Gifts, art, pronouns, and ex parte communications

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A sampling of recent judicial ethics advisory opinions

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

Pandemic advice

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

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

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

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

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

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

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

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

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

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

A sampling of recent judicial ethics advisory opinions

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

A sampling of recent judicial ethics advisory opinions

  • A judicial officer may not hold herself out to third parties as a family member’s lawyer or appear as the family member’s advocate before any tribunal, which includes courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  A judicial officer may attend a court or administrative hearing with a family member in a supportive role, not as a legal advocate.  When attending a hearing, a judicial officer may not refer to their judicial status and must make efforts to keep others from referring to them as “judge” (or “magistrate,” “commissioner,” or “referee”) while in the courtroom or its environs immediately prior to and during the hearing; must not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo); and must not interact with others in the courtroom and in areas immediately adjacent to it in a manner that conveys that the judicial officer has special influence or the status of a “court insider,” such as visiting the presiding judge’s chambers prior to or immediately after the hearing, socializing with court staff in the courtroom or court offices, or interacting informally with prosecutorial or investigative staff.  Prior to attending a hearing, a judicial officer should carefully evaluate whether they can maintain composure during the hearing.  Indiana Opinion 2-2020.
  • A judge may not have a “Christmas at the courthouse” event but may invite the public to learn how the court operates and tour the courthouse at a “holiday” event if there will be no alcoholic beverages, may use the judge’s own resources to purchase gifts for the children, and may have a local personality portray Santa. New Mexico Opinion 2019-4 .
  • A judge may not adopt a general policy of declining to perform weddings that involve a minor under 18 but may decline to perform a specific wedding if the judge, upon inquiry, has a valid basis to believe that the wedding would be illegal or would serve an illegal purpose.  New Mexico Opinion 2019-5.
  • A judge may not mail congratulatory letters on court stationery to a graduating high school class.  New York Opinion 2020-89.
  • A magistrate court judge may serve as the state judicial outreach liaison with the American Bar Association regarding impaired driving and other traffic issues.  South Carolina Opinion 8-2020.
  • A judge may serve on the advisory board of a not-for-profit organization dedicated to the preservation of an historic theater.  New York Opinion 2020-81(A).
  • A judge may not create and promote a GoFundMe campaign to raise money for a charitable cause.  New York Opinion 2020-81(A).
  • A judge may join a not-for-profit organization’s board to review scholarship applications and award scholarships to Deferred Action for Childhood Arrivals immigrants.  New York Opinion 2020-81(A).
  • A judge may use her judicial title in internal bar association communications as a bar association committee chair.  New York Opinion 2020-81(A).
  • A judge may participate in charity walks in a personal capacity regardless whether he is running for election or re-election, but information about his participation may not be posted on his campaign website or on the charity’s website.  Maryland Opinion Request 2020-14.
  • A judge who is enrolled in a Ph.D. program in theology may participate in a debate with other theologians even if the host church will have a “love offering” to raise funds for compassion and mission work to poor ministries and people in Asia as long as the judge does not personally ask for or collect the funds and does not remain on the stage during the offering.  South Carolina Opinion 10-2020.
  • A judge may be enrolled in a political party, but may not otherwise be a member of a political organization.  New York Opinion 2020-81(A).
  • A judge whose spouse is a candidate for elective public office may not await primary results at an election night event sponsored by a political organization or her spouse’s campaign committee but may attend an event sponsored and personally paid for by her spouse and unrelated to a political party or campaign committee.  New York Opinion 2020-87.
  • When multiple, high-profile, racially-charged incidents of police violence have resulted in pending or reasonably foreseeable litigation and intense local and national controversy, a judge may not participate in a county executive’s initiative to promote trust and dialogue between activists and police about those incidents and/or recommend changes to current police force deployments, strategies, policies, procedures, and practices.  New York Opinion 2020-112.

