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.

 

 

A sampling of recent judicial ethics advisory opinions

  • A judge may not communicate ex parte with a county attorney about an arrestee’s criminal record for the purpose of setting an appearance bond when the courts are closed over the weekend and holidays.  Nebraska Opinion 2019-1.
  • A judge is not disqualified from a criminal matter because the defendant, a self-identified sovereign citizen, is attempting to file a fraudulent lien against her and has threatened to accuse her of treason if she does not protect what the defendant perceives as his rights.  New York Opinion 2019-81.
  • A judge is not disqualified from a criminal trial in which the state’s witness was the petitioner and the defendant was the respondent in a prior protective order proceeding over which the judge presided.  Maryland Opinion Request 2019-22.
  • A judge may wear a judicial robe while attending a retirement ceremony for another judge held in a courtroom.  Virginia Opinion 2019-2.
  • A judge may not provide a reference for a former law clerk or any attorney on the attorney rating web-site Avvo.  Maryland Opinion Request 2019-24.
  • A town court justice may not meet privately with the town comptroller and town board members to explain an apparent decrease in revenue generated by the court but may explain the amount of fines and fees collected and the court’s budgetary needs at a board meeting or public forum.  New York Opinion 2019-63.
  • An appellate judge with administrative or supervisory responsibilities who concludes that a trial court judge contacted the judges participating in an appeal to attempt to influence the outcome of the case must ensure that the incident is reported to the State Commission on Judicial Conduct and must direct that the improper communication be disclosed to appellate counsel in the case.  New York Opinion 2018-157.
  • Magistrate judges should not host a radio talk show on sports law, new laws, amendments to existing laws, opinions from the Supreme Court, and court procedures even if they would not be paid; the show will be taped and edited, not live; the judges will control the topics and narratives; and the judges will not take questions from callers.  South Carolina Opinion 10-2019.
  • A judge may serve as executor/trustee of a friend’s will/trust and as guardian of the friend’s child if the friend and the judge have a long and involved relationship that appears to be more than a mere friendship and is more akin to a close familial relationship.  Washington Opinion 2019-4.
  • With conditions, a judge’s spouse may volunteer as a court-appointed special advocate in the judicial district in which the judge presides and advocate on behalf of children in the juvenile court system and domestic violence protection order cases in which the judge is not presiding.  Wyoming Opinion 2019-1.
  • A judge may be the plenary speaker at a non-fund-raising event sponsored by a not-for-profit homelessness services network and speak about religious and spiritual issues, mental illness, drug and alcohol addiction, and progress in community responses to homelessness if the judge will not address funding or government support for the homeless.  New York Opinion 2019-73.
  • A judge may serve as officer or director of a bar foundation that provides financial aid to attorneys in personal and professional crisis and may, unless the attorney asks the judge to recuse himself, preside in matters involving attorneys receiving assistance if the judge’s contacts with the attorneys are relatively minimal and occur exclusively through a liaison who presents the case to the board.  New York Opinion 2019-55.
  • A judicial officer may attend, at no cost for him and his guest, a private testimonial dinner in honor of his retirement from the executive committee of an Inn of Court after nearly 20 years, but the judge must report the total cost of their meals.  A judge may allow the Inn of Court to establish a student achievement award in his name and may accept a framed commemoration of the award.  California Opinion Summary 2019-30.
  • A judge may not present an award to a friend being recognized as a community leader at a fund-raising event for a non-profit civic organization.  Florida Opinion 2019-20.
  • A judge may contribute to a local historical society that is raising funds for a portrait of a former mayor who remains active in local government.  Florida Opinion 2019-21.
  • A judicial candidate is not obligated to disavow a misstatement about an opponent by a third-party or PAC unless the misstatement involves a substantive, significant fact and not an opinion, the misstatement must be false or a material misrepresentation, and the candidate knows about the statement and its falsity.  The obligation to disavow is met by the timely issuance of a press release to all area news media and a prompt letter notifying the third party or PAC it to immediately stop running the statement.  West Virginia Opinion 2019-15.

 

 

