A sampling of recent judicial ethics advisory opinions

  • A court that has partnered with a local mediation center to create a voluntary, neutral mediation program intended to help manage an anticipated influx of eviction cases may provide information about the program to both landlords and tenants in eviction cases and may display that information in highly visible locations near courtrooms and elsewhere in the courthouse.  Nebraska Opinion 2021-2.
  • A judge may complete a survey from a social services agency about the number of eviction petitions, proceedings, and warrants filed or pending in the judge’s court to allow the agency to assess the likely impacts of lifting a moratorium on evictions, but such participation is voluntary and in the judge’s discretion.  New York Opinion 2021-89.
  • A court administrator may accept an unsolicited one-time cash gift from a bar association to fund incentive gifts in problem-solving courts.  Florida Opinion 2021-12.
  • A judge may provide a sworn statement in response to a written request from the office of inspector general for a law enforcement department investigating the conduct of a police officer during a trial in the judge’s court.  Florida Opinion 2021-13.
  • A judge may not monitor police communications on police scanners or police scanner apps to learn who has been arrested and will likely come before the judge’s court.  New York Opinion 2021-99.
  • Unless the judge is currently the presiding judge or assistant presiding judge, a superior court judge’s child may be included on the court’s list of pro tem commissioners and pro tem judges if the judge will not be involved in deciding whether their child will be included on the list or called to serve, will not review their child’s rulings, and will not supervise their child in their role as a pro tem.  Washington Opinion 2021-3.
  • Remittal of a judge’s disqualification requires on-the-record, individual, and specific consent by all parties that have appeared and not defaulted.  New York Opinion 2021-85.
  • A judge may contact their legislators to ascertain what steps are necessary to initiate legislation that would create an additional judgeship in their court to handle an increased caseload and may enlist the legislator’s support for such legislation.  New York Opinion 2021-91.
  • A judge may appear in a video sponsored by a bar foundation that describes the services provided by and through the local legal aid society and another pro bono legal services organization.  Florida Opinion 2021-9.
  • A judge who is a member of the National Association of Women Judges may express an opinion among the membership about a proposed resolution calling for what appears to be a boycott of states where laws have “voided or repealed protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate [such] discrimination.”  A judge’s continued membership in an organization that issues a resolution calling for such a boycott may pose problems under the code of judicial conduct.  Florida Opinion 2021-11.
  • A judge may sell raffle ticket to members of their family to raise funds for a not-for-profit charitable or civic entity that is renovating a historic building for community use.  New York Opinion 2021-88.
  • A judge may serve on the board of directors of a local not-for-profit organization that provides educational programs to children and adults with autism if the judge does not have the authority to make referrals to the organization.  New York Opinion 2021-109.
  • A family division judge may speak on subjects related to family law on a podcast hosted by their spouse, for which the spouse receives compensation from a sponsor, provided the number of appearances by the judge is limited and their comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.  A judge may not post a congratulatory message on LinkedIn when a book written by the judge’s spouse is released.  Florida Opinion 2021-14.
  • A judge may, as a guest of their spouse, attend a multi-day annual conference for prosecutors, located in a different part of the state from where they preside, and may attend the association’s annual dinner, a social event at which the only business conducted is the installation of new officers.  New York Opinion 2021-95.
  • A judge who is in a contested election may continue to be a regular guest on a public radio station’s local news talk show to discuss courthouse administration and law-related activities in the community when no questions are taken from the public, the station does not promote the judge’s appearances, and the judge does not give legal advice, discuss pending cases, or receive financial compensation.  Florida Opinion 2021-10.
  • A judge may be named as a trustee of a friend’s trust if the judge would not be required to serve until the death of both the friend and the friend’s spouse, but the judge should tell the friend that the judge would be ineligible to serve as trustee if they are a member of the judiciary at the time the appointment takes effect.  Florida Opinion 2021-8.
  • A judge may not prepare an uncontested divorce package for a former client for whom they had prepared a separation agreement while in private practice.  New York Opinion 2021-87.
  • At the request of a lawyer representing the estate of a former client, a judge may provide a “family tree affidavit” required in a surrogate court from a non-family member possessing personal knowledge of the deceased’s marital status, heirs, and family tree.  New York Opinion 2021-96.
  • A new judge transitioning from private practice may accept payments from their former firm reflecting a flat fee or the number of hours billed at an agreed-upon hourly rate for legal services performed and may accept contingent fees once the contingency occurs based on quantum meruit for services performed prior to leaving the former law firm.  The judge must report on their annual financial disclosure statement any income from a former law firm.  A judge must recuse themself from cases in which lawyers from their former law firm appear as long as the judge is receiving or anticipates receiving fees or other payments from the firm.  A judge cannot receive in perpetuity from their former firm retirement benefits based on a percentage of fees earned on legal services provided by other lawyers to the judge’s former clients during an agreed-upon time after retirement.  A judge may not continue to participate in a law firm’s partnership for purposes of receiving fees or other payments from the firm.  Ohio Opinion 2021-6.

Judges’ associations resolve

In recent opinions, 2 judicial ethics advisory committees responded to inquiries from judges about a resolution that would prohibit a judicial association from holding conferences in states that repeal protections for lesbian, gay, bisexual, transgender, or queer individuals or that enact discriminatory LGBTQ laws.

A judge who is a longtime member of the National Association of Women Judges asked the Florida Judicial Ethics Advisory Committee whether they could participate in NAWJ’s deliberations on a “Resolution Regarding Future NAWJ Conferences in Jurisdictions Where LGBTQ Protections Are Repealed or Where Discriminatory LGBTQ Laws are Enacted.”  Florida Advisory Opinion 2021-11The resolution will “be deliberated and potentially adopted by the membership of NAWJ at an upcoming general membership meeting, conference, or vote.”  (According to the association’s website, the 2021 NAWJ annual meeting will be October 6-9, 2021, in Nashville, Tennessee.)

The resolution denounces laws that “void or repeal state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression” and laws that authorize, mandate, or condone that discrimination, including laws that create exemptions from anti-discrimination laws to permit discrimination on that basis.  If the resolution passes, NAWJ may not select “‘any future site for an annual or midyear meeting without first taking into careful consideration’ whether the site is located in a jurisdiction that has enacted the aforementioned laws.”  The resolution lists 12 states that have enacted the kind of measures at issue:  Alabama, Idaho, Iowa, Kansas, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.  The inquiring judge noted that Florida would likely be added to the list soon.

