Back to 1982:  Professional courtesies and judicial office

Gratuitously referring to judicial status to get favorable treatment is a very common form of judicial misconduct.  In cases last year:

  • A judge identified himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018), adopting  (censure).
  • A judge said to state troopers who handcuffed him after he failed several field sobriety tests, “I’m a f**cking judge. I would never do anything to hurt you man.  Come on,” and “You’re not going to give me any courtesy?  None?”  In the Matter of Benitez, Order (New Jersey Supreme Court September 6, 2018), adopting (censure).
  • A judge asserted her position to avoid the consequences of her arrest after a state troopers found her in a vehicle on the shoulder of the interstate, for example, saying to a lieutenant at the police barracks, “Please don’t do this;” “I have to go to work;” “I have arraignments;” and “I have court right now.” In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • After her vehicle struck a police van, a judge voluntarily identified herself as a judge to the police several times, presented her judicial identification card, and made several other references to her judicial status while repeatedly questioning the need for an accident report and the delay in preparing the report in an attempt to curtail the investigation and be allowed to leave. In the Matter of Michels, Determination (New York State Commission on Judicial Conduct December 27, 2018).

* * *
So far in 2019, 3 judges have been disciplined for variations of that classic misconduct.

The New York State Commission on Judicial Conduct publicly censured a judge for not only invoking his judicial position when asking the police for assistance in unlocking his personal vehicle but also threatening to refuse to do arraignments in the future if they refused his request.  In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019).

One day, at approximately 3:00 p.m., the judge accidentally locked the keys inside his personal motor vehicle, which was parked at a hospital.  The judge called 911 and asked Patricia Latta, a Newark Police Department clerk, to send police personnel to unlock his vehicle.  Latta told the judge that, pursuant to department policy, the police did not respond to requests to unlock cars unless it was an emergency, such as a child locked inside.  Latta offered to contact a local automotive garage to assist the judge.

The judge replied that the police had “done this before for me,’’ and then said in a raised voice, “I am Judge Abbott of Palmyra and I just won’t do any arraignments for you anymore.”  (The judge arraigns defendants brought to Palmyra by the Newark Police Department officers when the justice and associate justice of the Newark Village Court are unavailable.)  Latta felt intimidated and asked a sergeant to assist the judge with his locked vehicle.  Eventually, officers unlocked the judge’s vehicle.

The Commission found that the judge’s identification of himself as a judge “standing alone, would have constituted an implicit request for special treatment, which is inconsistent with the high ethical standards required of every judge” and that his statement that the police had “done this before for me” made his request for special treatment “explicit, clearly conveying that his judicial status entitled him to deference and exempted him from policies that apply to others.  Asking the police to depart from an established policy for his personal benefit was a particularly improper assertion of special influence.”

Further, the Commission stated, the judge compounded his misconduct by threatening “to retaliate against the Newark police if they did not respond favorably to his request.”  Emphasizing that “[p]erforming arraignments for police from an adjoining village” was part of his duties, the Commission explained that “[t]here is no justification for a judge’s refusal to perform judicial duties out of personal pique, and even threatening to do so is detrimental to public confidence not only in the integrity of the judge’s court, but in the judiciary as a whole.”

* * *
An Ohio judge’s disappointment that his expectation of favoritism was thwarted by a state  trooper influenced not just his reaction to the ticket received by his daughter but his handling of a completely unrelated case involving other state troopers.  Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019).  At one point, the judge told the prosecutor that he “wanted to take the trooper back to 1982 . . . [b]ack when there was professional courtesy [my] daughter would not have received a ticket.”

On September 1, 2016, Ohio State Highway Patrol Sergeant David Stuart stopped 17-year-old A.M. for speeding and having expired tags.  A.M. immediately identified herself and stated that her father was “Judge Marshall.”  A.M. called her father on her cell phone and asked Stuart to talk to the judge.  Stuart declined but took the phone when A.M. handed it to  him.  The judge disputed Stuart’s assertion that the tags were expired and asked Stuart if he was going to give A.M. a ticket.  Stuart stated that he was going to write A.M. a ticket for speeding because she “was running 14 over.”  Stuart gave A.M. a citation for speeding and a warning for the expired tags.

