Providing feedback to attorneys

In response to an inquiry, the California Committee on Judicial Ethics Opinions identified numerous restrictions on judges’ giving feedback about an attorney’s courtroom performance at the request of the attorney or the attorney’s supervisor, although it did not state that such feedback is always prohibited.  California Formal Opinion 2021-18.

The opinion stated that judicial officers may not provide feedback about attorney courtroom performance:

  • If the feedback is immediately after a hearing or trial while the case may be or is being appealed, to prevent ex parte communications;
  • If the feedback would constitute a public comment about a pending or impending proceeding or a non-public comment that may substantially interfere with a fair trial or hearing;
  • If the feedback would exhibit “favoritism or otherwise undermine[] the judicial officer’s impartiality;”
  • If the feedback would suggest that “the requesting attorneys have a special relationship with the judicial officer . . . ;” or
  • If the feedback would constitute “coaching.”

To avoid ex parte communications, the Committee stated that a judge may not “at the close of a trial or hearing” comment on an attorney’s performance in that trial or hearing because the case would still be pending and subject to appeal.  It explained that, “however well-intentioned, commenting on an appearing attorney’s courtroom performance runs the risk of discussing the facts, merits, or status of a particular case or matter.  Even a seemingly innocuous comment may interfere, intentionally or unintentionally, with one party’s decisionmaking process or strategy on appeal.”

Further, the opinion concluded that, even if the feedback is provided “in a nonpublic setting, such as a private conversation in chambers or by electronic means, there is a risk that any discussion of case specifics may interfere with a fair trial or hearing,” violating the prohibition on commenting on pending cases.  Thus, the Committee advised, “when providing solicited feedback about courtroom performance directly to attorneys or their supervisors, judicial officers must ensure that their comments do not involve pending proceedings in their own or any other court.”

The opinion also emphasized that judicial officers “must ensure that the substantive nature and tone of the feedback would not suggest to an objective observer that the judicial officer has a particular affinity or dislike for certain attorneys or parties.”  Thus, it explained:

  • “The content of feedback should be neutral and not disparage any other attorneys or parties.”
  • “The feedback should be equally applicable to and appropriate to say in the presence of attorneys on opposing sides of the same case.”
  • Judicial officers must “make it clear that they are equally available to provide such feedback to all parties upon request,” noting that “if a judge provides feedback at the request of one party, the opposing party may not be aware that the judge is either providing or available to provide this feedback.”
  • A judicial officer should be equally available to provide feedback to attorneys “representing various interests or viewpoints” and should not provide feedback repeatedly only “to one side of the criminal bar to the exclusion of the other.”
  • A judge should not provide feedback only “to a law office with which the judicial officer was previously affiliated.”

The Committee emphasized that judicial officers must ensure that their feedback does not cross the line into coaching because coaching “suggests that a judicial officer may be biased in favor of, or have a special relationship with, the attorneys being coached,” particularly if the attorneys repeatedly appear before the judge.  The opinion distinguished between impermissible coaching on “strategies or tactics that would provide an advantage before a particular judge or court” and the permissible provision of “neutral instruction on substance, procedure, or technique.”  As examples of topics judges may discuss at conferences, for example, the opinion listed “procedures, trial or appellate techniques, black letter law, best practices, tips to avoid common errors, and proper courtroom protocol.”  As examples of discussion that crosses the line into coaching, the opinion listed “topics or strategies that favor a particular side in litigation, such as how to select a pro-plaintiff or pro-defense jury or the ideal demeanor for a police witness in a criminal case.”  The Committee also noted that “coaching may also suggest that a judicial officer is providing legal advice to an attorney.”

Further, the Committee advised that “judicial officers should avoid acting as evaluators of attorney job performance” for promotion or discipline purposes, noting that there are “more effective ways for supervisors to evaluate employees,” particularly as judicial officers’ feedback would have to be delayed until after the close of all proceedings.  The opinion described the “significant pitfalls” for judges’ participating in such evaluations.

  • After providing feedback to a supervisor, a judicial officer loses control over “the content of the information and the manner in which it may later be relayed to others.”
  • “Providing feedback in the context of an employment evaluation may put the judicial officer in the position of becoming a percipient witness in the event of an employment dispute.”

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