Legal advice on social media

Rule 3.10 provides that a full-time judge “shall not practice law.”  Thus, although users may ask for legal advice via social media when they learn another user is a judge, the judge cannot respond.  Accord Connecticut Informal Opinion 2013-6; Kentucky Advisory Opinion JE-119 (2010); New York Advisory Opinion 2008-176; Ohio Advisory Opinion 2010-7; ABA Formal Opinion 462 (2013).  See also In re Bass, Public Reprimand (Georgia Judicial Qualifications Commission March 18, 2013) (sanction of judge for private Facebook chat advising a woman who contacted him about how her brother should get his DUI matter into his court where he would “handle it,” in addition to other misconduct).

Further, advisory committees have broadly interpreted the prohibition to apply, not just to answering specific questions from other users, but to general social media posts that could be construed as legal advice.

For example, the West Virginia advisory committee stated that a judge could not post videos in which she answers questions about family law on her campaign web-site because she would be engaging in the practice of law and “potentially” in ex parte communications.  West Virginia Advisory Opinion (February 6, 2016).  In addition, although the committee stated that a judicial candidate (to whom the code applied) could post videos about general procedures and statutes on child support calculations on her Facebook page, it emphasized she must ensure “the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.”  The committee also warned that such videos were likely to generate follow-up questions that a judicial candidate could not answer.

Similarly, the Utah committee advised that a judge may post about legal topics on social media — unless the comments could be considered legal advice.  Utah Informal Advisory Opinion 2012-1.  The Massachusetts committee also stated that, although a judge may post “purely educational” tweets advising “trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination),” the judge must “offer only practice tips and not legal advice.”  Massachusetts Letter Opinion 2016-1.  The Connecticut advisory committee approved a judge’s participation as an expert on a non-profit, non-partisan organization’s electronic “answer board” that provides journalists with information on legal and constitutional topics, but warned the judge to keep her answers factual and instructive without providing legal advice.  Connecticut Advisory Opinion 2011-14.

Based on findings of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for explaining how to beat a DWI charge on a public on-line fan-site, in addition to other misconduct.  Judicial Discipline and Disability Commission v. Maggio, 440 S.W.3d 333 (Arkansas 2014).  Under the subject “to blow or not to blow,” the judge had posted:

You have the right to remain silent . . . so don’t say a word.  Don’t open your mouth “smell of intoxicants” that is the probable cause for FST.  Just hand the LEO your license, insurance and registration.  Everything they need to write you the ticket (reason for the stop) is on those papers.

Never say a word.  If ordered out of car.  Get out and lean against car.  Don’t move.  Yes very possible you will be cuffed and stuffed.  But at that time all they have is the violation for the stop.

Refuse the BAC test.  Yes another ticket but better than the alternative.  In the end the less evidence the best.

That being said 99% of folks on the side of the road all think hey I can “talk my way out.”

Of course, the single best advice is don’t drink and driver ever.  LEO don’t play.

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This post will be part of the summer issue of the Judicial Conduct Report, which is the second and final part of an article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1, the spring issue, described the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Part 2, to be published in August, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  You can sign up to receive notice when a new issue is available.

Throwback Thursday 

5 years ago this month:

  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a judge for taking additional testimony from a plaintiff in a harassment case after disconnecting from the defendant, who was appearing by telephone; failing to cooperate with requests from the Commission on Judicial Conduct; and making misrepresentations to the Commission. Inquiry Concerning Parker, Order (Arizona Supreme Court June 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who, when a defendant said he had hit a driver who had honked at him and flipped him off, had responded: “I know I shouldn’t say it, but I personally did not disagree with what you did.”  Lester, Order (Arizona Commission on Judicial Conduct June 1, 2012).
  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for being habitually tardy for hearings, first appearances, and trials and making a statement that introduced his religious beliefs into decision-making. Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012).
  • Granting an application filed by the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a judge for operating a vehicle while intoxicated. In the Matter of Block, 816 N.W.2d 362 (Iowa 2012).
  • Based on the judge’s resignation and withdrawal of her request for review, the New York Court of Appeals removed a judge in accordance with the findings of the State Commission on Judicial Conduct that she (1) improperly intervened in the disposition of a speeding ticket issued to another judge’s wife and (2) accepted special consideration for a speeding ticket that had been issued to herself. The Court’s order does not describe the judge’s conduct; this summary is based on the Commission determination.  In the Matter of Schilling, Order (New York Court of Appeals June 19, 2012).
  • The New York Court of Appeals removed a judge from office for presiding over 8 matters involving his paramour’s relatives without disclosing the conflict; engaging in ex parte communications with his paramour and her relatives concerning 4 of the matters; and making dispositions in 5 of the matters that conveyed an appearance of favoritism. In the Matter of Young, 974 N.E.2d 658 (New York 2012).
  • Pursuant to the judge’s agreement with the investigative panel, the Tennessee Court of the Judiciary publicly reprimanded a judge for conducting a hearing and setting release conditions for a defendant accused of burglarizing his office. Re Randolph, Letter of reprimand (Tennessee Court of the Judiciary June 15, 2012).
  • Pursuant to the judge’s agreement with the investigative panel, the Tennessee Court of the Judiciary publicly reprimanded a judge for telling a group of defendants that he wished he could “pull a trap door” and send them “straight to hell right now.” Re Houston (Tennessee Court of the Judiciary June 25, 2012).