The committee noted that NAWJ is clearly an organization “devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.”  The opinion stated that “such associations do important work to help advance the rule of law, public confidence in the judicial system, and judicial engagement with the communities judges serve,” but noted that, at times, “these same groups may assume political positions or advocate for substantive changes in the law.”

The committee stated that the proposed resolution was plainly “a political statement on a current political issue” and that its “directive to ‘first tak[e] into careful consideration’ whether to schedule future conferences at any of the purportedly offending states appears to be a call for a boycott, which is a widely recognized method of expressing a political view or effectuating a political change.”  However, the committee concluded that no ethics rule prohibits judges “from discuss[ing] and debat[ing] the proposed resolution within the confines of NAWJ’s membership.  Because the inquiring judge assures us that the deliberations and discussion on the resolution’s vote will remain within NAWJ and not be disseminated to the public, the judge is free to voice the judge’s views and opinions among NAWJ’s membership.”

Similarly, the New York Advisory Committee on Judicial Ethics stated that a judge who belongs to a national judicial association may participate in a vote on a resolution that would prohibit the association from holding conferences in jurisdictions that repeal protections for LGBTQ individuals or enact discriminatory LGBTQ laws.  New York Advisory Opinion 2021-81. (The New York opinion does not identify the specific judges’ association that was the subject of the inquiry.)

The committee noted that its previous opinions on diversity issues had advised that a judge may:

  • “Participate in a job fair to encourage members of the LGBTQ community to pursue careers as court officers and promote diversity in the court system” (New York Advisory Opinion 2009-151);
  • “Join with officers of an ethnic bar association to meet with a district attorney-elect’s transition team to discuss increasing diversity at the district attorney’s office, provided there is no impermissible political activity and the judge does not recommend specific individuals be hired” (New York Advisory Opinion 2017-179);
  • “Promote diversity by encouraging litigators to provide knowledgeable junior colleagues significant speaking or leadership roles in the courtroom” (New York Advisory Opinion 2018-36);
  • “Meet with law school deans and various executive and legislative branch officials to express a bar association’s concern about the downward trend of minority representation and to advocate for increased diversity in the legal profession” (New York Advisory Opinion 2007-170);
  • “Establish a judicial mentoring program to help promote diversity in the judiciary” (New York Advisory Opinion 2016-151); and
  • “‘Promote diversity by encouraging individuals from particular backgrounds to enter the legal profession’” (New York Advisory Opinion 2017-12).

The New York committee concluded that, “to the extent the proposed resolution can be seen as political or quasi-political, . . . it relates to the improvement of the law, the legal system and the administration of justice . . . , as it attempts to reduce or eliminate bias based on an individual’s sexual orientation, gender identity, or gender expression, consistent with a judge’s obligations under the Rules . . . .  [V]oting on this issue will not create an appearance of impropriety or cast reasonable doubt on the judge’s ability to perform judicial duties impartially.”

For the same reason, the New York committee also advised that judges can continue to belong to the judicial association if it adopts the resolution and will not have to resign their membership.

In contrast, the Florida committee stated that passage of the resolution “could potentially pose issues for a member judge,” depending on the final wording of the resolution and the publicity about it.  The committee emphasized that “maintaining the appearance of impartiality is a paramount concern when we examine these membership inquiries” and that “‘the changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to re-examine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation.’”

The committee recognized that NAWJ “is obviously not a political organization,” but also stated that “unlike civic groups, bar associations, and other law-related groups, when NAWJ publishes a statement, anyone who hears or reads it will associate the statement with a group of judges.”  It explained:

We would have to believe that NAWJ’s statements about legislation on political topics would likely enjoy a special platform of public consideration.  The inquiring judge would have to carefully monitor the extent to which NAWJ’s resolution, should it pass, becomes a feature of public discussion or awareness, and whether the judge’s membership could be construed as evidence of partiality on topics to which that resolution pertains.

The Florida committee stated, if the “laws that are the subject of the proposed resolution were ever challenged in a court proceeding, any judge who is a member of a judicial group that has actively advocated against such laws would seem to be in a position where the State may legitimately question the appearance of that judge’s impartiality,” requiring the judge to consider whether their “impartiality might reasonably be questioned.”

The Florida committee acknowledged the New York opinion but stated that the other committee’s approval of continued membership rested on the “tacit assumptions that:  (a) the laws in question (whatever their content) are pejorative and discriminatory in their operation and intent; and that, therefore; (b) advocating against such laws would necessarily constitute an improvement in the law or legal system.”  The Florida committee opined:

Framing NAWJ’s potential advocacy in that manner seems a tad stilted and, we fear, could lead an advisory committee such as ours into political waters on political questions (where laws with which the committee may happen to disagree are deemed “ethical” to advocate against, while other laws with which the committee agrees become “unethical” for a judicial officer to publicize any disagreement with).

Update:

At its annual business meeting, the National Association of Women Judges passed a “Resolution in Support of our LGBTQ members” that states:

RESOLVED, That the National Association of Women Judges will not sponsor or hold any mid-year or annual meetings or conferences in states that have voided or repealed state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or have enacted laws that authorize or mandate discrimination on the basis of sexual orientation, gender identity or gender expression.

There is a list of 18 states that currently meet those criteria attached to the resolution, and the resolution directs that the list “be updated as necessary” and “conform to the lists maintained by those states which track the enactment of such legislation, including, but not limited to, the State of California Attorney General’s office.”

