Small town friendships

Defining when a judge’s relationship with an attorney or litigant is close enough to raise ethical issues is one of the perpetual issues in judicial conduct, and it was presented twice in the recent case Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

One of the grounds for the sanction was that the judge had ordered defendants in 5 cases to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend.  With respect to the judge’s relationship with the owner of the monitoring company (Charles Holland), the California Commission on Judicial Performance emphasized several factors that required disclosure:

  • Prior to taking the bench, the judge had represented Holland,
  • Holland had referred clients to the judge prior to his taking the bench,
  • Holland had been to the judge’s home,
  • Holland had attended strategy meetings for the judge’s judicial campaign, and
  • The judge was one of Holland’s Facebook friends.

The Commission stated that, even if it accepted the judge’s characterization of the relationship as “more professional than social,” he and Holland were more than members of the same professional organization and had contact outside professional events.  The Commission concluded that, “[e]ven if each of these facts taken alone did not require disqualification, . . . the totality of these circumstances was reasonably relevant to disqualification and required disclosure.”

A second ground for the sanction was the judge’s appointment of an attorney (Bradley Clark) as a special master without disclosing that Clark personal friend.  The Commission emphasized several factors:

  • The judge and Clark socialized together, sometimes with their spouses,
  • The judge received gifts from Clark,
  • The judge’s nephew was employed by Clark, and
  • The judge officiated over Clark’s wedding.

The special masters in the disciplinary proceeding had found that the appointment was not misconduct because Clark was qualified and, therefore, it had not been proven that the appointment was based on the friendship, rather than competence.  The master also found that disclosure was not necessary because most members of the “small legal community” where the judge sat probably knew about the relationship.  The Commission deferred to the finding about the appointment, but found that the judge did have a duty to disclose the relationship “regardless of the size of the community.”  It explained:

By their terms, the canons impose uniform statewide standards.  Whenever an assigned case involves a party the judge “knows,” the judge must be particularly vigilant to ensure the appearance and reality of independence and impartiality.  The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical duties are the same irrespective of population statistics.

The risk of applying a different disclosure standard in a small community based on the assumption that the parties and the attorneys know the judge’s relationships “is that there may be someone involved in the proceeding who, in fact, does not know about the relationships.” . . .  Moreover, the purpose of disclosure is not only to inform the attorneys and parties of information that may be relevant to disqualification but to uphold the integrity and impartiality of the judiciary.

The fact that there was no objection from the attorneys . . . did not relieve the judge of his obligation to disclose.  There is no evidence that the attorneys and parties were aware of the extent of the judge’s relationship with Clark at the time the judge made the appointment.

A third ground for the sanction, not related to friendships, was the judge’s comment to 2 other judges and an administrative analyst in the courthouse that gay men are “snappy” dressers.  The Commission found that statement was misconduct even though the remark “did not perpetuate invidious or hateful stereotypes.”

As observed by the masters, the judge’s comments “reflect stereotypical attitudes about gay men.”  It is improper for a judge to make remarks that reflect stereotypes based on sexual orientation, whether negative or positive.  We agree with the masters that “[s]uch remarks indicate that the speaker has preconceived ideas about a particular group, a characteristic that is contrary to the qualities of impartiality and propriety required of judges by our Code of Judicial Ethics.”

The judge had made the comment in response to a compliment by another judge about his outfit in an open office area in the court’s administration building:  he explained that he had bought the outfit in France, that the salesperson who put it together for him was gay, and that he knew it looked good because gay men are “snappy” dressers.

The other grounds for the sanction were that the judge had (1) allowed a business to use his testimonial on its web-site without assuring that it did not use his judicial title; (2) received improper gifts from Court Appointed Special Advocates, an attorney he had appointed as a master, and a law school; (3) failed to accurately report travel-related payments or reimbursements for attending judicial education programs; (4) run for California Attorney General without taking a leave of absence and then using his judicial title to raise funds for and promote his campaign; (5) failed to file a candidate intention statement until after his campaign had received campaign contributions, in violation of the Political Reform Act; and (6) permitted a campaign coordinator to use his judicial title on the Facebook page for his campaign for Attorney General and in posts on her law firm’s Facebook page promoting his candidacy.  The Commission publicly censured the now-former judge and barred him from seeking or holding judicial office.

Complaining about “a continuous onslaught of allegations,” the judge had blamed the presiding judge and the “toxic environment in the El Dorado Superior Court” for the charges against him.  However, the Commission emphasized  that it was the judge’s “improper conduct that is the basis of this inquiry, regardless of the motivations of those who brought forth the allegations.  There is no evidence that a toxic environment in the court or any animosity between Judge Bailey and [the presiding judge] resulted in misinformation being provided to the commission or inaccuracies in the evidence presented against the judge.”

