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

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

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

Arizona Advisory Opinion 2018-3.

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

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

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

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

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

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

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

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

 

A sampling of recent judicial ethics advisory opinions

  • A judge may ask state legislators for financial support for a problem-solving court that will address mental health issues. New York Opinion 2018-8.
  • A judge may not serve on a bail reform committee when membership will consist exclusively of defense representatives and community members and the organizers have declined to invite any prosecutorial, police, or law enforcement agency representatives. New York Opinion 2018-15.
  • The Judicial Assistants Association of Florida may request and/or accept donations from attorneys, law firms, businesses, and bar associations to offset the costs of its annual educational conferences as long as all fund-raising is conducted in the name of the organization without any reference in advertising, promotion, or solicitation to any particular judicial assistant’s judge or office. Florida Advisory Opinion 2018-8.
  • If a matter was initiated after a new judge left a law firm, whether the judge must disqualify from cases in which members of his former firm appear depends on how long it has been since he left the firm, whether he has maintained a close relationship with the remaining members, whether he has any business interests with members of the firm, and whether he is still receiving money from the firm. South Carolina Opinion 6-2018.
  • A judge may testify at a bar disciplinary proceeding concerning his personal knowledge of a lawyer’s character if he is formally subpoenaed. Wyoming Opinion 2018-1.
  • A judge may participate in a recorded interview with the not-for-profit educational institute that she attended if she is not being singled out based on her judicial position and non-judge graduates will be included; the judge should instruct the school that her interview may not be used for any fund-raising activity. Arizona Opinion 2018-1.  
  • Assuming it is lawful, a judge may coordinate a raffle at a magistrates’ association training program to raise money from other judges over whom he has no supervisory authority to purchase commemorative plaques for display at court facilities. New York Opinion 2018-53.
  • A judicial officer may serve on the board of the Girl Scouts of Connecticut. Connecticut Informal Opinion 2018-5.  
  • A district court commissioner may not engage in a rideshare business as an independent contractor driver for Uber, Lyft, Sidecar, or similar companies. Maryland Opinion Request 2018-3.  
  • During personal time and using personal resources, a new judge may respond to questions from successor counsel in a case regarding historical facts not readily apparent from the file and similar matters of clarification but may not answer questions about legal advice or litigation strategy. Massachusetts Letter Opinion 2018-2.
  • A new judge may voluntarily provide a factual statement or affidavit about his former service as guardian ad litem in a federal case, respond to the presiding judge’s questions about whether a new guardian ad litem should be appointed, and appear pro se concerning his fees for work previously performed. New York Opinion 2018-22.
  • A judge may serve as the administrator for her deceased uncle’s estate and as the conservator for her elderly aunt and accept the statutorily mandated fees when she had or has a close familial relationship with them, she is the only blood relation who could hold the position, and she does not preside in the county where they reside. West Virginia Opinion 2017-24.  
  • When a judicial official’s spouse is running for office, the spouse/candidate may use a family picture that includes the judicial official in her campaign material provided that no reference is made to his judicial title or position, he does not appear in a judicial robe or setting, no explicit endorsement is featured, and he ensures that the photograph is not used in a way that violates the code of judicial conduct; the judicial official should not appear in any non-family group photo in the spouse’s campaign literature. Connecticut Informal Opinion 2018-6. 
  • A judge may sign a prospective candidate’s nominating petitions but may not circulate them. Illinois Opinion 2018-1.  

 

