Family advice

Full-time judges are generally prohibited from practicing law but are allowed to provide some free legal services to members of their family.  Rule 3.10, ABA 2007 Model Code of Judicial Conduct.  (“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge has a close familial relationship.)

In a recent advisory opinion, the Indiana Judicial Qualifications Commission addressed questions about what type of assistance a judicial officer may provide to a family member.  Indiana Advisory Opinion 2-2020.  The opinion emphasized that the family advice exception “is narrow and essentially only allows judicial officers to give behind-the-scenes assistance” to family members, for example, drafting a will or trust agreement, reviewing documents incidental to a real estate transaction, conducting legal research, or drafting letters for the family member to sign.

The opinion also emphasized that judges must not, under any circumstances:

  • Hold themselves out to third parties in person or in correspondence as a family member’s lawyer, or
  • Act as a family member’s advocate before a tribunal.

Where the model code prohibits judges from acting as a family member’s advocate “in any forum,” the Indiana code uses the term “tribunal.”  Neither code defines either term.  The Indiana advisory opinion concluded that it means “at a minimum” that judges cannot appear on behalf of family members before courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  That interpretation relied on the definition of “tribunal” in the Rules of Professional Conduct as “a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.”  (The reporters’ explanation of changes to the ABA model code states that the prohibition on appearing in forums was not meant to apply to “informal settings, such as a dispute in a neighborhood association or a purely private and minor commercial dispute,” where a judge could “serve as an “advocate” for a family member without becoming his or her lawyer and thus practicing law . . . .”)

The Indiana opinion addressed 3 questions.

1.“May a judicial officer attend a court or administrative hearing with a family member who is a party or witness in a proceeding?”

The opinion acknowledged that it was understandable that judges would want to accompany family members to legal proceedings where they might feel vulnerable and anxious.  However, the opinion noted that concern had to be balanced with the likelihood that observers might believe that the judge’s presence was an attempt to influence the outcome, creating at least an appearance of impropriety.

The committee concluded that a judicial officer may attend a court or administrative hearing with a family member to provide support, not advocacy.  To dispel any concerns about the judge’s role, the committee cautioned, the judge, in and around the location and immediately before and during the proceeding:

  • Must not refer to their judicial status,
  • Should try to keep others from referring to them as “judge,” “magistrate,” “commissioner,” “referee,” or other judicial title,
  • Should not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo), and
  • Should not interact with others in a manner that conveys that they have special influence or are a “court insider,” by, for example, visiting the presiding judge’s chambers or the hearing officer’s office, socializing with tribunal staff, or interacting informally with any prosecutorial or investigative staff.

The Indiana committee relied in part on Massachusetts Advisory Opinion 2008-4.

Noting that a hearing that is emotionally charged for a family member might also produce “intense emotions” for a related judge, the Indiana opinion warned judges to carefully evaluate whether they “can maintain composure during the hearing” and to remember that they must behave in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary even when not acting as a judge and regardless how others may be reacting.

2. “May a judicial officer attend and participate in an investigative interview or settlement conference of a family member on a matter that is likely to be litigated?”

The Indiana committee noted that, even before a legal matter is filed, a family member may seek a judicial officer’s advice “when facing investigative interviews or settlement conferences (i.e. to resolve an insurance claim after an auto accident or to clear up disputed credit issues).” 

The opinion concluded that negotiating on a family member’s behalf in a settlement conference or advising a family member about answering questions in an interview is the practice of law, and, therefore, judges cannot engage in those activities.  However, the opinion stated that a judge could attend a settlement conference or investigative interview to provide emotional support for a family member — with the same caveats that apply to attending hearings, described above.  Further, the committee stated that a judge could, “during a break in the settlement conference or interview, . . . answer the family member’s questions, assist the family member in evaluating the strengths and weaknesses of certain positions, and provide informal, common sense input.”

3. “May a judicial officer speak with law enforcement, prosecutors, or court personnel on a family member’s behalf when the family member is under investigation or charged with a criminal offense?”

Encouraging a “cautious approach,” the Indiana committee advised judicial officers to avoid contacting law enforcement, prosecutor’s office staff, or court personnel on a family member’s behalf, although it stated that a judge could advise a “family member what questions to ask or what information to relay.”  The opinion explained:

When a family member asks the judicial officer to communicate with law enforcement, prosecutor’s office staff, or court personnel on the family member’s behalf, even if the judicial officer merely seeks general information, there is a risk (especially if the listener knows the judicial officer) that the listener will interpret the judge’s communication as a request for special treatment.