Judicial ethics and marijuana

29 or so states have decriminalized and/or legalized medical and/or recreational marijuana use since 1973.  Whatever effect that may have had on judicial caseloads, that change should not have affected judges’ personal habits.  As the Colorado advisory committee explained, even in a state that has decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge who uses marijuana in private still violates the code of judicial conduct because federal law still makes the possession and use of marijuana for any purpose a crime.  Colorado Advisory Opinion 2014-1.

Further, the California judicial ethics committee recently advised that, because of federal laws, a judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana.  California Advisory Opinion 2017-10The committee explained that restriction precluded a personal financial investment or private equity fund investment in such an enterprise, ownership of shares in a corporation that invests in marijuana, or an interest in property that is leased for marijuana growth or distribution and included interests owned by a spouse or registered domestic partnerThe Washington advisory committee stated that a judge may not permit a court employee to own a medical marijuana business, even if the business fully complied with state laws and regulations, because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2 

Judges have been disciplined for using marijuana although the cases arose when use was still a crime in the state.

The Michigan Supreme Court censured a judge and suspended him for 6 months without pay for using marijuana.  In re Gilbert, 668 N.W.2d 892 (Michigan 2003).  During a Rolling Stones concert, someone had passed a marijuana cigarette down the aisle in which the judge was sitting.  The judge took it, puffed it, and then passed it along.  When the marijuana cigarette was returned back down the aisle, the judge puffed it a second time before passing it along again.  The judge’s actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by Jay Leno on The Tonight Show.  The judge took a voluntary leave of absence and reported his conduct to the Judicial Tenure Commission.

 The judge acknowledged that he used marijuana approximately twice a year.  He obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, completed an in-patient substance abuse treatment program, and entered into a judicial monitoring participation agreement with the assistance program.

Pursuant to the judge’s consent, the Commission had recommended a 90-day suspension without pay.  However, the Court concluded that recommendation was insufficient for a judge who had admitted that he was using marijuana while trying, convicting, and sentencing defendants charged with marijuana offenses.  1 justice dissented, arguing that, in light of the judge’s “hypocrisy,” only removal “would begin to repair the damage to the public’s trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.”

Adopting the findings and recommended sanction of a panel of the Board of Commissioners on Grievance and Discipline based on the judge’s consent, the Ohio Supreme Court publicly reprimanded a judge for using marijuana.  Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010).  The judge had occasionally used marijuana on weekends, and, in March 2008, began using it daily as self-medication to alleviate the physical and psychological effects of a stroke.  In December 2008, he was cited for possession of marijuana and drug paraphernalia.  By agreement, the drug paraphernalia charge was dismissed, and the marijuana charge was resolved by forfeiture of a $168 bond.  The judge did not plead guilty to and was not convicted of any crime.

After being charged, the judge had not used alcohol or marijuana or any other illegal substance.  He had entered into a 5-year contract with the Ohio Lawyers Assistance Program and completed a detox program, an in-patient program at an addiction-medicine facility, and a 90-day intensive out-patient program.

