, the videos were available on the website for approximately 30 days and were still accessible on YouTube as of May 2018.  According to the judge, he had been unsuccessful in his repeated efforts to remove the videos from YouTube because he did not have the necessary user name and password and could not obtain the information from the production company in India that had helped to create the videos.

The court stated that many discipline cases in which judges were found to have impermissibly lent the prestige of office to advance private interests involved “judicial intervention in a discrete court matter or a particular event such as an arrest.”  The court noted that the “guidance regarding ongoing business dealings involving a judge or a judge’s family member is more limited and highly context-sensitive.”

Describing a spectrum, the court explained that, at one end, “are plainly impermissible situations involving a judge who directly uses his or her authority over litigants to coerce actions that will benefit the judge financially.”  At the other end of the spectrum, the court stated, “judges are permitted to write and publish books on legal and non-legal topics; identify themselves as judges in biographical descriptions; and sell books they have written so long as they do not exploit the judicial title in doing so.”

The court concluded that, “[t]his case falls in the middle of the spectrum” because the judge did not direct “coercive conduct towards litigants or attorneys appearing in his court to compel actions from which he stood to benefit financially” but the “circumstances involve more than individual sales of a law-related book written by a judge.”  The court acknowledged that there was no reference to the judge as “Judge John Roach” or “Judge Roach” in the book or in the referral service brochure and no evidence the judge was photographed in his robe in connection with the book and website.  However, it stated that his “judicial role is readily apparent based on the first eight words of the book’s ‘About the Authors’ section” and “[l]ittle effort is required for readers to discern that the ‘Judge’ referenced on the front and back covers is John Roach, and that the ‘Judge’s Perspective’ highlighted throughout the book comes from him.”  The court described the project as “structured to create a financial gain arising from attorneys who paid for subscriptions in hopes of being hired by readers who acted on the book’s multiple invitations to visit the website and find Divorce in Peace-affiliated attorneys.”  The court concluded that the judge’s “participation in aspects of this interconnected project” improperly exploited his judicial position in business activities.

There is more information on the ethical implications of “The judge as author” in an article in the spring 2013 issue of the Judicial Conduct Reporter.  Shortly after the article was published, the U.S. Judicial Conference Committee on Codes of Conduct issued comprehensive advice on promotional activity associated with extrajudicial writings and publications in U.S. Advisory Opinion 114 (2014).