A sampling of recent judicial ethics advisory opinions

  • A judge presiding over a proceeding being conducted in parallel to multi-district federal litigation on the east coast may not accept reimbursement from the parties or their attorneys for travel, lodging, meals, and other expenses incurred in connection with the matter but must seek reimbursement from the courts following the policies and procedures and using the reimbursement rates approved by the Judicial Council. California Oral Advice Summary 2020-33.
  • Judges may preside over the swearing-in ceremonies for new assistant state’s attorneys in courtrooms during court hours. Maryland Opinion 2020-2.
  • A town or village justice court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak or “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargaining process for defendants charged with vehicle and traffic law infractions. A court may invite defense bar representatives and the prosecution to discuss procedures for handling mail-in pleas on traffic infractions and distribute a court-prepared form impartially listing all options for a defendant motorist and including a link to the district attorney’s website and/or email address as a convenience to defendants.  New York Opinion 2020-99
  • A letter to the judges in a district from a coalition of agencies seeking to assist tenants in eviction cases during the COVID-19 pandemic is not an ex parte communication that requires disclosure to opposing parties. The judges or their designee may meet with attorneys from those agencies to discuss scheduling and public health risks, but the judges should encourage other attorneys or interested parties to participate in the meeting as well.  Judges may not refer litigants to specific attorneys or groups but may tell an unrepresented litigant that they have a right to seek the assistance of counsel and that there are organizations that may assist them on a reduced or a no-fee basis.  Judges may not have a blanket rule that all continuances will be granted or denied in any type of case as requested by the coalition.  Judges may not provide information about available legal services with eviction summonses, but information about the coalition’s activities may be posted in a highly visible place near courtrooms and in other locations throughout the courthouse.  Nebraska Opinion 2020-1.
  • A judge may discuss pending or impending matters with other judges and court clerks at a magistrate’s association meeting in a confidential setting with no others present. When a judicial association’s email contact list includes individuals who are not judges or court personnel, a judge cannot assume emailed discussions would be confidential or private and must comply with generally applicable limitations on judicial speech.  New York Opinion 2020-38
  • Subject to generally applicable limits on judicial speech and conduct, a judge may publicly identify the strengths and weaknesses in recent bail reform legislation and suggest that the legislature seek additional comments or testimony to improve the law. New York Opinion 2020-42
  • A judge may not be involved in efforts to encourage the state legislature to ratify the Equal Rights Amendment. Utah Informal Opinion 2020-2
  • A judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not elaborate on the constitutional provision, and does not speak with the media. Connecticut Informal Opinion 2020-3.
  • A judge may participate in a museum’s documentary film commemorating the passage of an amendment to the U.S. Constitution if the film will not be used for fund-raising. New York Opinion 2019-166
  • A judge may teach a law school course based on a now-concluded homicide trial in her jurisdiction only if the time for appeals is exhausted and no related matters are pending or reasonably foreseeable. In teaching the class, the judge may only use materials from the public record.  New York Opinion 2020-31
  • A judge may speak at a free elder abuse awareness conference sponsored by a not-for-profit home health care agency if the program is primarily educational and preventative in nature. New York Opinion 2020-44
  • A judge may volunteer as a disc jockey for a not-for-profit college radio station. New York Opinion 2020-49
  • A judge may not play the role of a judge in a theatrical performance to raise funds for her house of worship. New York Opinion 2020-57
  • A judge may not serve as stewardship co-chair for her house of worship. New York Opinion 2020-62
  • A judge may serve on the board of directors of a regional chapter of the Polish American Congress. New York Opinion 2020-71
  • A judge may not, as a member of a political party and without disclosing her judicial position, write to state or federal representatives or senators expressing her personal positions; attend meetings, rallies, or events for candidates for office; volunteer for candidates in any capacity at their office or in contact with the general public; canvass in other states to support candidates for national office or candidates for office in those other states; or engage in any similar efforts to support candidates for any political office. New York Opinion 2020-51

 

