A sampling of recent judicial ethics advisory opinions

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

 

Special presentations

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

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

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

Further, the judge’s presentation:

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

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

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

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

A sampling of recent judicial ethics advisory opinions

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

 

 

 

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

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

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

Arizona Advisory Opinion 2018-3.

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

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

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

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

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

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

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

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

 

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.