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January 16, 2014 Articles

Book Review: Judicial Conduct and Ethics

This book belongs on any judge's desk.

By Dennis Owens

Charles G. Geyh, James J. Alfini, Steven Lubet, and Jeffrey Shaman
Judicial Conduct and Ethics
Fifth Edition, Lexis Nexis

This book was first published in 1990. It is the gold standard of its field. The first edition was written by Shaman, Lubet, and Alfini (listed in that order). With the fourth edition, Professor Geyh (pronounced “Jay”) joined them as the fourth author. You can see how they have reordered their names for this latest effort.

The power of the courts depends on the courts’ own credibility. Does the public view the courts as having integrity? We believe that, overall, they do. We want judges to be competent and impartial. By and large, judges do live up to our hopes.

The problems arise in the gray areas. When a judge asks the lawyer for one side to draft a proposed order or judgment, it may seem an efficient and normal way of doing things. But does that mean that one side is learning the outcome while the other is kept in ignorance? Could that secret information prove to be very valuable to one side?

Reading this outstanding book will bring home these blunt facts: Many state judges are elected, and elections take money. Being a fundraiser can cause problems.

Appointed judges are not necessarily better (although, as an advocate of the Missouri Plan, we think that they could be). Rather, the problem is that elected judges must campaign. This means they must raise campaign funds, and the people who are interested enough to contribute are trial lawyers. I understand that there is a rule in Texas courts that the fact that your opponent contributed to the judge’s campaign does not disqualify the judge.

Politics is not inherently corrupt, and many elected judges campaign in a largely nonpartisan manner. But politicization means calling for popular approval of often inherently unpopular decisions. Further, it stresses the public justification of decisions over the legal rationale. Worst of all, politicization involves alliances that necessarily undercut the appearance of objectivity and detachment.

The need for scholarly treatment of judicial ethics is very aptly satisfied by this fine treatise. The problems of ethics are intrinsically subtle. This book probes this subtlety. The sense of ethics is like a filament in a light bulb. When it is empowered, it is illuminating. Yet, it is fragile, even delicate. The principles are broad but the application fine. This book is also broad and comprehensive, yet precise and thoughtful.

Any treatise dealing with the rules of being a judge must cope with the fact that there are 50 state judiciaries and a variety of federal offices called “judge.” The rules of judicial conduct vary from one jurisdiction to the next. What is tolerated in Louisiana is strictly forbidden in Missouri. A study such as this may mislead a judge in one state when it reports the prevailing rule that applies in most other states. Read the footnotes carefully, judge.

This volume is recommended to all judges and to all commissions that regulate judicial conduct in each state. It is not so much a book to read straight through, nor should it be placed on the bookshelf. It belongs on the judge’s desk, ready for reference and use.

Keywords: litigation, appellate practice, judicial ethics

Dennis Owens practices appellate law in Kansas City, Missouri.

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