A sampling of recent judicial ethics advisory opinions

  • A judge may observe other judges’ court sessions for educational purposes, informally or as part of a formal court system mentor program.  New York Opinion 2022-28.
  • After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing a client’s ethnicity or national origin, the judge may take further action, but is not required to do so.  New York Opinion 2022-49.
  • A judge may write a law review article reviewing statutory, regulatory, and administrative efforts to address the intersection of domestic violence and child protection in New York and other states if they do not comment on any pending or impending cases.  New York Opinion 2022-41.
  • A judge may permit a law clerk to publish an article in a law journal that argues that the law does not adequately protect employees who are using or have used medical marijuana, but the judge should review the article before it is published to ensure that the clerk’s relationship to the judge, the judge’s court, and the Maryland judiciary is not identified in any way.  Maryland Opinion Request 2022-8.
  • An administrative assistant for a circuit court judge may not work with a state legislator on proposed legislation that would allow a mother to be charged criminally if she uses drugs while pregnant and the baby dies shortly after birth as a result of the drug use.  West Virginia Opinion 2022-15.
  • A judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project and may meet with other participating judges and committee members to receive feedback from the observers, but may not privately discuss with observers their feedback on the judge’s own court sessions.  New York Opinion 2021-182.
  • Subject to conditions, a judge may attend and watch the Denver PrideFest festival and parade and similar events like Cinco de Mayo, the Marade, and Juneteenth and may march in the Denver PrideFest parade and similar parades with a bar association such as the Colorado LGBT Bar Association.  Colorado Opinion 2022-1.
  • A judge may be a dues-paying member of and serve as an officer or board member of a bar association for lawyers with disabilities but may not participate in its political or campaign efforts or draft amicus briefs for the association.  Colorado Opinion 2022-2.
  • A judge may serve as chair of a bar association subcommittee that seeks to improve racial equity in the court system.  New York Opinion 2022-13.
  • A judge who has volunteered for several years in a non-profit organization’s mentoring program may not provide a testimonial for use in the organization’s marketing materials, including their website, handbook, and social media pages, if there is no limitation on the organization’s use of the testimonial.  New York Opinion 2022-19.
  • Judges who graduated from a university may appear with the university’s retiring president in a photograph published in the university’s newsletter or magazine as long as the judges advise the university not to use the photograph in conjunction with any advertising directed at advancing student enrollment or fundraising.  Maryland Opinion Request 2022-18.
  • A judge is prohibited from serving as a member of the board of directors for the New York Civil Liberties Union.  New York Opinion 2022-22(A).
  • A university may name its Center for Justice and Society after a sitting South Carolina Supreme Court justice, but the justice should not have access to or knowledge of the donors.  The university may contact county bar associations for contributions.  South Carolina Opinion 5-2022.
  • A judge may not advocate with insurance companies on behalf of a family member.  New Hampshire Opinion 2022-1.
  • A judge may continue to serve as one of many class representatives in a federal lawsuit filed before they took the bench.  New York Opinion 2021-188.
  • A judge may not allow their spouse to place a campaign sign for a friend’s city council campaign in the yard of their jointly owned home.  West Virginia Opinion 2022-12.
  • A magistrate may not place a campaign sign in their yard for a family member in their household who is running for office.  West Virginia Opinion 2022-13.
  • To “test the water” about a possible candidacy for a non-judicial municipal office, a judicial official may speak privately, one-one-on with members of a political party’s town committee or other individuals in the community.  Connecticut Informal Opinion 2022-3.

