Balls, strikes, and self-represented litigants

In an advisory opinion, the California Judges Association Judicial Ethics Committee encouraged judges to “understand the difficulties encountered by self-represented litigants” and “to exercise discretion to treat them differently.”  California Judges Association Advisory Opinion 76 (2018).  The opinion emphasized that a “judge may make reasonable procedural accommodations that will provide a diligent self-represented litigant acting in good faith the opportunity to have his or her case fairly heard.”

The committee explained:

Some judges take the position that the job of the judge is to call the balls and strikes, not to throw the pitches.  Is this an accurate statement of the role of the judge?  Not necessarily. . . .  Fundamental justice should not be sacrificed to procedural rules and cases should be decided on their merits.  Exercising discretion – not just calling balls and strikes – is the nature of judging, from granting motions for extensions of time to handing out sentences.

Frequently, there is tension between the represented party and the self-represented litigant.  One side is ready to proceed, has done the legal work, and would like to complete the proceeding as soon as possible.  The self-represented litigant often is struggling with legal terms, time limits, and court procedures.  The judge must decide what reasonable accommodation is proper and when it is unreasonable.  Judges may grant continuances, explain legal terms, refer a litigant to self-help services or the library, or refer him or her to the local bar association for a low-cost meeting with an attorney.  Whether the judge should take any of these or other steps is a matter of judicial discretion.

The committee concluded:

The adversary system is not embedded in the Code of Judicial Ethics, nor is it the primary purpose of the code to protect the formalities of the adversary system.  Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented.  Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.

The committee applied its analysis to several courtroom situations.  For example, the committee stated, a judge may, at the beginning of a civil case in which one litigant is unrepresented by counsel and the other is represented, explain how the proceedings will be conducted, including that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered.  In addition, the opinion advised:

  • A judge may give a self-represented litigant a neutral explanation of how to respond to a motion for summary judgment.
  • A judge may provide a self-represented litigant information about the requirements for entry of a default judgment.
  • A judge may ask a self-represented litigant if she wants a continuance to bring a witness to court.
  • During a trial, a judge may ask witnesses neutral questions to clarify testimony and develop facts.
  • A judge may sign a settlement agreement prepared by the attorney for 1 party and signed by an unrepresented party, but, as a best practice, should ask the parties if they understand the document and ask the unrepresented party if she understands her responsibilities under the agreement.
  • When a self-represented litigant refers to information after being instructed not to, a judge is not required to grant a motion for a mistrial but may instruct the jury to disregard the testimony.
  • If an unrepresented plaintiff makes no specific claim for damages at the close of her case, the judge may ask the plaintiff, “Are you asking for damages in this case? If so, what is the amount you are asking for?  And why are you asking for this amount?”
  • In a criminal case, if a prosecutor tries to take advantage of a defendant’s unrepresented status to introduce the defendant’s prior drug-related arrest and the factual basis for a search, the judge should immediately intervene even if the defendant does not object.

In domestic violence cases, the committee stated, a judge:

  • May give the self-represented plaintiff a short continuance to learn about the relevant rules of evidence and the procedural requirements for the admission of hospital records,
  • Should permit a support person to accompany a self-represented moving party to counsel table, and
  • Should inform a self-represented respondent that he could present oral testimony.

Commentary to the California Code of Judicial Ethics states:  “[W]hen a litigant is self-represented, a judge has the dis­cretion to take reasonable steps, appropriate under the circumstances and con­sistent with the law and the canons to enable the litigant to be heard.”  Comment 4 to Rule 2.2 of the American Bar Association Model Code of Judicial Conduct states:  “It is not a violation of this Rule [requiring that a judge be fair and impartial] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  34 states and the District of Columbia have added comment 4 or a version of comment 4 to their codes of judicial conduct.  Click here for more information.