A sampling of recent judicial ethics advisory opinions

  • A judge may consult about adjudicative responsibilities with another judge, individually or on a listserv, as long as he does not receive factual information that is not part of the record and makes an independent decision in the matter.  Michigan Opinion JI-149 (2020).
  • As long as the judge does not discuss any pending or impending cases, a judge presiding over a dependency/delinquency docket may meet with attorneys working for Children’s Legal Services, without other stakeholders, to discuss docket management, scheduling issues, and expectations for motion practice, but it would be prudent for the judge to invite all stakeholders to the meeting.  Florida Opinion 2020-5.
  • A judge is not disqualified from cases involving the city prosecutor even though their children are schoolmates and friends outside of school when she and the prosecutor have no interaction other than scheduling visits for their children to see each other.  New York Opinion 2019-161.
  • While a lawsuit challenging the legitimacy of such arrests in New York’s courthouses is pending or impending, a town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court.  New York Opinion 2019-135.
  • Judges may attend school programs to generally educate parents and students about truancy-related issues and court processes.  Judges should not participate as volunteer “judges” in school-sponsored truancy intervention programs in which the judge engages directly with specific at-risk families or appears to “preside” over dockets.  Judges may not be members of a “truancy team” to assist a particular family or review the details of truancy issues in specific cases.  North Carolina Opinion 2020-1.
  • A judge may attend an event honoring black female judges if the event is not also a fund-raiser.   Florida Opinion 2020-4.
  • Judges must not publish their own charitable contributions on social media.  Judges may support charitable organizations on social media.  A judge who is on a charitable organization’s boards of directors may permit his position to be listed on the organization’s websites and social media.  If a judge has reservations about being associated with any charitable organization, the judge should avoid the association, including through social media and other digital media used by the organization.  Michigan Advisory Opinion JI-148 (2029).
  • A judge may not participate in a conference call organized by a federal legislator to plan an event on Capitol Hill in which individuals of a particular ethnic/cultural heritage gather and attend workshops on issues such as immigration, education, the workforce, the U.S. economy, and trade.  New York Opinion 2019-138.
  • A judge may personally appeal the denial of claims for health insurance coverage for her dependent child and may seek reversal of charges imposed by the child’s college.  New York Opinion 2020-18.
  • A district court commissioner may not accept a temporary position as a census taker/enumerator.  Maryland Opinion Request 2020-6.
  • A court attorney-referee may participate in a census education drive organized by his fraternity/sorority, provided his participation is strictly neutral, non-partisan, and informational.  New York Opinion 2019-149.
  • A judge may not serve on the executive committee of a regional Boy Scouts Council when several cases have been filed against the organization under the Child Victims Act and a member of the executive committee was recently charged with sexual abuse of children.  New York Opinion 2020-3.
  • A judge may serve as a board member on a local council of the Boy Scouts of America, but must resign if the council becomes involved in litigation.  A judge may mentor high school students through a program organized by a not-for-profit.  A judge may not serve on the board of a network of not-for-profit agencies when some of those agencies engage in advocacy, accept court referrals, or are eligible for appointments in the judge’s court.  New York Opinion 2020-55.
  • A town justice may attend public town board meetings as an observer.  New York Opinion 2019-158.
  • A judge may make a private monetary donation to a non-judicial candidate’s campaign even though the candidate must publish a public financial report of donations.  Michigan Opinion JI-145 (2020).
  • Judicial officers and judicial candidates may advertise their campaigns on personal or professional social media accounts but may not use those accounts to solicit or accept campaign contributions.  A judicial candidate’s campaign committee may solicit contributions through social media platforms.  Michigan Opinion JI-147 (2019).

 