A sampling of recent judicial ethics advisory opinions

  • A court may, with an appropriate disclaimer, allow a non-profit legal aid program to set up a table outside a courtroom to offer financially eligible parties free legal advice, pro se pleadings, and, in some cases, representation. New Mexico Opinion 2017-7.
  • A judge who is a firearm licensing officer must not initiate licensing revocation/suspension proceedings or conduct one without a prosecuting agency. New York Opinion 2017-166.
  • A judge may ask legislators to suggest potential peer mentors to work with veteran-defendants in the veterans treatment court or authorize his resource coordinator or mentor coordinator to make such a request. New York Opinion 2017-123.
  • A judge is not required to disqualify based on credible information that an attorney in a case is “thinking” of running against her and may not ask the attorney directly whether the attorney intends to do so. Florida Opinion 2018-3.
  • A judge may not preside in an application to seal a conviction if he was the district attorney when the defendant was convicted. New York Opinion 2017-162.
  • A county magistrate who has begun dating the county sheriff is disqualified from any matters in which employees of the sheriff appear as witnesses. South Carolina Opinion 2-2018.
  • A judge may serve as master of ceremonies for a close personal friend’s public swearing-in ceremony for a non-judicial office, subject to limitations. New York Opinion 2017-174.
  • A judge may sing the national anthem at a not-for-profit organization’s fund-raiser provided her participation is unannounced and ancillary to the event. New York Opinion 2017-174.
  • A judge may help plan, play in, and invite others to play in a golf tournament to raise funds for an endowed scholarship honoring her late son if her name and title are not used to promote the tournament. Colorado Opinion 2018-1.
  • A judge may permit a legal aid organization to list the judge as a member of the host committee on an invitation to an event to raise funds for a program that trains lawyers for pro bono representation in a specific area of the law. Florida Opinion 2018-5.
  • A judge must not chair a Red Cross blood drive or solicit blood donors. New York Opinion 2018-5.
  • Co-judges may make a charitable contribution to their house of worship by purchasing an advertisement in the weekly bulletin identifying themselves by name and title and signing it “your local magistrates.” New York Opinion 2018-5.
  • A judicial official may not comment on the character of the municipal chief of police for a profile in a local newspaper. Connecticut Informal Opinion 2018-1.
  • A judge may participate as president of an ethnic bar association in a meeting with a district attorney-elect’s transition team on issues involving the law, the legal system, and the administration of justice, subject to conditions and limitations. New York Opinion 2017-179.
  • A judge who serves in criminal court may preside over a mock trial used to educate police officers about court and courtroom procedure but should not critique the performance of members of law enforcement. Florida Opinion 2018-1.
  • A support magistrate and his family may accept donations and services from a not-for-profit organization for their special-needs child, may permit media coverage, and may permit the organization to describe the services on its web-site with family photographs that include the judge, provided he takes reasonable steps to ensure the organization does not exploit his position for fund-raising or promotional purposes. New York Opinion 2017-106.
  • A full-time magistrate judge may accompany her adult child who was the victim of a felony to court appearances in the general sessions court. South Carolina Opinion 1-2018.

 

A sampling of recent judicial ethics advisory opinions

  • If a judge has an honest, reasonable, and articulable basis to conclude that he should recuse from a case, his recusal does not violate his obligation to hear and decide matters. Maryland Request 2017-28.
  • An appellate justice is not required to disqualify from a matter when she is an acquaintance of leading members of associations that have filed an amicus curiae brief. California Oral Advice 2017-21.
  • A judge is disqualified if an attorney from a law firm in which his brother-in-law is a partner appears as counsel in a case, subject to remittitur. A judge may enter an agreed order appointing her cousin as a mediator as long as the parties initiated the selection of her cousin.  Florida Opinion 2017-20.
  • The administrative judge of a family law division may send letters of appreciation to attorneys who have served as volunteer pro bono guardians ad litem as long as the letters are general and are not signed by the judges who presided over the cases for which the representation was provided. The court may recognize attorneys who served as pro bono guardians ad litem as a group at a bar luncheon or similar function.  Florida Opinion 2017-23.
  • A judge may attend a free public conference on human trafficking and commercial sexual exploitation of children that will focus on identifying and assisting at-risk youth. New York Opinion 2017-146.
  • A judge may speak about landlord/tenant law at a free educational forum organized by elected officials, subject to general limitations on judicial speech. New York Opinion 2017-155.
  • A family court judge may personally solicit donations of artwork by children for display at the court from local teachers and/or children who have pending permanency hearings with the artist identified by first name or initials. New York Opinion 2017-152.
  • A judge should not use the internet to gather adjudicative facts or information about the activities or characteristics of a litigant or other participant in a matter unless the information is subject to proper judicial notice. ABA Opinion 478 (2017).
  • A judge’s repeated or unjustified tardiness in opening court sessions violates ethical rules and can lead to judicial discipline. If a recess is required to attend to other official business, a judge should as a best practice open court on time and communicate personally or through court staff to those in the courtroom when court will reconvene and the reasons for the recess.  North Carolina Formal Opinion 2017-2.
  • A judge may participate in a community parade but should consider whether the participation will adversely reflect on her independence, integrity, or impartiality based on the sponsor and purpose of the parade, should not appear with non-judicial candidates or elected officials in the parade or on their floats/vehicles, and should not permit any banner or signage displaying her name and office to appear on floats or vehicles of political parties, candidates, or officeholders. Ohio Opinion 2017-8.
  • On behalf of a non-profit legal clinic, a judge may send to attorneys a letter that states, “I encourage you to consider contacting [the named attorney at the clinic] (contact information below) or another such agency to discuss taking just one case in the coming months.” Maryland Request 2017-35.
  • A judge may accept an award from a local voluntary bar association at an annual gala that raises funds for scholarships for law students. Florida Opinion 2017-22.
  • Judges and court employees may not, as part of a county fund-raising drive, conduct meetings to solicit donations to United Way or post fliers promoting such donations in the courthouse. New Mexico Opinion 2017-4.
  • A judge who immediately resigned after learning that an investment club he joined was a for-profit entity is not required to self-report. New  York Opinion 2017-156.
  • A judge may not, in a “search for happiness and harmony,” write a newspaper article volunteering to travel anywhere in the state and, free of charge, “mediate any conflict, teach a law class, math or someone how to read, coach a sport, build or paint any fence, pull weeds, clean yards, or do anything that requires only time and effort to help a stranger.” New Mexico Opinion 2017-3.
  • An incumbent judge may appear in her robe in campaign photographs. A slate of judges may appear together in robes in a campaign photograph.  Maryland Request 2017-37.
  • A judge may appear in a video that will be used in her brother’s congressional campaign as long as she is not identified as a judge. Kansas Opinion 185 (2017).
  • A judge may not contribute to his spouse’s campaign for political office, but his spouse may contribute to her own campaign even from community property funds in a joint checking account, although the judge should urge her to create a separate account from which to contribute. New Mexico Opinion 2017-1.