The committee did note that a judicial officer may be able to ask questions if a family member, for example, a minor child, “is unable to adequately communicate on his or her own behalf with third parties” and no other responsible adult is available.  Even in that unusual circumstance, the committee warned, judicial officers should be cautious and never refer to their judicial status, imply that they are the family member’s attorney, suggest special consideration for the family member, or “use any court resources, such as an email dedicated to the court system.”

Throwback Thursday

10 years ago this month:

  • The Alabama Court of the Judiciary suspended a judge without pay for 60 days and publicly censured and reprimanded him for (1) without holding a hearing, setting aside the rape conviction of a man he had represented before becoming a judge and (2) criticizing another judge in an order disqualifying himself from a case. In the Matter of King, Final judgment (Alabama Court of the Judiciary September 30, 2010).
  • Adopting the findings of 3 special masters, the California Commission on Judicial Performance publicly censured a judge for failing to comply with procedural requirements or to provide notice or an opportunity to be heard before ordering a small claims plaintiff to have no contact with 3 women and to stay away from a credit union. Inquiry Concerning O’Flaherty (California Commission on Judicial Performance September 23, 2010).
  • Adopting a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge for driving while under the influence of alcohol. In re Purham, Order (Illinois Courts Commission September 14, 2010).
  • Pursuant to an agreement, the Minnesota Board on Judicial Standards publicly reprimanded a judge for comments he made while presiding in a criminal case, for example, referring to several possible witnesses as “a bunch of drunkards.” Public Reprimand of Aldrich (Minnesota Board on Judicial Standards September 27, 2010).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for writing 3 letters on court stationery to members of the Italian judicial system on behalf of a criminal defendant, using court staff to type those letters, and speaking publicly on several occasions in an attempt to influence the case. In the Matter of Heavey, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 24, 2010).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for threatening in a sidebar to physically harm a prosecutor. In the Matter of LaSalata, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 24, 2010).

A sampling of recent judicial ethics advisory opinions

  • A judicial officer may not hold herself out to third parties as a family member’s lawyer or appear as the family member’s advocate before any tribunal, which includes courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  A judicial officer may attend a court or administrative hearing with a family member in a supportive role, not as a legal advocate.  When attending a hearing, a judicial officer may not refer to their judicial status and must make efforts to keep others from referring to them as “judge” (or “magistrate,” “commissioner,” or “referee”) while in the courtroom or its environs immediately prior to and during the hearing; must not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo); and must not interact with others in the courtroom and in areas immediately adjacent to it in a manner that conveys that the judicial officer has special influence or the status of a “court insider,” such as visiting the presiding judge’s chambers prior to or immediately after the hearing, socializing with court staff in the courtroom or court offices, or interacting informally with prosecutorial or investigative staff.  Prior to attending a hearing, a judicial officer should carefully evaluate whether they can maintain composure during the hearing.  Indiana Opinion 2-2020.
  • A judge may not have a “Christmas at the courthouse” event but may invite the public to learn how the court operates and tour the courthouse at a “holiday” event if there will be no alcoholic beverages, may use the judge’s own resources to purchase gifts for the children, and may have a local personality portray Santa. New Mexico Opinion 2019-4 .
  • A judge may not adopt a general policy of declining to perform weddings that involve a minor under 18 but may decline to perform a specific wedding if the judge, upon inquiry, has a valid basis to believe that the wedding would be illegal or would serve an illegal purpose.  New Mexico Opinion 2019-5.
  • A judge may not mail congratulatory letters on court stationery to a graduating high school class.  New York Opinion 2020-89.
  • A magistrate court judge may serve as the state judicial outreach liaison with the American Bar Association regarding impaired driving and other traffic issues.  South Carolina Opinion 8-2020.
  • A judge may serve on the advisory board of a not-for-profit organization dedicated to the preservation of an historic theater.  New York Opinion 2020-81(A).
  • A judge may not create and promote a GoFundMe campaign to raise money for a charitable cause.  New York Opinion 2020-81(A).
  • A judge may join a not-for-profit organization’s board to review scholarship applications and award scholarships to Deferred Action for Childhood Arrivals immigrants.  New York Opinion 2020-81(A).
  • A judge may use her judicial title in internal bar association communications as a bar association committee chair.  New York Opinion 2020-81(A).
  • A judge may participate in charity walks in a personal capacity regardless whether he is running for election or re-election, but information about his participation may not be posted on his campaign website or on the charity’s website.  Maryland Opinion Request 2020-14.
  • A judge who is enrolled in a Ph.D. program in theology may participate in a debate with other theologians even if the host church will have a “love offering” to raise funds for compassion and mission work to poor ministries and people in Asia as long as the judge does not personally ask for or collect the funds and does not remain on the stage during the offering.  South Carolina Opinion 10-2020.
  • A judge may be enrolled in a political party, but may not otherwise be a member of a political organization.  New York Opinion 2020-81(A).
  • A judge whose spouse is a candidate for elective public office may not await primary results at an election night event sponsored by a political organization or her spouse’s campaign committee but may attend an event sponsored and personally paid for by her spouse and unrelated to a political party or campaign committee.  New York Opinion 2020-87.
  • When multiple, high-profile, racially-charged incidents of police violence have resulted in pending or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in a county executive’s initiative to promote trust and dialogue between activists and police about those incidents and/or recommend changes to current police force deployments, strategies, policies, procedures, and practices.  New York Opinion 2020-112.

