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November 06, 2020 Feature

Ethics for Former Judges

By Marla N. Greenstein

As the articles in this issue attest, moving beyond your self-identity as a judge is a challenge and an opportunity. However, no matter how successful a former judge will be at leaving the “judge” in the past, to others, a judge is always a judge.

Whether walking into a local restaurant or attending a community event, former judges will continue to be addressed as “judge.” Judges will be hired for jobs not only for their judicial experience, but also for the positive “label” that having a former judge on payroll will bring. There are ethics implications for this continuing identification.

The most direct and tangible ethical issue is continued use of the judicial title for business or financial endeavors or in the practice of law. Many states give guidance through ethics opinions on this issue. In Arizona, a retired judge may not advertise for mediation or arbitration services using the “judge” title, even if modified with “former” or “retired.” AZ Adv. Op. 2016-2. Variations of this restriction exist in several states. Some allow the use of “former” or “retired” if not in conjunction with a financial or business purpose; others allow the modifier without restriction. It is understood that use of “judge” without the modifier of “former” or “retired” is an abuse of the prestige of judicial office and creates public confusion as to the role of the arbitrator/mediator. WA Adv. Op. 2002-17.

Continued use of the judicial title while practicing law is the issue addressed in advisory opinions most frequently. All agree that a former judge who is now a practicing lawyer should not use the judicial title in any manner professionally and should actively discourage others from doing so. The American Bar Association noted in its 1995 Formal Advisory Opinion that the only reason a former judge would use the judicial title in the practice of law would be to create an appearance of an unfair advantage or expectations of an enhanced outcome. ABA Formal Adv. Op. 95-391. Federal judges are also warned that former judges appearing before them are not to be called “judge” in their courtroom or in pleadings. U.S. Adv. Op. 72 (2009).

Some judges retire fully to free themselves to engage in the political arena. In fact, former judges are likely the most effective speakers and activists on issues of justice, fairness, and protecting judicial independence from outside influence. Here too, however, former judges have an obligation to clarify their new role and not sow confusion. Former judges have effectively lobbied for sentencing reform, noting the unfairness of mandatory minimum sentences, for example. Their efforts have been successful in no small part due to their “former judge” status. However, extra care is required when former judges seek political office or are visible in causes unrelated to the justice system. For example, when a former judge in California ran for state attorney general while a sitting judge, he was disciplined, in part, for his campaign’s use of his judicial office in that campaign. Inquiry Concerning Former Judge Steven C. Bailey, 6 Cal. 5th CJP Supp. 24 (2019). The same ethical concerns extend to former judges who use their judicial office in political campaigns (though likely not subject any longer to judicial discipline). Confusion of roles can harm the judiciary. As the California opinion noted, using the judicial title and office in a political campaign for an elected office in another branch of government “is fundamentally inconsistent with the independence, impartiality and integrity of the judiciary, and is prejudicial to public esteem for the judicial office.”

“Former judge” will stay with you in most public life arenas. While the Code of Judicial Conduct may not govern your speech and actions as a former judge, it should still guide them. The public will forever view you as a living representative of the judicial system.

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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 [email protected].