A sampling of recent judicial ethics advisory opinions

  • For purposes of the exception to the prohibition on ex parte communications, a mediator is not court staff or a court official whose role is to assist the judge in adjudicative responsibilities.  A judge who has referred a case to alternative dispute resolution may not discuss concerns about the case and the parties’ relative bargaining positions with the mediator outside the presence of the parties.  After mediation, the mediator may report to the judge whether the mediator has been successful but may not disclose the terms of the settlement, except as the parties may agree or as allowed by the mediation procedures act.  New Mexico Opinion 2021-3.
  • A judge may not perform a simulated public marriage ceremony for a couple who are keeping private that they already got married in an earlier private ceremony during the pandemic. Maryland Opinion Request 2021-10.
  • Judges may serve on the state bar’s Access to Justice Commission and the statutorily-created Child Welfare Council. California Expedited Opinion 2021-43.
  • A judge may not serve on the board of trustees of a city’s arts council. Utah Informal Opinion 2021-2.
  • A judge may serve as a member of the judiciary board of a church, which interprets policy and practice and is the ultimate authority on church constitutional and ecclesiastical interpretation. Virginia Opinion 2021-1.
  • A judge may serve on the board of directors of a local non-profit entity that provides mediation services to litigants who may come before the judge’s court. Maryland Opinion Request 2021-8.
  • A judge who sometimes decides ex parte applications for search warrants directed at a particular social media company may not give an in-house address to the company’s employees about how legal process is authorized, the use and purpose of the company’s records in legal proceedings, and the importance of accuracy and vigilance in response to legal process. New York Opinion 2021-65.
  • A judge may participate, without compensation, in a commercially produced documentary comparing judicial systems around the world as long as they do not create an appearance that they are an “active participant” in the business that is producing the film and do not promote the program to the public at large. New York Opinion 2021-67.
  • A judge may publish through a commercial publisher a legal suspense novel set in both real and fictional Massachusetts locations and engage in promotional activities, including maintaining a website, building a mailing list, conducting virtual book club events or readings, attending book signings, and maintaining profiles on social media websites, as long the promotional activities do not invoke the prestige of the judicial office or otherwise violate the code, taking particular care when promotional activities use social media. A judge may not use judicial email or court mailing lists to promote sales of their novel. A judge should not directly sell or be involved in financial transactions for the sale of copies of their novel; for example, at a book signing, the financial transactions for the sale should be handled by someone other than the judge. A judge should not participate in promotional activities at a courthouse or any other location that would lend the prestige of judicial office to efforts to sell the judge’s novel. When a book has appeal to a wider audience, a judge should not target lawyers in efforts to promote the book. A judge may be identified as a judge or by title in biographical materials that contain only factual statements, including on the book jacket, as long as their position is not unnecessarily emphasized or exploited. At book-signing events and in public discussion of their book, a judge may identify as a judge in response to questions. A judge should only state their judicial position in an incidental way, without relating their position to the novel. Massachusetts Letter Opinion 2021-2.
  • A judge may write a chapter of a book about reforms in child welfare in the public and not-for-profit sectors. New York Opinion 2021-71.
  • A judge may speak at a bar association’s fund-raising event to introduce a video clip highlighting the bar association’s “Women’s History Project” initiative even though others will solicit funds during the event, provided that they do not personally solicit funds. New York Opinion 2021-75.
  • A judge who belongs to a national judicial association may vote on a resolution that would prohibit the association from holding conferences in jurisdictions where protections for lesbian, gay, bisexual, transgender, or queer individuals have been repealed or where discriminatory LGBTQ laws have been enacted and is not required to resign from the association if the resolution passes. New York Opinion 2021-81.
  • A judge may serve on a committee for a national judicial association’s local chapter that provides support and assistance to women in prison as they prepare for their transition back into the community. New York Opinion 2021-81.
  • A judge cannot nominate the elected prosecutor who is currently running for re-election for the West Virginia State Bar Citizen Soldier Awards. West Virginia Opinion 2020-6.
  • A judge who is a poet by avocation may share their poetry at free online creative arts panels organized by a not-for-profit museum and a state university and accept an honorarium that is offered to all participating poets and panelists. New York Opinion 2021-52.
  • A judge may not allow their likeness to be used to create a non-fungible token (NFT) that would be auctioned off by a for-profit organization that would donate part of the funds to legal aid societies and other organizations that promote greater access to justice. Tennessee Opinion 2021-1.
  • A judge-elect must immediately resign as a bail bondsman. West Virginia Opinion 2020-20.
  • A judge-elect may continue to serve as a member of the city council until they take the oath of office as a judge but not after. West Virginia Opinion 2020-21.
  • A magistrate cannot simultaneously serve as an EMT or fire fighter. West Virginia Opinion 2020-28.
  • A judge may provide limited law-related advice to a family member, similar to the kinds of information that a judge can provide a self-represented party in a hearing, including statements of law, explanations of court procedures and court rules, directions to community resources for finding a lawyer, information about the process for securing witnesses, and guidance about elements of proof or other legal requirements. A judge may provide a family member with advice relating to a matter in which the judge is also personally involved when the judge is acting in their own personal interest or in a representative capacity permitted under the code. California Formal Opinion 2021-17.
  • A judge may prepare a deed for a home that they are selling. West Virginia Opinion 2020-15.
  • A judge may not organize a virtual fashion show for judges that would showcase robes designed to suit the height, body shape, and style of women judges; would include a display by an artist who makes and sells bracelets in tribute to a trail-blazing female jurist; and would display pins and statement/bib necklaces from judges’ collections and advise where the items were bought or can be purchased. New York Opinion 2021-73.
  • A judge may host a make-up party for family members and close personal friends who are not likely to come before the judge and receive credit/percentage off the purchase of an item as a reward. West Virginia Opinion 2020-19.
  • A district court commissioner may not obtain and use medical marijuana. Maryland Opinion Request 2021-6.
  • A judge may reach out to individuals in their community to discuss the judge’s qualifications and interest in appointive judicial office but may not compensate those individuals for their time or assistance. New York Opinion 2021-64.
  • A judge whose spouse is running for governor may attend a fund-raiser on their behalf but only if it is held outside the marital home; cannot appear in a parade with the spouse; and cannot introduce them or speak about them at campaign events. The judge’s name and photograph may appear in their spouses’ campaign literature or other official campaign photographs if they are not identified as a judge. West Virginia Opinion 2019-22.
  • A judge may not sign a letter opposing the impeachment of the President of the United States. West Virginia Opinion 2020-5.
  • Subject to generally applicable limitations on campaign speech and conduct, a judicial candidate may permit their campaign committee to establish a Twitter account to keep voters and community leaders informed about events, to direct them to the campaign website, and to “follow” the candidate’s opponent and/or other candidates. New York Opinion 2021-40.
  • A judge must resign from judicial office if they authorize or knowingly permit their name to appear on a publicly circulated nominating petition as a candidate for a non-judicial office. New York Opinion 2021-50.