Afterward on several occasions, the judge made comments to County Assistant Prosecuting Attorney Jay Willis about A.M.’s case and Stuart’s behavior.  For example, one day when Willis was in the judge’s courtroom on an unrelated matter, the judge said, “I didn’t like the trooper.  He didn’t listen to me.  There used to be a code in this county—I’m a judge and he shouldn’t have written my daughter [a ticket].”  Feeling pressured by the judge, Willis asked County Prosecuting Attorney Mark Kuhn to handle A.M.’s case; Kuhn agreed.

The county juvenile court policy allows only the lawyers representing the parties in the courtroom for pretrial conferences.  Prior to A.M.’s pretrial conference, the magistrate assigned to her case told the bailiff that she was not going to treat A.M.’s case differently and that the judge would not be allowed in the courtroom.  When A.M.’s pretrial hearing was about to begin, the bailiff opened the door and announced, “Counsel only,” but the judge said, “I’m her father and I’m an attorney, and I’m coming in,” pushed the bailiff’s arm out of the way, and walked into the courtroom.  The magistrate signaled to her bailiff that it was okay for the judge to enter the courtroom.  After speaking with counsel, the magistrate scheduled another pretrial conference for August 10, 2017.

On August 10, before A.M.’s pretrial conference began, A.M.’s attorney (Eugene Meadows) and Kuhn were discussing the case outside the courtroom when the judge approached them and interjected, referring to Stuart, “If he cuts my little girl, I’m going to cut him.”  During the conference, the judge stated that Stuart had been unprofessional and had shown him no professional courtesy.  The magistrate set A.M.’s final adjudicatory hearing for September 18.

On September 14, the judge told Kuhn that he would like to meet with Stuart and that, if Stuart agreed to meet, he would have A.M. plead guilty, but if Stuart refused to meet, they would take the case to trial.  Kuhn ended the discussion.

The next day, while 2 assistant prosecuting attorneys, a state trooper, and a defense attorney were waiting outside his office for a suppression hearing in an unrelated criminal case, the judge yelled for his secretary to get Stuart on the phone, made derogatory comments about Stuart, and indicated that Stuart had failed to return his calls.

Before the suppression hearing began, the parties reached an agreement, and the assistant prosecuting attorney told the judge that the case had been resolved.  But the judge stated, “No it hasn’t.  I don’t trust the highway patrol like I used to.”  He then took the bench and forced the parties to conduct the suppression hearing.  When the state trooper was being questioned about the traffic stop that led to the defendant’s arrest, the judge interrupted and questioned the trooper about the calibration of his speedometer and the condition of the tuning forks that were used to check the calibration.  Eventually, the judge threw down his legal pad and walked off the bench.

On November 17, the attorneys and Stuart were waiting outside the courtroom in the hallway before a hearing for A.M. commenced.  The judge approached Stuart and said, “Are you Trooper Stuart?”  Stuart responded, “I’m Sergeant David Stuart, nice to meet you.”  The judge turned away, then looked back at Stuart and said, “a**hole.”

During the hearing, the judge interjected twice during Stuart’s testimony.  Upon the conclusion of Stuart’s testimony, Meadows asked for a short recess.

Prior to the resumption of the hearing, Meadows asked the judge, “You’re sure you want to do this?”  The judge replied, “Yes,” and took the stand.  The judge claimed that he was qualified to testify as an expert witness about radar based on what he learned while he was a city prosecuting attorney, a position he last held in 1994.  The judge testified that the best way to determine the condition of the troopers’ turning forks would be to bring them into the courtroom.  He also commented that the “trooper was rude” and that Stuart was the only trooper that he had had issues with in his entire career.

At the conclusion of the hearing, the magistrate was going to issue a decision from the bench, but Kuhn requested that the magistrate delay because he was worried that an adverse decision would impact an upcoming felony criminal matter he had in front of the judge.