A sampling of recent judicial ethics advisory opinions

  • Except in specified circumstances, a judge may not engage in an ex parte communication with a professional or volunteer who works with the court, such as a district attorney investigator, probation officer, probate investigator, social worker, CASA volunteer, or CASA staff, and should require such individuals to communicate through a written report shared with all parties.  A judge should not receive an oral up-date from an investigator from the district attorney’s office appointed by the court to search for a child who has been abducted by a parent in a contested custody case but may receive a written up-date.  A judge should not permit a deputy probation officer to explain portions of a report in chambers and should ask that any explanations take place with all the parties or their attorneys present or in a supplemental written report.  When police officers come to a judge’s house with an affidavit in support of a search warrant, the best practice is for the judge to read the affidavit alone so that the officers cannot add to the facts or explain them, and the judge should decline any offer of additional information.  A judge may discuss with the director of the local CASA program administrative issues such as the quality of CASA reports and the role of the advocates in court but must be careful not to discuss individual cases.  California Judges Association Opinion 77 (2019).
  • A judge may not display a rainbow flag or rainbow heart sticker on the bench or in the courtroom to communicate to individuals identifying as lesbian, gay, transgender, or queer that they are in a safe, affirming, and inclusive space.  New York Opinion 2019-50.
  • A judge who oversaw legislation that made West Virginia a right-to-work state while serving as a member of the House of Delegates must recuse himself from any challenge the right-to-work laws.  West Virginia Opinion 2019-9.
  • Court employees who are licensed members of the bar may in general volunteer their services to a pro bono publico service program even in a representative capacity, outside of regular hours of employment, but, before deciding whether to allow a court employee to provide pro bono services, a judicial officer should consider whether the court has a policy related to outside employment or volunteer work, the nature of the employee’s role with the court, the nature of the participation, whether the participation will lead to frequent disqualification of the judicial officer, and whether the participation may convey the impression that the employee is in a position to influence the judge or is expressing the judge’s views on pending or impending cases.  Washington Opinion 2019-3.
  • A judge may not permit an incoming law clerk to accept a salary advance from the law firm for which the law clerk will be working after the clerkship.  Maryland Opinion Request 2019-14.
  • A judge may serve on a governmental task force to address the impacts of closing a prison facility if its members represent a broad spectrum of interests and it will focus on planning for an orderly transition rather than fielding complaints.  New York Opinion 2018-168.
  • A judge may write a book about family law courts and the mental health issues sometimes associated with them, specifically, the “warning signs” that judges and litigants should be concerned about, and may promote the book as long as the judge does not use the prestige of office to promote the book and the judge, his judicial assistant, and members of his family do not sell the book to any member of the Bar.  Florida Opinion 2019-18.
  • With conditions, a judge who re-sentenced a person for a murder committed while the person was a juvenile may, after the person’s probation has ended, participate in a brief e-mail interview that will be published in the person’s memoir.  Maryland Opinion Request 2019-13.
  • A judge may teach or lecture part-time at a private law school and accept reasonable compensation.  New York Opinion 2018-168.
  • A judge may serve in leadership positions in bar associations, including as an officer, director, committee chair, or non-legal advisor to a local or national bar association.  New York Opinion 2018-168.
  • A judge may not serve as an officer of, on the board of directors of, or in any other leadership position in the Anti-Defamation League or the regional chapter of the Anti-Defamation League Pacific Northwest.  A judge may participate in the ADL PNW No Place for Hate education campaign if the program’s content does not give the impression that the judge will not apply the law or has a bias or predisposition toward any question that he might be called upon to decide, but should not associate himself with the organization’s positions on public controversies, should disqualify himself from any litigation in which the ADL or ADL PNW is a party, is representing a party, or has participated as amici, and should disclose his affiliation with the ADL and consider recusing if an issue comes before him that involves a matter on which ADL has taken a public position by litigation, lobbying, or direct advocacy.  Washington Opinion 2019-1.
  • A judicial officer may donate an item to a charitable auction as long as her name or participation is not associated with the donated item, but may not donate a drinks and hor d’ouerves event in the new home she shares with her spouse.  Her spouse may donate to the auction unless members of the legal community are aware that the donated gift or service features their shared residence or includes personal interaction with the judicial officer.  Washington Opinion 2019-2.
  • A close friend of a judge should not establish a charitable fund in the judge’s name to benefit animal rescue organizations, but guests at the judge’s birthday party may make a one-time donation to an organization in her honor with certain conditions.  West Virginia Opinion 2019-10.
  • A judge may receive payments from her former law firm pursuant to an agreement that pre-dated her appointment but must disclose the payments in any case involving the firm as long as the payments continue.  West Virginia Opinion 2019-1.
  • A magistrate judge should not open a pawn shop.  West Virginia Opinion 2019-8.
  • A judge’s spouse may act as a poll worker for a municipal election.  West Virginia Opinion 2019-5.
  • A judicial candidate may not use on his campaign materials a stock photograph of strangers with a banner that reads “Re-Elect Judge [Name] for Us!”  New York Opinion 2019-53.

