A sampling of recent judicial ethics advisory opinions

  • A judge may not appoint their personal financial manager to a fiduciary position. New York Opinion 2022-59.
  • A judge who volunteers as a coach for a youth sports team is not required to disqualify when an attorney whose child is on the team appears in a case unless there are other facts that would cause a person to doubt their ability to be impartial, but the judge must disclose on the record information reasonably relevant to their decision not to disqualify. California Formal Opinion 2022-19.
  • A judge may not perform work on an amicus brief that will be filed by the bar association in a high-profile federal appeal. New York Opinion 2022-91.
  • To determine whether to report a gift and, if so, what value to list, a judge should use reasonable diligence to determine its value, for example, asking a bar association the value of a commissioned portrait and crystal gavel given to the judge or contacting an establishment that sells the item or similar items. Florida Opinion 2022-6.
  • A judge who is considering leaving judicial service may apply for jobs while still holding office, but if the judge applies for employment with a party or a law firm appearing before the judge, recusal will likely be necessary. If the judge accepts employment with a law firm, the judge may not authorize the firm to advertise their anticipated post-judicial employment at the firm. Florida Opinion 2022-7.
  • A judge may not serve on a state education department committee that will address how local school districts report student/school-related conduct, communication, and disciplinary matters to the department. Florida Opinion 2022-10.
  • A judge may participate in a group organized by the governor’s office and the Department of Motor Vehicles to propose simpler language and more logical organization for the traffic laws if the membership is balanced with subject experts from relevant state agencies, non-profit organizations, prosecutors, and defense counsel. The judge may be reimbursed for travel and lodging expenses reasonably incurred for their participation but may not be compensated. New York Opinion 2022-89.
  • A judge may write a children’s book about what judges do and what it takes to become a judge, emphasizing that children who are members of minority groups can grow up to become judges. As long as they do not comment on pending cases or legal controversies or give legal advice, and the activities do not conflict with their professional schedule, the judge (1) may give public readings of the book at schools, community centers, and similar institutions, but may not wear a judge’s robe when doing so, (2) may give public readings in conjunction with a “lawyers for literacy” program but may not solicit lawyers to purchase the book or solicit invitations to such events, and (3) may promote the book through media outlets such as radio and be identified as a sitting judge and discuss the role of a judge. Florida Opinion 2022-9.
  • A judge may give a historical presentation to a church on a U.S. Supreme Court decision about abortion and discuss the majority, concurring, and dissenting opinions on the possible ramifications of the case, but may not offer any personal views. Maryland Opinion Request 2022-24.
  • A judge may create and fully fund scholarships at their former elementary school and college. A judge may volunteer with foster youth through a city agency unless their protégé is or becomes involved in court proceedings. New York Opinion 2022-55.
  • A judge may serve on the steering committee of a not-for-profit cultural/religious organization associated with a college and donate at least $1,000 a year as required; may permit their name to be listed on the organization’s regular letterhead, including the title “Honorable,” even if the letterhead might be used for fund-raising events if comparable designations are listed for other committee member; and may permit their name to be listed on an invitation to a fund-raiser unless the formatting reasonably creates an impression that the committee members collectively and/or the judge individually are personally soliciting funds or personally inviting people to the fund-raiser. New York Opinion 2022-73.
  • A judge must object in writing to the use of their name on a flyer announcing a not-for-profit civic organization’s fund-raiser and advise the organization to remove or omit their name from any further promotions. After objecting, the judge may attend the event, be recognized as one of the inductees during the ceremony, and buy a table for friends and family to attend. New York Opinion 2022-84.
  • A judge makes referrals to a not-for-profit entity while presiding in a problem-solving court may not accept complimentary tickets to the entity’s lavish fund-raising gala, but may purchase tickets and attend the event. New York Opinion 2022-72.
  • The judge members of a bench-bar committee should not have their names on advertisements for CLE programs held by the committee to raise funds for charitable organizations, should not be involved in the selection of the charities that will receive the donations, and should not hand a check to the charities. West Virginia Opinion 2022-23.
  • A judge may meet with a commercial television producer and their creative team to discuss a possible television show involving the criminal justice system even if the meeting could result in an employment offer or business opportunity that the judge cannot begin without resigning. New York Opinion 2022-99.
  • A judge may not appear as a judge on a cable TV show similar to Judge Judy. West Virginia Opinion 2022-21.
  • A new judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench. New York Opinion 2022-86.
  • A judicial candidate who learns that their political party is circulating petitions naming them as a candidate for a non-judicial office must request in writing that the party immediately stop and advise that, if elected, they will decline to serve. New York Opinion 2022-61.