A sampling of recent judicial ethics advisory opinions

  • Even before an evidentiary hearing on the admissibility of their spouse’s testimony, a judge must disqualify from a capital case if their spouse, a former public defender, is likely to be called as a material witness based on the totality of the circumstances, for example, the threshold for admissibility of evidence during the sentencing phase of a capital case, defense counsel’s level of motivation to compel the spouse’s testimony, and the likelihood of defense counsel’s success in admitting the spouse’s documents and testimony. California Expedited Opinion 2022-46.
  • A judge who is married to the city chief of police is disqualified from any case in which a subordinate of their spouse is likely to be a material witness. Kentucky Opinion JE-129 (2021).
  • A judge may respond to the county comptroller’s survey concerning the county’s assigned counsel program, subject to generally applicable limitations on judicial speech and conduct. New York Opinion 2021-167.
  • If the judge comports with the dignity of judicial office and eschews personal attacks on government officials, a judge may communicate their opposition to the position of court administrators that the judge will be “unfit for service” if they do not comply with the court system’s vaccination policies. New York Opinion 2022-2.
  • A member of the county commission who has been nominated to a seat on the court of appeals must resign from the commission just prior to taking the oath of office as judge and must disqualify themself from any case involving the commission or any of its subsidiaries while they served as a commissioner. West Virginia Opinion 2022-1.
  • An attorney nominated to be a judge must immediately resign as a member of the bar commission that makes recommendations to the governor about filling judicial vacancies but may continue to serve as president of the State Bar until shortly before being sworn in as a judge or until their term as president ends, whichever is sooner. After becoming a judge, the judge cannot serve as past president of the State Bar. West Virginia Opinion 2022-4.
  • A judge may run for and serve on the board of a homeowners association, send an introductory email to other association members prior to the election with their résumé if the email does not include their title and even if the résumé would include their current position, may participate in a meet-and-greet candidates event, and may acknowledge their employment as a municipal judge (with dates of employment if asked), but must refrain from offering other details. South Carolina Opinion 3-2022.
  • A judge who completed a mediation skills program at a law school’s mediation clinic may permit the clinic to post their comments about the course on the clinic’s Instagram account for general advertising and recruitment efforts, provided the judge is satisfied their name, words, and image will not be used for fundraising. New York Opinion 2021-170.
  • A judge may not accept a lawyer’s offer to represent the judge on a discounted or pro bono basis before the Judicial Standards Commission. New Mexico Opinion 2021-7.
  • A judge whose spouse is running for elected office may not attend campaign events, but their picture may be included in their spouse’s campaign materials and website as long as their title or office is not mentioned, there are no visual elements identifying them as a judge, and no explicit endorsement is featured. Maryland Opinion Request 2022-1.
  • An incumbent judge may appear in a robe in a campaign photograph; may utilize in their campaign a photograph that was not created for campaign purposes and cannot be reasonably interpreted to contain any misrepresentations regarding the judge; and may use a photograph that includes other judges at a public event if the photograph itself and the context, cropping, caption, and other text that accompany it do not suggest or imply any endorsement by the other judges. Illinois Opinion 2021-4.

“In the performance of their official duties or in the presence of the judge”

In 2020, the Colorado Judicial Ethics Advisory Board issued an advisory opinion stating that judges should instruct staff under their direction and control to conform to the same constraints as the judge and, therefore, to refrain from making political or divisive statements, to refrain from participating in marches or rallies such as those in support of the Black Lives Matter or Blue Lives Matter movements, and to be very cautious in their use of social media.  Colorado Advisory Opinion 2020-2.  That opinion had been based on the requirement in Rule 2.12(A) of the Colorado code that judges “shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.”  Comment 1 to that rule explains that a judge is responsible “for the conduct of others, such as staff, when those persons are acting at the judge’s direction or control.”  (The Colorado code provisions were the identical to those in the 2007 American Bar Association Model Code of Judicial Conduct.)

The committee noted that the language of the rule “appears at odds” with that comment because the rule seems to apply to employee activities both “during and outside of working hours if those employees are subject to the judge’s direction and control,” while the comment seems limited to the conduct of staff only when they “are acting at the judge’s direction or control, which could be interpreted as during working hours only, or pursuant to a judge’s direct command.”  Stating that “when the language of the rule and its comment conflict, the language of the rule governs,” the committee concluded that the “language of Rule 2.12 seems clear — ‘consistent with the judge’s obligations’ means a judge must require staff under his or her direction and control to act as a judge would under the Code” at all times.

In 2021, the Colorado Supreme Court revised Rule 2.12 to provide:  “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code in the performance of their official duties or in the presence of the judge.”  The comment was not amended.

Based on that amendment, the advisory committee has withdrawn Colorado Advisory Opinion 2020-2 and issued a new opinion.  Colorado Advisory Opinion 2021-3.  In the new opinion, the committee notes that the amended rule narrows and limits the judge’s obligations and is now consistent with the comment.  Thus, the new opinion advises that “judges are not responsible under the Code for comments made by law clerks and externs on political issues or for their participation in political demonstrations, rallies, or marches, as long as the law clerks and externs do not engage in such conduct in the performance of official staff duties or in the presence of the judge.”