A sample of recent judicial ethics advisory opinions  

  • A judge may not step down from the bench and shake a criminal defendant’s hand in front of potential jurors to emphasize that the defendant is presumed not guilty before trial.  Utah Informal Opinion 2019-3.
  • A judge may not facilitate a traffic ticket plea reduction program instituted by the district attorney’s office that would interfere with the court’s exercise of judicial review and discretion.  New York Opinion 2019-145.
  • A new judge is required to disqualify from cases involving an attorney who is a former employee, protégé, and intern and was manager for her election campaign.  Washington Opinion 2020-3.
  • A town justice may not write the town board expressing her personal view that a new local law was poorly drafted and offering proposed amendments.  New York Opinion 2019-137.
  • A judge may participate in a panel discussion on human trafficking at an event sponsored by a non-profit organization that is not a fund-raiser.  Florida Opinion 2020-3.
  • A judge may not accept an invitation to speak to law enforcement officials about honesty and integrity in investigations and testimony.  Utah Informal Opinion 2019-2.
  • A judge may not give a media interview about a rule to show cause he issued against a state agency that has a significant case backlog.  West Virginia Opinion 2019-16.
  • A judge may not discuss cold cases from other states on a nationally broadcast podcast hosted by Nancy Grace.  West Virginia Opinion 2019-21.
  • A judge may participate in an academic study on judicial diversity in state courts but must abide by generally applicable limitations on speech and conduct.  New York Opinion 2019-115.
  • A judge may solicit other judges in her district for a “Wellness Fund” to be used by the local Wellness Committee to fund social events for judges and employees to promote workplace collegiality and a positive work environment if she and other judges on the committee do not have any supervisory or appellate authority over the solicited judges.  New York Opinion 2019-108.
  • With qualifications, judges may write reviews on crowd-sourced sites, such as Yelp, and use the “like” function on a social networking site.  California Judges Association Formal Opinion 78 (2020).
  • A judge may publish her dissertation for her doctoral degree in judicial studies as a book and receive compensation for sales of the book.  Florida Opinion 2020-1.
  • A judge should not attend an event that will honor individuals who support the mission of a civic organization “by making positive changes in the lives of abused, neglected and disadvantaged youth in or aging out of foster care” when the price of the tickets and availability of advertisement space indicate that the event has a fund-raising component.  Florida Opinion 2020-2.
  • With conditions, a judge may serve as the chair of a strategic planning committee for the private not-for-profit school that his children attend.  New York Opinion 2019-86.
  • A judge may serve on the board of the Colorado Women’s Leadership Foundation, which encourages corporations and non-profit organizations to fill board positions with qualified women.  Colorado Opinion 2020-1.
  • A judge may not serve as a board member or non-legal advisor of a non-profit organization that receives court appointments and provides guardianship services and attorney representation.  New York Opinion 2019-122.
  • A judge may serve on the board of a non-profit entity that provides occupational therapy activities such as art classes and workshops to the disabled if it does not receive referrals from the judge’s court or regularly engage in litigation in any court.  New York Opinion 2019-131.
  • A new judge may continue to serve as president of the board of a non-profit organization he established while a lawyer but cannot be the signatory for any legal documents such as contracts and rental agreements, cannot be on the checking account, cannot engage in any negotiation with prospective renters/leaseholders of the organization’s building, cannot fund-raise for the organization, and cannot be involved in any press events publicizing donations.  West Virginia Opinion 2019-12.
  • A judge may serve as president of a bar foundation that focuses on the management and distribution of grants for local legal services programs.  New York Opinion 2019-141.
  • A judge may serve as an ex officio member of a charitable organization’s advisory group about funding criminal justice reform initiatives in the state.  West Virginia Opinion 2019-27.
  • A magistrate may serve on a church disciplinary committee.  South Carolina Opinion 3-2020.
  • A judge may not serve as an advisor to the U.S. President on disability programs and services or on an advisory committee to the U.S. Department of Health and Human Services.  A  judge may, subject to certain limitations, meet with federal executive branch officials on her own behalf to discuss her experiences as a disabled individual.  New York Opinion 2019-146.
  • Court webpages may list the names of the judges authorized to perform wedding ceremonies and their phone number but should inform the public that judges may be available to perform wedding ceremonies during court hours when there is no fee and should not highlight special services that individual judges may provide (for example, wedding ceremonies in languages other than English or availability to “officiate LGBTQ weddings”).  A judge should not maintain a webpage that would allow the public to schedule wedding ceremonies with just that judge for a fee outside of court hours.  Judges may wear their robes on their court’s wedding webpage, but a judge may not wear a robe on a webpage not affiliated with the court that promotes her availability to perform weddings for a fee.  Washington Opinion 2020-1.
  • A judicial officer may not offer a free weekly drop-in yoga class at the courthouse.  Washington Opinion 2020-2.
  • A new magistrate may continue to teach NRA handgun safety classes.  West Virginia Opinion 2019-14.
  • A magistrate may hold a yard sale to sell his own items for personal gain.  West Virginia Opinion 2019-11.
  • A full-time judge may not serve as a bankruptcy trustee.  Utah Informal Opinion 2019-1.
  • A judge may not retain an ownership interest in property with his former law partners when the firm and other law firms are tenants on the property.  Maryland Opinion Request 2019-35.
  • A judge may make the political party declaration required by statute to vote in the presidential primary.  Washington Opinion 2020-4.
  • A judge whose wife is running for governor may attend fund-raisers on her behalf outside the marital home, but may not appear in a parade with her or introduce her or speak about her at campaign events; the judge’s name and photograph may appear in his wife’s campaign literature or other campaign photograph as long as he is not identified a judge.  West Virginia Opinion 2019-22.
  • A judicial candidate may not characterize an opponent’s prior removal from the ballot when his petitions were invalidated as an inability to “follow the law” and/or a “flagrant disregard for the law” or ask voters to imagine several “disastrous outcomes in serious matters” if the opponent were elected and then “failed to follow the law.”  New York Opinion 2019-112.

 

 