Reviews, blurbs, and prefaces

Advisory opinions on the issue allow a judge to write a book review but prohibit a judge from allowing excerpts from a positive review to be used to promote the book and from writing a blurb solely for marketing purposes.

For example, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, when the primary purpose “is to engage in educational discourse related to the law, the legal system, or the administration of justice,” a judicial officer “may review, critique, or comment on legal education books in a legal publication” and include their title in the review.  California Supreme Court Committee Advisory Opinion 2022-48. The opinion noted that the code “generally permits and encourages judges to engage in educational activities, particularly those concerning the law, the legal system, and the administration of justice” but also prohibits using judicial prestige to advance others’ interests.  To “harmoniz[e]” those provisions, it explained:

Discussions regarding legal education books or writings in legal publications, such as legal periodicals or newsletters, have important educational value and contribute to the improvement of the law and legal system. . . .  While the committee agrees that judges may not promote others’ written works, review or critique of legal works is an educational exercise and consistent with the canons.  Although a positive review or discussion may incidentally lead to increased sales, the primary purpose of such discussions is educational rather than promotional.

The opinion cautioned that the substance of the review “must otherwise comply with the canons; for example, the judicial officer must not engage in improper political commentary or undermine the integrity or impartiality of the judiciary.”

Moreover, the committee advised that a judicial officer who has not contributed to a book may not provide a written endorsement that includes their title to be used on the book cover because the primary purpose of such an endorsement is to allow the publisher to “leverage” the judicial title to market the publication.  It explained:

Authors and publishers typically seek written endorsements from high-profile or prestigious individuals, sometimes called “book blurbs,” for the placement on a book cover to market and promote the book for sale.  An endorsement from a well-known judge, for example, might suggest to would-be readers that a law-related book is particularly interesting or useful, leading to increased sales.  When a judicial officer has not authored, co-authored, or contributed to the book, the primary purpose of such an endorsement is not to identify a contributor by judicial title or engage in an educational exercise, but rather to use the endorsing judicial officer’s title to promote sales.

Other opinions reflect a similar distinction.

  • A judge may write a review of a book about an historical event for a legal periodical as an academic exercise and not for commercial purposes but may not for marketing purposes write a testimonial regarding the value of a bar publication or write commentary to be included on a book jacket.  California Judges Association Advisory Opinion 65 (2012).
  • A judge may not write a testimonial/endorsement for a legal practice guide published by a non-profit, bar-related legal organization.  Connecticut Informal Advisory Opinion 2010-35.
  • A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective to be included in the book and potentially used in advertisements.  Florida Advisory Opinion 2021-17.
  • A judge may not write an appraisal intended to promote the sales of a book but may write a book review in a journal or newspaper intended “to inform the legal community or the general public of a new contribution to the legal or general literature,” even if the publisher uses excerpts from the review to promote sales and even if the newspaper or journal compensates the judge for the review.  Illinois Advisory Opinion 1994-15.
  • A judge may write book reviews for compensation for an out-of-state newspaper when they were asked because of their prior journalism experience, not because they are currently a judge, and they would not be identified as a judge in the reviews.  Kansas Advisory Opinion 186 (2020).
  • A judge may write a review of several books on methamphetamine addiction.  Nevada Advisory Opinion JE2008-8.
  • A judge may review a legal textbook and retain the reviewed book in their personal library.  New York Advisory Opinion 2021-117.
  • A judge may write and post a review of a friend’s novel online without mentioning their judicial position provided the purpose is not to promote the book’s sale and the judge does authorize use of the review on the book jacket or elsewhere to promote sales.  New York Advisory Opinion 2020-85.
  • A judge may not provide an endorsement of a friend’s non-fiction book that would appear on the cover and identify them as a New York judge even if their name is not used.  New York Advisory Opinion 2012-26.
  • A judge may not provide a quote to be included on the inside leaf of a book a friend has written about auditing fraud even if their title will not be mentioned and the only compensation is a complimentary copy of the book.  New York Advisory Opinion 2011-54.
  • A judge may submit to the New York Law Journal a review of a book authored by a clergy member at their house of worship but should not permit the author or publisher to use any portion of the review to promote the book’s sale.  New York Advisory Opinion 2006-114.
  • A judge may write a review of a novel for a local legal newspaper but should not permit the author or publisher to use part of the review to promote the book’s sale and should inform the newspaper, in writing, that the review is being provided on the understanding that no portion can be used for promotions.  New York Advisory Opinion 2005-28.
  • A judge may review a legal publication but should not prepare a testimonial that would be included in a marketing brochure or provide a quote about a book for the book jacket.  New York Advisory Opinion 1997-133.
  • A judge may not author a quote about a book involving legal issues solely for use on the book jacket but may write a book review for publication in the New York Law Journal or elsewhere.  New York Advisory Opinion 1993-14.
  • A judge may not write a review of a book on a legal subject when the publisher has stated that it will use some of the judge’s comments to promote sales.  Pennsylvania Informal Advisory Opinion 11/4/03.
  • A judge may write a letter on judicial letterhead at the request of a for-profit publisher to be included in a booklet about substance abuse as long as it cannot be interpreted as an endorsement of the booklet and does not impact the appearance of the judge’s impartiality in the trial of related matters.  Texas Advisory Opinion 192 (1996).
  • A judge may write book reviews that are “bona fide contributions addressing the substance” of the book and that do not “exploit or detract from the dignity of the office” but “should undertake reasonable efforts to guard against the subsequent use” of a review in promotional materials that may exploit the prestige of the office.  U.S. Advisory Opinion 114 (2014).