A sampling of recent judicial ethics advisory opinions

  • A judge’s friendship with an attorney or party to a proceeding does not per se require disqualification. Even if a judge subjectively believes that they are not biased, the judge should examine on a case-by-case basis the closeness of their relationship with an attorney, the totality of the circumstances in the relationship, its bearing on the case, and whether those circumstances might lead a reasonable person to believe that the judge and the attorney share a close and unusual relationship that makes recusal necessary. Even if the judge concludes recusal is not necessary, the judge should disclose the relationship to the parties. Colorado Opinion 2021-2.
  • A judge may allow their court staff to solicit individual lawyers to represent defendants in consumer debt cases pro bono but must avoid the appearance that attorneys are being coerced to provide such representation. New York Opinion 2021-149.
  • If a judge is alerted by a third party to Facebook posts allegedly by a defendant the judge sentenced that make negative comments about the judge, the victim, and a relative of the victim who spoke at the sentencing hearing, the judge may not review or consider the posts or discuss the issue with the commissioner of the division of corrections and rehabilitation but should immediately refer the message from the third party to the prosecutor and the defense attorney to investigate its truthfulness and take any action that they deem appropriate. West Virginia Opinion 2021-2.
  • With many conditions, a judge may provide feedback on courtroom performance to attorneys or their supervisors but must not provide feedback immediately after a hearing or trial while the case may be or is being appealed. California Formal Opinion 2021-18.
  • Justices of the peace may not negotiate the disposition of misdemeanor charges directly with defendants on the record in open court without the participation of but in the presence of the district attorney’s office. Nevada Opinion JE2021-1.
  • A judge may write to members of the county legislature to “emphasize the urgency” of repairs to the courthouse, to encourage legislators to proceed promptly, and to suggest that the county use COVID-19 aid money received from the federal American Rescue Plan for the repairs. The judge may also encourage other judges in the county to express support for the repairs. New York Opinion 2021-121.
  • A judge may attend a local “survivors group” to better understand the difficulties encountered by victims of domestic violence as long as none of the members of the group is a victim or witness in a matter currently pending before the judge. New York Opinion 2021-152.
  • With conditions, a judge may teach a course at a public or private college or university, give a motivational speech, or teach a continuing education course. A judge’s teaching schedule should not create conflicts with the judge’s daily docket or administrative schedule, and a judge must avoid the appearance that they are devoting significant time to teaching or speaking. A judge should consider the subject and the audience before accepting an offer to teach or speak. Ohio Opinion 2021-11.
  • A judge may provide a letter of recommendation on official court letterhead based on the judge’s personal knowledge of the individual for whom the recommendation is written. Ohio Opinion 2021-12.
  • A judge may write a reference letter based on their personal knowledge if it is the type of letter that would be written in the ordinary course of business or a judge’s personal relationship. Any letter a judge may write may be written on official stationery if the judge indicates that the reference is personal and if it is not likely that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office. Pennsylvania Formal Opinion 2021-1.
  • A judge may not participate as a judge in a charitable organization’s jail-and-bail fund-raiser in which the organization’s supporters create phony charges and collect donations to secure their bail. West Virginia Opinion 2021-16.
  • A new judge may continue volunteering as a sideline broadcaster of high school football games for a radio station. West Virginia Opinion 2021-17.
  • A judge may accept a referral fee earned prior to assuming the bench but must disqualify themself from all matters involving the law firm or lawyer to which the case was referred until final payment, with very limited exceptions. Michigan Opinion JI-150 (2021).
  • A judge may hold shares in a family-held limited liability company that owns real estate and may participate in management of the company’s real estate investment, but must not manage, operate, or otherwise actively participate in a family-held bar that operates on the company’s real estate. New York Opinion 2021-154.
  • A judge may apply for an appointment as a federal administrative law judge and go through background checks and salary negotiations prior to accepting an offer. The judge may continue to serve in the state judiciary after they have been appointed as an ALJ until the day before they start their new job. New York Opinion 2021-156.

Providing feedback to attorneys

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

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

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

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

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

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

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

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

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

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

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.