See also Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011) (removal of judge for obtaining and consuming marijuana at least once a week for several months, in addition to unrelated misconduct); In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal of a former judge for using marijuana and supplying marijuana to another individual on one occasion, in addition to unrelated misconduct); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of a former judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 24 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand of a judge for using marijuana); In re Coughenour, Stipulation and Order (Washington Commission on Judicial Conduct September 6, 1991) (public admonishment of a judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams; an order of deferred prosecution had been entered in the traffic matter); In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid relative to the 2 charges).

New issue of the Judicial Conduct Reporter on judicial ethics and social media

The spring issue of the Judicial Conduct Reporter is now available to be downloaded.

The issue is Part 1 of a 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1 describes the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Relevant caselaw is also used to illustrate the principles discussed.

In response to inquiries from judges, committees have allowed judges to join the millions of others using social media but have also emphasized that the code of judicial conduct applies on networks and warned judges to be very careful while socializing on-line.  Opinions advise judges to implement the services’ privacy protections but to assume all social media activity may become public and be attributed to the judge.  Judges have also been cautioned not to make any statements indicating bias or prejudice, not to allow such comments on their page, and not to “like” such comments by others.  Further, the committees remind judges that the requirement that they maintain the dignity of the judicial office applies to every social media post and photo.

With respect to making social connections on networks, some advisory committees prohibit judges from “friending” attorneys who may appear before them while others reject that bright line for a friend-by-friend analysis of appropriateness.  Disqualification is not automatically required when a “friend” appears in a case, but such an appearance requires a judge to consider the nature and scope of the social media relationship and other relevant factors to determine whether the judge’s impartiality could reasonably be questioned.  Further, committees recommend or even require disclosure of a social media relationship in a case involving a “friend.”

In addition, the opinions note there is no social media exception to the prohibitions on ex parte communications and independent investigations.  Finally, the committees remind judges that all comments on pending cases are “public” when made on social media and suggest that a broad interpretation of the prohibition on public comments is the best way for judges to maintain public confidence in the judiciary.

Part 2, which will be the summer issue of the Reporter, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  Both parts will contain links to additional materials on the Center for Judicial Ethics web-site.  The 2 parts and the supplemental materials will be combined in a comprehensive paper that will be posted on the Center’s web-site in late 2017.

Anyone can sign up to receive notice when a new issue is available.  All past issues of the Reporter are also available on-line as free downloads.  There is an index of Reporter articles.

