May 01, 2018

Off the Bench: Ethical Issues to Consider When Judges Interact with Attorneys and Others Outside the Courtroom

By Judge Margaret H. Downie (Ret.) and Chief Judge Samuel A. Thumma

The strength and independence of the judiciary are benefited greatly by many things, including the guidance and direction from a code of ethics. The American Bar Association’s Model Code of Judicial Conduct has provided such guidance and direction for many years. The Code furthers essential goals of the judiciary, including integrity, impartiality, competence, and diligence in the administration of justice. While providing guidance and direction for conduct in the courtroom, the Code also addresses how judicial officers may interact with individuals more broadly, outside of the courtroom.

This article focuses on direction in the Code for how justices and judges should interact with attorneys, parties, and others outside of the courtroom. After summarizing key applicable Code principles, the article applies those principles to four hypothetical scenarios. Those scenarios address gifts that are beyond ordinary social hospitality, efforts to encourage pro bono service, vouching for someone’s character, and participation in educational programs. The discussion is designed to help judicial officers, attorneys, and others to better understand the limitations imposed by the Code.

When interacting with individuals outside of the courtroom, judges should (1) act to minimize any risk of disqualification, (2) avoid any substantive discussion about a pending or impending case, (3) focus on the appearance of the contact, and (4) remember that money changes everything. If any of these efforts fail, the judicial officer should consider recusing, recognizing that being safe but sorry now is better than just being sorry later. Keeping these concepts in mind will help all involved—judicial officers, attorneys, and others—to determine what they can and cannot do and what issues and questions to raise in anticipating, avoiding, and evaluating potential conflicts that may arise.

Key Applicable Code Principles

For nearly a century, starting with the Canons of Judicial Ethics promulgated in 1924, the ABA has provided guidance for judicial ethics and regulation. The Model Code of Judicial Conduct, most recently amended in 2010, is the ABA’s most recent product doing so. As applicable to judicial officers interacting with others outside of the courtroom, the Code contains directives that, at times, are challenging to reconcile.

Under the Code, “[a] judge may engage in extrajudicial activities except as prohibited by law or this Code.”1 Related comments pointedly encourage judicial officers to be good citizens by engaging in appropriate extrajudicial activities of all kinds, including activities unrelated to the law:

To the extent that time permits, and judicial independence and impartiality are not compromised, 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 justice, 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 not conducted for profit, even when the activities do not involve the law.

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.2

By expressly encouraging judicial officers to be participatory members of the community, the Code negates any stereotype that ethical obligations require a judge to live as a hermit, or work in an ivory tower, or be isolated and not involved in the world outside of the courtroom. Instead, the Code recognizes that judges are public servants and are people and community members in the broadest sense.

There are, however, significant limits in the Code applicable to a judicial officer’s activities outside of the courtroom. As relevant here, three of the Code’s four canons highlight those restrictions:

  • Canon 1: “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
  • Canon 2: “A judge shall perform the duties of judicial office impartially, competently, and diligently.”
  • Canon 3: “A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”

Related rules reinforce these restrictions more specifically, including that

a judge shall not:

participate in activities that will interfere with the proper performance of the judge’s judicial duties;

participate in activities that will lead to frequent disqualification of the judge;

participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality; [or]

engage in conduct that would appear to a reasonable person to be coercive[.]3

A related comment notes that “[d]iscriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality.”4 The Code is littered with other specific restrictions necessary to ensure the canons have meaning, including limitations on accepting gifts5 and vouching for someone’s character,6 in statements on pending and impending cases,7 on not being swayed by external influences (or permitting the impression that others are in a position to influence the judge),8 and when disqualification is required.9

Noting and recognizing these conflicting directives are comparatively easy. Applying them to specific facts, however, is not.

Hypothetical Scenarios

The following scenarios focus on communications and activities of judicial officers outside of the courtroom. The analysis provided is based on the Code. No doubt, some state judicial conduct codes may have material variations. The focus here, however, is guidance provided by the Code; the article does not address specific ethics opinions from the ABA, state or local bar associations, or judicial conduct commission; judicial ethics codes; rules or guidelines that differ from the Code; or specific court decisions. The hypotheticals highlight the tension that can exist between the Code’s encouragement of community involvement and its admonition that judicial officers “should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.”10

Beyond Ordinary Social Hospitality

A judge and her spouse are dining at a local restaurant. An attorney who frequently appears in the judge’s court (though not always in her particular courtroom) sends over a bottle of wine as a gift. What is the appropriate response?