The magistrate issued her decision on December 17, and the disposition hearing was scheduled for January 30, 2018.  On January 23, the judge called the magistrate.  They had the following exchange:

[Magistrate]:  What can I help you with?
[Marshall]:  I just want you to know, have you ever had an expert come in and testify about radar?
[Magistrate]:  Judge, this is probably not a conversation we should be having
[Marshall]:  Have you ever had an expert testify about radar
[Magistrate]:  I know we should not be having this conversation—
[Marshall]:  If not, you cannot make that finding.  You questioned my credibility.  Screw that.  Bye.

The judge hung up the phone.  At a status conference the following day, the magistrate disclosed the judge’s telephone call and asked whether the attorneys wanted her to recuse herself.  Both Meadows and Kuhn consented to the magistrate’s continuing to preside over A.M.’s case.

On January 30, A.M. appeared with Meadows and the judge for the final disposition of her case.  Before the magistrate announced the disposition, the following exchange occurred:

[Magistrate]:  Okay.  All right.  Your Honor, is there anything you want to say on your daughter’s behalf?
[A.M.]:  He’s good.
Marshall:  She’s a good kid and I, you questioned my credibility and that is a problem but I don’t get a say.

The magistrate then adjudicated A.M. a juvenile traffic offender and imposed court costs.  The judge inquired, “Are there points involved in that?”  When the magistrate said there were, the judge stated, “So I have to pay the insurance for it.”  The judge also said, “When I was the Municipal Court Judge, I had to have an expert come in an[d] testify as to the accuracy of the radar and if you haven’t done that, I don’t believe you can go forward.”  The magistrate replied, “Well, those are things to raise in an objection. . . .  All right.  Anything else?”  The magistrate then concluded the matter.

After acknowledging that his conduct was inappropriate, the judge resigned.   Accepting a consent-to-discipline agreement, the Ohio Supreme Court suspended him from the practice of law for 6 months.

* * *
In a classic example of the appearance of impropriety standard in the influence context, the New York Commission admonished a judge for conveying his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees who were allegedly accosted after a game.  In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).

As a member of the Capital District Board of Women’s Basketball Officials since 1972, the judge assigns referees to officiate over high school girls’ basketball games.  He assigned Dan Dineen and John Kelleher to a junior varsity game at the Argyle Central School on January 29, 2016.  At the conclusion of that game, a spectator, D.F., allegedly had an altercation with Dineen and Kelleher for which he was charged with unlawful imprisonment and harassment and directed to appear in the Argyle Town Court on February 9.  Dineen reported the incident to the judge by e-mail, noting that police had been called to the scene.

The Commission stated:

The moment that respondent learned, on the day of the incident, about the altercation involving the referees in which police had been called to the scene, he should have realized that as a judge, especially in the same county, he should refrain from any involvement in the matter that, intentionally or not, would telegraph that a judge was interested in the case.  Instead, throughout the pendency of the criminal matter, he repeatedly interjected himself into the case in an apparent attempt to monitor its progress and, in doing so, repeatedly signaled his interest in the matter to those who were directly involved in it, including the presiding judge.

Before the Commission, the judge testified that he had “let the referee hat probably supersede the judge hat” but that he had “no ulterior motive” in contacting the other judge and the attorneys.  The Commission emphasized that, “[r]egardless of a judge’s intent, such communications may convey an appearance of misusing the prestige of judicial office for personal advantage,” and that judges “must assiduously avoid those contacts which might create even the appearance of impropriety.”  The Commission stated that “any communication by a judge about a pending matter, even to ask about scheduling or procedures, is improper since it conveys the judge’s interest in the case and can be interpreted as an implicit request for special treatment . . . .”

The difference between reprimand, censure, and suspension

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court censured a judge for identifying himself as a judge to court personnel when disputing his own child support payments and discussing the emancipation of his child.  In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.

In March 2011, the judge obtained a judgement of divorce in Somerset County and made arrangements with the county probation department about his child support payments.

On March 21, 2017, the judge appeared at the Somerset County Courthouse and spoke in succession to a judiciary clerk, a caseworker, a senior probation officer (after the caseworker asked for assistance), and the senior probation officer’s supervisor (after the senior probation officer asked for assistance).  While inquiring about the process necessary to emancipate his child and seeking information about his child support payments, he identified himself several times as a judge who sits in Ocean County, for example, showing his judiciary-issued lanyard, which was hanging around his neck and which identifies him as a judge, when asked for identification.

