Code provisions about social media

The 2007 version of the American Bar Association Model Code of Judicial Conduct makes no reference to social media, not surprising giving the novelty of virtual networking as Facebook only became generally available in September 2006.  As more and more judges began to participate in social media, numerous judicial ethics opinions and judicial discipline cases have emphasized that the code applies on-line as well as IRL.  So far, 6 states have adopted provisions in their codes to stress that principle.

The new code of judicial conduct adopted by the Illinois Supreme Court (which will be effective January 23, 2023) includes the most extensive provisions addressing social media. The preamble to the new Illinois code explains in general:

The Code governs a judge’s personal and judicial activities conducted in person, on paper, and by telephone or other electronic means.  A violation of the Code may occur when a judge uses the Internet, including social networking sites, to post comments or other materials such as links to websites, articles, or comments authored by others, photographs, cartoons, jokes, or any other words or images that convey information or opinion.  Violations may occur even if a judge’s distribution of a communication is restricted to family and friends and is not accessible to the public.  Judges must carefully monitor their social media accounts to ensure that no communication can be reasonably interpreted as suggesting a bias or prejudice; an ex parte communication; the misuse of judicial power or prestige; a violation of restrictions on charitable, financial, or political activities; a comment on a pending or impending case; a basis for disqualification; or an absence of judicial independence, impartiality, integrity, or competence.

There are also specific comments about social media to many of the rules.

With respect to use of the prestige of office, a comment to Rule 1.3 warns:

[A] judge must not use the judicial title in letterhead, e-mails, or any other form of communication, including social media or social networking platforms, to gain an advantage in conducting personal business.

A comment to Rule 2.1 cautions:

To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities, including their use of social media or participation on social networking platforms, to minimize the risk of conflicts that would result in frequent disqualification.

Comments to the rule regarding ex parte communications (Rule 2.9) state:

The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, or other persons who are not participants in the proceeding and communications made or posted on social media or social networking platforms.

* * *

Judges who maintain a presence on social media or social networking platforms should be aware of the potential for these sites to become an unintended vehicle for ex parte communications.

A comment to Rule 2.10, which limits judicial statements on pending and impending cases,  states that “judges who are active on social media or social networking platforms should understand how their comments in these forums might be considered ‘public’ statements implicating this Rule.  Judges should be aware of the nature and efficacy of privacy settings offered by social media or social networking platforms.”

A comment to the disqualification provisions in Rule 2.11 states:

A judge’s use of social media or social networking platforms may create the appearance of a relationship between the judge and litigants or lawyers who may appear before the judge.  Whether a relationship would cause the judge’s impartiality to ‘reasonably be questioned’ depends on the facts.  While the labels used by the social media or social networking platform (e.g., “friend”) are not dispositive of the nature of the relationship, judges should consider the manner in which the rules on disqualification have been applied in traditional contexts and the additional ways in which social media or social networking platforms may amplify any connection to the judge.

A comment to Rule 3.7 advises:

A judge may not use social media or social networking platforms to promote the activities of educational, religious, charitable, fraternal, or civic organizations when the judge would be prohibited from doing so using another means of communication.  For example, just as a judge may not write or telephone nonfamily members or judges over whom the judge has supervisory authority to encourage them to attend organizations’ fundraising events, a judge may not promote those events via social media or social networking platforms.

A comment to the Rule 4.1 prohibition on judges and judicial candidates “publicly” endorsing or making “speeches” on behalf of political candidates or organizations notes that “comments by judges active on social media or social networking platforms may be considered ‘public’ for purposes of this Rule.”

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In 2 places, the commentary to California code of judicial ethics refers to judges’ obligations regarding social media. Commentary to Canon 2A states:

A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  The same canons that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites.  Those canons include, but are not limited to Canon 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment on pending or impending proceedings), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially, demeaning the judicial office, or frequent disqualification).

With respect to use of the prestige of office, commentary to Canon 2B explains:

If a judge posts on social networking sites such as Facebook or crowdsourced sites such as Yelp or TripAdvisor, the judge may not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others.  For example, a judge may not comment on, recommend, or criticize businesses, products, or services on such sites if it is reasonably likely that the judge can be identified as a judge.

Comment 5 to Rule 3.1 of the Idaho code warns:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Canon 2B to the Virginia code of judicial conduct provides:

The same provisions of these Canons that govern a judge’s ability to socialize and communicate in person, in writing, or over the telephone also apply to the Internet and social networking sites.  While a judge is not prohibited from participating in online social media sites or networks, a judge should exercise restraint and discretion in doing so.  A judge must avoid any online activity that would cause a reasonable person to question a judge’s ability to be impartial.

Similarly, Comment 6 to Rule 3.1 of the West Virginia code reminds judges:  “The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.”

The preamble to the New Mexico code states:  “Judges and judicial candidates are . . . encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.”

Finally, the code of conduct that applies to judges on Connecticut’s probate courts, which is adopted by the Connecticut Probate Assembly and the Probate Court Administrator, includes 2 comments on social media.