A sampling of recent judicial ethics advisory opinions

  • A judge may participate in a study on judicial diversity in state courts but should not answer questions that could be perceived to suggest a predisposition to decide matters in a certain way regardless whether a case is pending or impending in any court.  Maryland Opinion Request 2019-27.
  • A judge and a judicial association may publicly support or oppose proposed legislative or constitutional changes to court structure, court operations, or the terms or conditions of judicial service by writing and submitting letters, articles, or editorials to newspapers and other publications; advocating in person or in writing to public officials, governmental bodies, and labor unions; testifying at public hearings; and speaking at public or private forums, other than partisan political gatherings or meetings of a political party or committee.  A judge and a  judicial association should use discretion when expressing a position on social media.  New York Opinion 2019-120.
  • A judge may speak about her judicial experiences at a federal legislator’s non-partisan, non-political youth cabinet meeting.  New York Opinion 2019-100.
  • A judicial official may not play a fictional judge in a scripted docudrama that raises controversial political and societal issues, such as reparations, police brutality, and the killing of innocent blacks.  Connecticut Informal Opinion 2019-3.
  • A judicial official may join a local bar association as a dues-paying member but should regularly re-examine the association’s activities and rules and should carefully consider whether identification with or involvement in specific programs or activities may undermine confidence in his independence, integrity, and impartiality or result in frequent disqualification.  Connecticut Informal Opinion 2019-4.
  • A judge may serve as a member of the House of Deputies at the general convention of the Episcopal Church.  Florida Opinion 2019-31.
  • A judge may serve on the board of a not-for-profit organization that advocates for effective policies and evidence-based solutions for the health, education, and success of children who are vulnerable because of poverty, racism, health disparities, and trauma.  New York Opinion 2019-105
  • A judge may not write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations.  New York Opinion 2019-106.
  • A full-time magistrate judge may not be engaged in business as a motivational speaker.  South Carolina Opinion 15-2019.
  • A family court judge should not appear by telephone as a witness for a friend in an out-of-state custody/relocation hearing.  South Carolina Opinion 16-2019.

 

 

A sampling of recent judicial ethics advisory opinions

  • A chief judge of a circuit, a criminal division administrative judge, or a criminal division judge may contact the elected state attorney, public defender, or their designated supervisory level attorneys to discuss the judge’s concerns about the conduct of attorneys in their offices that adversely impacts the administration of justice.  Florida Opinion 2019-23.
  • A judge is not required to automatically disqualify himself from cases involving an insurance company that amicably settled a claim made by the judge.  Florida Opinion 2019-24.
  • Judges need not disqualify themselves if a lawyer or party is an acquaintance or disclose an acquaintanceship to the other lawyers or parties.  Whether judges must disqualify themselves or disclose when a party or lawyer is a friend or has a close personal relationship with the judge depends on the circumstances.  ABA Formal Opinion 488 (2019).
  • A judge may discuss a court-based mental health diversion project on a video that will be used exclusively on a behavioral health entity’s web-site and social media platform to educate the community about the program if the judge does not promote the entity.  Florida Opinion 2019-26.
  • A chief judge may appear before volunteer bar associations to explain a service that refers military veterans to attorneys for pro bono representation and solicit attorneys to volunteer for the service.  Florida Opinion 2019-27.
  • A judge may apply for loan forgiveness under a U.S. Department of Education’s Public Service Loan Forgiveness Program and is not required to report any discharged debt.  Colorado Opinion 2019-3.
  • A judge must sell an interest in an out-of-state law firm upon election or appointment to the bench.  Florida Opinion 2019-28.
  • A judge may not own a limited liability company that provides mediation services.  South Carolina Opinion 12-2019.
  • A judge may participate in a continuing legal education seminar presented by a local bar association for which a fee is charged and that may result in a profit for the bar association.  Virginia Opinion 2019-3.
  • With conditions, a judicial official may serve on the board or committees of a community organization that provides research and funding to improve the lives of a specific gender.  Connecticut Informal Opinion 2019-1.
  • A judge may not accept an honorary membership in the National Black Prosecutors’ Association.  Florida Opinion 2019-29.
  • A judicial official may not receive a clergyperson of the year award at a gala event sponsored by a religious organization if there will be a silent auction to raise funds before the event even if there will be no fund-raising appeal at the event and the cost to attend only covers the cost of the food and other event expenses.  Connecticut Informal Opinion 2019-2.
  • A judge may not appear in an advertisement for a private elementary school.  Maryland Judicial Opinion Request 2019-31.
  • A judge may act as the treasurer for a non-profit high school legion baseball team.  Nebraska Opinion 2019-2.
  • A judge may publish a work of fiction using a pen name.  Florida Opinion 2019-30.
  • A judge may not publish an on-line review of a personal or professional vacation organized by a bar association or other professional organization even if the review is anonymous and does not refer to her judicial status.  New York Opinion 2019-87.
  • A judge may not write a letter in support of a clemency application at the request of the inmate or his attorney, but the inmate may list the judge as a reference.  New York Opinion 2019-95.
  • A judge may permit her election committee to send fund-raising communications to the local bar association by email.  Maryland Opinion Request 2019-28.
  • A judge may not permit a candidate for non-judicial office to use in campaign materials a photograph of the judge and the candidate taken before the judge assumed office.  New York Opinion 2019-83.