A sampling of recent judicial ethics advisory opinions

  • Justice court web-sites may not include extensive information promoting a district attorney’s traffic diversion program but may include a link to the DA’s web-site as a convenience to defendant motorists. New York Opinion 2018-101.
  • A court may create and distribute a list of attorneys on the assigned counsel panel who are willing to represent litigants on a sliding fee scale if the list includes a disclaimer that the court and its staff are not recommending any particular attorney. New York Opinion 2018-114.
  • A magistrate may not hire as constable the son of another magistrate from the same county. South Carolina Opinion 13-2018.
  • A judge whose spouse and the construction company he owns are represented by a large law firm is not disqualified from unrelated cases in which that law firm appears. Florida Opinion 2018-22.
  • A circuit court judge may date a non-lawyer employee of the solicitor’s office whose duties are primarily scheduling and computer management but should disclose the relationship in cases for which the employee is responsible and reassess the relationship if disclosure results in frequent disqualifications.  South Carolina Opinion 14-2018.
  • A judge may research, write, and appear in televised public service announcements that discuss issues surrounding family violence. Florida Opinion 2018-23.
  • A judge may not participate in a school’s truancy intervention court in his courtroom even if he does not wear a robe and is not the only person making determinations. New Mexico Opinion 2018-5.
  • Judge members of a supreme court committee may not solicit funds from the state bar, voluntary bar associations, private for-profit and not-for-profit corporations, law firms, lawyers, and others to defray the cost of hosting the annual conference of the National Consortium on Racial and Ethnic Fairness in the Courts. Florida Opinion 2018-25.
  • A judge may not speak about gun laws at a politically sponsored gun policy forum. New York Opinion 2018-72.
  • A judge may accept an invitation from the U.S. State Department, on behalf of an overseas embassy, to participate in a program to promote the integration of women in a certain religious group in the host country and to promote gender-equality and women’s rights. New York Opinion 2018-107.
  • A city court judge may attend the mayor’s free anti-violence event for youth as an audience member with no speaking role. New York Opinion 2018-110.
  • A judge may attend and participate in an out-of-state conference of tribal judges in connection with her performance of her official duties for the state court system and allow one of the tribal courts to underwrite her travel, lodging, and registration fees. New York Opinion 2018-127.
  • When a town judge’s caseload includes cases involving the casino in his town, the judge may accept routine perks from the casino, such as “free play and food comps,” that he knows are offered to all similarly situated patrons and the casino is not presently participating in a hearing or trial before him but must not accept the casino’s invitation to lavish, expensive, or exclusive events. New York Opinion 2018-65
  • A judge who developed a bar exam study aid and makes it available on an on-line app store may associate her name with the app; mention her judicial status in an on-line bio; speak with law school administrators and students about their interest in obtaining the app; and accept income from on-line sales of the app, subject to reporting requirements. New York Opinion 2018-93.
  • A judge who appoints CASA to provide information on pending cases may not serve as a member of CASA’s advisory board. New York Opinion 2018-100.
  • A judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings but may not participate in discussions or attend meetings with their retained counsel. New York Opinion 2018-120
  • A judge may provide an affidavit attesting to the bona fide good faith marriage of a friend to her immigrant spouse who is seeking permanent residency when the judge has personal knowledge of their marriage’s legitimacy, has known the friend for over 3 decades, attended their wedding, and has maintained the friendship since. New York Opinion 2018-128.
  • A judge may not at the request of a long-time friend charged with a federal crime or his counsel submit a character reference letter but may respond to an official request to provide a character reference if asked directly by the tribunal, hearing officer, or other governing body or official. New York Opinion 2018-135.
  • A judge may allow his property to be featured in a tour of homes that is a fund-raiser for the symphony guild provided that his title is not used in any materials publicizing the event. South Carolina Opinion 12-2018.
  • As long as federal law criminalizes marijuana use, judges who choose to use marijuana violate the code of judicial conduct. Alaska Opinion 2018-1.
  • A judicial candidate may accept support or endorsement from former judicial candidates the inquiring candidate defeated in the primary election and may advertise their endorsements. Florida Opinion 2018-24.

 

Throwback Thursday

5 years ago this month:

  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission informally adjusted a judge for delays in 3 cases. Smith, Letter of Informal Adjustment (Arkansas Judicial Discipline and Disability Commission November 15, 2013).
  • The Ohio Supreme Court suspended a judge for 1 year, stayed, for, instead of disqualifying himself from cases involving a public defender against whom he had a personal bias, removing the attorney as counsel in 64 cases and implying in his orders that the attorney was the subject of a disciplinary investigation. State Bar Association v. Evans, 999 N.E.2d 674 (Ohio 2013).
  • The Texas State Commission on Judicial Conduct publicly warned a former judge for ordering a father to turn over his child and issuing a writ of attachment for the child without notice to the father or his attorney, without conducting a hearing, and without supporting pleadings and/or affidavits being filed. Public Warning of Saldana (Texas State Commission on Judicial Conduct November 12, 2013).