Throwback Thursday

20 years ago this month:

  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for a pattern of rudeness and disrespect toward lawyers, parties, witnesses, victims, and court personnel. Inquiry Concerning Haymans, 767 So. 2d 1173 (Florida 2000).
  • Based on an agreed statement of fact, the New York State Commission on Judicial Conduct publicly admonished a judge for, during his campaign for another court, implying in campaign advertisements that he was the incumbent judge, making statements that appeared to commit him with respect to abortion issues likely to come before his court, and making improper campaign contributions. In the Matter of Mullin, Determination (New York State Commission on Judicial Conduct September 25, 2000).
  • Based on stipulations of fact in lieu of a trial, the Pennsylvania Court of Judicial Discipline removed a former judge from office and disbarred him for his conviction on a federal felony charge of conspiracy to violate civil rights. In re Melograne, 759 A.2d 475 (Pennsylvania Court of Judicial Discipline 2000).
  • Agreeing with the findings and recommendation of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a former municipal court judge for (1) resigning from the California bar as a result of disciplinary action, (2) his conviction of credit card fraud, supplying false tax returns, false employment information, and false social security numbers in applying for a loan, filing false federal income tax returns, mail fraud, and money laundering, and (3) failing to respond to the investigation. In the Matter of Hamer, 537 S.E.2d 552 (South Carolina 2000).
  • Agreeing with the findings and recommendation of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a non-lawyer magistrate for, while serving as a municipal judge, giving favorable treatment to 2 defendants. In the Matter of Sessions, 538 S.E.2d 1 (South Carolina 2000).

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for 6 incidents of improper demeanor and denial of the right to be heard in criminal cases; the Commission also ordered the judge to complete training on appropriate demeanor.  Hopkins (Arizona Commission on Judicial Conduct June 10, 2020).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for granting a motion to continue a trial filed by an attorney who was representing her in a traffic case.  Bracamonte, Order (Arizona Commission on Judicial Conduct May 19, 2020).
  • Following a hearing, the Kentucky Judicial Conduct Commission removed a judge from office for (1) pressuring members of her guardian ad litem panel to donate to her election campaign and to campaign on her behalf and removing an attorney from the panel because he did not provide as much support for her campaign as she wanted; (2) having court staff work on her campaign during office hours on paid time; leaving the courthouse with her case specialist and secretary during regular court hours; and approving timesheets for numerous employees that she knew were inaccurate; (3) requiring her case specialist to resign so that she could hire a man with whom she had a romantic relationship; allowing him to engage in inappropriate conduct, including playing his guitar and singing in the office during work hours; permitting employees to consume alcohol in her chambers and in his office; pretending to engage in sexual activity with him and her secretary in his office during work hours; and improperly delegating responsibilities to him; (4) making inappropriate sexual advances toward an attorney; failing to disqualify herself from the attorney’s cases; and filing a bar complaint to retaliate for the attorney’s cooperation in the Commission’s investigation; (5) putting the school liaison officer’s cases at the end of the docket because they disagreed about how to handle certain types of cases; (6) appointing personal friends who were campaign supporters to represent individuals seeking de facto custodian status without requiring them to come to court to receive appointments; and (7) failing to be candid and honest with the Commission.  In re Gentry, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission August 31, 2020).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a former judge for 3 months without pay for withholding from the police relevant information about the whereabouts of her boyfriend even though she knew that there were warrants out for his arrest and, when she was arrested for hindering apprehension, telling the police officers that she had been “vetted” and asking to be handcuffed with her hands in front.  In the Matter of Brady (New Jersey Supreme Court August 6, 2020).
  • Accepting a stipulation based on the judge’s retirement and affirmation that she will neither seek nor accept judicial office, the New York State Commission on Judicial Conduct terminated proceedings against a judge who had been diagnosed with Alzheimer’s Disease.  In the Matter of Simpson, Decision (New York State Commission on Judicial Conduct July 31, 2020).
  • Accepting a stipulation based the judge’s resignation and affirmation that she will neither seek nor accept judicial office, the New York State Commission on Judicial Conduct concluded a formal complaint against a non-lawyer judge alleging that she had failed to properly or timely execute various judicial duties, such as reporting and accounting for court cases and funds, and failed to cooperate with investigations or inquiries into those matters by government agencies.  In the Matter of Branagan, Decision (New York State Commission on Judicial Conduct August 6, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for shouting, yelling, or otherwise raising her voice more than 10 times and without basis at court staff members and attorneys despite having been cautioned by the Commission in 2006 to be patient, dignified, and courteous to those with whom she dealt in an official capacity.  In the Matter of Pineda-Kirwan, Determination (New York State Commission on Judicial Conduct August 12, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) giving a defendant a ride home after his arraignment and presiding over his case without disclosing the ride to the prosecution; (2) failing to advise unrepresented defendants in a criminal case of the right to have counsel assigned by the court and failing to comply with other requirements of the criminal procedure law; and (3) summarily directing that a man be removed from the courtroom based on the man’s attire without giving him the opportunity to be heard.  In the Matter of Parker, Determination (New York State Commission on Judicial Conduct August 13, 2020).
  • Adopting the findings of the Board of Professional Conduct, which adopted the findings of a 3-member panel based on stipulations, the Ohio Supreme Court publicly reprimand a judge for driving while intoxicated and referring to her judicial office during the traffic stop.  Disciplinary Counsel v. Hawkins (Ohio Supreme Court August 12, 2020).

Throwback Thursday

25 years ago this month:

  • The New York State Commission on Judicial Conduct removed a judge who had converted $6,150 in court funds to his personal use. In the Matter of Sterling, Determination (New York State Commission on Judicial Conduct September 8, 1995).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who had served as an officer and director of 2 for-profit corporations while sitting as a full-time judge and failed to disclose his interest in the corporations on ethics forms. In the Matter of Bell, Determination (New York State Commission on Judicial Conduct September 22, 1995).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for diverting funds from a not-for-profit corporation connected to the court to a law professor for research expenses that they had agreed to share in their private authorship of a hornbook on New York estates administration and failing to supervise the hiring of interns who worked in the court and were paid by corporate funds, which led to a patronage system for the relatives of full-time court employees. In the Matter of Radigan, Determination (New York State Commission on Judicial Conduct September 22, 1995).

 

No divorce from judicial role

In several recent judicial discipline cases, part-time judges were sanctioned for their conduct as attorneys.

In In the Matter of Senzer, 150 N.E.3d 21 (New York 2020), the New York Court of Appeals removed a part-time judge from office for repeatedly using language in 9 emails to 2 clients that was degrading, profane, vulgar, and sexist and that insulted their daughter, opposing counsel, and the presiding court attorney referee, including “an extremely crude gender-based slur to describe opposing counsel.”  The Court’s opinion does not specifically describe the language the judge used but accepted the determination of the State Commission on Judicial Conduct, which has detailed findings.  The judge sent the emails to 2 parents he was representing in a family court matter against their daughter in which they were seeking visitation rights to their grandchild.

The Court held that the judge’s “statements were manifestly vulgar and offensive, and his repeated use of such language in written communications to insult and demean others involved in the legal process showed a pervasive disrespect for the system, conveyed a perception of disdain for the legal system, and indicated that he is unable to maintain the high standard of conduct we demand of judges.”  It emphasized that the judge was “acting as an officer of the court representing clients in an ongoing litigation—a professional function integral to our legal system.”  The Court also explained that the judge’s “derogatory comments impugned not just the particular referee involved in this case but all judges, and with it, the judiciary.  In this context, petitioner’s conduct undermined the dignity and integrity of the judicial system.”

“Especially disturbing,” the Court stated, was the judge’s “use of an intensely degrading and ‘vile’ gendered slur to describe a female attorney” and his “demeaning reference to her as ‘eyelashes.’”  The Court noted that “it is critical to our judicial system that judges ‘conduct themselves in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property.’”  The Court found that the judge’s misconduct was not “an isolated or spontaneous slip of the tongue, as the statements—repeated multiple times—were included in deliberative, written communications petitioner made to these clients relating to their legal representation.”