A sampling of recent judicial ethics advisory opinions

  • In a jurisdiction in which a judge is obligated to perform marriages, a judge may not decline to perform marriages for same-sex couples. In a jurisdiction in which performing marriages is discretionary, a judge may not decline to perform marriages for same-sex couples if the judge performs opposite-sex marriages, but may refuse to perform all marriages for members of the public and still perform marriages for family and friends as long as the judge does not refuse to perform same-sex marriages for family and friends.  ABA Formal Opinion 485 (2019).
  • A judge may comment on a proposed rule regarding continuances for parental-leave in the Florida Rules of Judicial Administration. Florida Opinion 2019-4.
  • A judge may not meet with the appointing authority to discuss candidates for appointment as her co-judge, render “fact-based opinions” on the candidates, or recommend or oppose specific candidates. New York Opinion 2018-142.
  • The Colorado District Judges’ Association may employ a public information officer, but the Association’s members and particularly its officers are responsible for ensuring that any information provided by the public information officer complies with the code of judicial conduct. The public information officer may disseminate general educational information, including how courts operate, how they make decisions, and how judges are appointed and retained; may share facts with or respond to inquiries from news media, bar associations, and other specific members of the public; and may, under certain circumstances, advocate before decision-makers about issues that concern the Association’s members.  Colorado Opinion 2019-1.
  • A judicial officer may serve on a non-profit organization’s advisory board that will draft legislation to reform part of the criminal law system and may provide testimony before the legislature and meet with legislative sponsors. California Oral Advice Summary 2019-27.
  • An appellate justice may serve on an advisory panel for a state-funded grant program that sponsors educational projects about the internment of Japanese Americans during World War II and other civil rights violations. California Oral Advice Summary 2019-28.
  • A judge may serve on the board of directors of the not-for-profit Association for Children with Learning Disabilities, which does not accept referrals from the courts or regularly engage in litigation in any court. New York Opinion 2018-166.
  • In determining whether to attend or to participate as a lecturer or panel member at a conference or seminar sponsored by a research institute, think tank, association, public interest group, or other organization engaged in public policy debates, a judge or judicial employee should assess (1) the identity of the sponsor of the conference or seminar; (2) the subject of the conference or seminar; (3) whether the seminar or conference has political overtones; (4) the nature and source of funding for the conference or seminar; (5) whether the sponsor or a source of substantial funding is involved in litigation or likely to be involved; and (6) the nature of the expenses paid.  U.S. Advisory Opinion 116 (2019).
  • A judge may plan and attend a community blood drive and organ donor registration event in memory of a deceased relative if his judicial designation will not appear on any advertisements or invitations and he will not personally solicit anyone to participate. New York Opinion 2018-143.
  • A judge may not participate in a 5K athletic/sporting event organized and promoted by the district attorney’s office to raise awareness of and prevent domestic violence. New York Opinion 2018-147.
  • A judge may participate in the filming in another state of a pilot for a television show in which pro se litigants will have their small claims cases resolved by the show’s presiding judge but may not remain on the bench if he accepts a role in the show. Florida Opinion 2019-2.
  • A district court commissioner may not sell beauty products as an independent contractor with Mary Kay Beauty Products. Maryland Opinion Request 2018-38.
  • A judge may receive fees for legal work performed on veterans’ disability cases prior to his ascension to the bench. South Carolina Opinion 3-2019.
  • A senior judge who is retiring and not subject to recall may use her name with the designations “HON” and “RET” on a program for an event commemorating her career. Florida Opinion 2019-1.

 

Balls, strikes, and self-represented litigants

In an advisory opinion, the California Judges Association Judicial Ethics Committee encouraged judges to “understand the difficulties encountered by self-represented litigants” and “to exercise discretion to treat them differently.”  California Judges Association Advisory Opinion 76 (2018).  The opinion emphasized that a “judge may make reasonable procedural accommodations that will provide a diligent self-represented litigant acting in good faith the opportunity to have his or her case fairly heard.”

The committee explained:

Some judges take the position that the job of the judge is to call the balls and strikes, not to throw the pitches.  Is this an accurate statement of the role of the judge?  Not necessarily. . . .  Fundamental justice should not be sacrificed to procedural rules and cases should be decided on their merits.  Exercising discretion – not just calling balls and strikes – is the nature of judging, from granting motions for extensions of time to handing out sentences.

Frequently, there is tension between the represented party and the self-represented litigant.  One side is ready to proceed, has done the legal work, and would like to complete the proceeding as soon as possible.  The self-represented litigant often is struggling with legal terms, time limits, and court procedures.  The judge must decide what reasonable accommodation is proper and when it is unreasonable.  Judges may grant continuances, explain legal terms, refer a litigant to self-help services or the library, or refer him or her to the local bar association for a low-cost meeting with an attorney.  Whether the judge should take any of these or other steps is a matter of judicial discretion.

The committee concluded:

The adversary system is not embedded in the Code of Judicial Ethics, nor is it the primary purpose of the code to protect the formalities of the adversary system.  Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented.  Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.