Comment 5 to Rule 3.1 regarding extrajudicial activities states:

“Extrajudicial activities” include a judge’s participation on social media.  While a judge must exercise extreme caution when engaging in any type of electronic communication, including communication by text or email, participation on online social networking sites or otherwise posting material on the Internet are particularly problematic, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  Such activity demands particular attention.  The same rules that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to all electronic communications, including on the Internet and social networking sites.  While judges are not prohibited from participating in online social networks, such participation is fraught with peril, and they should exercise restraint and caution in doing so.  For example, a judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Comment 3 to Rule 4.1 regarding political conduct states:

“Political and campaign activities” include a judge or judicial candidate’s participation on social media.  While a judge or judicial candidate must exercise extreme caution when engaging in any type of electronic communication, including communication by text or email, participation on online social networking sites or otherwise posting material on the Internet are particularly problematic, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  Such activity demands particular attention.  The same rules that govern a judge or judicial candidate’s ability to socialize in person, on paper, or over the telephone apply to all electronic communications, including on the Internet and social networking sites.  While judges or judicial candidates are not prohibited from participating in online social networks, such participation is fraught with peril, and they should exercise restraint and caution in doing so.  For example, judges or judicial candidates should not identify themselves as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who presided over an order of protection hearing in a domestic case after consuming 3 beers and treated the litigant discourteously.  Lodge, Order (Arizona Commission on Judicial Conduct August 21, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded 1 full-time justice of the peace and 1 pro tem justice of the peace for filing amicus briefs in 2 superior court cases in which the full-time judge’s decisions were being reviewed; the pro-tem judge had written and signed both briefs and urged the full-time judge to sign them.  Frankel, Karp, Order (Arizona Commission on Judicial Conduct August 21, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for continuing to serve as the secretary of her local Republican Women’s group after she took office.  Umphress, Order (Arizona Commission on Judicial Conduct August 21, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for improperly conducting initial appearances and arraignments, treating civil and criminal matters interchangeably, and failing to review defendants’ constitutional rights.  Woolbright, Order (Arizona Commission Judicial Conduct August 21, 2012).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for holding a hearing on a motion for disqualification alleging a conflict between the attorney and the judge’s wife, communicating ex parte with his wife about the motion, calling his wife as a witness, questioning the attorney’s clients, and threatening to file a complaint with The Florida Bar.  Inquiry Concerning Cohen, 99 So. 3d 926 (Florida 2012).
  • The Massachusetts Commission on Judicial Conduct publicly reprimanded a judge for repeatedly failing to follow well-established procedural requirements, specifically, failing to engage criminal defendants in legally sufficient plea colloquies in minor motor vehicle criminal offenses.  Press Release (Merrick) (Massachusetts Commission on Judicial Conduct August 31, 2012).
  • The New York State Commission on Judicial Conduct removed a former judge from office for having engaged in a sexual encounter with his 5-year-old niece in 1972, before he was a judge.  In the Matter of Hedges, Determination (New York State Commission on Judicial Conduct August 17, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for (1) approving his own application for a pistol permit and (2) accidentally discharging his gun in his chambers while attempting to repair it.  In the Matter of Sgueglia, Determination (New York State Commission on Judicial Conduct August 10, 2012).
  • Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for failing to expeditiously transfer from her court tickets issued to herself and her sons for violations of a dog-control ordinance, sending improper messages to the judges of the transferee court, and failing to maintain proper records of the tickets.  In the Matter of Van Woeart, Determination (New York State Commission on Judicial Conduct August 20, 2012).
  • Pursuant to an agreement, the North Carolina Judicial Standards Commission publicly reprimanded a judge for impaired driving.  Public Reprimand of Carraway (North Carolina Judicial Standards Commission August 9, 2012).
  • Based on a stipulation of facts and the judge’s consent, the Oregon Supreme Court publicly censured a judge for a 16-month delay in issuing a decision in a divorce case.  Inquiry Concerning Avera, 283 P.3d 923 (Oregon 2012).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for intervening in a landlord-tenant dispute when no case was pending in his court and asserting that there was no need for the landlord to file an eviction action in the absence of a written lease agreement.  Public Warning of De La Paz (Texas State Commission on Judicial Conduct August 3, 2012).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for issuing a capias pro fine warrant that resulted in a woman’s arrest and incarceration without following the law and failing to treat her in a patient, dignified, and courteous manner.  Public Reprimand of Billingsley and Order of Additional Education (Texas State Commission on Judicial Conduct August 3, 2012).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s stipulated order publicly reprimanding a former judge for revoking a defendant’s probation without following proper procedures.  In re Peters, Order (Utah Supreme Court August 22, 2012).

Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for, in 4 cases, making remarks reflecting poor demeanor and engaging in conduct that gave an appearance of bias and, in 3 of those cases, denying the parties a full right to be heard.  Public Admonishment of Hunt (California Commission on Judicial Performance July 5, 2022).
  • Based on the judge’s retirement and agreement not to seek, request, or accept any judicial office in the future in the state, the Georgia Judicial Qualifications Commission resolved a complaint against a former judge; a preliminary investigation had been started to determine whether, as chief judge of a county probate court, the judge had failed to properly supervise employees in their management of courts funds, employed unqualified individuals to assist with court-related tasks, improperly used notary services, improperly issued marriage licenses, and failed to regularly attend to his duties.  In re Brazier, Report of disposition (Georgia Judicial Qualifications Commission July 7, 2022).
  • In lieu of filing formal disciplinary proceedings and with the referee’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a former referee for temporarily suspending a father’s parenting time with his minor daughter based, in part, on interview notes she received from a Guardian Ad Litem without circulating the notes to the father and his counsel or allowing them to review the notes when they asked to do so.  Public Admonition of Johnston (Indiana Commission on Judicial Qualifications July 1, 2022).
  • Based on a stipulation and agreement that included the judge’s resignation and affirmation that she will not seek office or accept judicial office in Indiana state courts or perform judicial duties in the state, the Indiana Commission on Judicial Qualifications concluded its investigation of allegations that had resulted in the judge being arrested and charged with domestic battery in the presence of a child; the judge also agreed to relinquish her attorney license for 150 days by going on inactive status with the condition that she retake and pass the multistate professional responsibility examination prior to reactivating her law license.  In the Matter of Bell, Stipulation and agreement (Indiana Commission on Judicial Qualifications July 25, 2022).
  • Adopting the findings and commendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court permanently disqualified a former judge from judicial service and publicly censured him for, while he was a part-time judge, grabbing a client’s representative in his private law office without her consent and for his “pervasive dishonesty” when testifying before the Committee.  In the Matter of Falcone, Order (New Jersey Supreme Court July 19, 2022).
  • The Tennessee Board of Judicial Conduct suspended a judge with pay for 30 days for (1) media interviews and social media posts about a case against a pharmaceutical company that resulted in his disqualification from the case; (2) communications and a physical relationship with a female litigant and failing to disqualify himself from her case; and (3) failing to respond to the Board’s notices.  In re Young, Order (Tennessee Board of Judicial Conduct July 26, 2022).
  • Reviewing a stipulation, agreement, order, and recommendation, the Washington Supreme Court suspended a judge for 10 days without pay and publicly censured her for (1) telling a litigant who was contesting a traffic infraction that, given the evidence and his admission, it was clear he had committed the infraction; engaging in an off-the-record discussion with him; and when she came back on the record, dismissing the infraction without giving a reason or explaining the interruption in the recording; and (2) awarding a judgment as a counterclaim in a case in which the defendants had not filed a counterclaim.  In re Burchett, Order (Washington Supreme Court July 19, 2022).
  • The Washington State Bar Association Disciplinary Counsel accepted a former judge’s permanent resignation from the bar in lieu of discipline; pursuant to a plea agreement, the judge had pled guilty to intentionally touching with sexual motivation 2 court employees.  In re Gallina, Resignation form (Washington State Bar Association April 25, 2022) (). 
  • Adopting the findings of a special committee, the Judicial Council of the U.S. Court of Appeals for the 4th Circuit publicly reprimanded a judge for entering into a separation agreement that created the appearance that he had received “a large payment on the eve of taking the bench for no coherent reason” or had agreed to practice law while serving as a judge.  In the Matter of Dawson, Memorandum and order (4th Circuit Judicial Council July 29, 2022).

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance removed a judge from office for (1) instructing clerks to dismiss 3 tickets received by an acquaintance, the acquaintance’s wife, and his niece and dismissing a ticket received by the minor son of a reserve deputy sheriff who had occasionally acted as the judge’s bailiff and (2) attempting to influence other judicial officers regarding his godfather’s speeding ticket, about the bail for the daughter of a family from his church, and in a juvenile delinquency proceeding involving a family he had represented while an attorney.  Inquiry Concerning Platt, Decision and order (California Commission on Judicial Performance August 5, 2002).
  • Based on a joint recommendation and stipulation of facts, the Illinois Courts Commission suspended a judge without pay for 6 months for (1) submitting tax returns signed by an attorney as “paid tax preparer” when the attorney had not prepared the returns; (2) signing an attorney’s name as “paid tax preparer” to tax returns; (3) presiding over a case involving his wife’s daughter; (4) presiding over a case involving a friend; (5) failing to identify 1 creditor and 3 lawsuits in which he was the defendant on his financial disclosure statements; and (6) failing to appear when a civil case in which he was a defendant was scheduled for trial and personally asked the presiding judge for a continuance.  In re Kutrubis (Illinois Courts Commission August 30, 2002).
  • With his consent, the Indiana Commission on Judicial Qualifications publicly admonished a senior judge for rulings in 2 criminal cases based on facts outside the evidence or before the state had presented its evidence.  Public Admonition of Brewer (Indiana Commission on Judicial Qualifications August 22, 2002).
  • Adopting the findings and recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for, in violation of a statute, ordering a handgun seized from a minor forfeited to the court even after charges against the minor were dismissed.  Commission on Judicial Performance v. Lewis, 830 So. 2d 1138 (Mississippi 2002).
  • The Indiana Supreme Court approved an agreement between a judge and the Commission on Judicial Qualifications in which the judge resigned from office in return for dismissal of the Commission’s recommendation that he be removed for considering and granting an ex parte request for temporary custody of a child without giving prior notice to the child’s mother or following the procedural requirements for granting such a petition and issuing 2 orders to the county auditor ordering that the law firm representing him be paid out of the county general fund.  In the Matter of Kern, 774 N.E.2d 878 (Indiana 2002).

