Fall issue of the Judicial Conduct Reporter

The fall issue of the Judicial Conduct Reporter has been published and is available to download.  All past issues of the Reporter are also available on-line as free downloads, and there is an on-line index of Reporter articles.  You can sign up to receive notice when a new issue is available.

The issue has articles on abusing the prestige of office to attempt to obtain a favor, communications by a trial judge with a reviewing court, holiday gifts and parties, and a former judge’s use of the judicial title.  It also has summaries of recent cases in which judges were disciplined for giving interviews about a pending case; failing to disqualify from cases involving an attorney with whom the judge had a support relationship; and directing insulting, demeaning, and humiliating comments and gestures to children.

The article on requesting favors begins:

A judge’s appeal for a favor from police, prosecutors, or other judges is a classic example of “abus[ing] the prestige of judicial office to advance the personal or economic interests of the judge or others” in violation of Rule 1.3 of the American Bar Association 2007 Model Code of Judicial Conduct.  The crux of the misconduct is taking advantage of access not available to non-judges and/or expecting special consideration not accorded to the general public.

Using recent cases involving attempts by judges in person or on telephone calls to influence police officers, prosecutors, court staff, and/or other judges, the article demonstrates that “an explicit request, an express reference to the judicial office, or acquiescence by the other person are not necessary to prove a violation.”

Demonstrating the chronic nature of the problem, several additional cases about favor-seeking have been issued since the article was written.

  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for communicating in an ex parte e-mail and phone call with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing, in addition to other misconduct. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).

In addition, 2 judges were recently sanctioned for written communications on behalf of others.

  • The New York State Commission on Judicial Conduct publicly censured a judge for signing his name and judicial title beneath a defendant’s signature on a letter requesting that another judge change a plea for a traffic infraction. In the Matter of Sullivan, Determination (New York State Commission on Judicial Conduct March 13, 2017).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) invoking her judicial title and position in a letter on court stationery she wrote on behalf of her childhood babysitter to be filed in connection with a motion to vacate the babysitter’s conviction and (2) writing 2 affirmations on behalf of her son to be filed in the appellate division in connection with his criminal case. In the Matter of Ramirez, Determination (New York State Commission on Judicial Conduct May 4, 2017).

As the New York Commission explained in Ramirez, “[w]hen a litigant is the beneficiary of influential support from a judge based on personal connections, it creates two systems of justice, one for the average person and one for those with ‘right’ connections, and undermines public confidence in the impartial administration of justice and in the integrity of the judiciary as a whole.”  The Commission emphasized:

When asked to provide a letter or similar communication on behalf of a family member, friend or acquaintance, every judge must be mindful of the importance of adhering to the ethical standards intended to curtail the inappropriate use of the prestige of judicial office . . . .  Difficult as it may be to refuse such requests, the understandable desire to provide assistance and support must be constrained by a judge’s ethical responsibilities, including the duty to act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . .

Finally, the Virginia Supreme Court removed a judge for contacting 2 potential witnesses prior to his wife’s trial on federal corruption charges.  Judicial Inquiry and Review Commission v. Pomrenke (Virginia Supreme Court November 27, 2017).  The judge had sent his wife’s boss a handwritten note, with his judicial business card, that “was intended to make his wife’s employment secure” and “reflected an intent to influence a potential witness” by suggesting the boss would agree she “is absolutely honest, truthful, ethical, and innocent.”  In an attempt “even more overt in its intent to influence a witness,” the judge also left a voicemail message for another employee 3 days before she was expected to testify, asking her to “slip in” remarks that would be favorable to his wife, “even though it’s not directly in response to the questions.”  The Court found the judge had violated the prohibition on lending the prestige of office to advance private interests.

Permitting others to convey

The Florida Judicial Ethics Advisory Committee recently stated that a judge “must adamantly and genuinely encourage” a law firm “not to publicly acknowledge, promote, or market” the fact that an attorney with the firm is the judge’s child.  Florida Advisory Opinion 2016-2.  The occasion for the advice was the desire of a law firm to identify an attorney with the firm as the child of a specific judge and explain that the attorney had decided to “follow in the judge’s footsteps” by practicing law in a particular area of Florida.  The firm intended to use the information in press releases regarding its hiring of the judge’s child and in the child’s law firm biography.

The judge’s approval of or acquiescence in that plan would obviously violate Canon 2B of the Florida code of judicial conduct:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”  (The comparable rule in the ABA Model Code of Judicial Conduct is Rule 1.3.)  As the Florida committee explained:

The public may be inclined to use this particular law firm because of the specific advertisement of this familial relationship between the judge and attorney child.  Furthermore, it gives the public the impression that because the Inquiring Judge’s child is an attorney in the firm, that law firm has a special relationship with the Inquiring Judge or the Inquiring Judge’s colleagues

Recognizing that the law firm might reject the judge’s request not to promote or advertise the parent-child relationship, the committee stated that the judge “is not ethically responsible for the actions of the law firm or any third party once the Inquiring Judge has apprised the third party not to take this action.”