Judicial officers may accept “ordinary social hospitality,” as well as items of “little intrinsic value.”11 They, however, may not accept gifts or “other things of value” when doing so would “appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”12

It is neither possible nor desirable for judicial officers to avoid public locations where they might encounter lawyers or litigants. This hypothetical, though, involves a lawyer who frequently appears in the judge’s court, which raises a significant red flag. “Gifts or favors from a party or lawyer who is appearing or has appeared in the judge’s court are particularly troubling, and are likely to violate Rule 3.13(A), as well as the more general proscriptions against conduct that conveys the impression that a person or organization is in a position to influence the judge.”13

As applied to this hypothetical, based on Rule 3.13, the judge should politely decline the bottle of wine. And although exchanging brief pleasantries with the lawyer at the restaurant is not inherently problematic, the test for the appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the Code or would cause an objective observer to question the judge’s impartiality in proceedings involving the lawyer.14 So, for example, the judge should not sit down with the lawyer for an extended conversation, exchange photos of grandchildren or recent travels, or engage in extended dialogue that could suggest something more than a professional relationship.

Encouraging Pro Bono Service

At a quarterly meeting of the bar’s juvenile law section, a judge speaks about the need for pro bono counsel for children in dependency matters and asks the lawyers in attendance to consider donating time to that endeavor. Is that a problem?

Notably, this hypothetical does not involve a rule, administrative order, or other authority enabling judges to appoint attorneys to specific pro bono service. It instead addresses judicial solicitation of pro bono service that a lawyer has no legal obligation to accept.

The Code expressly permits judicial officers to “encourage lawyers to provide pro bono publico legal services.”15 A related comment even provides specific examples of appropriate encouragement, which “may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.”16

Although judges may encourage participation in pro bono work, they must be careful not to exert pressure or place attorneys in the awkward position of having to decline a direct request. The same comment makes plain that encouragement must stop short of coercion, cautioning that judicial officers may encourage pro bono work “if in doing so the judge does not employ coercion, or abuse the prestige of judicial office.”17 In this respect, the ethical obligations are akin to those applicable to settlement activities, where a judicial officer “may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.”18

When interacting with others outside the courtroom, judicial officers often underestimate the effect their position of authority still carries—especially when it comes to lawyers who appear before them. So, although the Code does not expressly prohibit one-on-one “encouragement” of pro bono service, judges should be mindful of the potential for unintended coercion in such a setting and should approach the conversation in a manner that allows for a respectful “decline” of the invitation to participate.

Encouraging pro bono representation on behalf of a specific organization or party raises additional ethical implications. Such encouragement could suggest to a disinterested observer that the judicial officer somehow favors that organization or party or that the entity or party enjoys special status within the judiciary. That, in turn, could run afoul of the Code’s directive that judicial officers are to promote confidence in the judiciary, requiring that “[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”19

Vouching for Another’s Character

A judge has been friends with a local lawyer since their law school days. During a rough period in the lawyer’s life, he committed ethical violations that resulted in his suspension from the practice of law for two years. Five years later, he has undertaken extensive rehabilitation efforts and the judge believes he has turned the corner and should be permitted to practice again. May the judge write a letter or appear as a witness at the upcoming reinstatement proceedings?

A judge “shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.”20 The rationale for this prohibition is that serving as a character witness lends the prestige of judicial office to advance the interests of another.21

The Code was amended in 2007 to make clear that testifying under oath is not “the only mode in which judges might abuse the prestige of office when the character of a person is in issue in a legal proceeding.”22 Offering an affidavit or unsworn letter vouching for another’s character is equally problematic under the rule.

Although being “duly summoned” is an exception to the outright ban, a summons is appropriate only in “unusual circumstances where the demands of justice require.”23 Judicial officers generally are required to “discourage a party from requiring the judge to testify as a character witness.”24 The Code rejects the option of a so-called friendly subpoena, noting that “it has always been understood that judges should not encourage a party to issue a sham subpoena for what is in fact voluntary testimony.”25

In the hypothetical posed, it is difficult to envision a pathway for the judge’s participation in the reinstatement proceedings. A subpoena would clearly be required. But unless the judge is the only source of information about the lawyer’s character, it is doubtful whether this would qualify as an unusual circumstance where the demands of justice required the judge’s participation.

Attending and Speaking at Educational Programs

A judge serving on a large, general-jurisdiction trial court receives two invitations. The first is to attend a free, one-day, out-of-state seminar on “tort reform.” The second invitation is from the local sheriff, who asks the judge to participate in a training program designed to improve deputies’ performance in authoring search warrant affidavits and testifying in court. Are there ethical impediments to accepting these invitations?

Judicial officers are expected (and usually required) to pursue continuing education. Attending a program is not ethically problematic simply because it will address controversial social and legal issues. A judicial officer, though, should be wary about attending programs that present a one-sided, partisan view of issues likely to come before him or her, as well as programs presented by entities or individuals who appear in the judge’s court. The Code requires judicial officers to act “at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”26 They also must avoid conveying “the impression that any person or organization is in a position to influence the judge.”27

There are myriad factors a judicial officer should consider in deciding whether to attend a particular educational program, including (1) whether the presenters and program sponsors are involved in litigation or likely to become involved in litigation in the judge’s court; (2) the funding sources for the program; (3) whether the program will include opposing views; and (4) whether the invitation is extended to a broad class of judges (e.g., all state court appellate judges), as opposed to targeting select judges for attendance. Even when appropriate to attend a program, judicial officers must consider whether recusal or disclosure is later required in matters involving program participants or sponsors, recognizing disqualification is required “in any proceeding in which the judge’s impartiality might reasonably be questioned.”28

Turning to the invitation from the local sheriff, it is not generally appropriate for a judicial officer to teach deputies how to be more successful or effective in court, lest they be perceived as advocates for law enforcement. A disinterested observer reasonably could question the impartiality of a judicial officer presiding over a suppression hearing who has just recently taught sheriff’s deputies how to prepare search warrant affidavits. An appearance of bias could similarly exist if the judicial officer in a criminal trial recently participated in mock trials at the local public defender’s office, offering critique and tips about how defense lawyers can be more effective in court. If a judicial officer wishes to speak about such matters, the best practice is to ensure that attendance is open to all interested parties.

Conclusion

The American Bar Association’s Model Code of Judicial Conduct provides good and helpful guidance and direction for judicial officers. As it applies to ethical issues when judicial officers interact with attorneys and others outside of the courtroom, however, the Code provides conflicting directives that are not particularly easy to reconcile. Recognizing the Code encourages judicial officers to be active members of the public, in the broadest possible sense, in addressing a judicial officer’s interaction with attorneys and others outside of the courtroom, the Code (1) requires that a judge’s primary focus is hearing and deciding cases, (2) prohibits any substantive discussion about a pending case in an extrajudicial context, (3) focuses on the appearance of the interaction, and (4) means that money changes everything. Unless these directives are met, the Code provides that judicial disqualification may be required. Keeping these concepts in mind will help all involved—judicial officers, attorneys, and others—to determine what they can and cannot do and what issues and questions to raise in anticipating, avoiding, and evaluating potential conflicts that may arise. 

The views expressed are solely those of the authors and do not represent those of the commission or court on which they serve.

Endnotes

1. ABA Model Code of Judicial Conduct r. 3.1.

2. Id. r. 3.1 cmts. (1) & (2) (citation omitted).

3. Id. r. 3.1(A)–(D) (emphasis added). Other portions of the Code provide additional detail and guidance for these.

4. Id. r. 3.1 cmt. (3).

5. Id. r. 3.13.

6. Id. r. 3.3.

7. See generally id. r. 2.10.

8. Id. r. 2.4.

9. Id. r. 2.11.

10. Id. r. 1.2 cmt. (2).

11. Id. r. 3.13(B)(3), (1).

12. Id. r. 3.13(A).

13. Annotated Model Code of Judicial Conduct at 422 (Am. Bar. Ass’n, 2d ed. 2011).

14. Model Code of Judicial Conduct r. 1.2 cmt. (5).

15. Id. r. 3.7(B).

16. Id. r. 3.7 cmt. (5).

17. Id.

18. Id. r. 2.6(B).

19. Id. r. 1.2.

20. Id. r. 3.3.

21. See id. r. 3.3 cmt. (1).

22. Annotated Model Code of Judicial Conduct, supra note 13, at 352–53.

23. Model Code of Judicial Conduct r. 3.3 & cmt. (1).

24. Id. r. 3.3 cmt. (1).

25. Annotated Model Code of Judicial Conduct, supra note 13, at 353.

26. Model Code of Judicial Conduct r. 1.2.

27. Id. r. 2.4(C).

28. Id. r. 2.11(A).

Margaret H. Downie

Margaret H. Downie is the executive director of the Arizona Commission on Judicial Conduct, having previously served as a judge on the Arizona Court of Appeals, Division One; as a judge and a commissioner on the Arizona Superior Court in Maricopa County; and as chief bar counsel for the State Bar of Arizona.

Chief Judge Samuel A. Thumma

Samuel A. Thumma has served on the Arizona Court of Appeals since 2012 and previously served as a judge on the Arizona Superior Court in Maricopa County for nearly five years.