Alternative interpretation

A recent judicial ethics opinion from Virginia advised that a judge may not write an article analyzing a particular criminal law statute, asserting that the state supreme court has incorrectly interpreted that statute, and providing an alternative interpretation, even if the judge includes disclaimers stating that the article does not express an opinion on any case that may come before the judge and complies with the code of judicial conduct.  Virginia Advisory Opinion 2020-2.  The opinion was approved by the Virginia Supreme Court pursuant to a rule requiring that the Judicial Ethics Advisory Committee “submit any proposed advisory opinion to the Supreme Court of Virginia for approval prior to its release to the inquirer and the public.”

The inquiring judge proposed writing an article to be submitted to bar association publications.  The committee assumed that the judge would write the article “in a scholarly and respectful manner, with a tone that would not otherwise undermine public confidence in the integrity and impartiality of the judicial system” and without discussing cases that are not pending or impending before any court.  The committee advised that, if the article only analyzed the statute and the Court’s interpretation, its content “would likely be within the bounds” of the code of judicial conduct and “a permissible educational or scholarship exercise concerning the law, the legal system, and the administration of justice.”

The problem, the committee stated, was that the judge also intended “to assert that the Court has interpreted the statute ‘incorrectly’ and to provide an alternative interpretation,” that is, “to criticize a superior court’s decision in a public forum (as opposed to authoring a judicial opinion in the context of an active case being decided by the judge).”  The committee explained that readers of the judge’s alternative interpretation would likely infer that the author would rule according to the alternative interpretation if the issue were presented to them as a judge.  Although it acknowledged that “impartiality does not mean that judges have no prior opinions about legal issues that come before them,” the committee concluded that, “in terms of that natural tension between having developed opinions about certain areas or issues of law and being open-minded, the proposed content of the article appears to be the type of pre-judging or predisposition that would create in reasonable minds a perception that the judge is partial.”  “This,” the committee concluded, “is not permitted by the Canons.”

The committee also concluded that the disclaimers proposed by the judge were “not enough to render the proposed article permissible under the Canons.”  It explained:

The committee noted that it does not have the authority to address First Amendment issues.

Despite any disclaimer, should the issue arise in a case before the judge, litigants would be on notice of how the judge is predisposed to deciding the case, and would have to tailor their arguments accordingly.  More likely, a litigant with facts or arguments that conflict with the judge’s interpretation would request the judge’s recusal . . . , since the judge’s impartiality might reasonably be questioned.  Depending on the number of cases that arise involving that statute, continual recusals could potentially impact the workload in that judicial district.

1 committee member dissented from the opinion, arguing that “scholarly works on legal topics should be encouraged among judges – especially when an appellate court may have misapplied a rule of construction or applied faulty logic.  If, to borrow from Hans Christian Andersen’s folk tale, the emperor has no clothes, it’s up to the members of his court to respectfully point that out.”

The dissent noted that the inquiring judge did not plan to write “an article advocating nullification of a law . . . , or casting aspersions on the competence or integrity of members of the judiciary . . . , or suggesting a need for rebellion and defiance against the appellate court’s ruling . . . .”  Stating that “improving the law is best done in an environment of robust and honest dialogue,” the dissent argued that “we should not add to the Judicial Canons the motherly maxim, ‘if you don’t have something good to say, don’t say it at all!’ . . .  Barring publication of constructive and scholarly comments by a judge on issues relating to legal analysis would . . . silence those who would be most competent to speak to the issue, . . . inappropriately suggest that decisions of appellate judges are beyond criticism, and . . . inappropriately curtail activities designed to improve administration of justice.”  The dissent explained:

A judge who takes the time and effort to offer constructive comment about interpretation of a statute is demonstrating respect for the law.  Moreover, suggesting an alternate analysis to be applied by the Supreme Court is not the same as suggesting that the article’s author or anyone else should disregard the effect of precedent.  Publishing constructive criticism does not mean that a judge is going to disregard his or her duty to adhere to decisions of higher courts.  Moreover, a judiciary that bars constructive comment about the law implies that appellate courts are closed minded, not open to discussion and unfairly biased toward their own predisposition.

. . . The legal system would be greatly weakened by a rule foreclosing a judge’s suggestion that rules of construction support a different interpretation of an existing statute.  Such limitation on open dialogue would compromise the opportunity to achieve greater competence and thereby undermine faith in the law.