The judge informed the caseworker during their 20-minute discussion that he wished to dispute the cost of living adjustment that had been applied to his child support obligation, claiming it was improper because he “had not received a raise.”  The caseworker described the procedure for challenging the COLA adjustment several times even though the judge was familiar with it, having contested 2 prior COLA’s.  When talking to the caseworker’s supervisor, the judge again referred to his lack of a pay raise, remarking “you the tax payers decided that a long time ago.”

The judge’s conduct was “sufficiently disruptive and disconcerting” that a supervisor in the probation department told the Somerset County assignment judge and that judge, in turn, reported the incident to the Ocean County assignment judge.

The Committee found that the judge’s conduct created the potential that his judicial office would affect the probation department’s handling of his case and, therefore, constituted misconduct even if, as he claimed, he had not intended to influence them and there was no indication that they were actually influenced.  The Committee explained:

As the record reflects, the judiciary personnel with whom Respondent interacted that day, unaware of his subjective motives, perceived Respondent’s multiple references to his judicial office as his attempt to trade on that office for his personal benefit.  [The senior probation officer], when interviewed by Committee staff, testified that Respondent’s repeated references to his judicial office left her with the impression that “he was trying to see if [they] would change anything.” . . .

Similarly, [the caseworker], when interviewed, testified that Respondent’s repeated references to the fact that he was a judge left her with the impression that he expected her to “fix” his issues immediately. . . .  She, in fact, felt pressured when dealing with Respondent precisely because of his repeated references to his judicial office. . . .

The Committee noted that, if the judge had intentionally abused the judicial office, substantially more severe public discipline would have been warranted.

On the other hand, the Committee concluded “enhanced discipline” (that is, something more than a private sanction or public reprimand) was justified because this was the 3rd time in 3 years that the judge had been the subject of discipline.  In October 2015, the Committee had privately reprimanded him for displaying arrogance and aggression towards 2 litigants in 2 matters; in January 2017, the Committee had privately censured him for similar discourtesies towards 2 other litigants.  It was a “mere” 2 months after the second private sanction that the judge went to the Somerset County courthouse.  The Committee concluded that the judge’s “continued inability to conform his conduct to the Code of Judicial Conduct over these past several years, despite his recent receipt of prior discipline and his more than nine-year tenure on the bench, necessarily aggravates his abuse of the judicial office . . . .”

 

The difference between reprimand and removal

On September 21, the New Jersey Supreme Court publicly reprimanded a judge who had involved herself in the scheduling and processing of a friend’s custody case.  In the Matter of Wright, Order (September 21, 2018).  (The Court does not describe the judge’s conduct; this summary is based on the presentment of the Advisory Committee on Judicial Conduct.)

On September 26, the New Jersey Court removed a judge who had involved herself in a former intern’s custody dispute.  In the Matter of DeAvila-Silebi, Order (September 26, 2018).  (The Court’s order does not describe the judge’s misconduct; this summary is based on the report of a 3-judge panel.)

The imposition of drastically different sanctions in 2 cases involving improper use of influence is attributable in part to a difference in the nature and extent of the misconduct.

Judge Wright had escorted a friend seeking temporary custody of his grandson to the court’s intake office, talked to court personnel to ensure he had the right forms, asked the judge on emergent duty about the schedule, and then told a staff member that her friend could return on Monday; the staff member advised the judge that she would bring the friend to her desk so he could complete the application.

In contrast, Judge DeAvila-Silebi called the police the day before Mother’s Day and told a sergeant she wanted an officer to accompany a mother to retrieve her child.  She identified herself as the emergent duty judge and explained that she had received a phone call from an attorney who had filed an emergent application on behalf of a client and that she had seen the order indicating that the mother was supposed to have the child that weekend.  The police department dispatched an officer with the mother to the home of the child’s paternal grandmother; the officer took the 5-year-old boy from his grandmother and returned to police headquarters with the child and the mother, after which the mother left with the child.  The father appeared at police headquarters approximately 2 hours later, irate and questioning why police had removed the child.

