A sampling of recent judicial ethics advisory opinions

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

Court-annexed self-help clinic

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

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

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

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

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

A sampling of recent judicial ethics advisory opinions

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

 

A sampling of recent judicial ethics advisory opinions

  • A judge who presides in a high-volume court may discuss administrative issues with the attorneys who appear before her in annual or semi-annual meetings; the meetings should not include catered meals paid for by the attorneys, but the judge may host “brown bag luncheons” to which attorneys bring their own meals. New York Opinion 2017-24
  • A judge may attend a private organization’s diversity and racial equality seminar at his own expense. Florida Opinion 2017-10.
  • A judge may sponsor and participate in a public education program about the heroin epidemic, the Good Samaritan Law, and related Maryland law, with some conditions. Maryland Opinion Request 2017-13.
  • A judge may give a presentation on civil enforcement and related matters at a training conference for a sheriff’s association as long as he does not give advice on litigation strategy or comment on pending or impending cases. New York Opinion 2017-81.
  • A judge may speak to an audience of animal control officers about court procedures in dangerous-dog and unlicensed-dog cases, with some conditions. New York Opinion 2017-35.
  • A judge may organize a free community “Law Day” event at the library or historical society where volunteer attorneys would provide free 10-minute private consultations, with some conditions. New York Opinion 2017-30.
  • A judge should not give a baby gift to a lawyer who is appearing in a highly contested case pending before the judge or attend a baby shower given in the lawyer’s honor. Connecticut Informal Opinion 2017-1.
  • A judge may swear in the officers of a chamber of commerce at the organization’s annual installation dinner. Maryland Opinion Request 2017-5.
  • A judge may not allow his home to be part of a tour to raise funds for a charity. Maryland Opinion Request 2017-10.
  • A judge who is a board member of not-for-profit charitable and educational organizations that are not concerned with the law, the legal system, or the administration of justice may attend fund-raisers for the organizations even if a speaker points out the judge’s presence as long as the speaker also points out other prominent persons and identifies them by their honorifics.  Maryland Opinion Request 2017-14.
  • A judge may not participate in a university’s video profile series, published on the school’s web-site and social media channels, even if the videos are used for general campus promotion, but not for fund-raising, when each 2- to 3- minute video features a prominent alumnus discussing how undergraduate education helped him or her identify goals, aspire to a career, and achieve success; includes images of the university’s campus; and ends with the alumnus announcing the “tag line” that he or she “stands with” the school.  Massachusetts Opinion 2017-2.
  • A judge may not be a member of an ecclesiastical court or a hearing officer in a church-related disciplinary hearing. New York Opinion 2017-25
  • A judge may file a pro se answer in a real estate case in which she and her siblings are defendants but may not file an answer on her siblings’ behalf even though their interests are identical to hers. New York Opinion 2017-72.
  • A judge as administrator of a first-degree relative’s estate may act pro se at a closing for the estate’s real property. New York Opinion 2017-82.
  • A judge may serve on the board of directors of a non-profit organization that addresses issues of aging. South Carolina Opinion 6-2017.
  • A judge may not serve on the board of a charter school or of a non-profit organization that operates charter schools. California Formal Opinion 2017-11.
  • A judge may serve on a law section council of a general membership state bar association and participate in discussions and votes concerning proposed legislation. Illinois Opinion 2016-3.
  • A senior judge may be part of a team monitoring the Baltimore police department’s compliance with a consent decree between the U.S. Department of Justice, the mayor and city council, and the police department, with some conditions. Maryland Opinion Request 2017-8.
  • A judge must resign before becoming a candidate in a primary or general election for district attorney. North Carolina Opinion 2017-1.