The Court also concluded that the judge’s belief that the emails would not be shared did not excuse his conduct, explaining, “because judges carry the esteemed office with them wherever they go, they must always consider how members of the public, including clients or colleagues, will perceive their actions and statements . . . .  Petitioner’s clients with whom he had a professional relationship are indisputably members of the public despite any personal relationship he had with them.”  The Court also emphasized that the judge’s “derogatory statements directly targeted the legal system and its participants writ large, and, thus, cannot be divorced from his judicial role, notwithstanding that petitioner communicated them when off the bench. . . .  A judge’s role is to cultivate respect for the judicial process and its participants—petitioner did just the opposite.”

In 2002, the Commission had issued the judge a letter of dismissal and caution for making sarcastic, disrespectful comments during a court proceeding.

The Court concluded:  “Such a pattern of conduct, engaged in over several months and combined with a prior caution by the Commission . . . constitutes an unacceptable and egregious pattern of injudicious behavior that warrants removal.”

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Accepting an agreed statement of facts and recommendation, the New York Commission publicly censured a part-time judge for, in addition to other misconduct, while acting as a private attorney in a civil case, making an insensitive remark about a co-defendant’s ethnicity and asserting his judicial office when confronted about the remark.  In the Matter of Tawil, Determination (New York State Commission on Judicial Conduct December 12, 2019).

The judge appeared as a private defense attorney in the liability phase of a bifurcated trial in a personal injury case involving a car accident.  The judge represented 2 defendants; a co-defendant was of Hispanic descent.  Judge Genine Edwards presided over the trial.

On March 8, during his summation, the judge stated:

On the other hand, you have Mr. Batista.  He’s on the phone talking to his female girlfriend or someone.  He’s selling cell phones to his passenger, he’s listening to the radio, he said they’re having a good time in the car.  They’re having a good time and he’s paying attention to the passenger, to his girlfriend, probably to the radio.  For all we know, he could be frying up some platanos in the front seat [emphasis added].  We don’t know.  But he’s not paying attention to the road, what’s going on around him, okay.

The next day, before the jury was charged, Judge Edwards conducted an off-the-record conference with the judge and his client’s insurance adjuster in chambers.  During the conference, Judge Edwards told the judge that his summation remark about “platanos” was “racist” and said, “What’s going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department.  That’s your license counselor.”  The judge replied that he was “a current Part-Time Town Justice” and that he would never “intentionally make a racist comment.”  The judge would testify that he was fearful of the threat and nervous when he said this.

The judge subsequently asked the Advisory Committee on Judicial Ethics whether he was required to report Judge Edwards to the Commission; the Committee advised that he was.  In filing a complaint against Judge Edwards, the judge described his own conduct to the Commission, and the Commission also authorized an investigation of Judge Tawil’s own conduct.

The Commission found that Judge Tawil’s summation included “a demeaning remark” that “showed an insensitivity to the special ethical obligations of judges and detracted from the dignity of judicial office.”  The Commission acknowledged that “all attorneys (including those who are judges) have wide latitude in presenting argument to the jury,” but emphasized that “the tone of the comment and the assertion of his judicial office warrant a finding of misconduct.”

(In a separate proceeding, the Commission also publicly censured Judge Edwards, based on a stipulation, finding that her “explicit threat to complain to disciplinary authorities regarding Tawil’s summation comment in an effort to induce Tawil’s client to settle the matter pending before her for a specific amount was coercive and improper” and “weaponize[ed] her obligation to take appropriate action regarding substantial attorney misconduct . . . .”  In the Matter of Edwards, Determination (New York State Commission on Judicial Conduct October 23, 2019).)

* * *
The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for providing false information to law enforcement investigating her client.  Gillis, Order (Arizona Commission on Judicial Conduct January 11, 2020).

In a family law matter, the judge was representing an individual who was subject to an order of protection that prohibited third-party contact.  Law enforcement investigated the judge’s client for an alleged violation of the order with respect to a phone call to the opposing party’s real estate agent.  The client told law enforcement that his attorney had also been on the line during the call, and, when initially contacted by law enforcement, the judge stated that she had been on the call.  Shortly thereafter, she notified the officer that her statement was false.  The judge was charged with providing false information to law enforcement.  The charges were dismissed after she successfully completed a diversion program.  She self-reported to the Commission and the State Bar.  The State Bar has also publicly reprimanded her.