Private dispositions

The Michigan Judicial Tenure Commission recently disclosed its letter cautioning a judge about her treatment of a cancer patient who had been cited for failing to keep his property free of weeds, trees, or other nuisance vegetation, although it dismissed the complaint against the judge.  Letter to Krot (Michigan Judicial Tenure Commission July 5, 2022).  The letter is marked “personal and confidential,” and under the Commission’s rules, it ordinarily would not be public, but the Commission’s post includes her name because the judge waived her right to confidentiality “in recognition of the public interest in this incident,” which received extensive, national media coverage.  In the letter, the Commission notes that the judge had self-reported her conduct although she was not required to do so and had “candidly acknowledged that [her] tone and words . . . were neither dignified nor courteous and were completely inappropriate.” 

On January 10, 2022, Burhan Chowdhury appeared before the judge on Zoom in response to a ticket for a code violation; his son also appeared.  A picture shared on the screen showed overgrown vegetation around a garage in an alley.  During the hearing, Chowdhury told the judge that he had cancer, was very old and weak, and could not look after “these things.”  

The judge responded that Chowdhury should be ashamed of himself and that she would give him jail time if she could.  She fined him $100 and told him to get the area cleaned up, as its appearance was “totally inappropriate.”  When Chowdhury’s son asked if the fine was forgivable, explaining that his father had been ill and that the area had been cleaned prior to the hearing, the judge “asked whether he had seen the photo of the area, then stated in a raised voice that it was shameful and that the neighbors should not have to view it, adding that ‘if you come back here — with your yard looking like that, you’re going to jail.’”  The Commission noted that the “threat was particularly inappropriate, as a jail sentence is not an option for a civil infraction.” 

The Commission’s letter stated that the judge’s reaction may have been due in part to her disappointment that many local homeowners have neglected their property, her unusually heavy docket that day, and her frustration that the city’s lag in using screen share was slowing the day’s proceedings.  The Commission also acknowledged that the judge had learned that she had a significant health issue shortly before the hearing.

However, the Commission cautioned that “a judge cannot allow circumstances, such as those you faced when the Chowdhurys were before you, unduly to influence the way they treat litigants,” warning her “to adhere to the letter and spirit of these canons in the future . . . .”  The Commission explained to the judge:  “You deprived Mr. Chowdhury of his right to provide his explanation for the overgrown vegetation; whether intended by you or not, your interaction caused him humiliation; and you reacted with excessive anger toward an individual appearing before you for the first time, and doing so for a minor infraction.”

The Commission commended the judge for acknowledging her error, taking responsibility without attempting to excuse her conduct, and publicly apologizing, and accepted that her treatment of the Chowdhurys was not racist or otherwise biased.  Noting that she had an unblemished discipline history, the Commission stated that it was confident that her conduct at the hearing was an “aberration” and that there is “no risk of repetition” but informed the judge that it could consider the incident “in the event of future misconduct.”

* * *

If an investigation produces some evidence of misconduct, but the misconduct is relatively minor, most judicial conduct commissions can resolve a complaint about a judge with a private sanction or confidential informal disposition.  Depending on the state, private dispositions are called:

  • Private censures, reprimands, admonitions, or warnings;
  • Letters of admonition, counsel, caution, advice, or correction;
  • Dismissals with caution, admonition, explanation, concern, or warning; or
  • Orders of additional education, cease and desist orders, or adjustments.

Several judicial conduct commissions summarize their private dispositions in their annual reports.  The commissions with this practice include:  the California Commission on Judicial Performance, the Colorado Commission on Judicial Discipline, the Maryland Commission on Judicial Disabilities, the Massachusetts Commission on Judicial Conduct, the Michigan Judicial Tenure Commission, the Minnesota Board on Judicial Standards, the New Mexico Judicial Standards Commission, the New York State Commission on Judicial Conduct, the Pennsylvania Judicial Conduct Board, and the Utah Judicial Conduct Commission.  The California Commission explains that it provides synopses of private admonishments and advisory letters “to educate judges and the public, and to assist judges in avoiding inappropriate conduct;” it acknowledges that because “certain details of the cases have been omitted or obscured” to maintain confidentiality, the summaries are “less informative than they otherwise might be” but notes its belief that “it is better to describe the conduct in abbreviated form than to omit the summaries altogether.”  Summaries of private discipline since 1998 are available on the Commission’s website.