Standing alone:  Facebook friendship and disqualification

In the first decision on the issue by any state supreme court, the Florida Supreme Court held that, standing alone, a judge’s Facebook “friendship” with an attorney appearing in a case did not disqualify the judge.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida Supreme Court November 15, 2018).

The Court began with the “general principal” that a traditional friendship between a judge and an attorney, standing alone, did not require disqualification, noting that traditional friendship “varies in degree from greatest intimacy to casual acquaintance.”  Facebook friendship, the Court found, “exists on an even broader spectrum,” varying “in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger.’”

Therefore, the Court held, disqualification was not required:  no reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on a judge’s Facebook friendship with an attorney that “in and of itself,” provided “no significant information about the nature” of their relationship, indicated only “a relationship of an indeterminate nature” without revealing “the degree or intensity of the relationship,” and did not “signal the existence of a traditional ‘friendship’” much less “a close or intimate relationship.”

The Court disagreed with the reasoning of Florida Advisory Opinion 2009-20, which stated that a judge may not be friends on Facebook with lawyers who may appear before the judge.  (The advisory opinion itself does not mention disqualification or the appearance of partiality.)  That opinion explained that, because a judge’s Facebook friends may see who the judge’s other Facebook friends are, the judge’s selection of some attorneys as friends on Facebook and rejection of others and communication of those choices conveys, or permits others to convey, the impression that they are in a special position to influence the judge, violating the code of judicial conduct.

Citing advisory opinions from other states and noting that the Florida committee’s position was clearly the minority position, the Court stated that focusing on the public nature of Facebook friendship was “unwarranted.”  The Court explained that even “traditional ‘friendship’ involves a ‘selection and communication process,’ albeit one less formalized than the Facebook process,” as people “traditionally ‘select’ their friends by choosing to associate with them to the exclusion of others” and “traditionally ‘communicate’ the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension.”

The Court did not discuss whether a judge should disclose a Facebook friendship with an attorney in a case under the comment to Canon 3B of the Florida code of judicial conduct that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”  Cf., Comment 5, Rule 2.11 ABA Model Code of Judicial Conduct (2007) (“A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification”).

In a concurring opinion, 1 justice “strongly urge[d] judges not to participate in Facebook” and encouraged new judges who have existing Facebook accounts to deactivate them.  The concurring justice argued that “judges must avoid situations that could suggest or imply that a ruling is based upon anything” other than the facts and the law even if, as he agreed with the majority, “’friendship’ on Facebook, without more, does not create a legally sufficient basis for disqualification.”  Recognizing that Facebook may be the primary way some judges “stay in touch with family members, actual friends, or people with whom they have reconnected after many years,” the concurring justice suggested that, “at the very least,” judges should carefully “limit their ‘friendships’ to cover only such individuals.”

In a dissent, 1 justice argued that, when the differences between Facebook “friendships” and traditional friendships “are taken into account,” “it is clear that judges’ Facebook ‘friendships’ with attorneys who appear in their courtrooms can easily cause an appearance of impropriety.”  The dissenting justice explained that, contrary to the premise of the majority, “equating friendships in the real world with friendships in cyberspace is a false equivalency.”

The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it.  For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. . . .  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The dissenting justice emphasized that she was not attacking “the responsible use of social media.”  The dissent noted that the Court, The Florida Bar, and many other groups have public Facebook pages that “disseminate information and enhance the role of judges, lawyers, and the judiciary in the public domain” but only allow individuals to “follow” the pages, not become Facebook friends.  The dissent suggested that judges should adopt that model to eliminate the appearance of impropriety caused by the “self-selection” friending process.

Further, the dissent argued, the majority’s standard forced a litigant to engage in “impractical and potentially invasive” discovery “to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in” on Facebook, LinkedIn, Instagram, and other sites to determine if there was something more than a mere Facebook “friendship” that could justify filing a motion for recusal.  The dissent urged the Court to “at least adopt parameters for judges to follow when engaging with social media.”  The dissent noted factors listed by a California advisory opinion for a judge to use in determining whether to friend an attorney:  the nature of the judge’s social networking site; the number of “friends” on the judge’s page; the judge’s practice in determining whom to include; and how regularly the attorney appears before the judge.  California Judges’ Association Advisory Opinion 66 (2010).