Prefaces

With some caveats, judicial ethics advisory committees allow judges to write forewords, prologues, or prefaces for books if they will not receive compensation.

In giving that permission, several committees remind judges to retain editorial control over the content of what they write and the right to review any biographical information used.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. For example, the Maryland committee advised that a judge who is writing an introduction to a book should take reasonable steps to ensure that the publisher does not exploit the prestige of their judicial office in marketing of the book, explaining that, in the context of a book published by a non-profit entity such as a bar association, the judge should ask “the publisher to consult with the [judge] before mentioning [their] name or position in any marketing efforts.”  Maryland Advisory Opinion Request 1980-7.

Some of the opinions warn the judge that a foreword they write should not identify them as a judge.  See Florida Advisory Opinion 2020-11.  Some note that the judge did not plan to identify their judicial status in the foreword, suggesting the answer may be different if the preface refers to their office.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11.  Other opinions do not address the issue.

Some opinions remind the judge to review the entire book and determine whether authoring a foreword will cast doubt on their impartiality or reflect a predisposition regarding particular cases, issues, parties, or witnesses.  Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11See also Ohio Advisory Opinion 1987-8.  Similarly, the Massachusetts committee advised that a judge should be careful to ensure that nothing they write in the foreword or any way they associate themself with anything the author writes casts doubts on their capacity to make impartial decisions.  Massachusetts Advisory Opinion 1993-2.

The opinions state:

  • A judge may author a foreword to a book written by a police officer on child safety and the Internet but, if the author appears as a party or witness before the judge or the judge presides over a case about the subject of the book, the judge should disclose the connection and consider recusal at a party’s request based on “the nature of the proceeding or docket, whether reference to or reliance upon the book is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.”  Connecticut Advisory Opinion 2010-15.
  • A judge may write the foreword to a self-published memoir written by a family member.  Florida Advisory Opinion 2020-11.
  • A judge may write the preface to a book about the history of the county.  Florida Advisory Opinion 1977-5.
  • A judge may provide an introduction to a book on a specific area of state law published by the Maryland State Bar Association as part of its continuing legal education program, but different considerations may apply to works published by for-profit entities.  Maryland Advisory Opinion Request 2013-26.
  • A judge may write an introduction recommending a book about the prevention and treatment of alcoholism to judges and other professionals.  Maryland Advisory Opinion Request 1980-7.
  • A probate and family court judge may write a foreword for a book on divorce.  Massachusetts Advisory Opinion 1993-2.
  • A judge may write a foreword for a book on the bicentennial of the U.S. Constitution.  Ohio Advisory Opinion 1987–8.
  • A judge may write forewords for books that are “bona fide contributions addressing the substance of the book” but should make reasonable efforts to prohibit its use in promotional materials.  U.S. Advisory Opinion 114 (2014).

The only outlier is a New York advisory opinion stating that a judge should not write a foreword to a law book dealing with the court over which the judge presides when the book is a commercial publication intended to earn a profit for the publisher and author.  New York Advisory Opinion 1997-1.  The committee reasoned:

[T]here is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author.  For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval.  Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.

Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer.