A sampling of recent judicial ethics advisory opinions

  • A judge may participate, identified as a judge and wearing a robe, in a state agency video explaining successful truancy measures for juveniles. West Virginia Opinion 2018-19.
  • Judges must assume their attendance at a march, rally, or protest will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media, and consider whether their participation would appear to a reasonable person to undermine their independence, integrity, or impartiality or demean the judicial office, which is an objective standard. Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  The same restrictions apply to judges’ personal staff, courtroom clerks, and court managers.  Arizona Opinion 2018-6.
  • A judicial official may not act as a reference for a support enforcement officer who regularly testifies before him and is applying for a promotion Connecticut Informal Opinion 2018-17.
  • A judge may host a “meet & greet” in her home for the new dean of the Oklahoma City University law school if there will be no fund-raising. Oklahoma Opinion 2018-10.
  • A judge may serve on a committee that interviews applicants to his alma mater and recommend a student for admission as long as his title is not mentioned in the recommendation. Florida Opinion 2018-31.
  • A judicial official may not accept an award at a fund-raising dinner for a non-profit human relations organization that promotes inclusion and acceptance through education, advocacy, and building respectful and just communities. Connecticut Informal Opinion 2018-16.
  • A judge may accept a raffle prize valued at approximately $500 at a charity event hosted by the probation department, which regularly appears in her court. New York Opinion 2018-133.
  • A judge may not participate in an interview with a former juror writing a book about a case over which she presided when related proceedings remain pending or impending. New York Opinion 2018-134.
  • A judge may serve as a manager in a real estate investment limited liability company formed to manage his real estate investments and those of close family members but should avoid that role if other members could easily undertake the duties and may not serve if doing so would require frequent disqualification. North Carolina Formal Opinion 2018-1.
  • A judge may serve as an executor/administrator for a great nephew’s estate when they had a close family relationship and may receive the statutorily mandated compensation. West Virginia Opinion 2018-4.
  • A magistrate may participate in a street/block yard sale in his neighborhood. West Virginia Opinion 2018-8.
  • A circuit court judge’s spouse may be the executive director of an organization that provides domestic violence victim advocacy services, including in proceedings before the circuit court, but they judge should not discuss with her the organization’s policies, activities, or clients or attend the organization’s events and should advise her not to promote or comment on their relationship in a job interview or any aspect of her duties. Wyoming Opinion 2018-2.
  • Judicial candidates must disavow third-party/PAC advertisements that contain statements that are false or misleading; that indicate the candidate would be biased in favor of or against an individual, group, or legal issue; or that do not accurately reflect the duties and role of a judge. West Virginia Opinion 2018-22.

 

A sampling of recent judicial ethics advisory opinions

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

 

A sampling of recent judicial ethics advisory opinions

  • A judge is not disqualified from matters involving a credit union where she is a member and account holder. New York Opinion 2018-44(A)
  • A judge whose spouse and the construction company he owns are represented by a large law firm is not disqualified from unrelated cases in which that law firm appears. Florida Opinion 2018-22.
  • A judge may preside in a criminal matter involving disruptions at a zoning board by a defendant who has also filed a notice of claim against the town for damages arising from the same incident even though the judge is a resident and taxpayer of the town. New York Opinion 2018-86.
  • A judge may continue to preside in a case after reporting one of the attorneys to a bar association’s lawyer assistance committee. A judge’s disciplinary responsibilities apply to attorney competence as well as misfeasance, malfeasance, and non-feasance.  New York Opinion 2018-58.
  • At the request of a police department’s inspector general, a judge may forward published decisions that appear to involve corrupt or perjured police officers to an appropriate investigative authority, but may decline to do so absent a legal duty. New York Opinion 2018-28.
  • A judge may not participate in a school’s truancy intervention court in his courtroom even if he does not wear a robe and is not the only person making determinations. New Mexico Opinion 2018-5.
  • A judge may write a letter to state agencies with her observations that a state center for the developmentally disabled is no longer suited to house inmates, many of whom are judicially committed for criminal offenses, and requesting action to provide a safer, more secure facility. A judge may inform the legislature of the importance of a center where parents have monitored visitation with their children.  If a judge is concerned that the current law on the apportionment of fault in negligence cases inhibits settlements and increases litigation, the judge may explain to a legislative committee the impact pending legislation on the issue will have on court operations.  A judge may not appear before a legislative committee to support a bill that would increase penalties for domestic violence crimes.  A judge may testify before a county legislative body about the need for indigent legal services in the county.  A judge may make a public service television announcement to encourage people to become foster parents.  California Judges Association Opinion 75 (2018).
  • A judicial official may serve as the president of a local chapter of a college’s alumni association. Connecticut Informal Opinion 2018-15.
  • A judicial official may serve on the board of trustees of a local university. Connecticut Informal Opinion 2018-8.
  • A judge who wrote a book on methods to keep kids out of trouble may speak at a library on the east coast and accept reimbursement for her travel expenses. A judge may attend an economic cooperation and development forum in South Korea but may not accept reimbursement for travel expenses and must attend on his own time.  California Judges Association Opinion 75 (2018).
  • A judge may not publish a scholarly article that is highly critical of the state correctional officers association, the recent administrations in Sacramento, and the “tough on crime” movement. A judge may not sit on an advisory board that distributes grant money to police departments for anti-terror equipment.  California Judges Association Opinion 75 (2018).
  • A newly appointed judge who sits in a misdemeanor calendar may continue to teach a class to at-risk juveniles. California Judges Association Opinion 75 (2018).
  • A judicial official may provide training in collaborative divorce through the Connecticut Council for Non-Adversarial Divorce and receive compensation. Connecticut Informal Opinion 2018-11.
  • A judge may assist a high school team learn the skills necessary to compete in a mock trial competition. New Mexico Opinion 2018-7.
  • A judge may accept a discount to attend a mediation program at Pepperdine University, a discounted membership in California Women Lawyers, and payment of national and local membership dues for the American Board of Trial Advocates offered to all judges by the local chapter. A presiding judge may not authorize a publisher to supply each judge on the court with a free subscription to a local business-type magazine.  California Judges Association Opinion 75 (2018).
  • A judicial official may resell to a commercial ticket reseller or to friends sporting event tickets for more than what he paid, subject to conditions. Connecticut Informal Opinion 2018-9.
  • A judicial official who holds a real estate broker’s license may not receive referral fees consistent with the real estate industry practice even if she connects buyers and sellers. Connecticut Informal Opinion 2018-13.
  • If a municipal parade is a ceremonial community event, not a fund-raiser or a political event, a judicial official may march in the parade with other former municipal officials if her name is not used in connection with soliciting sponsors, if she does not permit any banner or sign displaying her name and office to appear on floats or vehicles promoting political parties or candidates, and if she does not appear with political candidates in the parade or on their floats/vehicles. Connecticut Informal Opinion 2018-12.
  • A judicial candidate may use or re-publish a news report on his opponent’s inappropriate relationship with a legal client, which the opponent has reportedly confirmed. Florida Opinion 2018-12.