A sampling of recent judicial ethics advisory opinions

  • When an attorney alleges in a recusal motion that they had a close social relationship with a judge that deteriorated into an adversarial relationship, the judge should fully disclose the nature and extent of that relationship so a determination can be made whether recusal is required in cases in which the attorney appears.  New York Opinion 2021-48.
  • As long as a proceeding brought by a judge on behalf of their minor child is pending, the judge is disqualified from matters involving the adverse party or parties and counsel, subject to remittal.  New York Opinion 2021-23.
  • A judge may accept or reject plea dispositions but must make good faith, individualized determinations regarding the law and its application and may not adopt a broad policy. New York Opinion 2021-46.
  • A judge may direct the court clerk to include with unlawful detainer summonses materials that describe legal and financial assistance available to tenants without giving contemporaneous notice to landlords if the clerks provide notice and a copy to landlords when they file the matter and the materials state that they are not an official court communication and that the court does not endorse the information or require tenants to avail themselves of the resources.  Virginia Opinion 2020-1.
  • Judges may use social media to make statements about the law, the legal system, or the administration of justice, including legislation affecting the judiciary or the legal system, but judges must exercise caution and restraint; should assume the widest possible audience due to lack of control over the dissemination and permanence of online statements; may not engage in prohibited social or political commentary; must carefully evaluate what they intend to post; and must continually monitor reactions to their statements and the social media forums they use.  California Expedited Opinion 2021-42.
  • A judge who views another judge’s profile on Facebook and sees that it has posts regarding the 2020 presidential election, media coverage, and bias; links to articles about politics; internet memes regarding politics; expressions of political opinions; and exchanges about politics must report the other judge to the appropriate authority.  Massachusetts Opinion 2021-1.
  • A judge with personal knowledge that an attorney knowingly assisted a client effectuate a transfer of disputed real estate under false pretenses must report the attorney to the appropriate grievance committee.  New York Opinion 2020-213.
  • A judge may not write and publish an article that analyzes a criminal statute, asserts that the Virginia Supreme Court has incorrectly interpreted that statute, and provides an alternative interpretation.  Virginia Opinion 2020-2.
  • A judge may not serve as a member of a county task force created to address hate crimes if the task force has a broad agenda, including legal, educational, social, and policy reforms, but may assist the task force in other ways, for example, by appearing before, providing information to, or advising it on issues within the judicial branch’s purview and relating to the judge’s experiences and perspective as a judge.  California Expedited Opinion 2021-41.
  • A judge may solicit other judges to join, or renew their memberships in, a local bar association, but may not solicit attorneys or other non-judges.  New York Opinion 2021-34.
  • A judge may not be a member of a bar association task force that will monitor and discuss fiscal and human rights issues faced by residents of Puerto Rico.  New York Opinion 2020-209.
  • A judge may not be a member of a voluntary bar association that endorses a particular candidate for appointment as U.S. Attorney.  Florida Opinion 2021-1.
  • A judge may not serve on the board of directors of a not-for-profit senior housing development that is likely to regularly engage in adversarial litigation in any court.  New York Opinion 2021-34.
  • A judicial officer may serve on the board of an organization even if another member of the board is a partner in a firm that regularly appears before the judicial officer on child support cases.  Florida Opinion 2021-2.
  • A judge may allow a CASA program to post pictures of the judge in court in an adoption proceeding (without identification of the child) and to quote the judge on the beneficial value of the program on, for example, the program’s website, social media, and newsletter.  A judge may not submit written correspondence to the local county board in support of funding for the CASA program.  A judge may attend a CASA program’s annual fund-raising event if the judge pays but may not speak at the event.  A judge may speak at educational sessions for volunteers to the CASA program regarding the court’s expectations of a CASA volunteer.  Nebraska Opinion 2021-1.
  • A judge may notify the media relations staff of the administrative office of the court notice that a charitable organization has begun producing handmade robes as part of its mission to break the cycle of poverty for Baltimore citizens returning from prison.  Maryland Opinion Request 2021-3.
  • A judge who objected orally and in writing to their name being in an email soliciting funds for a charitable cause need not take any further action.  A judge may contribute their personal funds, alone or with a co-judge, to sponsor a family in need and may be identified by name and title in doing so but may not make charitable contributions in the name of the court or permit their court staff to do so.  New York Opinion 2020-190.
  • A judge may not provide a biographical video for use in a not-for-profit organization’s social media campaign if the required release and the overall context create an impression that the video will be used to promote the organization and its gala fund-raising event.  New York Opinion 2021-31.
  • A judge may serve as president of a not-for-profit organization that supports a branch of the U.S. military through education, community outreach, youth programs, and programs and services for military personnel and their families.  New York Opinion 2021-47.
  • A judge may not serve on the advisory board of the Center for Court Innovation, which provides alternatives to detention and incarceration for criminal defendants.  New York Opinion 2020-212.
  • A judge may volunteer as an editor for a not-for-profit poetry journal.  New York Opinion 2021-53.
  • A judge may not serve on a committee investigating sexual harassment claims against a member of a worldwide not-for-profit service organization even if the individual is in another county.  New York Opinion 2021-55.
  • A judge may serve on the search committee for the dean of a law school that is financially supported primarily by New York State or one of its political subdivisions, even if the prior dean’s tenure or departure was controversial.  New York Opinion 2021-70.
  • A judge may write a letter about their personal experience while attending a law school and practicing law in the same community that will be sent to prospective law students by the admissions department of a law school in an effort to further diversity at the law school and in the legal community if the school will not use the letter in general fund-raising efforts.  Washington Opinion 2021-2.
  • A judge who is the parent of a child on the autism spectrum may write an article supporting proposed state legislation prohibiting the use of seclusion and restraints as behavior modification tools for public school students who have autism or are on the autism spectrum but may not be identified as a judge.  Florida Opinion 2021-3.
  • A judge may not participate in an interview with a local news station regarding the experiences of the judge’s first-degree relative at a local nursing home.  New York Opinion 2021-24.
  • A new judge may wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services and complying with a state administrative agency’s requirements for obtaining payment of previously awarded legal fees.  New York Opinion 2021-13.
  • A judge may not participate in a proposed not-for-profit corporation that would be controlled by the judge’s family and would feature the judge as its sole compensated lecturer with a sliding scale of fees.  New York Opinion 2020-200.
  • A judge may not invest in a publicly traded company the sole business of which is the sale of medicinal and recreational marijuana and other cannabis-related products if the company is operating in the U.S. in violation of federal law.  New York Opinion 2020-208.
  • A judge may attend a sporting event or concert in a luxury box as a guest of their spouse when use of the luxury box seats is a benefit incident to the spouse’s employment as an officer of a company that is unlikely to come before the judge.  New York Opinion 2021-35.
  • A judge may seek appointment to a non-judicial employment position with the executive branch of the federal government but must resign prior to accepting the appointment.  Wyoming Opinion 2021-1.

Gifts, art, pronouns, and ex parte communications

Gifts
In a recent opinion, the California Supreme Court Committee on Judicial Ethics Opinions advised that judges “may exchange modest gifts with their courtroom staff.”  California Expedited Opinion 2021-39. However, it explained ed that judges should “treat all staff equally and maintain proper decorum” should not pressure staff to reciprocate.  Moreover, the opinion added that judges should not give gifts that are “offensive, demeaning, or otherwise inappropriate” or gifts that could “be perceived as harassment.”

The opinion noted that “acknowledging birthdays, holidays and other special occasions can be an appropriate way to build morale among a judge and his or her staff.”  However, it emphasized that, “to the extent reasonably possible, judges should endeavor to treat their staff equally.”  For example, it stated that judges should not give “significantly disproportionate” gifts to different staff members or only “celebrate the birthdays of certain of their staff while ignoring the birthdays of others.”  Moreover, it advised judges to be “sensitive to and respect the fact that staff may come from different faiths and traditions” and “to the extent reasonably possible, . . . tailor any gifts that they give to align with the heritage and belief systems of their staff.”

The opinion advised judges to tell their staff that “there is no obligation or expectation” that they will give the judge a gift in return for the judge’s gift and warned judges not to implicitly pressure their staff for such an exchange, noting that staff are more likely to feel that reciprocation is required if the judge’s gift is expensive or extravagant.  Thus, the committee directed judges to “keep any gifts modest” reflecting “the power and financial imbalances between themselves and their staff.”  Further, it stated that “judges should not solicit staff for a group gift.”

