Transparency, Ethics, and the Judiciary

The AJEI Summit in Boston in November 2024 included a panel discussion entitled, “Can’t Take My Eyes Off of You: Transparency, Ethics & the Judiciary.” The Honorable Robert (“Bob”) Edmunds, retired associate justice of the Supreme Court of North Carolina and now co[1]unsel with Fox Rothschild LLP in Greensboro, moderated the panel. The two panelists were Carolyn Dubay, Deputy Judicial Integrity Officer at the Office of Judicial Integrity in the Administrative Office of the United States Courts, and Robert Tembeckjian, Administrator & Counsel at the New York State Commission on Judicial Conduct.

To facilitate panel discussion, before Justice Edmunds posed a question to the two panelists, he would first pose the same question to the audience. The audience was given “yes" or "no” answers to choose on their phones. (In other words, the AJEI Summit encouraged the use of phones in a room full of judges who usually preside over courtrooms with strict “no phone” policies.) The audience was consistent: On the questions, typically 90% or more of the AJEI Summit attendees chose the same answers. Moreover, the audience was good at choosing the “right” answers. As such, the panel discussion centered less on what the right answers were but rather why these were the right answers. In explaining the “why” here, the panelists also explained some of the practical challenges faced in the field of judicial ethics.

A key take-away from the panel discussion was that, even if the underlying principles are the same, the ethical analysis of a situation facing appellate judges may place a different weight on the relevant factors than in an analysis of the same situation facing trial judges. That is because there are fewer appellate judges than trial judges. For example, the first question put to the audience concerned the past experience of an appellate judge before taking the bench. If, while in private practice, the future judge, acting as an attorney, had challenged the constitutionality of a statute and had lost the case, what should the now judge do when, in a new and different case involving different parties, the constitutionality of the same statute comes before her on the appellate bench?

The question put to the audience was whether or not the judge “must recuse” in this situation. Using their phones, 93% of AJEI Summit attendees answered “no.” Justice Edmunds explained why the audience’s answer was “right” here: If, while on the appellate bench, he had had to recuse himself every time an issue came up that he had previously litigated while in private practice, he would never have had to go to work. Appellate judges are elected (or selected, depending on the jurisdiction) to hear cases. Therefore, an appellate judge has a duty to sit on a panel and hear cases whenever he or she is able.

There can be situations where a judge “may recuse” and situations where a judge “must recuse.” For appellate judges, however, the analysis usually weighs in favor of hearing cases, except for those true “must recuse” situations.

Mr. Tembeckjian lamented that, in our current political climate, positions that a lawyer argues for while representing clients in private practice can now be held against the lawyer if he or she seeks a judicial office. The current political climate poses a problem because, as Ms. Dubay added, lawyers in private practice have a duty to zealously advocate for their clients.

One insight provided by the panel concerned how complaints of judicial misconduct are processed. For example, the question was asked if an appellate judge should recuse herself from a case in which a litigant had filed a complaint of judicial misconduct against the judge. The answer was “no,” except when actual misconduct relating to the litigant was found. This “no” answer stems, in part, from that fact that, in many jurisdictions, a judge will never know if a complaint has been filed against him or her. In this regard, judicial misconduct complaints can be like grand jury proceedings: the process is confidential unless and until the indictment comes out. As Justice Edmunds noted, judges can go through their entire careers on the bench without ever knowing if any (much less how many) judicial misconduct complaints have been filed against them.

This led to an obvious question: In jurisdictions where judges must stand for election, why shouldn’t the electorate know about judicial misconduct complaints? For example, in an election campaign between two associate justices running against each other for the open chief justice seat, wouldn’t voters want to know that Justice Smith had three times the number of judicial misconduct complaints filed against her than Justice Jones during the same time period? However, one reason for maintaining the confidentiality of judicial misconduct complaints until misconduct is found is that most litigants would not want a judge assigned to their case knowing that the litigant has filed a complaint against the judge. As noted above, there is no duty for a judge to recuse based on a litigant merely filing a complaint of judicial misconduct, and in the appellate world, given the relatively small number of appellate judges, there is also a risk that a litigant could strategically use the filing of judicial misconduct complaints in order to keep perceived “unfavorable” judges off of an appellate panel. This is all the more reason why mandatory recusal is usually only triggered by an actual finding of misconduct directed toward a litigant.

Sometimes, disgruntled litigants will file a misconduct complaint against a judge when they do not like the outcome in their particular case. Judicial oversight bodies, in processing ethics complaints against judges, often have to explain to complainants that the oversight body’s role is to look into judicial misconduct, not to determine if a judge reached the correct legal outcome in a particular case.

The panel also considered the recent discussions about ethics at the Supreme Court of the United States. One question is whether Congress even has the authority to enact an ethics code for the Supreme Court. The panel noted that Congress thinks it can do so and that, in any event, the Supreme Court has historically shown itself to be responsive to congressional saber-rattling. However, experiences at the state level may provide reason for caution. For example, if a state’s judicial ethics commission disciplines a popular (and elected) judge, the state legislature may even seek to intervene to weaken judicial ethics rules and/or the powers of the ethics commission.

All told, the panel discussion proved eye-opening in regard to the ethical challenges facing appellate judges. On the one hand, judges should recuse themselves whenever their impartiality can be reasonably questioned, but on the other hand, judges also have a duty to hear the cases assigned to them. In the appellate world, recusal is exercised cautiously.