 

Special presentations

In a recent advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions identified the conditions under which a judge may make educational presentations to specialty bar associations.  California Formal Advisory Opinion 2018-12.  The committee defined a specialty bar association as one “whose members primarily represent a particular class of litigants on one side in cases before the courts . . . .”

The opinion advised that a judge may make educational presentations to specialty bar associations but conditioned that permission on the judge:

  • Being equally available to give presentations to audiences with opposing interests or viewpoints, and
  • Evaluating whether the frequency of presentations before a particular association or type of association would create an appearance of bias.

Further, the judge’s presentation:

  • Must be neutral in content,
  • Must be presented from a judicial perspective,
  • Must avoid coaching or providing a tactical advantage to the audience, and
  • Must not include statements that may cast doubt on the judge’s capacity to act impartially.

The committee explained that a “presentation is sufficiently neutral if the judge can give the same presentation to specialty bar associations with members that represent opposing or competing interests or parties.”

The committee stated the promotional materials for the program may identify a judge by judicial title, but the judge should ask to review the materials in advance to ensure that they accurately reflect the neutral and educational nature of the presentation.  If the judge is aware that the materials are inconsistent with the canons, the opinion stated, the judge must take corrective action, which may include giving an oral disclaimer at the time of the presentation.

See also Massachusetts Advisory Opinion 2002-1 (a judge may participate as a speaker or panelist in educational programs sponsored by the Academy of Matrimonial Lawyer, which does not favor any particular category of litigants); Nebraska Advisory Opinion 2006-4 (a judge should not make a presentation on effective motions to suppress in a seminar about successful defense of driving under the influence cases sponsored by the Nebraska Criminal Defense Attorneys Association); New Mexico Advisory Opinion 2008-6 (a judge may not speak about the domestic violence court over which she presides at a seminar of the state criminal defense lawyers association that prosecutors were not permitted to attend); New York Joint Advisory Opinions 2003-84 and 2003-89 (a judge may participate in education programs sponsored by the National Consumer Law Center or by a legal services group that appears in housing court provided she does not give advice on strategy or tactics to succeed in such cases on behalf of particular clients); New York Advisory Opinion 2003-54 (a judge may be a panelist and lecturer on the law of evidence at the annual meeting of the National Association of Criminal Defense Lawyers provided he does not comment on pending or impending cases and does not indicate a pre-disposition to rule in a particular way concerning legal issues that may come before the him).