The committee also stated that judges should not “give gifts that are offensive or demeaning,” for example, a gift that is “obscene, profane or degrading in any way to the recipient or to others” or that is a practical joke.  Finally, it stated that judges should not “give gifts that would be perceived as harassing, for example if given in the expectation of fostering a romantic or sexual relationship with a staff person.”

Art
In a recent opinion, the New York Advisory Committee on Judicial Ethics stated that judges may undertake “a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups” in collaboration with a non-profit historical society.  New York Advisory Opinion 2020-202.  The committee noted that the judge should first obtain any required administrative approvals.

The inquiring judges were members of a court’s committee on bias and noted that, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.”  To make the courthouse more inclusive and educational, the judges wanted to work with “scholars of legal history and architecture to help create signage and other materials that would ‘interrogate our public art and place it in the context of our nation’s history.’”  The judges would prepare written plans for the project, and the Historical Society of the New York Courts would apply for grants.  After funds were received, the judges would collaborate with the Society in their allocation.

The advisory committee concluded that the project was not only “ethically permissible” but supported the court system’s “efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary.”

Pronouns
In a recent opinion, the New York Committee stated that, when “a party or attorney has advised the court that their preferred gender pronoun is ‘they,’ a judge may not require them to use ‘he’ or ‘she.’”  New York Advisory Opinion 2021-9.  The inquiring judge was concerned that “the use of ‘they’ could create confusion in the record as to the number of persons to whom a speaker is referring.”

The committee recognized that “a judge may take reasonable steps to ensure the clarity of the record, including courteously referring to an individual by surname and/or their role in the proceeding as appropriate.”  However, it stated, “a judge must be careful to avoid any appearance of hostility to an individual’s gender identity or gender expression.”  The Committee explained:  “Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.”  This could not only make them feel unwelcome but also distract from the adjudicative process.”  Therefore, it concluded, “the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.”

It also found that there was “no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular ‘they’. . . .”  It noted that “they” “is one of three personal pronouns in the English language” and has been recognized as a grammatically correct use for an individual, citing Merriam-Webster’s addition of that usage to its dictionary definition in September 2019 and its choice as the 2019 Word-of-the-Year.

The Committee expressed its trust that judges can “handle an expressed preference for the use of singular ‘they’ on a case-by-case basis, adopting reasonable procedures in their discretion to ensure the clarity of the record as needed.”  It also noted that a judge could make “adjustments over the course of a proceeding” if they find that “an initial approach was unsuccessful or confusing.”

Ex parte communications
In a recent opinion, the Illinois Judicial Ethics Committee advised that a judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, disregards it, and promptly advises all parties.  Illinois Advisory Opinion 2020-1.  The committee did note that judges may “wish to insulate themselves, to the extent possible, from such communications,” for example, “by issuing a standing order to make clear to non-lawyers that such communications are not allowed.”

The inquiry came from a judge who had received an email from a self-represented litigant with “extensive and substantive information about a case.”  The email was sent directly to the judge, and opposing counsel was not copied.  The litigant had learned the judge’s email address when the judge, in order to schedule virtual hearings, communicated by email with the litigant and the attorney representing the other side. 

The committee stated that, after receiving an unsolicited ex parte communication, a judge’s first step was “to ensure that the ex parte communication is disclosed to the other party.”  The opinion noted that “an ex parte communication received via email makes possible a verbatim disclosure of the communication,” which “diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.”  The inquiring judge had “immediately notified the other party of the communication.”

After disclosure, according to the committee, the judge should determine “whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?,” which would require recusal.  The committee noted that the “inquiring judge did not feel that receipt of the communication affected their neutrality,” adding that “it would be unusual for a judge to be unable to compartmentalize” information they could consider from information they could not consider.

Finally, the committee advised that the judge should analyze whether the ex parte communication raised reasonable questions about the judge’s impartiality, noting that recusal “should be required only ‘if additional circumstances give rise to an appearance of bias,’ such as the ‘judge’s initiation of an ex parte communication.’”  An ex parte communication is less likely to require recusal under that test, the committee explained, if the judge did not initiate it, “shut[] it down” when it was recognized, and promptly disclosed the communication to the other side.  The opinion emphasized that “a judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.”  The committee also noted that a rule requiring recusal following any ex parte communication “’would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.’” 