In addition, several commissions post on their websites redacted or abridged versions of their private dispositions when they are issued.  For example, as reflected on their websites, so far in 2022, the Texas State Commission on Judicial Conduct has issued private admonitions or warnings to and/or ordered additional education for 18 judges.  and the Arizona Commission on Judicial Conduct has dismissed with warning or advisory letters complaints against 8 judges filed in 2021.

Throwback Thursday

25 years ago this month:

  • Pursuant to the recommendation of the Commission on Judicial Performance, a special tribunal publicly censured a justice of the Mississippi Supreme Court who had entered a nolo contendere plea to the charge of DUI, been fined $800, and sentenced to 48 hours in jail with the jail time suspended.  Commission on Judicial Performance v. McRae, 700 So. 2d 1331 (Mississippi 1997).

Reviews, blurbs, and prefaces

Advisory opinions on the issue allow a judge to write a book review but prohibit a judge from allowing excerpts from a positive review to be used to promote the book and from writing a blurb solely for marketing purposes.

For example, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, when the primary purpose “is to engage in educational discourse related to the law, the legal system, or the administration of justice,” a judicial officer “may review, critique, or comment on legal education books in a legal publication” and include their title in the review.  California Supreme Court Committee Advisory Opinion 2022-48. The opinion noted that the code “generally permits and encourages judges to engage in educational activities, particularly those concerning the law, the legal system, and the administration of justice” but also prohibits using judicial prestige to advance others’ interests.  To “harmoniz[e]” those provisions, it explained:

Discussions regarding legal education books or writings in legal publications, such as legal periodicals or newsletters, have important educational value and contribute to the improvement of the law and legal system. . . .  While the committee agrees that judges may not promote others’ written works, review or critique of legal works is an educational exercise and consistent with the canons.  Although a positive review or discussion may incidentally lead to increased sales, the primary purpose of such discussions is educational rather than promotional.

The opinion cautioned that the substance of the review “must otherwise comply with the canons; for example, the judicial officer must not engage in improper political commentary or undermine the integrity or impartiality of the judiciary.”

Moreover, the committee advised that a judicial officer who has not contributed to a book may not provide a written endorsement that includes their title to be used on the book cover because the primary purpose of such an endorsement is to allow the publisher to “leverage” the judicial title to market the publication.  It explained:

Authors and publishers typically seek written endorsements from high-profile or prestigious individuals, sometimes called “book blurbs,” for the placement on a book cover to market and promote the book for sale.  An endorsement from a well-known judge, for example, might suggest to would-be readers that a law-related book is particularly interesting or useful, leading to increased sales.  When a judicial officer has not authored, co-authored, or contributed to the book, the primary purpose of such an endorsement is not to identify a contributor by judicial title or engage in an educational exercise, but rather to use the endorsing judicial officer’s title to promote sales.

Other opinions reflect a similar distinction.

  • A judge may write a review of a book about an historical event for a legal periodical as an academic exercise and not for commercial purposes but may not for marketing purposes write a testimonial regarding the value of a bar publication or write commentary to be included on a book jacket.  California Judges Association Advisory Opinion 65 (2012).
  • A judge may not write a testimonial/endorsement for a legal practice guide published by a non-profit, bar-related legal organization.  Connecticut Informal Advisory Opinion 2010-35.
  • A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective to be included in the book and potentially used in advertisements.  Florida Advisory Opinion 2021-17.
  • A judge may not write an appraisal intended to promote the sales of a book but may write a book review in a journal or newspaper intended “to inform the legal community or the general public of a new contribution to the legal or general literature,” even if the publisher uses excerpts from the review to promote sales and even if the newspaper or journal compensates the judge for the review.  Illinois Advisory Opinion 1994-15.
  • A judge may write book reviews for compensation for an out-of-state newspaper when they were asked because of their prior journalism experience, not because they are currently a judge, and they would not be identified as a judge in the reviews.  Kansas Advisory Opinion 186 (2020).
  • A judge may write a review of several books on methamphetamine addiction.  Nevada Advisory Opinion JE2008-8.
  • A judge may review a legal textbook and retain the reviewed book in their personal library.  New York Advisory Opinion 2021-117.
  • A judge may write and post a review of a friend’s novel online without mentioning their judicial position provided the purpose is not to promote the book’s sale and the judge does authorize use of the review on the book jacket or elsewhere to promote sales.  New York Advisory Opinion 2020-85.
  • A judge may not provide an endorsement of a friend’s non-fiction book that would appear on the cover and identify them as a New York judge even if their name is not used.  New York Advisory Opinion 2012-26.
  • A judge may not provide a quote to be included on the inside leaf of a book a friend has written about auditing fraud even if their title will not be mentioned and the only compensation is a complimentary copy of the book.  New York Advisory Opinion 2011-54.
  • A judge may submit to the New York Law Journal a review of a book authored by a clergy member at their house of worship but should not permit the author or publisher to use any portion of the review to promote the book’s sale.  New York Advisory Opinion 2006-114.
  • A judge may write a review of a novel for a local legal newspaper but should not permit the author or publisher to use part of the review to promote the book’s sale and should inform the newspaper, in writing, that the review is being provided on the understanding that no portion can be used for promotions.  New York Advisory Opinion 2005-28.
  • A judge may review a legal publication but should not prepare a testimonial that would be included in a marketing brochure or provide a quote about a book for the book jacket.  New York Advisory Opinion 1997-133.
  • A judge may not author a quote about a book involving legal issues solely for use on the book jacket but may write a book review for publication in the New York Law Journal or elsewhere.  New York Advisory Opinion 1993-14.
  • A judge may not write a review of a book on a legal subject when the publisher has stated that it will use some of the judge’s comments to promote sales.  Pennsylvania Informal Advisory Opinion 11/4/03.
  • A judge may write a letter on judicial letterhead at the request of a for-profit publisher to be included in a booklet about substance abuse as long as it cannot be interpreted as an endorsement of the booklet and does not impact the appearance of the judge’s impartiality in the trial of related matters.  Texas Advisory Opinion 192 (1996).
  • A judge may write book reviews that are “bona fide contributions addressing the substance” of the book and that do not “exploit or detract from the dignity of the office” but “should undertake reasonable efforts to guard against the subsequent use” of a review in promotional materials that may exploit the prestige of the office.  U.S. Advisory Opinion 114 (2014).