The panel also found that Judge DeAvila-Silebi had “demonstrated dishonesty, perversion of her judicial authority and betrayal of the public trust” by making numerous misrepresentations to the police department.  For example, contrary to what she told the police sergeant, she had not received a phone call from an attorney, no emergent application had been filed, and she had not seen the court order regarding parenting time.

Probably the biggest difference that took the Court from reprimand to removal (the intermediate sanctions of censure and suspension without pay were also available) were the aggravating factors in the second case, particularly the judge’s “less than truthful” testimony before the Advisory Committee on Judicial Conduct.

In Wright, there were no aggravating factors, and the mitigating factors included her sincere remorse and contrition, which had demonstrated to the Committee that the likelihood of her repeating the misconduct was “nearly nonexistent.”

In contrast, in DeAvila-Silebi, the judge “not only failed to acknowledge her wrongdoing or express remorse or contrition” but “displayed additional dishonesty and transcended her right to present a defense.”  Most significantly, the panel found that, despite her repeated denials, the judge did know the mother, who had been assigned to her as an intern for several months.  In fact, the judge had continued to have contact with her after the internship ended, including exchanging texts just before and after the judge intervened with the police.  Phone bills produced by the judge had obviously been altered, which was evident when compared with the bills provided by Verizon.

The panel explained that the judge had “constructed a defense predicated on the false claim that she received a call from an attorney or law enforcement agency requiring her emergent intervention to enforce another court’s order” and “perpetuated that falsehood throughout the proceedings before the ACJC, embellishing or revising it as necessary whenever she became aware of contrary evidence” until “the entire house of cards crumbled” when the “telephone records irrefutably demonstrated the falsity of respondent’s assertions.”  The panel emphasized that the judge’s “’disturbing’ decision to perpetuate a defense without any ‘compunction about being less than credible’ as the investigation of her conduct continued, ‘evidence[s] that [she] lacks the honor and integrity demanded of a judge.’”

Abusing, lending, or exploiting the prestige of office

In Canon 2B, the 1990 American Bar Association Model Code of Judicial Conduct provided:  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .”  In the 2007 revisions to the model code, “lend” was changed to “abuse;” thus, Rule 1.3 provides:  “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

According to the ABA reporter’s explanation of the 2007 changes, “the term ‘lend’ created unnecessary confusion,” causing some judges to decline to write letters of recommendation for their clerks and suggesting judges should not identify themselves as judges on the covers of their books to bolster credibility and increase sales.  The ABA did not consider either of those uses to be problematic and concluded “abuse” rather than “lend” more accurately characterized the conduct being prohibited.   (The confusion reported by the ABA is puzzling as a comment to the old canon explicitly stated that “a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation” as long as the judge remains “sensitive to possible abuse of the prestige of office.”  And advisory opinions have consistently allowed judges to use their titles on books they author, particularly if the judicial title is relevant because the book is law-related.)

As illustrated by an article in the summer 2018 Judicial Conduct Reporter, different advisory opinions have interpreted the term “abuse” differently in the context of promotional campaigns for alma maters and other organizations.

Emphasizing that Rule 1.3 prohibits “abuse,” not simply “use,” the Arizona judicial ethics committee advised, with some caveats, that a judge may participate in a recorded interview about the role his college played in his professional development and career achievements.  Arizona Advisory Opinion 2018-1.  The opinion identified several contexts in which the code permits judges to “use” the prestige of judicial office in extra-judicial activities:  writing letters of recommendation on judicial letterhead in certain circumstances; using judicial titles at fund-raising events concerning the law, the legal system, and the administration of justice; endorsing projects and programs related to the law, the legal system, and the administration of justice; and including a judge’s title and judicial office on letterhead for educational, religious, charitable, fraternal, or civic organizations “if comparable designations are used for other persons.”  Concluding that the code “implicitly deems such extra-judicial activities proper ‘uses’ of the prestige of judicial office, as opposed to ‘abuses,’” the Arizona committee advised that, similarly, allowing judges to participate in recorded interviews to promote the not-for-profit educational institutions they attended interprets “Rule 1.3 as a ‘rule of reason,’ focusing on ‘abuse” of the prestige of judicial office, and giving meaning to the Code’s encouragement of community involvement . . . .”