As the dissent suggests, when disqualification is not automatically required, as the majority held, a judge must still consider whether a Facebook friendship with an attorney — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever the friend appears in a case.  The relevant factors can be extrapolated from opinions regarding disqualification based on a traditional friendship and the list of factors in the California advisory opinion referenced by the dissent.  The list of factors for determining whether there is “something more” than a mere Facebook friendship that requires disqualification include:

  • The frequency of the judge’s social media contacts and communications with the attorney;
  • The substance of the judge’s social media contacts and communications with the attorney;
  • The scope of the social media friendship;
  • The nature of the judge’s 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); and
  • Whether the judge and the attorney have frequent, personal contacts in real life as well as on-line.

Thus, for example, a judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when an attorney/Facebook friend appears in a case if the judge’s Facebook account primarily has posts about personal activities, or if his Facebook friends are mainly his family and close, personal friends, or if he is very selective when adding to his friend list, or if the judge and the attorney comment on each other’s posts, or if the judge and the attorney and their families also socialize in real life.  In contrast, a judge’s impartiality is not likely to be questioned and disqualification is not likely to be required when that friend appears in a case if the judge’s Facebook account is focused more on court business and the judge’s professional activities, if the judge has many friends on the page, if those friends are primarily professional acquaintances, if the judge allows everyone to follow him, and if the judge and the attorney only interact in court or at bar meetings.

 

 

Fall issue of Judicial Conduct Reporter published

The fall issue of the Judicial Conduct Reporter has been published and is available on-line.  It has articles on:

  • Consensual sexual relationships between judges and court staff
  • Pornography at the courthouse
  • California Commission mentorship program
  • Vouching for pardon, parole, or clemency
  • Recent cases
  • Neighbor dispute (In re Calvert, Wisconsin)
  • Soliciting speaking engagements (In re Steigman, Illinois)
  • Project promotion (In re Roach, Texas)
  • Friendship and favors (In the Matter of Johanningsmeier, Indiana)
  • Another Facebook fail (In re Matter Concerning Gianquinto, California)

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

 

 

Throwback Thursday

10 years ago this month:

  • The Arkansas Discipline & Disability Commission publicly reprimanded a judge for failing to promptly enter an order and to accurately calculate the time that the case had been ready for adjudication. Letter of Reprimand (Simes) (Arkansas Discipline & Disability Commission November 21, 2008).
  • The Arkansas Discipline and Disability Commission publicly reprimanded a judge for failing to promptly decide several matters and to accurately reflect the time the matters had been ready for adjudication, failing to report 7 cases that had been pending for more than 90 days as required by an administrative order, and several lapses of demeanor while on the bench. Letter of Reprimand (McGowan) (Arkansas Discipline and Disability Commission November 21, 2008).
  • Pursuant to a stipulation, the California Commission on Judicial Performance publicly admonished a former judge for (1) failing to be patient, dignified, and courteous with the parties and lawyers and becoming embroiled in a matter and (2) presiding over a bench trial in consolidated unlawful detainer cases while he was a defendant in a lawsuit in which tenants of apartment units he owned raised a similar issue. In the Matter Concerning Watson, Decision and Order (California Commission on Judicial Performance November 6, 2008).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) improperly advancing a trial date without notice to, or the consent of, the attorney assigned to the case; (2) improperly relieving the public defender and appointing new counsel for the defendants in several cases; and (3) making discourteous and disparaging remarks to attorneys in 3 cases. In the Matter Concerning McBride, Decision and Order (California Commission on Judicial Performance November 18, 2008).
  • Accepting a statement of circumstances and agreement for discipline, the Indiana Supreme Court suspended a judge for 3 days without pay for disrupting a sentencing hearing before another judge and confronting the defendant’s family. In the Matter of Scheibenberger, 899 N.E.2d 649 (Indiana 2008).
  • Based on a judge’s admission of some of the allegations in a formal statement of charges and his statement that he would not contest other allegations, the Nevada Commission on Judicial Discipline removed the judge for (1) a sexual affair with a court employee, ensuring the employee was paid when she was absent from work attending their sexual trysts, allowing her to work “flex” hours even though the chief district judge had prohibited such an arrangement, retaliating after she ended the affair, attempting to entice her to return to work for him in exchange for not pursuing her office of diversity complaint, violating instructions not to contact her, and destroying pictures that he should have known would be important after being contacted by the Commission; (2) sexual comments about or to court employees, his ex-wife, a fellow judge, and a female attorney; (3) inappropriate references to the race and ethnicity of employees; and (4) insulting his former law clerk. In the Matter of Del Vecchio, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline November 6, 2008).
  • Based on an agreed statement of facts and argument on the issue of sanction, the New York State Commission on Judicial Conduct publicly censured a judge for (1) permitting her co-judge’s law partners and associates to appear before her and (2) failing to disqualify from cases in which her personal attorney appeared. In the Matter of Lehmann, Determination (New York State Commission on Judicial Conduct November 10, 2008).
  • Based upon the agreed facts and argument on the issue of sanction, the New York State Commission on Judicial Conduct publicly admonished a judge for permitting his co-judge’s law partners to appear before him. In the Matter of Pelella, Determination (New York State Commission on Judicial Conduct November 10, 2008).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to de-escalate a contentious hearing in an eviction case, raising his own voice toward the landlord, and presiding over a request for a harassment injunction against the landlord by one of the tenants. Delaney, Order (Arizona Commission on Judicial Conduct September 18, 2018).
  • The California Commission on Judicial Performance publicly admonished a judge for his practice of delegating his responsibility to conduct case management conferences to his court clerk. Public Admonishment Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).
  • As recommended by the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for campaign statements posted on her Facebook page and in an e-mail implying that her opponent was unfit for judicial office because he was a criminal defense attorney. Inquiry Concerning Santino (Florida Supreme Court October 19, 2018).
  • The Nevada Commission on Judicial Discipline publicly reprimanded a former judge for her campaign’s posting of a photoshopped picture of herself and an actor on her campaign Facebook page, misleading the public into believing that Dwayne “the Rock” Johnson had endorsed her re-election, and for commenting on the post. In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).
  • Granting the Judicial Standards Commission’s petition to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge; the Commission had filed a notice of formal proceedings alleging that the judge had driven his personal vehicle after consuming alcoholic beverages at a Super Bowl party in February 2018, had told a state police officer he was a municipal judge while the officer was administering field sobriety tests, and had asked a municipal police officer, whom he also knew was a municipal judge, to help him as the state police officer was escorting him to his vehicle. In the Matter of Dominguez, Order (New Mexico Supreme Court October 29, 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) her conviction for driving while intoxicated; (2) being discourteous and seeking preferred treatment from the arresting officers; (3) violating the terms of her conditional discharge by ignoring orders of the court and leaving the country for an extended vacation without notice to the court or her lawyer, resulting in the revocation of her conditional discharge; (4) failing to disqualify herself from the arraignment of a former client and attempting to have his case transferred in a manner that she thought might benefit him; and (5) making discourteous, insensitive, and undignified comments before counsel and litigants in court. In the Matter of Astacio, Opinion (New York Court of Appeals October 16, 2018).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) on numerous occasions, acting impatiently, raising his voice, and making demeaning and insulting remarks, often in open court; (2) twice striking witness testimony and dismissing petitions for insufficient proof as a result of counsel’s reflexive use of the word “okay;” (3) awarding counsel fees without providing an opportunity to be heard; and (4) failing to cooperate with the Commission. In the Matter of O’Connor, Opinion (New York Court of Appeals October 16, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former non-lawyer judge who had resigned after the Commission apprised her that it was investigating a complaint that she had interjected herself into a pending custody proceeding by criticizing one of the parties in an e-mail to the court, identifying herself as a judge, and lending the prestige of judicial office to advance a private interest. In the Matter of Crofoot, Decision and order (New York State Commission on Judicial Conduct October 26, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a matter involving a former non-lawyer judge who had resigned after the Commission had apprised him that it was investigating a complaint that, in a landlord-tenant matter, he had ordered the eviction of the tenants without conducting a hearing or affording them a full opportunity to be heard. In the Matter of Lustyik, Decision and order (New York State Commission on Judicial Conduct October 26, 2018).
  • Adopting the recommendation of the Judicial Standards Commission based on stipulations, the North Carolina Supreme Court suspended a judge without pay for 30 days for failing for more than 5 years to rule on a motion for permanent child support. In re Chapman (North Carolina Supreme Court October 26, 2018).
  • Based on stipulations of fact, misconduct, and aggravating and mitigating factors and a joint recommendation, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months for failing to accurately report his work hours and leave on his time card; the suspension was stayed on the condition that he engage in no further misconduct. Disciplinary Counsel v. Dunn (Ohio Supreme Court October 24, 2018).

 

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly censured a judge for failing to enter a decision in a case for over 3 years and failing to cooperate with the Commission. In the Matter of McKimm, Final Decision and Order (Arkansas Judicial Discipline & Disability Commission November 24, 1998).