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for disclosing his candidacy for sheriff on Facebook without resigning and refusing to disclose to the Commission the identity of the individual who took his campaign Facebook page live. Barth, Order (Arizona Commission on Judicial Conduct February 14, 2019).
  • The Colorado Supreme Court publicly censured a former court of appeals judge and accepted her resignation for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague. In the Matter of Booras (Colorado Supreme Court March 11, 2019).
  • Adopting stipulated findings based on the judge’s consent, the Michigan Supreme Court publicly censured a judge for citing cases to prosecutors in 2 cases in ex parte e-mails and referring to the prosecutors as unprofessional, “a fool that I suffered,” and a “cancer” because they disclosed the e-mails to defense council. In re Filip (Michigan Supreme Court March 8, 2019).
  • The Nevada Commission on Judicial Discipline publicly censured a judge for using an alternate judge whenever it was his turn to act as on-call search warrant judge for 4 years and failing to cooperate with 3 chief judges; the Commission also ordered the judge to attend the National Judicial College course “Leadership for Judges.” In the Matter of Hastings, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline March 6, 2019).
  • Granting the Judicial Standards Commission’s motion to enforce a stipulation agreement, which the judge did not contest, the New Mexico Supreme Court suspended a judge without pay for 3 weeks for, during a radio interview, misrepresenting the conduct for which he had been censured pursuant to a previous stipulation, thereby violating that agreement. In the Matter of Walton, Order (New Mexico Supreme Court March 12, 2019).
  • Granting the Judicial Standards Commission’s motion to accept a stipulation, the New Mexico Supreme Court ordered the permanent resignation of a judge for failing to immediately resign as a municipal judge when she declared her candidacy for county commission. Inquiry Concerning Encinias, Order (New Mexico Supreme Court March 29, 2019).
  • Based on the report of a referee following a hearing, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for conveying his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees who were accosted after a game by communicating with the judge who was handling the case, the defendant’s attorney, and the district attorney’s office. In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).

 

 

 

 

Throwback Thursdays

25 years ago this month:

  • The California Commission on Judicial Performance publicly reproved a judge for stating to a public defender of Japanese-American ancestry: “Do you have something to add to those papers which isn’t in there, some brilliant case you found somewhere in the Upper Tokyo Reports or somewhere that nobody knows about, tell me about it.  Otherwise there is no need to argue over what you already have.”  Letter to Haugner (California Commission on Judicial Performance April 11, 1994).
  • Adopting a stipulation and the recommendation of the Board on Judicial Standards, the Minnesota Supreme Court publicly reprimanded a judge and suspended him for 60 days without pay for (1) on multiple occasions over several years, responding in an angry and undignified manner to staff members who were innocent of any significant dereliction of duty; (2) ignoring staff members whom he had invited into his chambers, to their evident discomfort; and (3) harshly and without justification criticizing the work of his law clerks. In re Rice, 515 N.W.2d 53 (Minnesota 1994).
  • Pursuant to a stipulation and agreement with the judge, the Washington State Commission on Judicial Conduct publicly admonished a judge for engaging in a casual and cordial conversation in the courtroom with one of the parties in a case that the other party observed, while the attorneys for both parties were discussing settlement outside the courtroom. In re Slusher, Stipulation and Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct April 1, 1994).
  • Agreeing with the State Commission on Judicial Conduct, the Washington Supreme Court removed a judge from office for filing travel vouchers for 4 out-of-state trips on which he conducted minimal judicial business that was wholly incidental to the personal nature of the trips and seeking reimbursement for car and lodging expenses that went beyond that needed for judicial activities. In re Ritchie, 870 P.2d 967 (Washington 1994).
  • Adopting the findings of fact and conclusions of a 3-judge panel based on a stipulation, the Wisconsin Supreme Court suspended a judge from office for 15 days without pay for failing to decide 2 cases for more than 1 year, filing certificates of pending case status for 6 months that falsely reported that he had no cases pending beyond the prescribed period, misrepresenting to the deputy chief judge that 2 decisions had not been entered because a clerk had failed to type them, and making the same misrepresentation to a Commission investigator. In the Matter of Dreyfus, 513 N.W.2d 604 (Wisconsin 1994).

 

A sampling of recent judicial ethics advisory opinions

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

 

Insubordination and lack of candor

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge for 2 months for surreptitiously recording 3 meetings with her assignment judge and denying what she was doing when she got caught.  In the Matter of Gross-Quatrone, Order (New Jersey Supreme Court January 24, 2019).  The Court does not describe the judge’s conduct; this summary is based on the Committee’s presentment.

