January 01, 2017 Judicial Ethics

A Day in the Life of a Judicial Ethics Counsel

By Marla N. Greenstein

Like many of the judges’ narratives in this issue, there is no single “typical” day for those of us who staff judicial conduct commissions. Our Commission’s rules allow me to provide informal ethics advice to judges in addition to my obligation to investigate complaints of ethical misconduct. The following is from one day in late February.

Arriving at work and reviewing emails with a cup of coffee in hand reveals two emails from newly appointed judges. The first asks about addressing conflicts with cases currently pending in the law office. The second asks about whether a family social relationship with a lawyer in the community would create a conflict. Reference to the statute governing judicial disqualification answers the first question. A follow-up phone call to the new judge in the second reveals that the relationship is limited and should not affect the ability of that lawyer to appear before the judge.

A state legislator had some follow-up questions regarding the Commission’s trends in caseload after a budget hearing. Follow-up emails provided the needed information and described the difficulty in predicting the nature of any given complaint that may come to the Commission in the next year. The Commission’s annual report on our website provides all case processing statistics.

Reviewing the incoming mail, there are three complaint letters asserting misconduct by a state court judge. Two of the three letters concern child custody matters where the complainants believe the judge was biased against them. The third complaint letter asserts that the judge in a criminal matter did not allow the complainant to provide all the testimony that was required. I make notes on all and quickly modify our draft “nonjurisdictional” letters informing the complainants that while they may view the judge as having made wrong decisions, they do not establish facts that can be shown to be misconduct. Judicial decisions cannot, alone, be the basis for judicial discipline.

A sitting judge calls and asks whether he can speak at a lunch of a specialized bar association. We discuss the nature of the event and determine that the event is fine as long as the judge is equally available to other groups that may represent other parties.

As part of a complaint investigation, the morning mail also included an audio CD of a court hearing. Later in the day, I have time to review the audio and related court documents. While the judge did use the words that the complainant heard as inappropriate, in the context of the proceeding the word choice was not problematic. It is a definite asset that our courts audio record all court proceedings. This complaint, like many others, illustrates the nuances of tone that complete determining meaning in oral communications.

We need to finalize the materials for our upcoming quarterly Commission meeting, and I spend the remainder of the day reviewing the scanned complaint files and adjusting the meeting agenda. Letters have previously gone out to those whose complaints will be addressed, explaining in general terms the staff recommendations on each. Complaints addressed at the meeting will be designated as “recommended for dismissal” or “requires Commission direction.” Audio recordings of court proceedings are included in our electronic meeting packets.

While my day did not reveal any scandal or ethical lapse by a judge, in small ways I was able to help a few judges proceed with plans with ease and confidence and explain a bit more about the courts and how they work to dissatisfied litigants. Not every day presents a monumental challenge, but every day does present an opportunity to increase confidence in the state judiciary in some way.