Prefaces

With some caveats, judicial ethics advisory committees allow judges to write forewords, prologues, or prefaces for books if they will not receive compensation.

In giving that permission, several committees remind judges to retain editorial control over the content of what they write and the right to review any biographical information used.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. For example, the Maryland committee advised that a judge who is writing an introduction to a book should take reasonable steps to ensure that the publisher does not exploit the prestige of their judicial office in marketing of the book, explaining that, in the context of a book published by a non-profit entity such as a bar association, the judge should ask “the publisher to consult with the [judge] before mentioning [their] name or position in any marketing efforts.”  Maryland Advisory Opinion Request 1980-7.

Some of the opinions warn the judge that a foreword they write should not identify them as a judge.  See Florida Advisory Opinion 2020-11.  Some note that the judge did not plan to identify their judicial status in the foreword, suggesting the answer may be different if the preface refers to their office.  See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11.  Other opinions do not address the issue.

Some opinions remind the judge to review the entire book and determine whether authoring a foreword will cast doubt on their impartiality or reflect a predisposition regarding particular cases, issues, parties, or witnesses.  Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11See also Ohio Advisory Opinion 1987-8.  Similarly, the Massachusetts committee advised that a judge should be careful to ensure that nothing they write in the foreword or any way they associate themself with anything the author writes casts doubts on their capacity to make impartial decisions.  Massachusetts Advisory Opinion 1993-2.

The opinions state:

  • A judge may author a foreword to a book written by a police officer on child safety and the Internet but, if the author appears as a party or witness before the judge or the judge presides over a case about the subject of the book, the judge should disclose the connection and consider recusal at a party’s request based on “the nature of the proceeding or docket, whether reference to or reliance upon the book is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.”  Connecticut Advisory Opinion 2010-15.
  • A judge may write the foreword to a self-published memoir written by a family member.  Florida Advisory Opinion 2020-11.
  • A judge may write the preface to a book about the history of the county.  Florida Advisory Opinion 1977-5.
  • A judge may provide an introduction to a book on a specific area of state law published by the Maryland State Bar Association as part of its continuing legal education program, but different considerations may apply to works published by for-profit entities.  Maryland Advisory Opinion Request 2013-26.
  • A judge may write an introduction recommending a book about the prevention and treatment of alcoholism to judges and other professionals.  Maryland Advisory Opinion Request 1980-7.
  • A probate and family court judge may write a foreword for a book on divorce.  Massachusetts Advisory Opinion 1993-2.
  • A judge may write a foreword for a book on the bicentennial of the U.S. Constitution.  Ohio Advisory Opinion 1987–8.
  • A judge may write forewords for books that are “bona fide contributions addressing the substance of the book” but should make reasonable efforts to prohibit its use in promotional materials.  U.S. Advisory Opinion 114 (2014).

The only outlier is a New York advisory opinion stating that a judge should not write a foreword to a law book dealing with the court over which the judge presides when the book is a commercial publication intended to earn a profit for the publisher and author.  New York Advisory Opinion 1997-1.  The committee reasoned:

[T]here is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author.  For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval.  Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.

Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer.

