May 01, 2018 Ethics Column

Maintaining Connections with Lawyers

By Marla N. Greenstein

The ethical judge scrupulously complies with the American Bar Association’s Model Code of Judicial Conduct provisions against ex parte communications and avoids all social interactions that could give rise to an appearance of favoritism. Judges cannot be members of a specialized bar and must avoid public functions that are political or are sponsored by those likely to come before the court. Judges in small communities often cross the street to avoid encounters with those currently appearing in front of them and avoid the usual casual conversations while in line at the grocery store. Formerly active members of the legal community, sitting judges reluctantly review social invitations by lawyers against the current court calendar to avoid any appearance of impropriety. We have successfully created boundaries between the practitioner and the judge to create the impartial distance that the public expects.

But the ethical requirements to maintain connections to lawyers and the legal community are equally strong and are often given lower priority by judges. So while a judge “should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens,”1 “judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.”2 To emphasize the last responsibility, Comment (1) to Rule 3.1 emphatically states that “judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justices, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal, or civic extrajudicial activities . . . even when the activities do not involve the law.” Fearing an unnatural distance between judges and the people they serve, Comment (2) to Rule 3.1 strongly states that “participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.”

Recent state judicial ethics advisory opinions have lent support to some individual efforts. In Florida, a judge can be part of a legal aid organization’s hosting committee and listed as a member for the organization’s fund-raising event. “Because its primary purpose is to educate lawyers to provide better pro bono representation,” the organization fit the Code’s definition of a law-related organization that allowed limited fund-raising efforts by judges.3 And in New York, a judge could participate in his role as a local ethnic bar association president to meet with the new district attorney’s transition team to discuss, among other issues, increasing diversity at the DA’s office and reducing apparent racial disparities in arrests. With cautions about the scope of comments that will be appropriate for the judge, the opinion generally allows a scope of conversation that will improve the administration of justice.4

An ethical judge must comport not only with the requirements of the express Code provisions themselves, but with the aspirational standards expressed in the various comments to those provisions. Cautious creative efforts to engage lawyers will achieve both.

Endnotes

1. ABA Model Code of Judicial Conduct r. 1.2 cmt. (2).

2Id. r. 1.2 cmt. (4).

3. Fla. Judicial Ethics Advisory Comm., Op. 2018-05 (Feb. 26, 2018).

4. N.Y. Advisory Comm. on Judicial Ethics, Op. 17-179 (Dec. 7, 2017).

By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at mgreenstein@acjc.state.ak.us.