A similar issue has arisen when an attorney whose name has been part of a firm’s name becomes a judge.  Advisory committees agree that, as an essential step in the transition to the bench, a new judge must ensure that her name is deleted from her former firm’s name.  The name change is required not only by both the code of judicial conduct, but by the requirement of Rule 7.5(C) of the Model Rules of Professional Responsibility that the “name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.”  See Kentucky Advisory Opinion JE-41 (1982) (a new judge has a duty to see that his name is removed from a firm name, and the firm has a “like duty”); Louisiana Advisory Opinion 155 (1999) (a judge may not permit his former law firm to use his name in the firm name); Michigan Advisory Opinion JI-89 (1994) (a judge may not allow his name to remain in the name of his former law firm); New York Advisory Opinion 1989-136 (prior to assuming judicial office, a judge must remove his name from a firm’s masthead).  According to its recently released annual report, the Arizona Commission on Judicial Conduct  privately warned a justice of the peace in 2015 that he needed to ensure that his former law firm’s web-site did not give the appearance or leave the impression that he still practiced law with the firm, including, but not limited to, eliminating any reference to the judge as a member of the firm and removing his name from the firm name.

2 committees have addressed a new judge’s responsibility if a former firm refuses to stop using the judge’s name despite the firm’s duty and the judge’s requests.

The New York Advisory Committee on Judicial Ethics received an inquiry from a judge who had learned that his former law firm may still be using his name in some of its printed materials, including letterhead.  The judge had called the firm and “forwarded a ‘cease and desist’ letter” alerting it to the ethics issue and asking it to take all necessary measures to remove his “name from the building signage and from any and all printed or displayed materials that the firm may generate.”  The committee advised that the judge did not need to take further action, noting the judge cannot control what the firm does and the committee cannot “advise or direct” the firm to take any action.  New York Advisory Opinion 2015-19.

Similarly, the Massachusetts Supreme Court Committee on Judicial Ethics received an inquiry from a judge who, in the 2 years since she became a judge, had repeatedly requested her former firm to remove her name from the firm title.  Although the firm had removed her name from the listing of attorneys on its letterhead, it asserted that the firm’s name, which still included the judge’s surname, was the property of the legal corporation and that complying with her request would significantly reduce the “goodwill” associated with the firm’s trade name, to its financial detriment.

The committee noted that “it is difficult to envision what other affirmative steps” the judge could take “other than filing a formal complaint with the Board of Bar Overseers or initiating legal action.”  The committee concluded that, although it was within the judge’s discretion to file a complaint, she was not required to do so because, even if the firm’s continued use of her name violated the professional responsibility rules, “it would not appear to be the type of violation for which disbarment, or some other type of severe sanction, is likely to result . . . ,” and, therefore, did not trigger the duty to file a complaint.  The committee noted that the fact that the judge’s “surname is fairly common is of some relevance, as third parties might not automatically associate” her with the firm, alleviating, to some degree, the concern that the firm was using her name and title for financial gain.  Massachusetts Advisory Opinion 2003-9.

These opinions again illustrate the importance to judges (and particularly new judges) of an active judicial ethics advisory committee that can answer an individual judge’s questions and then post the advice on-line to provide easily available guidance for all judges.  See the list of committee on the Center for Judicial Ethics web-site here.

Prestige of judicial letterhead

For the session on the use of the prestige of judicial office at this week’s 24th National College on Judicial Conduct and Ethics, a list was compiled of the 37 states that have code provisions or advisory opinions with guidance on the use of official judicial stationery for letters of recommendation.

  • 18 jurisdictions have adopted the comment to Rule 1.3 of the 2007 ABA Model Code of Judicial Conduct that a judge may use official letterhead to write a reference or recommendation “if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”
  • 1 state code provides “when using court stationery for letters of reference an indication should be made that the opinion expressed is personal and not an opinion of the court.”
  • 2 states have advisory opinions stating that a judge should indicate that a letter of recommendation is “personal and official.”
  • 3 states have a code provision that allows the use of judicial stationery, without the model’s requirement that there be an indication that the reference is personal, but with the model’s caveat that “there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office,” or a similar statement.
  • 6 states have adopted codes that expressly allow the use of official stationery with no caveats, at least no express caveats.
  • 1 state, without expressly allowing the use of official stationery with no caveats, vaguely suggests it is permissible.
  • 1 state refers in advisory notes to the 2007 model comment, without indicating agreement or disagreement, and refers to an advisory opinion allowing use of official stationery only if the recommendation is based on the judge’s position in the court system, without expressly approving or disapproving of that opinion.
  • 1 state has a code provision allowing the use of official stationery only for recommendations for employment and education purposes.
  • 1 state has a code provision prohibiting the use of official stationery to write all letters of recommendation.
  • 3 states have advisory opinions prohibiting the use of official stationery to write all letters of recommendation.

After the list was compiled, Massachusetts became the 38th state with such guidance when, on Thursday, it adopted a new code of judicial conduct, effective January 1.  With respect to judicial recommendations, the new Massachusetts code has the following comment:

A judge may provide an educational or employment reference or recommendation for an individual based on the judge’s personal knowledge.  The judge may use official letterhead and sign the recommendation using the judicial title if the judge’s knowledge of the applicant’s qualifications arises from observations made in the judge’s judicial capacity.  The recommendation may not be accompanied by conduct that reasonably would be perceived as an attempt to exert pressure on the recipient to hire or admit the applicant.  Where a judge’s knowledge of the applicant’s qualifications does not arise from observations made in the judge’s judicial capacity, the judge may not use official letterhead, court email, or the judicial title, but the judge may send a private letter stating the judge’s personal recommendation.  The judge may refer to the judge’s current position and title in the body of the private letter only if it is relevant to some substantive aspect of the recommendation.

The comment also notes that “court hiring policies may impose additional restrictions on recommendations for employment in the judicial branch, and the law may impose additional restrictions on recommendations for employment in state government.”