The committee applied its analysis to several courtroom situations.  For example, the committee stated, a judge may, at the beginning of a civil case in which one litigant is unrepresented by counsel and the other is represented, explain how the proceedings will be conducted, including that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered.  In addition, the opinion advised:

  • A judge may give a self-represented litigant a neutral explanation of how to respond to a motion for summary judgment.
  • A judge may provide a self-represented litigant information about the requirements for entry of a default judgment.
  • A judge may ask a self-represented litigant if she wants a continuance to bring a witness to court.
  • During a trial, a judge may ask witnesses neutral questions to clarify testimony and develop facts.
  • A judge may sign a settlement agreement prepared by the attorney for 1 party and signed by an unrepresented party, but, as a best practice, should ask the parties if they understand the document and ask the unrepresented party if she understands her responsibilities under the agreement.
  • When a self-represented litigant refers to information after being instructed not to, a judge is not required to grant a motion for a mistrial but may instruct the jury to disregard the testimony.
  • If an unrepresented plaintiff makes no specific claim for damages at the close of her case, the judge may ask the plaintiff, “Are you asking for damages in this case? If so, what is the amount you are asking for?  And why are you asking for this amount?”
  • In a criminal case, if a prosecutor tries to take advantage of a defendant’s unrepresented status to introduce the defendant’s prior drug-related arrest and the factual basis for a search, the judge should immediately intervene even if the defendant does not object.

In domestic violence cases, the committee stated, a judge:

  • May give the self-represented plaintiff a short continuance to learn about the relevant rules of evidence and the procedural requirements for the admission of hospital records,
  • Should permit a support person to accompany a self-represented moving party to counsel table, and
  • Should inform a self-represented respondent that he could present oral testimony.

Commentary to the California Code of Judicial Ethics states:  “[W]hen a litigant is self-represented, a judge has the dis­cretion to take reasonable steps, appropriate under the circumstances and con­sistent with the law and the canons to enable the litigant to be heard.”  Comment 4 to Rule 2.2 of the American Bar Association Model Code of Judicial Conduct states:  “It is not a violation of this Rule [requiring that a judge be fair and impartial] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  34 states and the District of Columbia have added comment 4 or a version of comment 4 to their codes of judicial conduct.  Click here for more information.

A sampling of recent judicial ethics advisory opinions

  • A judge may participate, identified as a judge and wearing a robe, in a state agency video explaining successful truancy measures for juveniles. West Virginia Opinion 2018-19.
  • Judges must assume their attendance at a march, rally, or protest will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media, and consider whether their participation would appear to a reasonable person to undermine their independence, integrity, or impartiality or demean the judicial office, which is an objective standard. Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  The same restrictions apply to judges’ personal staff, courtroom clerks, and court managers.  Arizona Opinion 2018-6.
  • A judicial official may not act as a reference for a support enforcement officer who regularly testifies before him and is applying for a promotion Connecticut Informal Opinion 2018-17.
  • A judge may host a “meet & greet” in her home for the new dean of the Oklahoma City University law school if there will be no fund-raising. Oklahoma Opinion 2018-10.
  • A judge may serve on a committee that interviews applicants to his alma mater and recommend a student for admission as long as his title is not mentioned in the recommendation. Florida Opinion 2018-31.
  • A judicial official may not accept an award at a fund-raising dinner for a non-profit human relations organization that promotes inclusion and acceptance through education, advocacy, and building respectful and just communities. Connecticut Informal Opinion 2018-16.
  • A judge may accept a raffle prize valued at approximately $500 at a charity event hosted by the probation department, which regularly appears in her court. New York Opinion 2018-133.
  • A judge may not participate in an interview with a former juror writing a book about a case over which she presided when related proceedings remain pending or impending. New York Opinion 2018-134.
  • A judge may serve as a manager in a real estate investment limited liability company formed to manage his real estate investments and those of close family members but should avoid that role if other members could easily undertake the duties and may not serve if doing so would require frequent disqualification. North Carolina Formal Opinion 2018-1.
  • A judge may serve as an executor/administrator for a great nephew’s estate when they had a close family relationship and may receive the statutorily mandated compensation. West Virginia Opinion 2018-4.
  • A magistrate may participate in a street/block yard sale in his neighborhood. West Virginia Opinion 2018-8.
  • A circuit court judge’s spouse may be the executive director of an organization that provides domestic violence victim advocacy services, including in proceedings before the circuit court, but they judge should not discuss with her the organization’s policies, activities, or clients or attend the organization’s events and should advise her not to promote or comment on their relationship in a job interview or any aspect of her duties. Wyoming Opinion 2018-2.
  • Judicial candidates must disavow third-party/PAC advertisements that contain statements that are false or misleading; that indicate the candidate would be biased in favor of or against an individual, group, or legal issue; or that do not accurately reflect the duties and role of a judge. West Virginia Opinion 2018-22.