A sampling of recent judicial ethics advisory opinions

  • A judge who has taken over a case after another judge’s retirement due to age may initiate ex parte discussions with the retired judge about legal and factual issues in the case without disclosing the communications to the parties or their counsel. New York Opinion 2018-38.
  • Court staff may not conduct ex parte pre-trial dynamic risk assessments to collect information that the judge will use in making decisions in a defendant’s pending case, including setting conditions of release. Washington Opinion 2018-4.
  • A judge may promote diversity in courtroom participation by including a statement in his rules encouraging litigators to give their knowledgeable junior colleagues more speaking and leadership roles in his courtroom. New York Opinion 2018-36.
  • When a judge knows that a lawyer appearing before the judge is a former Facebook friend, disclosure is not presumptively required, but should be considered based on the nature of the former on-line friendship, any other relationship between the judge and the lawyer, and the personal information the judge posted that the lawyer might use to convey the impression of special access to the judge. Massachusetts Letter Opinion 2018-3.
  • A judge must report to the appropriate attorney disciplinary committee an attorney who made an affirmation with numerous allegations about the judge’s conduct that the judge knows to be false. New York Opinion 2018-29.
  • Subject to limitations, a judge may, without compensation, (1) be interviewed for a commercially produced television documentary series concerning a case she prosecuted over a decade ago that has completely terminated; (2) appear occasionally on a commercial news program hosted by her first-degree relative to share family-friendly jokes or riddles; and (3) appear on a commercial news segment in honor of the achievements of individuals who are a particular racial, ethnic, or cultural background or heritage. New York Joint Opinion 17-163/18-03/18-21.
  • Subject to conditions, a judge may make educational presentations to specialty bar associations whose members primarily represent a particular class of litigants on one side in cases. California Formal Opinion 2018-12.
  • A judge may take part in post-screening question and answer sessions and press interviews at film festivals following a documentary of his volunteer work. New York Opinion 2018-48.
  • A judge may be interviewed by a news station about an alternative to incarceration program that uses art as a means of rehabilitation for eligible defendants. New York Opinion 2018-59.
  • A judge’s title may be included in the listing of her name and the heading of her biography on the web-site of a non-profit organization for which she is a director if the listing and heading of other directors’ biographies include comparable titles. New York Opinion 2018-54.
  • A judge may serve on a governmental task force to address the impacts of closing a prison facility when its members represent a broad spectrum of interests and it will plan an orderly transition, not field complaints. New York Opinion 2018-60.
  • A judge may not serve on a statutorily created council that nominates veterans to receive awards recognizing their service. Florida Opinion 2018-17.
  • A judge may serve as a commissioner with the National Conference of Commissioners on Uniform State Laws. Florida Opinion 2018-9.
  • A judge may serve as a judge advocate officer in the reserve of an armed service. Maryland Opinion Request 2018-26.
  • A judge may not voluntarily write a letter commenting on the character and fitness of an applicant for membership to The Florida Bar at any stage in the investigative process of the Board of Bar Examiners. Florida Opinion 2018-10.
  • A judge may not provide a testimonial on behalf of a party in a pending civil lawsuit or a possible criminal prosecution. A judge should testify as a character witness only after being subpoenaed and should discourage a person from issuing a subpoena unless there are unusual circumstances and the demands of justice require the judge to testify.  Maryland Opinion Request 2018-16.
  • A judicial candidate may not answer a political party’s questionnaire that asks the candidate to say yes or no to a specific pledge or promise, does not acknowledge a judge’s obligation to decide all cases fairly and impartially and in accordance with governing law, and does not invite candidates to assert any caveats when responding. The candidate may, if she wishes, ask the party to circulate a questionnaire specifically tailored to judicial candidates.  New York Opinion 2018-95.

 

 

 

A universe of worthy messages:  Symbols on robes and signs in the courthouse

In a recent opinion, the Arizona judicial ethics committee advised that:

  • Judicial robes should be free of adornments,
  • Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation are strictly prohibited in the courthouse, but
  • Courts and judicial officers should not “single out any particular category of citizens in offering such assurances.”

Arizona Advisory Opinion 2018-3.

A judge had asked the committee “whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post ‘safe place’ placards on courtroom doors that convey acceptance to LGBTQ youth.”  Those measures had been proposed by a court working group on the needs of lesbian, gay, bisexual, transgender, and questioning youth in the child welfare and juvenile justice systems.  Noting that “one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems,” the working group suggested that certain symbols and signs may reassure “LGBTQ youth that they are in a safe place and dealing with safe people” when at the court.

The judicial ethics committee concluded, however, that, “[n]o matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran’s insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge’s personal beliefs or extrajudicial activities.”

The judicial robe powerfully and unmistakably invokes the prestige of judicial office.  Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. . . .

Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge’s fidelity is to the law and to equal justice for all who come before the court.

The opinion cited Michigan Advisory Opinion JI-68 (1993) (a judge may participate in health education and social awareness activities such as AIDS prevention and encourage other persons to support the same cause but should not wear on the judicial robe a symbol indicating the judge’s support or opposition to a particular political, social, or charitable/civic cause, for example, a red AIDS awareness ribbon) and Rule 2.340 of the Florida Rules of Judicial Administration (“During any judicial proceeding, robes worn by a judge must be solid black with no embellishment”).

Similarly, the opinion advised that, “[c]oncerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying ‘safe place’ signs or symbols in court facilities.  Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.”

Judges may communicate the judiciary’s commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3’s message.  But . . . signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.

Rule 2.3(B) of the code of judicial conduct provides:  “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”