A sampling of recent judicial ethics advisory opinions

  • The Americans with Disabilities Act does not require a judge to allow nonlawyers to represent litigants with disabilities in court.  A judge may permit accommodations for litigants with disabilities that do not conflict with rules prohibiting the unauthorized practice of law, for example, allowing an individual to sit with a self-represented litigant, but may deny a request for an accommodation that would circumvent procedures essential to the nature of the court’s services, programs, or activities.  A court may encourage a litigant with a disability to seek assistance, but may not exclude them from court services, programs, or activities if they choose not to seek assistance. Arizona Opinion 2020-1. 
  • A judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, promptly advises all parties, and can disregard it.  Illinois Opinion 2020-1.
  • When a party or attorney has advised the court that their preferred gender pronoun is “they,” a judge may not require them to use “he” or “she.”  New York Opinion 2021-9.
  • An appellate justice may not accept the services of a law firm employee who is an incoming associate to work in the justice’s chambers for 6 to 12 months.  California Expedited Opinion 2021-38.
  • On learning that a law firm has posted screen shots or videos of the court’s oral arguments on its website, a justice should request that the images be removed.  New York Opinion 2020-158.
  • • To celebrate birthdays and holidays, judges may exchange modest gifts with their courtroom staff but should treat all staff members equally and maintain proper decorum and should not give any gifts that might pressure staff to reciprocate, be offensive, demeaning, or otherwise inappropriate, or be perceived as harassment. California Expedited Opinion 2021-39.
  • After receiving any required administrative approvals, judges may collaborate with the Historical Society of the New York Courts on a project to provide historical context for existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups.  New York Opinion 2020-202.
  • A judge is required to report to the State Commission on Judicial Conduct a town justice who filed a letter in support of the town clerk’s pistol permit application.  New York Opinion 2020-181.
  • A judge may not write a letter to the attorney grievance commission attesting to a former employee’s character.  Maryland Opinion Request 2020-22
  • A judge may not allow a transition program for formerly incarcerated individuals to list the judge’s name with other supporters in a grant application.  New York Opinion 2020-144.
  • Subject to general limitations on speech and conduct, a judge may write an article for a legal publication outlining what the judge considers are significant flaws in the risk assessment instrument judges are required to use under New York’s Sex Offender Registration Act.  New York Opinion 2020-136.
  • A town justice may not serve on the town’s police reform collaborative.  New York Opinion 2020-183
  • A judge may not accept an award for domestic violence awareness month from a not-for-profit entity that provides legal advocacy services and other resources and support for domestic violence victims.  New York Opinion 2020-184
  • A judge may donate to a fund established to install a public monument honoring a federal judge and may also solicit contributions from co-equal judicial colleagues.  The judges’ names and titles may be listed with other contributors on a plaque erected with the statue.  New York Opinion 2020-132.
  • A judge who underwent surgery at a not-for-profit hospital may not share their story on a patient education live webinar on the hospital’s website and social media channels.  New York Opinion 2020-108.
  • A municipal judge may not serve on the board of directors of a non-profit corporation that contracts with the city to provide re-entry services to the court as an alternative to incarceration.  Ohio Opinion 2021-1.
  • A judge may serve on a bar association’s internal nominating committee that recommends individuals seeking board and officer seats.  New York Opinion 2020-168.
  • A town justice may not speak at a town board meeting about a proposed resolution opposing extension of the big game hunting season.  New York Opinion 2020-193.
  • A judge may obtain and license a patent.  New York Opinion 2020-102.
  • A judge may volunteer as a participant in a COVID-19 study conducted by a hospital and may accept the same modest per-visit compensation as other participants.  New York Opinion 2021-11,
  • A judge may not form a for-profit company that will provide instruction on diversity, equity, and inclusion topics.  New York Opinion 2020-155.
  • A judge who is leaving office may not authorize a prospective employer to advertise their anticipated post-judicial employment at the firm.  Florida Opinion 2020-26.
  • As often as the judge determines necessary based on the circumstances, a judge must ask her spouse for information on his business arrangements with local attorneys and determine if disqualification or disclosure is necessary.  New York Opinion 2020-126.
  • A judge need not object to his spouse hosting a political fund-raiser for a candidate at their marital home, but the invitations must not refer to the judge, and the judge must not appear or participate in the event.  New York Opinion 2020-157/2020-160.
  • A judicial candidate may pledge to comply with the rules about appointments and fees in fiduciary cases and to make decisions and appointments without regard to political affiliation, cronyism, or nepotism.  A judicial candidate may not pledge to strive to appoint women attorneys and attorneys of color to fiduciary positions but may promise to reach out to various associations to increase participation in the lists.  New York Opinion 2020-114.

Pandemic advice

Judicial ethics committees have responded to judges’ inquiries about the challenge of managing courts and hearing cases while coping with the threat of transmitting the virus.

Judges in a Nebraska district were asked to meet with a coalition of agencies “formed to provide low-income tenants in eviction cases with representation in light of the current COVID-19 pandemic.”  The coalition wanted to discuss with the judges the public health risks in eviction proceedings, scheduling, modifications of the court’s calendaring procedure, and substantive procedural changes. 

The Nebraska judicial ethics committee advised the judges that they or their designee could meet with the coalition, noting that the proposed topics were “appropriate matters for discussion given that no advantage can be reasonably assumed to adhere to the coalition or its potential clients from the conversations.”  Nebraska Advisory Opinion 2020-1.  The committee added that, although the judges were not required to notify others who might be interested in the discussion, “it would be appropriate, efficient, and in keeping with the spirit of the Nebraska Revised Code of Judicial Conduct to encourage other attorneys or interested parties to participate in the meeting.”  The committee noted that the coalition’s request was not a prohibited ex parte communication about pending or impending cases that had to be disclosed to other counsel or parties or to disciplinary authorities. 

The coalition had also asked the judges to notify self-represented litigants about the coalition “from the bench.”  The committee advised that the judges could not “refer persons to a specific organization for legal assistance” but could inform “an unrepresented litigant that he or she has a general right to seek the assistance of counsel and that there are organizations which may be able to assist on a reduced or a no-fee basis.”  The committee also disapproved of the suggestion that information about legal services be included with the summons in eviction cases, concluding that “extraneous materials promoting one specific group of service providers” should not be included with the documents that statutes specify must be provided.  The opinion did add that the court could post information about the coalition’s services in “highly visible” locations near courtrooms and throughout the courthouse.

The coalition had also asked the judges to consider “liberally granting continuances,” but the judicial ethics committee warned that “any such promise or consideration by the court would be improper.  All continuances are subject to objection and controlled by rules of law.  It is inappropriate to have a blanket rule that all continuances should be either granted or denied in any type of case.”

The New York advisory committee addressed several inquiries from town and village justices who wanted to work with prosecutors to facilitate plea agreements in traffic cases to limit in-person court appearances due to public health concerns, particularly given significant staff reductions for prosecutorial agencies and courts.  Emphasizing the importance of maintaining judicial independence, the committee disapproved all four proposals, although it noted that it was “not unsympathetic to the challenges facing prosecutors and courts ….”

For example, in New York Advisory Opinion 2020-99, the committee stated that a town or village justice court must not “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargain process for vehicle and traffic law infractions.  The opinion emphasized that a court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak.  However, the committee did suggest that the court could meet with defense bar representatives and the prosecutor’s office together to discuss procedures for handling mail-in pleas on traffic infractions and authorized the court to distribute, as a convenience to defendants, a court-prepared form that impartially listed all options and included a link to the district attorney’s website and/or email address. 

The committee also disapproved of a proposed plea reduction form “designed to limit foot traffic in the courtroom” because it did not present all of a motorist’s options neutrally, it had the court’s name at the top, and it significantly downplayed the motorist’s rights.  New York Advisory Opinion 2020-206.  The opinion did suggest that “it may be helpful for court administrators, working with the Office of Justice Court Support, to develop and circulate a new form, consistent with applicable ethical and legal considerations, for use in these circumstances.  Such a form could help protect well-intentioned judges across the state from inadvertent missteps.  We note that other potential solutions might be technological in nature (e.g. if defendant motorists could interact directly with the prosecuting agency online to request plea reductions) or even legislative (e.g. if statutory changes could be made to facilitate plea bargaining in matters where defendants mail in “not guilty” pleas pursuant . . .).”