A sampling of recent judicial ethics advisory opinions

  • A judge who has applied for and/or is negotiating for post-judicial employment must disqualify from any matter in which the prospective employer appears; that disqualification cannot be waived.  A judge should not negotiate with a potential employer if such negotiations would lead to frequent disqualification.  If a negotiation does not result in employment, the judge should continue to recuse for a reasonable period, the length of which will depend on whether the judge developed a personal bias or prejudice during the negotiations and on factors such as how long the negotiations took, the notoriety of the negotiations, and whether the break-off of the negotiations was amicable.  Arizona Opinion 2022-1.
  • A judge who previously served on a town’s zoning board is disqualified from all matters that were pending before the board during their tenure but may preside over other matters involving the board.  New York Opinion 2022-51.
  • A judge is not disqualified because an attorney in a matter is their neighbor and had, in that capacity, supported a non-controversial residential zoning variance sought by the judge.  New York Opinion 2022-42.
  • A presiding judge may participate in an informal task force that will look at issues of racial bias in their community if their involvement can be limited to matters regarding the court system and the administration of justice and if the task force initiatives will not involve judicial proceedings that would ordinarily come before the court.  A family law commissioner may participate in a domestic violence task force created by the court that includes the district attorney’s office, the public defender’s office, county counsel, probation, and local law enforcement agencies.  A judge may serve on the executive committee of a city task force about reducing youth and gang violence that has members from a large cross-section of the community, including community leaders, educators, health workers, law enforcement, and youth programs.  A judge may serve on a mayor’s gang task force that will allow all of the stakeholders in the criminal justice system, including law enforcement, prosecutors, members of the defense bar, the probation department and representatives from community-based gang intervention programs, to exchange ideas and offer suggestions.  A judge may not serve on a mayor’s gang task force if it is oriented to intervention, prevention, and enforcement and is made up of political representatives, representatives from the district attorney’s office, the police department, schools, and other community leaders but does not include members of the defense bar.  A judge who has a criminal law assignment may not join a state task force called the “Sober Driving Coalition” comprised of members of the highway patrol, local law enforcement, and probation.  California Judges Association Formal Opinion 80 (2022).
  • An administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief supporting the court system’s legislative agenda.  New York Opinion 2022-37.
  • In a letter on judicial stationery, a judge may ask the county clerk to authenticate any lien/judgment against the judge prior to recording it because a self-identified “sovereign citizen” is apparently retaliating against the judge.  New York Opinion 2022-46.
  • A judicial officer may review legal education books in a legal publication when the primary purpose is educational discourse related to the law, the legal system, or the administration of justice.  A judicial officer may not provide an endorsement referencing their title to be used on the cover of a book written by others because the primary purpose of such an endorsement is to market or promote the book.  California Opinion 2022-48.
  • A judicial official may write an occasional column for an online newspaper to educate the public on how the legal system works, how judges make decisions, and the law generally if the content will be apolitical and uncontroversial and the paper is not-for-profit and non-partisan.  Connecticut Informal Opinion 2022-04.
  • A judicial officer may be a member of a judicial organization that has resolved not to hold conferences and other activities in states that discriminate against members of the LGBTQ+ community and may remain a member of a national organization that does not discriminate against members of the LGBTQ+ community but that conducts conferences in states that have enacted laws that discriminate.  California Judges Association Formal Opinion 79 (2022).
  • A judge may serve as a trustee for a public community college if they volunteered or were appointed as a trustee, but they may not run for the office even if the position is apolitical or nonpartisan.  Colorado Opinion 2022-3.
  • A judge may chair the board of directors of a local YMCA, and their name and position may be listed with other board members on the organization’s website and fund-raising invitations, unless the formatting creates the impression that the directors, collectively and/or individually, are personally soliciting funds.  New York Opinion 2022-25.
  • A judge may serve as master of ceremonies at a retirement picnic for the minister of their house of worship if the event is not a fund-raiser even if the congregants organizing the event hope to defray the costs by, for example, asking for donations online and/or at the function and selling advertisements for a program that will be distributed at the picnic.  New York Opinion 2022-57.
  • A judge may not perform in a rock band’s annual benefit concert even if their name and judicial status will be omitted from advertisements and may not sell concert tickets to friends, but may sell to family members.  New York Opinion 2022-79.
  • Subject to generally applicable limitations on judicial speech and conduct, a judge may speak at a free community celebration of Pride month if the event is not a fund-raiser and may permit the organization to use the judge’s photo and title in social media promotions.  New York Opinion 2022-75.