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for multiple errors in an eviction proceeding. Carrillo, Order (February 6, 2017).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for, while a candidate, (1) obtaining and registering the domain name he knew his opponent intended to use for his campaign web-site and redirecting internet traffic from that web-site to his campaign web-site and (2) having a small image on his Facebook page with a logo that stated, “Andrew Hettinger Justice of the Peace” without “elect” prior to his name or “for” between his name and the position. Hettinger, Amended order (Arizona Commission on Judicial Conduct May 31, 2017).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for promoting the use of a company in which she has an ownership interest while presiding over settlement discussions in a family law case and including use of that company’s service as a term in the settlement agreement.  Sheldon, Order (Arizona Commission on Judicial Conduct May 17, 2017).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) posting a statement about a judicial candidate on Facebook with knowing or reckless disregard for the truth and (2) being Facebook friends with attorneys who were appearing regularly before him. In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017).
  • Approving the recommendation of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 90 days without pay and publicly reprimanded her for knowingly misrepresenting a newspaper endorsement for her 1994 legislative re-election campaign to make it appear the endorsement was for her 2014 judicial campaign. Inquiry Concerning Shepard (Florida Supreme Court May 4, 2017).
  • Based on stipulations, the New Hampshire Judicial Conduct Committee publicly reprimanded a judge for revising a negotiated plea agreement sua sponte and refusing to allow the state to strike amendments to the charges; the Committee dismissed complaints about the judge’s handling of 4 other plea agreements with a caution and recommendation for prudent future conduct. In the Matter of DeVries (New Hampshire Judicial Conduct Committee April 7, 2017).
  • The New York State Commission on Judicial Conduct removed a non-lawyer judge for (1) multiple efforts to influence the disposition of a traffic ticket received by his daughter and being discourteous to the prosecutor in the case and (2) in connection with the appeal of his order of restitution in a case, sending 8 letter to the county court that contained factual and legal arguments and biased, discourteous statements about the defendant and his attorney. In the Matter of Ayres, Determination (New York State Commission on Judicial Conduct May 4, 2017), review requested.
  • Adopting the findings and conclusions of the Judicial Standards Commission based on stipulations and accepting its recommendation based on the judge’s agreement, the North Carolina Supreme Court publicly censured a judge for driving while substantially impaired and belligerent, offensive, and denigrating behavior towards law enforcement and emergency personnel. In re LaBarre (North Carolina Supreme Court May 5, 2017).
  • Adopting the recommendation of the Board of Professional Conduct based on stipulations, the Ohio Supreme Court suspended a former judge from the practice of law for 2 years, with the second year stayed on the condition that he commit no further misconduct, for soliciting prostitution and falsifying a court record. Ohio State Bar Association v. Jacob (Ohio Supreme Court May 10, 2017).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended for 45 days without pay a judge who had a physical altercation with another attendee following a meeting of a cotillion club. In the Matter of Johnson (South Carolina Supreme Court May 31, 2017).
  • Affirming the determination of the State Commission on Judicial Conduct, the Special Court of Review Appointed by the Texas Supreme Court publicly reprimanded a judge for engaging in an improper sexual relationship with his chief clerk. In re Casey (Special Court of Review Appointed by the Texas Supreme Court May 9, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for a Facebook post that stated, “Time for a tree and a rope . . .” in response to the arrest of an African-American man for the killing of a police officer. Amended Public Reprimand and Order of Additional Education of Oakley (Texas State Commission on Judicial Conduct May 8, 2017).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to allow a member of the public to inspect and copy judicial case files and physically escorting the man out of his office. Public Warning of Alford and Order of Additional Education (Texas State Commission on Judicial Conduct March 28, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for failing to provide the plaintiff in a small claims case with adequate written notice of his trial date, proceeding to trial without requiring the defendant to file a written answer to the lawsuit, communicating with the defendant regarding the merits of the case, failing to treat the plaintiff with patience, dignity, and courtesy, presenting a settlement offer in a way that give the plaintiff the impression the defendant was in a position to influence the judge and used the prestige of his office to advance the defendant’s interest, and using racially insensitive language while in the courthouse. Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct March 17, 2017).
  • Adopting the decision of the Judicial Conduct Board, the Vermont Supreme Court ordered that a judge be immediately and permanently suspended from judicial office, prohibited him from holding judicial office in the state, and publicly reprimanded him for depositing payments on loans into his personal bank account even though the loans had been made with funds from his uncle’s wife and negotiating the forgiveness of the loans; making a facially implausible claim against her estate; failing to protect the assets of the estate; and making false statements during a probate court hearing. In re Kane (Vermont Supreme Court May 24,  2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge who solicited endorsements from court employees in support of his campaign. In re Federspiel, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct May 12, 2017).

Appropriate action

The New York code of judicial conduct provides that a “judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of [these rules] shall take appropriate action.”  (There is an analogous provision for possible attorney misconduct.)  The New York Advisory Committee on Judicial Ethic has interpreted that rule in many opinions.  In most of those opinions, it provides guidelines but does not direct a judge to report a suspected violation, leaving it to the judge’s “discretion” based on the judge’s assessment of the relevant circumstances.

However, when conduct described in an inquiry clearly calls into question another judge’s fitness to continue in office, the committee has advised the inquiring judge that he or she has an affirmative duty to report the conduct.  In New York Advisory Opinion 2015-124, the inquiring judge had asked the committee if he was required to report the following circumstances.

The defendant in a criminal case before the inquiring judge arrived at the court with his/her parent, a part-time judge from a nearby jurisdiction.  The court clerk later advised the inquiring judge that a judge appeared with his/her accused child and asked to speak with the presiding judge.  The ADA also stated a judge participated in the pre-trial conference with his/her defendant child and “attempted to influence a disposition.”  When the case was called, the defendant’s parent said he/she is a judge and offered a Unified Court System identification card as proof.  When the inquiring judge asked the defendant’s parent if he/she “was aware of the ethics of what [he/she] was doing,” the parent repeated he/she was a judge, and clarified he/she was not the defendant’s attorney.

The committee concluded that the inquiring judge must report the other judge’s conduct to the State Commission on Judicial Conduct, noting the judge “has information, including his/her direct observations, indicating a substantial likelihood that another judge has tried to use the prestige of judicial office to advance his/her child’s interests and improperly influence a criminal proceeding on his/her child’s behalf . . . .  On these facts, the other judge’s actions, if proved, clearly call into question his/her fitness to continue in office.”

