- A treatment court may accept a donation of toiletries from a local bar association to be given to participants by court staff. New York Opinion 2023-132.
- When a judge concludes that there is a substantial likelihood that an attorney made biased and harassing comments to court personnel and opposing counsel during a court appearance but outside the judge’s presence, the judge must report the attorney to the appropriate attorney grievance committee even if the judge has already counseled the attorney that the remarks were completely inappropriate. New York Opinion 2023-113.
- A judge may provide information as a witness in an office of attorney regulation investigation of the district attorney and the district attorney’s staff regarding 4 cases over which the judge presided even if the judge is currently presiding over other cases involving the district attorney and staff under investigation. Colorado Opinion 2023-2.
- Judges may not attend a local bar association’s annual invitation-only “Judges’ Reception” hosted and paid for by a law firm whose members regularly practice in their districts and who have cases pending before some of the judges. Connecticut Emergency Staff Opinion 2023-5.
- A judge may not participate in the monthly hotline of the ethics committee of the Maryland State Bar Association. Maryland Opinion Request 2023-32.
- A judicial association may honor an elected official at a non-fund-raising event for their role in increasing diversity in the judiciary, provided the event is not political. New York Opinion 2023-98.
- A judge may serve as treasurer of their local American Legion post and participate in a regional American Legion service committee that strives to help women veterans. New York Opinion 2023-91.
- A judge may help distribute previously donated books for free to the public at community events, provided the judge does not personally participate in any book drives or other solicitations. A judge may volunteer to read the judge’s own published books to children at a not-for profit “mobile bookstore.” New York Opinion 2023-101.
- A judge may be honored at a non-fund-raising event held by a not-for-profit organization, even where the entity will recognize the judge for assistance in fund-raising before the judge assumed judicial office. New York Opinion 2023-105.
- A judge may not appear as a guest on a law firm’s infomercial on a local television station for a 7-minute segment to discuss abuse and neglect and mesothelioma. West Virginia Opinion 2023-17.
- A judge may go on television or other media to address general court procedures as long as the appearance is not tied to any specific pending or impending matter. West Virginia Opinion 2023-23.
- A judge who is a member of a local chapter of the NAACP may not participate in its voter registration drive by sitting at its table at a free community event and handing out voter registration forms and non-partisan information even if there will be no fliers or information regarding candidates at the table. New York Opinion 2023-102.
- Subject to generally applicable limitations on judicial speech and conduct, a judge seeking a post-judicial retirement professorship at a private law school may participate in the application process by submitting a research agenda, giving a “job talk” presentation, and interviewing with different segments of the law school community. New York Opinion 2023-112.
- A judge may participate as a presenter or panel member at a public high school’s Global Citizenship Day, a non-fundraising event, but should request a copy of the proposed topics and choose to participate on a panel where the anticipated discussions are not likely to delve into matters of politics or substantial public controversy. New York Opinion 2023-106.
- Whether a quasi-judicial official may attend vigils, rallies, or other public events that invite participants to “stand with Israel” is a fact-specific determination that depends on factors such as the identity of the sponsor(s) and the focus, purpose, and location of the event. Subject to generally applicable limitations and exercising discretion and avoiding unduly partisan and inflammatory language, a quasi-judicial official may speak on the laws of war; the emotional/spiritual valences of terror, trauma, and moral complexity; the need to reduce and eliminate implicit and overt bias and prejudice; and recent casualties in the Mideast. When posting on social media or teaching and/or preaching about antisemitism, a quasi-judicial official should not display for educational purposes “a noxious antisemitic and racist flyer” that they received. A quasi-judicial official may publicly discuss their experiences of racism/prejudice and secondary trauma caused by violence in the Mideast and their observations of the effects of that violence on their family members. A quasi-judicial official may display another nation’s flag at their residence, appear in photographs with flags of other nations, and wear a lapel pin displaying flags of other nations at non-court events. A quasi-judicial official may discuss Israeli casualties, focusing on “the dignity and value of innocent life transcending nationality or religion,” without also addressing Palestinian casualties. New York Opinion 2023-133.