In contrast, based on its analysis of the meaning of “abuse,” the Massachusetts judicial ethics committee advised that a judge may not participate in a university’s video profile series featuring prominent alumni discussing how their undergraduate education helped them identify goals, aspire to a career, and achieve success.  Massachusetts Advisory Opinion 2017-2.  The opinion stated that “abuse” does not require “a bad purpose or bad effect” but only that the use be in any way “incompatible with the judicial role,” emphasizing that any collateral misuse of the judicial office to advance personal or economic interests undermines public confidence in the integrity and impartiality of the judiciary.  The committee concluded that the university’s clear wish “to benefit from [the judge’s] esteemed position in the legal profession” constituted an abuse of the prestige of judicial office.

Committees interpreting the term “lend” have also advised judges not to participate in university promotional campaigns.  See California Judges Association Advisory Opinion 72 ( 2016) (a judge may not participate in a university’s video entitled “Our Successful Graduates” that would be posted on the university’s web-page to be viewed by potential students); Kansas Advisory Opinion JE 159 (2007) (a judge may not allow the university the judge attended to use a picture of the judge in a newspaper advertisement); Wisconsin Advisory Opinion 2005-1 (a judge’s image, name, and title may not be featured on a billboard as part of an advertising campaign by one of the University of Wisconsin System campuses).


* * *
The Illinois code of judicial conduct still has the lend version of the rule, and the Courts Commission recently reprimanded an appellate judge for soliciting paid speaking engagements using his judicial position, finding he not only lent the prestige of office to advance his private interests, but exploited his judicial office in financial and business dealings, engaged in financial and business dealings with persons likely to come before his court, and had an active role in managing a business.  In re Steigman (Illinois Courts Commission August 13, 2018).

The judge testified that he had been writing and speaking on legal topics for decades to share his love of the law and educate the public.  He began soliciting paid speaking opportunities after an organizer of continuing legal education seminars for prosecutors offered to pay him $1,250 for a 2-day presentation.  The judge’s income was $32,000 to $34,000 for over 24 presentations over 2 years.

The judge made over 120 solicitations.  The judge used judicial letterhead for most of his solicitations to law enforcement groups.  The judge initially sent solicitations to medical societies and hospitals by his work e-mail but switched to judicial letterhead because the response to the e-mail solicitation was “tepid.”  If he did not receive a response with either method, he sometimes followed up by telephone.  He had his secretary assist him with the letters and e-mail solicitations by dictating them for her to transcribe as he would any other correspondence.  He paid all the postage for the letters himself.

Noting that the code prohibits judges from soliciting donations for charitable organizations, the Commission stated that, “[t]he same principles apply with even greater force when the ‘cause’ for which the judge is soliciting is a business or commercial activity that serves the judge’s own financial benefit.”  The Commission found that the judge’s use of stationery and other judicial resources to advance his “burgeoning speaking business was an exploitation of his judicial office . . . .”  It explained:

Respondent pursued the opportunity to give paid presentations on the law with energy, using judicial letterhead stationery to increase the likelihood of a positive response to his solicitations and making follow-up calls to recipients who had not responded.  Respondent’s zeal in this pursuit arose primarily from his genuine belief that he was providing a public benefit by explaining legal concepts to non-lawyers.  Nevertheless, while his motives may have been pure, the fact that the “public service” he was providing also enriched him financially created the danger that recipients of his solicitation might feel coerced to hire him, or might think that hiring him to give a presentation would cause him to favor their interests in cases that came before him.

Further, although the Commission agreed that merely being paid to speak or teach may not constitute actively managing a business and emphasized that it was not criticizing or trying to inhibit the practice of judges educating the public regarding the law, it concluded that, by directly soliciting paid speaking engagements and following up to urge reluctant recipients to hire him, the judge “went beyond simply earning a fee for permitted activity, and instead actively sought to increase his extrajudicial sources of revenues.”


* * *
The Texas code of judicial conduct also still has the “lend” version of the rule, and a Special Court of Review Appointed by the Texas Supreme Court recently publicly admonished a judge for referring to his judicial title and position to promote a project with his wife called “divorce in peace” that included a book, website, and an on-line referral service.  In re Roach, Judgment and public admonition (Texas Special Court of Review July 24, 2018).