Pride

2 recent judicial ethics advisory opinions addressed judges’ participation in Pride month events.  As noted by the New York Judicial Ethics Advisory Committee, “Pride month typically celebrates a wide range of sexual and gender identities and gender expressions, often including lesbian, gay, bisexual, transgender, queer, intersex, and asexual identities (LGBTQIA+).”  New York Advisory Opinion 2022-75.

The New York committee stated that a judge may speak at a free community celebration of Pride month when the event is not a fund-raiser and subject to generally applicable limitations on speech and conduct.  A non-profit organization had invited the inquiring judge to speak about the judge’s experience as a member of a minority group.  The committee explained that, “in general, judges may publicly discuss their professional and personal background and experience.”  The committee cited previous opinions allowing a judge to speak at a foreign consulate about becoming the first judge of a particular gender and ethnicity in a specific judicial district (New York Advisory Opinion 2015-133) and to speak about their background and experience in becoming a judge at schools and places of worship affiliated with a certain religion (New York Advisory Opinion 2017-12).  The opinion reiterated that sharing “their experiences as a judge and as a member of a particular minority group at a non-fund-raising community event hosted by a not-for-profit organization . . . ‘is clearly compatible with judicial office, and unlikely to cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties.’”  The committee also noted that “’a judge need not conceal his/her judicial status when engaging in permissible extra-judicial activities’” and added that the judge may allow the organization to use their photo and title in social media promotions for the event.

The Colorado Judicial Ethics Advisory Board stated that a judge, subject to several conditions, may attend and watch the Denver PrideFest festival and parade and may march in the parade with a bar association such as the Colorado LGBT Bar Association.  Colorado Advisory Opinion 2022-1.  The committee noted its advice also applied to similar events such as Cinco de Mayo, the Marade, and Juneteenth.  

“Denver PrideFest is promoted as a ‘celebration of community and culture that is welcoming, inclusive and fun to all attendees, regardless of sexual orientation or gender identity.’  The two-day festival celebrates ‘the heritage and culture of the LGBTQ+ community in Colorado’ and draws more than 450,000 participants.”

The committee concluded:  “Because PrideFest is a community festival intended to promote inclusivity, equal rights, and equal application of the law, there is no concern that a judge’s participation in the event would undermine the public’s confidence in the judiciary or give the appearance of impropriety or bias.”  In support of its conclusion, the committee cited advisory opinions from other states allowing judges to participate in community parades in general (Ohio Advisory Opinion 2017-8), to serve as the grand marshal of a city’s ethnic day parade (Connecticut Informal Opinion 2015-18), to serve as the grand marshal of a St. Patrick’s Day parade (New York Advisory Opinion 2004-144), and to participate in and attend events sponsored by Gay and Lesbian Activist Defenders (Massachusetts Advisory Opinion 1995-8).

As it has for other public events, the committee reminded the judge to continue “to evaluate whether participation is appropriate leading up to and during the event” and not to identify as a judge while participating.  Noting that “although PrideFest is intended to be non-partisan, political candidates tend to participate to show their support for the LGBTQ+ community,” the committee cautioned the judge to “take care not to appear with any political candidates or give the impression that the judge is endorsing a candidate or political organization.”

The committee also advised that a judge “may march in the parade with the LGBT Bar Association as long as the judge’s participation is not construed as an endorsement of a particular political organization but rather as a general celebration of PrideFest’s promotion of diversity, inclusion, and community.”  Although the inquiring judge did not intend to identify as a judge during the parade, the committee noted that, “given its small membership, it is likely that the LGBT Bar Association will know the requesting judge is a judicial official,” and, therefore, the judge should be careful not to abuse the prestige of judicial official or allow the LGBT Bar Association to do so.

The committee reiterated its prior advice that, in evaluating whether to participate in public events such as parades, festivals, and other celebrations, a judge should consider whether:

  1. Participation will cause or likely cause a violation of the law, for example, by violating a curfew;
  2. Participation will undermine the confidence of the judiciary or give the appearance of impartiality or impropriety;
  3. Participation would create the appearance the judge is abusing the prestige of judicial office or allowing others to;
  4. Participation will interfere with the performance of judicial duties;
  5. The event relates to a case pending or impending before the judge, or the event relates to an issue likely to come before the courts;
  6. Participation will result in or is likely to result in judicial disqualification;
  7. The event is sponsored or endorsed by an organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation; or
  8. Participation creates the appearance the judge is endorsing a political candidate or political organization.

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.