- An assistant state attorney who has recently been appointed to the county court may handle the sentencing hearing in a case for which they were lead attorney and that has been tried to verdict if the hearing will occur before their judicial service begins. Florida Opinion 2023-10.
- A judge may not invest in a cannabis company that has a license to operate a retail dispensary in New York, but the judge is not required to object to independent investing, consulting, or employment by their spouse or other relatives in a cannabis company. New York Opinion 2023-100.
- A judge who, with their siblings, is a beneficiary of their parent’s estate may help the sibling who is serving as executor select an attorney for the estate; review documents relating to the estate and the probate proceedings; discuss the estate and the proceedings with the other siblings/beneficiaries; and provide free legal advice to their siblings, including the executor, regarding the estate and the proceedings. New York Opinion 2023-88.
- A judge may not serve as vice president or president of the board of governors of a private for-profit social and recreational club. Connecticut Informal Opinion 2023-6.
- A judicial candidate may publicly state that they sponsored particular legislation while they were a member of the house of delegates; may list awards received during their legislative tenure; may state their membership in organizations such as the NRA, West Virginia Citizens Defense League, or Republican National Lawyers Association; and may list all of the capacities in which they served while in the legislature. West Virginia Opinion 2023-26.
- A judge may not display a “Stop the GOP” bumper sticker on their private vehicle. West Virginia Opinion 2023-28.
Monthly Archives: November 2023
Throwback Thursday
5 years ago this month:
- Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability publicly admonished a judge for having contacts with litigants and/or witnesses in cases pending in his court. Letter of Admonishment to Carruth (Arkansas Commission on Judicial Discipline & Disability November 16, 2018).
- Based on an agreement, the Arkansas Commission Judicial Discipline & Disability publicly admonished a judge for an incident while he was a judge-elect in which a bag of methamphetamine was found in a hotel room he had shared with a woman. Letter of Admonishment to O’Hern (Arkansas Commission Judicial Discipline & Disability November 16, 2018).
- Approving a stipulation and the findings, conclusions, and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for providing a character reference letter on her official court stationery on behalf of a criminal defendant awaiting sentencing in federal court. Inquiry Concerning White-Labora, 257 So. 3d 367 (Florida 2018).
- Accepting an agreement, the Georgia Supreme Court publicly reprimanded a judge for her habitual tardiness in starting court and her excessive absenteeism. Inquiry Concerning Stokes, 821 S.E.2d 343 (Georgia 2018).
- Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly censured a judge for identifying himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, 196 A.3d 579 (New Jersey 2018).
- Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for failing to disqualify himself in 3 matters arising out of a boundary dispute involving his neighbor’s daughter that he had previously discussed ex parte with the neighbor. In the Matter of Porter, Determination (New York State Commission on Judicial Conduct November 13, 2018).
- Adopting the findings and recommendation of the Board of Professional Conduct, which were 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 timecard; the suspension was stayed on the condition that he engage in no further misconduct. Disciplinary Counsel v. Wochna, 21 N.E.3d 307 (Ohio 2018).
- The Texas State Commission on Judicial Conduct publicly reprimanded a judge for issuing 2 felony arrest warrants based on complaints that did not contain sufficient probable cause and on information outside the 4 corners of the complaints; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor. Public Reprimand of Brady (Texas State Commission on Judicial Conduct November 14, 2018).
“Much more cautious now”
Agreeing with the recommendation of the Judiciary Commission, which was based on a stipulation, the Louisiana Supreme Court publicly censured a judge for engaging in improper ex parte communications with the district attorney’s office about unsealing the transcripts of hearings about the defendant’s indigency and granting the state’s motion to unseal without holding a hearing or giving defense counsel the opportunity to respond. In re Canaday (Louisiana Supreme Court October 20, 2023).