The judge’s law clerk for the 2015/2016 term began on August 4, 2015.  That clerkship “ended abruptly” on Friday December 10 after the law clerk complained to the county human resources supervisor and the trial court administrator about the judge’s abusive treatment.  The following Monday, County Assignment Judge Bonnie Mizdol met with Judge Gross-Quatrone to discuss the removal of her law clerk and related issues.  Judge Gross-Quatrone acknowledged that she had told the law clerk she considered the clerk’s performance to be deficient, but denied any abusive treatment.

Judge Gross-Quatrone attempted to record this meeting with Judge Mizdol surreptitiously on her cellular telephone although she claims that attempt failed and that there is no recording.

On the morning of December 21, Judge Mizdol scheduled a management meeting in her chambers to discuss providing Judge Gross-Quatrone with administrative support.  She invited Judge Gross-Quatrone, Trial Court Administrator Laura Simoldoni, the family division presiding judge, and the division manager.  Judge Mizdol denied Judge Gross-Quatrone’s request to have her secretary attend the meeting as “her witness,” but agreed to meet privately before the meeting.

During her private meeting with Judge Mizdol, Judge Gross-Quatrone repeated her request to have a “witness” at the meeting or, alternatively, that the meeting take place in a courtroom where it could be recorded; Judge Mizdol denied both requests.  Without Judge Mizdol’s knowledge, the judge recorded this meeting on an Olympus digital voice recorder hidden in her purse.

Judge Gross-Quatrone also recorded the management meeting that followed without the knowledge of the other participants.  The other participants became aware of the judge’s secretive recording when Simoldoni noticed a red light “beaming” from the top of the judge’s purse.  Simoldoni reached into the purse, retrieved the judge’s digital recorder, and pressed the “stop” button.  Simoldoni asked the judge if she was recording the meeting, and the judge replied:  “No!  It was a gift from my parents.  I’m not taping the meeting.  I don’t know how this thing works.”  The judge reiterated her denial when questioned by Judge Mizdol.  In response, Simoldoni replayed a portion of the recording that revealed that the judge had, in fact, recorded the meeting.

Judge Gross-Quatrone demanded the return of her digital recorder, but Simoldoni declined to return the recorder before speaking with counsel to the Acting Administrative Director of the Courts.  The meeting ended shortly thereafter.

Judge Gross-Quatrone requested and was permitted a private meeting with Judge Mizdol.  Judge Mizdol, after confirming that the judge was not also recording that meeting, advised the judge that her conduct was “irretrievable” and constituted a “significant breach of trust.”  The judge maintained that she had done nothing wrong and reiterated her request for the return of her recorder.

Over the next several hours, the judge telephoned Judge Mizdol at least twice and the acting administrative director once seeking the return of her recorder.   In response, Judge Mizdol advised the judge that she would advise the judge of the status of her recorder at that time after hearing from the counsel’s office that afternoon

Judge Gross-Quatrone telephoned Simoldoni and threatened to call the police if she did not return the recorder.  The sheriff’s office received a telephone call from Judge Gross-Quatrone’s courtroom asking about the telephone number for emergencies.  In response, Sergeant Gabriel Soto conducted a ”security check” of the judge’s courtroom and chambers area.  The judge reported to Sergeant Soto that Simoldoni had taken her “personal property” without her permission and had refused to return it.  Sheriff’s Lieutenant James Hague, at Sergeant Soto’s request, went to the judge’s chambers.  The judge recounted for Lieutenant Hague the events leading up to Simoldoni’s retrieval of her recorder, which the judge characterized as a “theft,” and said she wanted to file a report with the police department.

Simoldoni, with the requisite administrative approvals, made a copy of the contents of the judge’s recording and released the recorder to the sheriff’s department that afternoon.  A sheriff’s officer returned it to the judge that same day.

Judge Gross-Quatrone was transferred following these incidents.

There were 3 files on the judge’s recorder:  a recording of the judge saying “testing, testing, one, two, three, testing, testing;” a second that was blank; and the recording of the judge’s private meeting with Judge Mizdol and subsequent management meeting.  The Committed noted that the judge’s evident testing of the recorder contradicted her claim that she did not know how the recorder worked.

The judge argued that she was justified in surreptitiously recording the 3 meetings because she needed “to protect herself from recurring ‘workplace hostilities, belittling in the presence of staff, and verbal abuse’” by Judge Mizdol.  The Committee found that the judge’s defenses did not justify or mitigate her intentional misconduct.  It explained:

While Respondent may have perceived herself to be the subject of hostile treatment, she had available to her several options to address that situation short of engaging in deceptive and insubordinate conduct.  Respondent could have communicated her concerns directly to the Acting Administrative Director of the Courts or the Assistant Director of Human Resources at the Administrative Office of the Courts.  Respondent’s decision to forego these legitimate avenues to address workplace concerns does not constitute a viable defense in this proceeding.