A sampling of recent judicial ethics advisory opinions

  • A judge is disqualified from any cases in which his wife appears as a guardian ad litem. West Virginia Opinion 2017-1.
  • A family court judge may send a sympathy card to the family of a decedent who was formerly the subject of juvenile delinquency proceedings before the judge. New York Opinion 2017-15.  
  • A judge must self-report a violation of the Rules of Professional Conduct that raises a question as to the judge’s own honesty, trustworthiness, or fitness as a lawyer. A judge should report misconduct by a lawyer or another judge within a reasonable time after becoming aware of the violation.  A judge who reports a lawyer’s misconduct is not presumptively disqualified from cases in which that lawyer appears.  A judge does not have a duty to report misconduct by those who are not judges or lawyers, but a judge should expose obvious and egregious illegal activity when the failure to do so could undermine confidence in the integrity of the judiciary.  Ohio Opinion 2017-2
  • A judge may accept an appointment to the Florida Impaired Driving Coalition, an advisory body to the state department of transportation, as long as it does not engage in matters that could reasonably be perceived as favoring the state in DUI prosecutions. Florida Opinion 2017-2.
  • A judge may not be a member of a “Justice Council” comprised of representatives of government agencies that is addressing the use of community-based programs and considering ways to reduce jail population. Nebraska Opinion 2017-1.  
  • A circuit’s chief judge may accept a copier donated by a group of professional guardians to be used in the probate and guardianship courtrooms only by probate and guardianship attorneys to make copies or certified copies of orders immediately following hearings. Florida Opinion 2017-6.
  • A judge may allow a personal injury firm, a legal aid group, a women lawyers association, and an African-American lawyers association to jointly host a free reception at the courthouse after a free diversity training seminar for judges and attorneys and may accept food/drink provided by the hosts at the event. Florida Opinion 2017-4.
  • To encourage others to pursue a legal career, a judge may speak to not-for-profit organizations affiliated with a certain religion, including domestic and foreign parochial schools and places of worship, about her background and experience in becoming a judge and accept standard speaking fees and reasonable travel expenses. New York Opinion 2017-12.
  • A judge may serve on the admissions committee of a country club if the club is non-profit, does not regularly engage in litigation, and does not invidiously discriminate. New York Opinion 2016-161.  
  • A judge is obligated to determine before joining a lay organization for men of a particular ethnicity and religion whether that organization engages in invidious discrimination. New York Opinion 2017-11.  
  • A judge may submit a letter to a municipality supporting the dedication of a little league baseball field in the name of her deceased former bailiff. Florida Advisory 2017-9.
  • A magistrate may participate in a dunk tank for a non-profit organization run by the judge’s spouse as long as he does not personally solicit funds and the prestige of judicial office is not used in advertising the fund-raiser. South Carolina Opinion 5-2017.
  • A judge may not give a videotaped interview that will be shown at a re-entry agency’s fund-raising event. New York Opinion 2016-152.
  • A judge may serve as a “judge” for preliminary Miss America pageant competitions. Florida Opinion 2017-8
  • A judge may run for a seat on a church parish council and serve on the finance committee. West Virginia Opinion 2017-7
  • A judge who presides over domestic violence cases may write a thesis for his master’s degree in social work on community response to domestic violence as long as he does not express any opinions on what he would do with any specific set of facts or on any pending or impending issues. West Virginia Opinion 2017-3.  
  • A judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana including a personal financial investment or private equity fund investment, shares in a corporation that invests in marijuana, an interest in property that is leased for marijuana growth or distribution, or an interest owned by a spouse or registered domestic partner. California Opinion 2017-10.  
  • A full-time magistrate who is a certified paramedic may work part-time for a service that transports non-emergency patients, for example, from hospital to hospital. South Carolina Opinion 4-2017.
  • A judge may serve as a referee at soccer games and accept reasonable compensation ($40-$80 per game). New York Opinion 2017-1.  
  • A judge may perform with a non-profit orchestra and other musical groups that are not business entities and accept reasonable compensation for her performances. A judge may publish her own musical compositions and receive royalties and performance rights fees for them.  New York Opinion 2017-11.  
  • A new judge may continue to serve as a receiver in a foreclosure provided his duties are ministerial and completed within 1 year, if possible. New York Opinion 2016-164.  
  • A new judge may complete her service as executor of a former client’s will by signing a deed necessary to transfer title to an heir. New York Opinion 2017-33.

 