A sampling of recent judicial ethics advisory opinions

  • A judge presiding over a civil matter involving allegations that a non-party minor committed sexual abuse should not solicit an attorney to represent the minor pro bono during a deposition to protect his right against self-incrimination and should not direct the parties’ attorneys to solicit such representation. New York Opinion 2017-114.
  • A court may establish a self-help center to provide legal assistance to persons of limited means who otherwise would not be represented and may appoint and compensate lawyers as independent contractors for the center to provide limited scope representation that does not include representation before the court. Ohio Opinion 2017-7.
  • A municipal court may house a customer service kiosk purchased by the city that asks, “Was our staff professional and courteous?” and allows users to select 1 to 4 “smiley” faces to indicate their level of satisfaction. South Carolina Opinion 13-2017.
  • The supreme court justices who are named as defendants are required to recuse themselves from a case filed by an inmate, but the other justices may hear the case. Utah Informal Opinion 2017-2.
  • Absent a relationship between the judge and a former law clerk that would otherwise require the judge to recuse, a judge is not required to disclose that a lawyer in a case is a former law clerk. Maryland Opinion Request 2017-21.
  • A judge may permit a court attorney to raise funds to offset the costs of an international adoption through fund-raisers away from the courthouse during non-working hours and to use personal social media accounts to promote the fund-raisers. The judge may attend and make contributions from her personal funds but may not assist with any solicitation.  New York Opinion 2017-68.
  • A judge’s wife may chair a motorcycle poker run to raise funds for Alzheimer’s research and treatment, and the judge may ride in the event if he does not help plan it or solicit donations. West Virginia Advisory Opinion 2017-11.
  • A judge may not participate in a “dancing with the stars” fund-raiser for United Way in which people pay $5 to vote for their favorite dancer. West Virginia Opinion 2017-15.
  • A judge may sing in a band that plays without compensation at fund-raisers for law-related organizations, non-fund-raising events, or private parties hosted by or honoring lawyers if the judge would disqualify herself from cases involving those lawyers because of personal friendship but may not sing at political fund-raisers, fund-raisers for non-law-related organizations, or private parties hosted by or honoring other lawyers who are reasonably likely to appear before her. A judge may not as an independent contractor sing in a band that performs for a fee even if she declines her share.  Massachusetts Letter Opinion 2017-4.
  • A judge may speak to community groups about the Constitutional Revision Commission as part of a Florida Bar-sponsored “Protect Florida Democracy” program. Florida Opinion 2017-15
  • A judge may not participate in a “Call to Service and Compassion Workshop” to honor child abuse victims and survivors hosted by a child advocacy center. New York Opinion 2017-108.
  • With conditions, a new judge may complete his terms as a member of the board of directors of a county bar association and of the executive board of the state bar association. Massachusetts Letter Opinion 2017-3

Court-annexed self-help clinic

In an advisory opinion, the Ohio Board of Professional Conduct approved a court’s proposal to establish a self-help center where court-appointed lawyers would provide short-term legal assistance to persons of limited means who otherwise would be unrepresented.  Ohio Advisory Opinion 2017-7.  The lawyers would not represent the litigants before the court but would provide general legal assistance and information, explaining court procedures, addressing service of process issues, ensuring that litigants file the correct court forms, and making referrals to sources or persons for additional information or assistance.

Comment 4 to Rule 2.2 of the Ohio code of judicial conduct provides that a judge may make reasonable accommodations to ensure self-represented litigants the opportunity to have their matters fairly heard.  Ohio Advisory Opinion 2017-7 explains that a court-annexed legal services program “is a permissible method” of ensuring the right of self-represented litigants to be heard and improving access to justice.  “A self-help clinic in a court,” it states, “can facilitate the administration of justice by reducing the necessity for a judge to provide additional accommodations for a self-represented litigant during a hearing, assisting in maintaining the appearance of impartiality, and increasing the opportunity for the matter to be heard on its merits rather than dismissed on technicalities.”

However, “[b]ecause the self-help clinic inevitably will be viewed by the public as a court-provided service,” the opinion states, “it must operate and appear, to the extent possible, as an independent function of the court.”   Thus, the Board advises that the court’s oversight and involvement “should be de minimis,” primarily funding and appointment of the lawyers, “not the day-to-day operation.”  Further, the opinion suggests, the physical location of the self-help clinic should reinforce the independence of the court and appointing judges.

The opinion also directs the court to take steps “to avoid communications between the appointed lawyers and court staff and judges about case-related matters that could be interpreted as an ex parte communication or imply that judges are not impartial.”  The opinion does permit occasional meetings between judicial officers, court staff, and appointed lawyers to discuss general administrative issues related to the clinic’s operation.  The opinion notes that the court should appoint the lawyers “impartially on a merit basis, and their compensation should not exceed the fair market value for similar services.”

Finally, the Board emphasizes that a “court that establishes a self-help clinic must be aware of the ethical obligations of the appointed lawyers in the clinic.  Most importantly, a limited client-lawyer relationship is formed when a lawyer participates and assists litigants in a self-help clinic, requiring the lawyer to adhere to his or her ethical obligations under the Rules of Professional Conduct.”

A sampling of recent judicial ethics advisory opinions

  • Subject to several conditions, a judge may meet with private vendors to procure or investigate services or products for use by the court or parties pursuant to court order but may not meet with vendors about developing or promoting their services. California Formal Opinion 2017-9.
  • When giving a speech at a court-sponsored Law Day event, a judge should focus on the law and not on comments by the President that she believes are critical of the role of an independent judiciary. New York Opinion 2017-54.
  •  To determine whether to unsubscribe from e-mails about political issues she receives on her personal e-mail account, a judicial official should consider whether the sending organization is concerned with the law, the legal system, or the administration of justice; whether the organization is a “political organization;” the extent to which the judicial official’s identity would be revealed to other recipients; and whether the e-mails concern a matter pending or impending in any court. Connecticut Informal Opinion 2017-8.
  • A judge may not meet with attorneys who represent criminal defendants for a “defense perspective” on the court’s handling of discovery, diversion, and disposition of cases. New York Opinion 17-101.
  • When a judge’s alleged misstatement of the law is the basis for an appeal but the judge does not recall her exact words, the judge may not advise the parties that she believes she correctly stated the legal standard and that the transcript is erroneous. New York Opinion 2017-61.
  • A judge may not appoint her sibling as a master commissioner. Kentucky Opinion JE-128 (2017).
  • A judge may not appoint her brother as a special prosecutor or guardian ad litem even when the appointment is governed by a rotating list. Nebraska Opinion 2017-2.  
  • A judicial nominee may provide a letter to clients stating that, as a result of her appointment to the bench, she will no longer be representing them, but that her law firm will continue the representation. Connecticut Informal Opinion 2017-2
  • A new judicial officer must advise his former law firm that his name needs to be removed from the firm name as soon as reasonably possible. Connecticut Informal Opinion 2017-5.  
  • A judge may not solicit funds for a non-profit drug treatment center or allow court employees to do so. Ohio Opinion 2017-6.  
  • A judicial association may accept $200 worth of appetizers from a restaurant for a cultural celebration open to the public. New York Opinion 2017-80.
  • A group of judges may not accept free tickets to sit in the governor’s box at Baltimore Orioles games. Maryland Opinion Request 2017-12.
  • A judge may be a housing resource for a relative on parole, but should not seek an exception to the parole board’s standard procedures based on his judicial status. New York Opinion 2017-77.  
  • A judge may appear in a family photograph on her first-degree relative’s campaign literature provided she does not wear a judicial robe and is not identified as a judge. New York Opinion 2017-79.  
  • A judicial official may not belong to the Connecticut Criminal Defense Lawyers’ Association. Connecticut Informal Opinion 2017-7.