The Committee noted that the judge’s recording and subsequent denials “occurred in full view of subordinate court personnel,” thus undermining Judge Mizdol’s authority.  It explained:

Such insubordination is intolerable in an institution such as the judiciary where the operational fortitude of the organization depends appreciably on its members’ compliance with the mandates of the administrative hierarchy.  Absent such compliance by its most senior members, i.e. jurists, the judiciary risks similar noncompliance from subordinate court personnel and, for that matter, court users who are required to abide by court orders or face potential sanctions.

The Committee concluded that the judge’s defiance of her superior and lack of candor “suggest a disturbing lack of sound judgment and professional integrity that, if left unaddressed, threaten the dignity of the judicial office and the public’s confidence in the judiciary as an institution worthy of deference.”

The Committee also stated that the judge’s misconduct had been aggravated by her multiple calls about the return of her recorder, her threats to have the police intervene, and her “spurious incident report” to the sheriff’s office, which “exacerbated an already tense situation and unnecessarily exposed additional courthouse staff to this incident.”  Also in aggravation, the Committee noted the judge’s attempts to mislead it during its investigation by feigning ignorance about having recorded the first meeting.  In mitigation, the Committee noted that the judge had performed satisfactorily on the bench after her transfer.

The judge argued that her surreptitious recordings were “legal” in New Jersey and she could not be disciplined for legal conduct.  The Committee stated, however, that, regardless of her legal rights, the judge’s “documented insubordination in her interactions with her Assignment Judge and lack of credibility both to her Assignment Judge and this Committee constitute a sharp deviation from the integrity demanded of all jurists under Canons 1 and 2 of the Code of Judicial Conduct and is deserving of public discipline.”

Throwback Thursday

10 years ago this month:

  • Based on a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for driving while intoxicated. In the Matter of Felts, 902 N.E.2d 255 (Indiana 2009).
  • The Indiana Supreme Court suspended a judge from office for 60 days without pay for excessive delays in ruling on prisoners’ petitions for post-conviction relief, which resulted in 1 prisoner being incarcerated for nearly 2 years longer than necessary, and for delay in reporting to the Judicial Qualifications Commission and providing incomplete and inaccurate information to the Commission. In the Matter of Hawkins, 902 N.E.2d 231 (Indiana 2009).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge, for, in a summary eviction matter, visiting the office of an attorney who represented the defendant in a related matter, questioning the attorney’s secretary about the defendant’s finances, and, based on the information, ruling against the defendant and issuing an order of eviction. In the Matter of Bishop, Determination (New York State Commission on Judicial Conduct March 18, 2009).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for permitting 6 defendants charged with speeding to plead guilty to a reduced charge without the consent of the prosecutor. In the Matter of Schurr, Determination (New York State Commission on Judicial Conduct March 23, 2009).
  • Based on a referee’s proposed findings of fact and conclusions of law, to which the judge stipulated, and a joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, while a part-time judge (1) arranging to have charges against his client filed in a court that did not have jurisdiction to circumvent the prohibition against practicing law in his own court; (2) failing to disqualify himself in a case notwithstanding that he had previously represented the complaining witness and holding the defendant in summary contempt without complying with proper procedures; and (3) representing defendants in 3 cases that had originated in his court. In the Matter of Aison, Determination (New York State Commission on Judicial Conduct March 26, 2009).
  • The Ohio Supreme Court permanently disbarred a judge who burned down his house to defraud an insurance company for which he had been found guilty on 2 federal counts of mail fraud, 1 count of use of fire to commit mail fraud, 1 count of conspiracy to use fire to commit mail fraud, and 2 counts of money laundering. Disciplinary Counsel v. McAuliffe, 903 N.E.2d 1209 (Ohio 2009).
  • The Texas State Commission on Judicial Conduct publicly warned a justice of the peace for facilitating and permitting the paddling of juveniles in his courtroom. Public Warning of Garza (Texas State Commission on Judicial Conduct March 9, 2009).
  • The Texas State Commission on Judicial Conduct publicly warned a justice of the peace for failing to provide notice to the plaintiff in a small claims case or to hold a hearing before ruling on the defendant’s untimely motion to set aside a default judgment; setting the case for trial without expressly granting or denying the defendant’s motion; conducting the trial after the court had lost jurisdiction; entering a second judgment in the case after the default judgment in favor of the plaintiff became final; and preventing the plaintiff from testifying about the car wreck or the damage to her vehicle. Public Warning of Torres and Order of Additional Education (Texas State Commission on Judicial Conduct March 9, 2009).

Balls, strikes, and self-represented litigants

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

The committee explained:

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

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

The committee concluded:

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

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

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

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

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

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