Throwback Thursday

5 years ago this month:

  • Based on a stipulation for discipline by consent and the judge’s agreement to tender his irrevocable resignation from office and not seek or hold judicial office in any court in the state, the California Commission on Judicial Performance publicly censured a judge for taking 2 business cardholders from a club.  Inquiry Concerning Williams, Decision and order (California Commission on Judicial Performance July 17, 2017).
  • Based on a settlement agreement and stipulations, the Michigan Supreme Court suspended a judge for 6 months without pay and publicly censured him for sexually harassing his judicial secretary.  In re Iddings, 897 N.W.2d 169 (Michigan 2017).
  • The Michigan Supreme Court suspended a judge for 9 months without pay for interfering with a police investigation at the scene of an accident involving his intern, interfering with the prosecution of the intern, and making an intentional misrepresentation to the Commission.  In re Simpson, 902 N.W.2d 383 (Michigan 2017).
  • The Michigan Supreme Court publicly censured a judge for directing insulting, demeaning, and humiliating comments and gestures to 3 children during a contempt proceeding.  In re Gorcyca, 902 N.W.2d 828 (Michigan 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for delay issuing decisions in 3 cases.  In re Rawson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 5, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for signing an order that improperly allowed a law school graduate who was not licensed in the state to practice in his court.  In the Matter of O’Briant, Amended public admonishment (West Virginia Judicial Investigation Commission July 5, 2017).

A sampling of recent judicial ethics advisory opinions

  • A judge who has applied for and/or is negotiating for post-judicial employment must disqualify from any matter in which the prospective employer appears; that disqualification cannot be waived.  A judge should not negotiate with a potential employer if such negotiations would lead to frequent disqualification.  If a negotiation does not result in employment, the judge should continue to recuse for a reasonable period, the length of which will depend on whether the judge developed a personal bias or prejudice during the negotiations and on factors such as how long the negotiations took, the notoriety of the negotiations, and whether the break-off of the negotiations was amicable.  Arizona Opinion 2022-1.
  • A judge who previously served on a town’s zoning board is disqualified from all matters that were pending before the board during their tenure but may preside over other matters involving the board.  New York Opinion 2022-51.
  • A judge is not disqualified because an attorney in a matter is their neighbor and had, in that capacity, supported a non-controversial residential zoning variance sought by the judge.  New York Opinion 2022-42.
  • A presiding judge may participate in an informal task force that will look at issues of racial bias in their community if their involvement can be limited to matters regarding the court system and the administration of justice and if the task force initiatives will not involve judicial proceedings that would ordinarily come before the court.  A family law commissioner may participate in a domestic violence task force created by the court that includes the district attorney’s office, the public defender’s office, county counsel, probation, and local law enforcement agencies.  A judge may serve on the executive committee of a city task force about reducing youth and gang violence that has members from a large cross-section of the community, including community leaders, educators, health workers, law enforcement, and youth programs.  A judge may serve on a mayor’s gang task force that will allow all of the stakeholders in the criminal justice system, including law enforcement, prosecutors, members of the defense bar, the probation department and representatives from community-based gang intervention programs, to exchange ideas and offer suggestions.  A judge may not serve on a mayor’s gang task force if it is oriented to intervention, prevention, and enforcement and is made up of political representatives, representatives from the district attorney’s office, the police department, schools, and other community leaders but does not include members of the defense bar.  A judge who has a criminal law assignment may not join a state task force called the “Sober Driving Coalition” comprised of members of the highway patrol, local law enforcement, and probation.  California Judges Association Formal Opinion 80 (2022).
  • An administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief supporting the court system’s legislative agenda.  New York Opinion 2022-37.
  • In a letter on judicial stationery, a judge may ask the county clerk to authenticate any lien/judgment against the judge prior to recording it because a self-identified “sovereign citizen” is apparently retaliating against the judge.  New York Opinion 2022-46.
  • A judicial officer may review legal education books in a legal publication when the primary purpose is educational discourse related to the law, the legal system, or the administration of justice.  A judicial officer may not provide an endorsement referencing their title to be used on the cover of a book written by others because the primary purpose of such an endorsement is to market or promote the book.  California Opinion 2022-48.
  • A judicial official may write an occasional column for an online newspaper to educate the public on how the legal system works, how judges make decisions, and the law generally if the content will be apolitical and uncontroversial and the paper is not-for-profit and non-partisan.  Connecticut Informal Opinion 2022-04.
  • A judicial officer may be a member of a judicial organization that has resolved not to hold conferences and other activities in states that discriminate against members of the LGBTQ+ community and may remain a member of a national organization that does not discriminate against members of the LGBTQ+ community but that conducts conferences in states that have enacted laws that discriminate.  California Judges Association Formal Opinion 79 (2022).
  • A judge may serve as a trustee for a public community college if they volunteered or were appointed as a trustee, but they may not run for the office even if the position is apolitical or nonpartisan.  Colorado Opinion 2022-3.
  • A judge may chair the board of directors of a local YMCA, and their name and position may be listed with other board members on the organization’s website and fund-raising invitations, unless the formatting creates the impression that the directors, collectively and/or individually, are personally soliciting funds.  New York Opinion 2022-25.
  • A judge may serve as master of ceremonies at a retirement picnic for the minister of their house of worship if the event is not a fund-raiser even if the congregants organizing the event hope to defray the costs by, for example, asking for donations online and/or at the function and selling advertisements for a program that will be distributed at the picnic.  New York Opinion 2022-57.
  • A judge may not perform in a rock band’s annual benefit concert even if their name and judicial status will be omitted from advertisements and may not sell concert tickets to friends, but may sell to family members.  New York Opinion 2022-79.
  • Subject to generally applicable limitations on judicial speech and conduct, a judge may speak at a free community celebration of Pride month if the event is not a fund-raiser and may permit the organization to use the judge’s photo and title in social media promotions.  New York Opinion 2022-75.