In a high-profile second-degree murder case, the judge presided over multiple hearings about the defendant’s indigency and his request for ancillary funding for expert witnesses. Because defense strategy would be disclosed during the hearings, the district attorney was not present, and the transcripts were sealed.
The judge found that the defendant was not indigent and denied his request for funding. The defense challenged the indigency ruling in a writ application to the Third Circuit Court of Appeal. To facilitate the application, the judge granted defense counsel’s request for transcripts of the hearings. When defense counsel moved to obtain a missing transcript, the judge ordered that the transcript be given to defense counsel and handwrote that it be “release[d] from seal.”
In an email to the judge that did not copy defense counsel, the district attorney’s office asked whether the judge’s order gave it access to the transcripts as well as defense counsel and the appellate court. When Amber Thibodeaux with the district attorney’s office followed up by text, the judge replied: “Since I don’t believe the state could appeal my granting relief to the defense on funding, I don’t think they can support the courts [sic] position to deny. The courts [sic] reasons will be sufficient for the 3rd to review. If the 3rd requests a states [sic] response obviously they could access the record.” Thibodeaux responded: “Thank you for getting back with me. Enjoy your trip & safe travels! We’ll see you on the 9th.” Defense counsel was not included in these communications.
After the court of appeal reversed the judge’s indigency ruling, Thibodeaux emailed him a copy of the ruling. The judge replied: “If the state wants to take up to the Supreme Court, I will unseal the record. GMC.” Defense counsel was not copied on this email.
The district attorney’s office then filed a motion to unseal all the documents and transcripts related to the determination of the defendant’s indigency, and the judge granted the motion without a hearing and without giving defense counsel an opportunity to respond. The materials released by the judge included a transcript of a closed hearing in which defense strategy was discussed, including experts and their expected testimony.
After that ruling, defense counsel argued successfully that the judge should be recused from the case; the Third Circuit and the Louisiana Supreme Court denied requests to reverse the recusal. Both the state and defense counsel expended significant time, effort, and funds on the recusal and review proceedings. Negative media reports about the judge’s actions prompted the Commission investigation.
According to the judge, it was not unusual for Thibodeaux to contact him or his secretary regarding scheduling or issues with the daily docket. He stated that he “did not intend” his communication with Thibodeaux about unsealing the record “to be a definitive response as to what my action would be,” but only to suggest that the district attorney “send me a motion.” However, he acknowledged his language was inappropriate and had suggested that he would grant a motion to unseal. The judge further admitted that he “may have had some ego involved” and “a ‘knee-jerk reaction” to the Third Circuit deeming his indigency ruling incorrect. He wanted the issue before the Louisiana Supreme Court.
The judge also admitted that he did not carefully review the state’s motion before unsealing the transcripts, explaining that the motion was in a stack of hundreds of discovery-type motions presented when he was without a magistrate and was duty judge. He admitted “just signing things, and I’m not even reading them . . . .” While the judge said he got “kind of caught up in a perfect storm,” he also acknowledged that he had “created the situation,” “made legal error,” and “took away from the esteem of the judiciary.” He agreed that his eventual recusal was proper and confessed that if he was defense counsel, “I would have felt the same way.”
In aggravation, the Court stated that the judge’s “actions harmed the integrity of and respect for the judiciary. His ex parte communications gave the impression he granted special access and advantages to prosecutors regularly appearing in his court,” which was reinforced when he failed to thoroughly review the motion to unseal and summarily granted it without the required hearing and without providing defense counsel the opportunity to object. The Court concluded that “upon media reporting on Judge Canaday’s actions, public trust in and respect for the judiciary eroded.”
In mitigation, the Court emphasized that the judge “has consistently acknowledged and apologized for his misconduct and its impact on the judiciary.” The judge described the measures he had taken to prevent repeating his misconduct; he now requires that all communications go through his legal assistant and that any email include opposing counsel, he refuses to accept text messages and he reviews all motions before determining whether a contradictory hearing is required. The judge testified that he is “much more cautious now in what I sign.”