The committee, like the committees in most states, does not disclose the name of the inquiring judge, but that inquiry corresponds to the facts in a recent case in which the Commission removed a non-lawyer judge from office for (1) attempting to influence the disposition of a traffic ticket received by his daughter and (2) sending 8 letters to the county court in an appeal from his order in a case.  In the Matter of Ayres, Determination (New York State Commission on Judicial Conduct May 4, 2017).

After his 30-year-old daughter received a traffic ticket from a state trooper for using a cell phone while operating a motor vehicle, Judge Ayres made 2 “back-channel attempts” to have the case transferred from the assigned judge, Judge Coe.  Judge Ayres believed Judge Coe could not handle the case fairly because Judge Ayres had fired Judge Coe’s wife when she was his court clerk.  First, the judge asked a court clerk to transfer the ticket to the docket of Judge Weingartner.  Then he called Judge Weingartner and asked him to handle the matter in view of his history with Judge Coe’s wife; he also attempted to provide facts about the case, but Judge Weingartner cut him off and refused his request.  The Commission found that the judge’s “requests to the court clerk and Judge Weingartner, who both knew respondent was a judge, were implicitly supported by his judicial status . . . .”

After these attempts were unsuccessful, the judge attended the pre-trial conference with his daughter and the assistant district attorney, Laura Parker.  During the conference, the judge addressed Parker “in a condescending manner, questioned whether she knew the law and was familiar with the facts, and, at one point, ‘threw’ papers on the table in her direction to underscore his argument that the ticket should be dismissed.”  After his daughter said, “My father’s a judge,” the judge stated, “Well, I wasn’t going to bring that up, but since it’s been brought up, if this ticket was in my courtroom, I’d dismiss it.”  He added that he had spoken to “several other judges” about the ticket and that they “all agreed that this should be dismissed.”

After talking to her supervisor, Parker moved to dismiss the ticket.  Judge Coe, who was surprised by the motion, did not accept it and said that he was going to adjourn the case “to give it some more thought.”  Subsequently, Parker again moved to dismiss, and Judge Coe dismissed the charge in April 2015.

The Commission decision notes that, after the pre-trial conference, Judge Coe met with Judge Weingartner to discuss what had occurred.  Judge Weingartner told Judge Coe that Judge Ayres had called him earlier and asked him to handle the ticket.  Judge Coe’s clerk also told him that Judge Ayres had asked her to transfer the ticket to Judge Weingartner.  Judge Coe sent an inquiry to the advisory committee and, after receiving the committee’s response, sent a letter to the Commission about Judge Ayres’s conduct.

Throughout the Commission’s proceedings, Judge Ayres insisted that his actions were permissible because he was acting “as a parent,” not as a judge, and was only attempting to help his daughter obtain the result that she was entitled to by law.  The Commission emphasized that “paternal instincts,” although understandable, do not “justify a departure from the standards expected of the judiciary,” agreeing with the referee’s rejection of the judge’s argument “that he had ‘absolute immunity’ to intervene as a parent on behalf of his daughter in an ongoing judicial proceeding.”  Noting that the judge had ample opportunity to reflect upon the propriety of intervening, the Commission reached the “inescapable” conclusion “that he either ignored or misunderstood his ethical obligations and intervened in the case simply because he believed that he had a better chance of getting the ticket dismissed than his daughter had on her own.”

In the second case underlying the discipline proceeding, after a defendant’s attorney filed a notice of appeal from a restitution order he entered in a larceny and disorderly conduct case, the judge sent 8 letters, 5 of which were ex parte, to the county court judge who was hearing the appeal.  The judge’s letters advised the other judge that, for example, the appeal should “be dismissed as it has not been perfected as required,” his order was “within the parameters of the law,” and the defendant’s claims were “baseless” and inconsistent with the plea agreement.  The judge also described the defense attorney’s arguments in “highly disparaging terms” (for example, “ludicrous,” “defies logic,” and “totally beyond any rational thought process”).  The judge continued writing the letters even after the county court judge sent him a letter advising him of the proper procedures and admonishing him for his “troubling” statements about the merits of the appeal.