Throwback Thursday

10 years ago this month:

  • Adopting the findings and conclusions of the Commission on Judicial Conduct and affirming the recommended sanction, the Arizona Supreme Court removed a justice of the peace from office for asking the court manager to move his vehicle to avoid a process server attempting to serve him with an order of protection, continuing to hear cases involving such orders, invoking his position repeatedly with law enforcement authorities, and sending threatening texts to his wife; the Court also ordered that the judge shall not hold judicial office or perform judicial functions in Arizona for at least 5 years.  In the Matter of Woolbright, Order (Arizona Supreme Court July 23, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge because he failed to resolve issues on his website about advertisements for weddings services despite receiving an informal sanction.  Jayne, Order (Arizona Commission on Judicial Conduct July 9, 2012).
  • Pursuant to a stipulation, the California Commission on Judicial Performance publicly censured a judge for seeking preferential treatment from a commissioner of his court for a traffic citation issued to his wife.  Inquiry Concerning Sarmiento, Decision and Order (California Commission on Judicial Performance July 5, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for ordering an attorney he had said was contemptuous to remain in the courtroom for over an hour and a half without adjudicating the alleged contempt and for ordering the attorney to “spend every waking moment” working on the case until the preliminary hearing to the exclusion of other cases and social activity.  Public Admonishment of Jacobson (California Commission on Judicial Performance July 11, 2012).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for driving under the influence and crashing the vehicle she was driving.  Inquiry Concerning Nelson, 95 So. 3d 122 (Florida 2012).
  • With the judge’s consent, in lieu of filing formal disciplinary proceedings, the Indiana Commission on Judicial Qualifications publicly admonished a judge for granting an ex parte motion for custody filed by a child’s maternal grandparents without prior notice to the non-custodial father or an opportunity for him to be heard.  Public Admonition of Johnston (Indiana Commission on Judicial Qualifications July 5, 2012).
  • The Kentucky Supreme Court affirmed the Judicial Conduct Commission’s removal of a judge for (1) advocating at a county meeting that $500,000 donated by criminal defendants under a plea agreement be used to fund a water park; (2) making misstatements in an order; (3) establishing a special grand jury to discredit the judge-executive; (4) viewing videotapes regarding the sheriff’s investigation of the judge-executive; (5) presiding over 2 criminal cases that he had urged the state police to investigate and the commonwealth’s attorney to pursue; (6) urging Kentucky Utilities to donate $12,500 for playground equipment at his children’s elementary school; (7) raising funds for playground equipment for his children’s school; and (8) removing an assistant public defender as counsel in cases without giving her an opportunity to be heard.  Alred v. Judicial Conduct Commission, 395 S.W.3d 417 (Kentucky 2012).
  • Affirming the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge from office for (1) inappropriate financial transactions and practices, including misappropriating public funds; (2) failing to ensure that a business-attire policy was properly enforced and did not deny people access to the court; (3) knowingly rehiring an unqualified magistrate, misrepresenting that he was qualified, and requiring him to sign bench warrants, contrary to statute; (4) hiring her niece; and (5) making misrepresentations during the investigation and hearing, including lying under oath.  In re James, 821 N.W.2d 144 (Michigan 2012).
  • Adopting the recommendation of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court suspended a judge for 4 months without pay for attending a holiday party hosted by the probation association and, while at the party, touching women and making sexually suggestive remarks to them; as a prerequisite to the resumption of his duties, the Court ordered the judge to participate in a rehabilitative program.  In the Matter of Jones, 47 A.3d 736 (New Jersey 2012).
  • The Pennsylvania Court of Judicial Discipline removed a former judge and barred him from serving in judicial office after finding that he had committed conduct prejudicial to the administration of justice and conduct that brought the judicial office into disrepute when he took sexual liberties with 2 women appearing in his courtroom.  In re Cioppa, 51 A.3d 923 (Pennsylvania Court of Judicial Discipline 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for denying a motion to recuse in an order that recited facts that he should not have considered and that accused the moving attorneys of misconduct.  Re Gasaway (Tennessee Court of the Judiciary July 2, 2012).