Throwback Thursday
10 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 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 removing an attorney from over 63 cases in which he was appointed counsel based on the judge’s conflict with the attorney, rather than disqualifying himself from the attorney’s case. 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).
Recent cases
- Agreeing with the recommendation of the Judiciary Commission, which was based on a stipulation, the Louisiana Supreme Court publicly censured a judge for engaging in improper ex parte communications with the district attorney’s office about unsealing the transcripts of hearings about a defendant’s indigency and granting the state’s motion to unseal the documents without holding a hearing or otherwise allowing defense counsel the opportunity to respond. In re Canaday (Louisiana Supreme Court October 20, 2023).
- Accepting the sanction determination of the State Commission on Judicial Conduct, which was based on an agreed statement of fact, the New York Court of Appeals removed a non-lawyer judge for (1) brandishing a loaded firearm at a litigant in court and creating the appearance of racial bias by repeatedly mentioning the litigant’s race when he retold the incident and (2) engaging with 8 Facebook posts promoting non-profit fund-raising events. In the Matter of Putorti (New York Court of Appeals October 9, 2023).
- Accepting a stipulation based on the judge’s resignation and her affirmation that she will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge; based on information from the court system, the Commission had been investigating an allegation that the judge had converted more than $6,000 in court funds. In the Matter of Shepardson, Decision and order (New York State Commission on Judicial Conduct October 12, 2023).
- Granting a motion for summary determination, which the judge did not oppose, the New York State Commission on Judicial Conduct publicly admonished a judge for seeking special consideration from his co-judge in the disposition of parking tickets issued to his mail carrier. In the Matter of Leavitt, Determination (New York State Commission on Judicial Conduct September 21, 2023).
- The Tennessee Board of Judicial Conduct publicly reprimanded a judge for threatening and intimidating an acquaintance and failing to respond to the Board; the Board also reported the judge to the General Assembly for further action because this was her second reprimand since she became a judge in 2022 and she had failed to undergo a physical, mental health, and/or substance addiction evaluation that she had agreed to when she was suspended with pay in May. Public Reprimand of Boyd (Tennessee Board of Judicial Conduct October 31, 2023).
- The Texas State Commission on Judicial Conduct publicly reprimanded a judge for making sexual advances through texts toward a chief deputy clerk and his pattern of sexual harassment of women; the Commission also ordered that he obtain 5 hours of instruction with a mentor. Public Reprimand of Howse and Order of Additional Education (Texas State Commission on Judicial Conduct October 12, 2023).
- The West Virginia Judicial Investigation Commission publicly admonished a former magistrate for driving while intoxicated. Public Admonishment of Riggs (West Virginia Judicial Investigation Commission October 13, 2023).
Throwback Thursday
20 years ago this month:
- Adopting the findings and recommendation of a Board of Examining Officer, the Delaware Court on the Judiciary publicly censured a magistrate and suspended him for 3 months without pay for displaying a weapon in a manner that made 2 court clerks feel that their personal safety was threatened and persistently carrying his weapon while at work in a way that made it clearly visible to the public and employees. In re O’Bier, 833 A.2d 950 (Delaware Court on the Judiciary 2003).
- Adopting the findings of fact and conclusions of 3 masters and concurring in their recommendation, the Indiana Supreme Court suspended a judge for 30 days for granting a request for a special prosecutor without providing the regular prosecutor with the opportunity to be heard. In the Matter of Spencer, 587 S.E.2d 356 (Indiana 2003).
- Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for (1) meeting with the district attorney to discuss the police investigation and the treatment of the judge’s son, and (2) while objecting to the conduct of the state park police, identifying himself as a judge, yelling at the police sergeant, using profane language, and threatening to call his legislator. In the Matter of Pennington, Determination (New York State Commission on Judicial Conduct November 3, 2003).
- Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for failing to pay her accountant for tax preparation services during the same period in which she was appointing the accountant as a fiduciary and approving more than $21,000 in compensation for her. In the Matter of Lebedeff, Determination (New York State Commission on Judicial Conduct November 5, 2003).
- Adopting the findings of fact and recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for personally and professionally criticizing an attorney and stating to a deputy sheriff, “It’s been a while since I shoved a male’s balls through his nose holes.” In re Hill, 591 S.E.2d 859 (North Carolina 2003).
Artificial intelligence and judicial ethics
In what appears to be the first judicial ethics opinion on the issue, the West Virginia Judicial Investigation Commission advised that a judge may use artificial intelligence for research but not to decide the outcome of a case and warned that a judge should exercise extreme caution in using AI in drafting opinions or orders. West Virginia Advisory Opinion 2023-22.
The opinion includes several definitions of AI.
Black’s Online Law Dictionary 2nd Edition defines “AI” as “a software used to make computers and robots work better than humans. The systems are rule based or neutral networks. It is used to help make new products, robotics, [and] human language understanding.” Webster’s Online Dictionary gives two definitions for the term “AI.” The first is “a branch of computer science dealing with the simulation of intelligent behaviors in computers.” The second definition, which is the most instructive, states that AI is the “capability of a machine to imitate intelligent human behavior.”
The opinion notes that “whether you realize it or not, you already use some form of artificial intelligence in your everyday life,” citing “facial recognition on your cell phone; smart email categorization; suggestions from Facebook of new friends; recommendations for what to watch on steaming apps; and navigation sites such as Google Maps.” It also describes examples of “AI encroachment in the law.”
Stating that judges have an ongoing duty “to remain competent in technology, including AI,” the Commission advises that “a judge may use AI for research purposes” but cautioned that a judge must realize that no AI program is perfect. It explains that older AI models may fail to produce some relevant results or flag irrelevant documents. Further, it states that general use AI may produce inaccurate or offensive information and that, while much better, specific use AI “may have downsides if used for other than its intended purpose.”
The opinion emphasizes that “because of perceived bias that may be built into the program,” “a judge should NEVER use AI to reach a conclusion on the outcome of a case.” The Commission also identifies the use of drafting AI to prepare an opinion or order as “a gray area.”
It is one thing to use a product like Microsoft Word that corrects spelling, punctuation, grammar, maintains a built-in thersaurus and provides an editor’s score for the finished document. Those products are perfectly acceptable. However, the use of an AI product to actually draft the findings, conclusions and ultimate decisions should be met with extreme caution. The drafting product may have built in biases or over time may develop perceived biases based on the judge’s thought process. AI should never decide the conclusion.
Thus, the opinion concludes that “judges should think of AI as a law clerk . . . .”
Importantly, the law clerk never decides the case. The judge alone is responsible for determining the outcome of all proceedings. At the end of the day if the judge somehow violates the Code of Judicial Conduct in reaching a conclusion on the case, he/she cannot say, “the law clerk made me do it” nor can he/she say, “AI made me do it.” The responsibility for the finished product rests solely with the judge. Therefore, just as a judge would do with a law clerk’s work, he/she must check the final draft of any written decision to make sure it contains the most current case law and is error free. . . .
As he/she would with a law clerk, the judge must decide which way he/she wants to rule and let the program know in advance to ensure that the product conforms with the decision rendered by the judge. Like the final draft of the law clerk, the judge must review it to ensure that it is what the judge wishes to convey to the parties in any given case and make changes where needed.
The opinion advises that a judge should research specific AI products to ensure that confidentiality for certain cases like juvenile or abuse and neglect matters will be maintained and to guard against potential plagiarism, again stressing the need for a judge to double check the finished product.
Throwback Thursday
25 years ago this month:
· The Arkansas Judicial Discipline & Disability Commission publicly censured a judge for delaying the entry of 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).
Judicial ethics and discipline 