The Commission found that the judge “abandoned his role as a neutral arbiter and became an advocate . . . .”

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In another 2015 opinion, the New York advisory committee provided more guidance regarding reporting judicial or attorney misconduct.  New York Joint Advisory Opinion 2015-138/2015-144/2015-166.  The committee explained that the rule requires a 3-prong analysis:  (1) Whether there is a “substantial likelihood” of a violation; (2) Whether the likely violation is substantial; and (3) What action is appropriate.  According to the committee, a judge is not required to investigate possible misconduct but may discharge his disciplinary responsibilities based on facts he already knows.

The committee stated that whether a judge has information indicating a substantial likelihood of a violation depends on the judge’s evaluation of the reliability and credibility of the evidence, including whether the judge has first-hand knowledge or merely “second- or third-hand reports concerning conduct that did not arise in connection with a proceeding.”  The committee emphasized that, “mere rumor, gossip, innuendo, or other ‘third-hand’ information, does not trigger a judge’s disciplinary obligations.”  The committee stated that, “[i]f, after considering all relevant, known factors, the judge believes the information received is not sufficiently reliable or credible to warrant further consideration, the judge is not ethically required to take any further action.  (As always, the judge may still, in his/her sole discretion, take some action even though he/she is not ethically required to do so.)”

In determining whether a violation is “substantial,” the committee explained, the judge should consider a wide variety of factors, including “the experience level of the . . . judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a . . . judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in . . . judges if not investigated and addressed.”  The committee concluded that, “[i]f the judge is not certain that the conduct violates the applicable ethics rules, or concludes that the conduct is at most an insubstantial or a mere technical violation, he/she again need not take any action, although the judge may nonetheless do so, in his/her discretion.”

If a judge determines that those 2 prongs are satisfied, the judge must take “‘appropriate action’ . . . , as indicated by all the surrounding circumstances known to the judge at the time.”  Among the relevant circumstances, according to the committee, are whether the other judge, if confronted, “shows genuine remorse, contrition, or ignorance of a rule” and whether the other judge has a “history of unprofessional or other conduct in violation of the Rules.”  The committee advised that reporting to the Commission is not mandatory unless the conduct seriously calls into question the “judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry . . . .”  In another opinion, the committee described possible appropriate action in response to possible judicial misconduct, for example, dealing with the matter administratively, discussing with the other judge the possibility of a treatment program and/or making a referral to a treatment program, and counseling the other judge on the ethics of the conduct and then deciding what if anything should be done depending on the other judge’s response.  New York Advisory Opinion 2016-46.

As interpreted by the advisory committee, the New York rule is in effect very similar to the current model code provision although the language is different.  Rule 2.15 of the 2007 American Bar Association Model Code of Judicial Conduct provides:

(A) A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.

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(C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

There are analogous provisions for attorney misconduct.

Throwback Thursday

5 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for (1) delays of 320 days, 237 days, and 110 days in 3 matters in less than a year, (2) submission of 11 false salary affidavits, (3) failure as presiding judge to circulate a list of cases under submission, and (4) failure to respond to e-mails inquiring about submitted matters. In the Matter Concerning Kirihara, Decision and Order (California Commission on Judicial Performance May 16, 2012).
  • Based on findings by a Board of Examining Officers supported by the judge’s admissions, the Delaware Court on the Judiciary removed a judge for advising a young female attorney in an e-mail how to prepare a memorandum in a case before him and hearing cases involving the attorney after developing and expressing romantic feelings for her. In re Henriksen, 70 A.3d 206 (Delaware Court on the Judiciary 2012).
  • The Illinois Courts Commission suspended a judge for 60 days without pay for striking a parked car, then driving his damaged car from the scene at a high rate of speed, disobeying multiple stop signs, causing a 13-year-old girl to move away from the road quickly to avoid being struck, causing the police to wait when they arrived at his home, and being less than candid before the Commission. In re Popejoy, Order (Illinois Courts Commission May 9, 2012).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for (1) in an adoption proceeding, failing to return a child to the child’s biological parent, failing to recognize the mother’s right to revoke her consent, failing to provide the unrepresented biological parents with adequate information about obtaining counsel, and injecting the father’s immigration status into the matter and (2) displaying an impatient, undignified, and discourteous demeanor in a custody case. In the Matter of Poyfair, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 4, 2012).