See also New York Advisory Opinion 2020-97 (courts must not distribute the district attorney’s “informational document” to defendant motorists or otherwise implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in vehicle and traffic law matters); New York Advisory Opinion 2020-94 (judge may not permit the clerk to use the court’s database access or other digital platform to enter data in the village attorney’s plea bargain letters sent to defendant motorists).

Not all pandemic operation issues are ethical ones, of course.  The California Supreme Court advisory committee, for example, explained that it did not have the authority to decide whether judges may require a witness or a party who is afraid to remove a mask, as that is a question of law.  California Oral Advisory Summary 2020-32.  It also advised that whether judges must be allowed to continue to work remotely if they are concerned that their age or preexisting medical conditions would place them at great risk if they were required to be physically present in a courtroom was not an ethics issue, but a court management issue.  California Supreme Court Committee Advisory Opinion 2020-34.

A sampling of recent judicial ethics advisory opinions

  • When an appellate justice learns that a staff member has posted a comment on social media that violates the canons of judicial ethics, the justice should immediately take steps to remedy the violation, including at a minimum requiring the staff member to take all reasonable steps to have the post taken down and removed from the public domain. If the justice learns that an improper comment has been viewed by the public, republished, or otherwise disseminated, the justice should, depending on the circumstances, instruct the staff member to correct or repudiate the comment on social media, particularly if the comment is demeaning, offensive, or otherwise undermines the dignity of the court.  California Oral Advice Summary 2020-37
  • A judge may permit his law clerk to participate in peaceful Black Lives Matter protests away from the courthouse during non-working hours, but must instruct the clerk not to carry signs calling for the arrest or prosecution of the police officers involved in the Breonna Taylor shooting and not to remain with any protestors engaging in vandalism or violence. New York Opinion 2020-141.
  • A judge may display photographs and other memorabilia of current and former elected federal officials in her chambers but must be mindful of the content, context, and circumstances of the display to avoid any appearance of impropriety. New York Opinion 2020-101.
  • A court may include on its approved arbitrator list and guardian ad litem registry an attorney who is married to a judge on the court as long as protocols are followed to ensure that there is no appearance of impropriety, nepotism, or favoritism. Washington Opinion 2020-6.  
  • A judge or group of judges may sign a proposed resolution urging judges to remain vigilant in their efforts to keep racial bias out of the justice system and may submit the resolution for consideration to the chief judge of their circuit and to the Florida Supreme Court. Florida Opinion 2020-18. 
  • Judges may use court letterhead for any correspondence related to the appropriate exercise of the judicial office, including educational outreach and civic leadership activities. Alaska Opinion 2020-1.
  • A judge may not voluntarily write a letter of support on behalf of any litigants in any civil or criminal matter pending or impending in any court or administrative venue, including any judge or lawyer disciplinary proceeding. West Virginia Opinion 2020-25
  • A judicial official may not provide a letter of recommendation to the governor’s legal counsel at the request of a candidate seeking a judicial appointment but may be listed as a reference for the candidate and, if requested by the governor’s legal counsel, may provide a written or oral recommendation, subject to conditions. Connecticut Informal Opinion 2020-4.  
  • A judge may not submit a letter to a newspaper or bar association newsletter that accuses a named elected federal official who is currently running for re-election of undermining the rule of law, blames recent civil unrest on that official’s policies and philosophies, and criticizes the official’s policies. New York Opinion 2020-90
  • A judge may speak to an ethnic/cultural affinity group of employees in the prosecutor’s office about the judge’s experience as a prosecutor and career path and the court system’s adaptation to virtual operations. New York Opinion 2020-131.
  • A judge may write the biography of a noted attorney that includes accounts of criminal events and judicial decisions that may reflect negatively on the judicial system at the time. The judge may post the release date for the book on Facebook or other social media and participate in book promotions and speaking engagements in Florida or other states.  Florida Opinion 2020-21.  
  • A judge may write a book review of a friend’s novel and post it online without mentioning her judicial position provided the purpose is not to promote sales of the book. The judge must not authorize use of the review on the book jacket or elsewhere to promote sales of the book.  New York Opinion 2020-85.
  • A judge, judge’s family members, and staff members may accept gifts that are considered ordinary social hospitality but should not accept any gifts from persons who may appear before the judge or gifts presented with no reasonable expectation the judge will reciprocate. Ordinary social hospitality includes, for example, food or a bottle of wine presented by a houseguest; the purchase of a meal by a friend or colleague with the reasonable expectation that it will be reciprocated; mutual gift exchanges, such as holiday or birthday gifts of comparable value; and produce from a home garden if it is reciprocated.  Examples of gifts that would not be considered ordinary social hospitality include tickets to concerts, shows, sporting events, or fundraising events and gifts that are of significant value, such as use of a vacation home or time-share and expensive gifts from a lobbyist or vendor.  Michigan Opinion JI-146 (2020).
  • A judge may purchase raffle tickets at a charity auction. Florida Opinion 2020-19
  • A judge who is on the board of directors of a non-profit organization that supports and promotes musicians may not write a letter in support of the foundation’s application for grants from local and state governments. Florida Opinion 2020-17.
  • A judge may serve on the board of a non-profit organization that supports the historic preservation of buildings, makes recommendations for the establishment of historical districts, supports rehabilitation projects, and provides loans to organizations with similar goals. New York Opinion 2020-109.
  • A judge who wishes to be a member or leader of a non-profit organization that allows only women to be general members with voting authority and advocates for the Black Lives Matter movement and promotes U.S. Census participation by African-Americans and the expansion of literacy and technology resources in the community must determine if the organization invidiously discriminates, engages in partisan political activity, or will insert the judge unnecessarily into controversial lobbying, advocacy, or litigation. If some of the organization’s activities are clearly permissible and some are potentially controversial, a judge may only be a regular member and may not serve in a leadership position.  New York Opinion 2020-128
  • A judge may become a dues-paying member of the NAACP. Florida Opinion 2020-22.
  • A judge may not accept appointment to a federal health agency’s advisory council on improving public health among minority populations. New York Opinion 2020-146
  • A judge may participate on an exploratory committee formed by the public defender and the district attorney to consider the creation of a district court system in her county. New York Opinion 2020-147.
  • A circuit court judge may not serve as a regional judicial outreach liaison, a part-time paid position with the American Bar Association Judicial Division related to driving while under the influence laws, which is part of a cooperative agreement between the ABA and the National Highway Traffic Safety Administration. Wyoming Opinion 2020-1

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.