The judge and his wife, an attorney who conducts mediations in family law cases, co-authored the book Divorce in Peace:  Alternatives to War from a Judge and Lawyer.  The book’s front cover lists “John and Laura Roach” as authors.  The back cover has a photo of the authors together, next to the statement:  “John and Laura have spent their careers, as lawyers and a judge, trying to help couples avoid the pitfalls of high conflict divorces.”  An “About the Authors” section describes John Roach as “a Texas district court judge with a true passion for the law” and states that, “[a]s a judge, he has had a front row seat to over 10,000 family law cases.”  The book’s text does not refer to “Judge John Roach” or “Judge Roach,” but the book has sections entitled “Judge’s Perspective” and “Mediator’s Perspective” that offer additional comment on particular topics.

The book’s introduction refers to the “attorneys, financial planners, mental health professionals and others — who are committed to the same principles of peaceful resolution” and “are listed at our website, http://www.divorceinpeace.com.”  Professionals can be listed on the website without charge with a photo, resumé, practice-area description, and e-mail address.  Professionals who choose a subscription option, which ranged from $59.99 a month to $199 a month, post additional information such as client reviews, blog posts, articles, and videos.

When the book was published, a brochure was mailed to some 18,000 recipients, including about 12,000 Texas attorneys who identified themselves with the State Bar as family law practitioners.  The brochure repeated the website address several times and described the benefits for attorneys who paid fees to subscribe to the network.

A series of promotional videos were made for the project.  For example, in 1 video, entitled “About Us,” the judge and his wife were featured with a picture of a gavel; the judge discusses his expertise as an elected state district court judge who has presided over 10,000 family law cases.  The judge decided not to use the videos after viewing them because he was concerned that portions may violate the canons.  However, the videos were available on the website for approximately 30 days and were still accessible on YouTube as of May 2018.  According to the judge, he had been unsuccessful in his repeated efforts to remove the videos from YouTube because he did not have the necessary user name and password and could not obtain the information from the production company in India that had helped to create the videos.

The court stated that many discipline cases in which judges were found to have impermissibly lent the prestige of office to advance private interests involved “judicial intervention in a discrete court matter or a particular event such as an arrest.”  The court noted that the “guidance regarding ongoing business dealings involving a judge or a judge’s family member is more limited and highly context-sensitive.”

Describing a spectrum, the court explained that, at one end, “are plainly impermissible situations involving a judge who directly uses his or her authority over litigants to coerce actions that will benefit the judge financially.”  At the other end of the spectrum, the court stated, “judges are permitted to write and publish books on legal and non-legal topics; identify themselves as judges in biographical descriptions; and sell books they have written so long as they do not exploit the judicial title in doing so.”

The court concluded that, “[t]his case falls in the middle of the spectrum” because the judge did not direct “coercive conduct towards litigants or attorneys appearing in his court to compel actions from which he stood to benefit financially” but the “circumstances involve more than individual sales of a law-related book written by a judge.”  The court acknowledged that there was no reference to the judge as “Judge John Roach” or “Judge Roach” in the book or in the referral service brochure and no evidence the judge was photographed in his robe in connection with the book and website.  However, it stated that his “judicial role is readily apparent based on the first eight words of the book’s ‘About the Authors’ section” and “[l]ittle effort is required for readers to discern that the ‘Judge’ referenced on the front and back covers is John Roach, and that the ‘Judge’s Perspective’ highlighted throughout the book comes from him.”  The court described the project as “structured to create a financial gain arising from attorneys who paid for subscriptions in hopes of being hired by readers who acted on the book’s multiple invitations to visit the website and find Divorce in Peace-affiliated attorneys.”  The court concluded that the judge’s “participation in aspects of this interconnected project” improperly exploited his judicial position in business activities.

There is more information on the ethical implications of “The judge as author” in an article in the spring 2013 issue of the Judicial Conduct Reporter.  Shortly after the article was published, the U.S. Judicial Conference Committee on Codes of Conduct issued comprehensive advice on promotional activity associated with extrajudicial writings and publications in U.S. Advisory Opinion 114 (2014).

 

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.”