A sampling of recent judicial ethics advisory opinions

  • In an order for protection proceeding, a judge may, without advance notice to the parties, access electronic court records to determine whether there are orders in other cases involving the petitioner or respondent that could affect the decision, but, after issuing the ex parte order, the judge should give the parties an opportunity to be heard on the propriety of taking judicial notice of a previous order. Minnesota Advisory Opinion 2016-2.
  • If only pro se parties are involved, a judge may question a witness regarding the statutory factors in an uncontested divorce or question a witness in a child custody matter regarding the factors necessary to the determination of the best interests of the child. North Carolina Advisory Opinion 2016-1.
  • A supreme court justice is not disqualified from an appeal of a district court decision because a relative within the third degree presided over an interim review by the court of appeals, but disclosure of the relationship on the record is prudent and appropriate. Nevada Advisory Opinion JE2016-4.
  • Except when a user transmits video or audio or a link to videotaped testimony, the use of Twitter, microblogging, or other electronic means of instant communication is not broadcasting for purposes of the rule regarding broadcasting from the courtroom, but a judge may impose reasonable restrictions on how and when electronic communication tools may be used during courtroom proceedings. Indiana Advisory Opinion 1-2017.
  • A court should not place artwork for sale in the courthouse or post advertisements for local restaurants or other vendors. South Carolina Advisory Opinion 2-2017.
  • A judge may not attend a free training seminar on landlord/tenant law that is sponsored and taught by attorneys who almost exclusively represent landlords in eviction cases and that is designed for judges who regularly hear eviction cases. Arizona Advisory Opinion 2016-4.
  • A judge who sometimes presides in criminal cases involving Native American defendants may not attend a seminar on “Human Trafficking in Indian Country” co-sponsored by the Department of Justice and the FBI that will focus on effective prosecution. New York Advisory Opinion 2017-4.
  • A judge may apply to the governor for a seat on the constitution revision commission and, if appointed, serve as a gubernatorial appointee. Florida Advisory Opinion 2016-19.
  • A judicial officer may administer the oath of office at a ceremony to swear in a public official, including a newly elected district attorney. California Oral Advice Summary 2016-18.
  • A judicial officer may serve on the board of a non-profit entity that is building an integrated network of services and advocating for policies that improve the lives of children and their families even if the organization monitors legislation and engages in child-related advocacy and legislative efforts. Colorado Advisory Opinion 2016-2.
  • A circuit court judge may not be a member of a domestic violence council that discusses and engages in legislative reform efforts related to the prevention, treatment, and punishment of domestic violence and stalking. Wyoming Advisory Opinion 2016-4.
  • A judge may publicly advocate for a change in the penal law that would create a new standard in a particular class of criminal cases and write to executive and legislative bodies and/or officials and other potentially interested parties; the judge need not inform local prosecutors or defense counsel of these activities. New York Advisory Opinion 2016-135.
  • A county magistrates’ association may, as requested by the bar association and the county executive, comment on the bar association’s proposed assigned counsel plan before it is implemented by the county. New York Advisory Opinion 2016-145.
  • A judge may circulate a petition to force a referendum on a proposed sale of a parcel of land owned by the local school district. New York Advisory Opinion 2016-169.
  • A judge may establish a mentoring program to promote diversity in the judiciary that will pair sitting or retired judges with attorneys who wish to seek judicial office. The mentor judge may comment on an attorney-protégé’s application to a judicial screening panel and may share her experience in the elective or appointive process.  The mentor judge may not contact political party leaders or others on the protégé’s behalf, must avoid any perception of involvement in impermissible political activity both before and after the protégé publicly declares his candidacy for election, and must not advise her protégé on campaign strategy, campaign literature, or other outreach to voters or political leaders.  New York Advisory Opinion 2016-151.
  • A judge may not serve on a bar association committee hosting a golf tournament that is raising funds for the Guardian Ad Litem Foundation, which is a litigant in every dependency case that comes before the judge, but may attend the event and assist with organizational, non-fund-raising tasks such as setting up sponsor signs and the silent auction, serving food and beverages, and taking pictures. Florida Advisory Opinion 2016-20.
  • A judge whose minor child is participating in a charitable fund-raiser may personally solicit funds from family members and fellow judges not subject to his supervision, provided he does not use or invoke his judicial title or status in doing so, but may not personally solicit funds from friends or neighbors. A judge may, in his capacity as a parent, accompany his minor child as the child solicits funds from friends or neighbors, but may not otherwise assist or participate in the solicitation.  New York Advisory Opinion 2016-153.
  • A judge may participate as a player in a “Casino Night” fund-raiser at her child’s pre-school if the event is lawful. New York Advisory Opinion 2016-158.
  • A judge may be a member of an all-female volunteer emergency medical technician service that responds to calls from women in a particular faith community and provides limited free health care services in the community but may not serve as director if that role requires her to personally engage in fund-raising and/or recruitment. New York Advisory Opinion 2016-179.
  • A judge may not testify as a character witness in a disbarred attorney’s reinstatement proceeding. Massachusetts Advisory Letter Opinion 2016-13.
  • A judge may teach a fitness class for a not-for-profit educational, charitable, or civic organization and accept the standard per-session compensation. New York Advisory Opinion 2016-117.
  • A judge may attend a free, non-partisan “meet the candidates” event, organized by a non-political community residents’ association when all candidates for a particular office will attend, speak, and answer questions. New York Advisory Opinion 2016-149.

 

Public outreach on the rule of law and judicial independence

The Massachusetts Supreme Judicial Court Committee on Judicial Ethics issued a letter opinion on public outreach in support of the rule of law and judicial independence in response to an inquiry from a judge who wishes to speak to community groups under the auspices of a court-sponsored public outreach program.   Massachusetts Advisory Opinion 2017-1.  The judge had asked “(1) whether judges may reassure the public, including groups composed of immigrants or religious minorities, that the courts of Massachusetts are and will remain committed to the rule of law, including the protection of the rights of all persons to due process, equal protection of the laws, equal access to the courts, and fair and respectful treatment; and (2) whether judges may respond to statements made by public officials and others that appear to reflect misconceptions about the role of an independent judiciary in our system of government or manifest disrespect for the rule of law.”

The committee noted that the code “places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice” and that, “[i]n deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.”  The committee also emphasized that “[a]n underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.”

The committee advised that, subject to the parameters of the code:

[J]udges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.

The opinion also stated that, “in prepared or extemporaneous remarks,” subject to the parameters of the code, judges may respond to comments by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law.  The committee explained:

It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge’s remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests.