Advisory Opinions Support Judges in Walking the Ethical Path

Ideally, the language of the Code itself will provide that guidance. However, as with most codes, the application of the provisions is nuanced and often determined by the broader circumstances that may raise a potential ethical issue. Judicial discipline case law only outlines the egregious violations of the Code and provides limited insight into the everyday guidance that an average judge may need. For the larger questions that affect all judges, formal advisory opinions provide a rich resource for guidance. All but a very few states have entities that issue advisory opinions to guide judges, and advice for federal judges comes from the U.S. Judicial Conference. For those judges who do not have a state resource for ethics opinions, looking to other jurisdictions’ advice can be helpful. Judges also can see if the American Bar Association has addressed the question in one of its advisory opinions for judges issued through the Standing Committee on Ethics and Professional Responsibility.

Published ethics advisory opinions address a wide range of ethical issues that judges often face. A review of the index to these advisory opinions maintained by the National Center for State Courts suggests approximately 50 topics that these opinions can address. Typically, judges seek advice on when disclosure and disqualification are needed and which grounds may be waivable. Judges also often have questions about whether they can ethically serve on a particular community board or task force and related questions about how to limit participation so as not to conflict with their judicial duties. Where judges participate in judicial elections, there are often questions as to whether they can contribute to a fellow judge’s campaign or how to ethically structure their own campaign. And where judges must address attorney misconduct in cases before them, they often need guidance on how to address the misconduct without jeopardizing the fairness of the proceeding. My Commission has issued over 20 opinions addressing issues as diverse as “appropriate use of judicial letterhead” to “avoiding ethical issues in judicial settlement conferences.”

A less universal resource is the “informal” ethics advice that some of us are authorized to provide to our judges. By its nature, informal advice is not binding but can be useful in providing a judge with an immediate dilemma a structured way of analyzing the question. It is often difficult to determine in an isolated setting how best to respond to an inadvertent ex parte contact or the surprise witness who presents a conflict for the judge. For those judges who do not have an official judicial ethics expert who is permitted to address immediate questions, I encourage developing relationships with other judges who do have ethics expertise and can give objective, informed guidance.

Judges want to do the right thing in the right way. At times that may mean taking a step back, reviewing the applicable Code provisions, and reaching out to those who have the expertise and distance to guide the judge on the right path.