chevron-down Created with Sketch Beta.
August 06, 2023

See misconduct? Here’s what to do next

“Never rat on your friends and always keep your mouth shut,” advises Robert DeNiro’s character in the movie “Goodfellas,” but that’s not the way judges and lawyers should behave, according to top jurists on the panel, “Responding to Judicial and Lawyer Misconduct,” held Aug. 3 at the American Bar Association Annual Meeting in Denver.

“No one wants to be the one telling on somebody,” said Nevada Supreme Court Justice Linda Bell, but it is important for judges and lawyers to hold each other accountable.

Marla Greenstein, executive director of the Alaska Commission on Judicial Conduct, admits that it’s a “very difficult dance that has to happen” when the time comes to report on a fellow judge or a lawyer.

Judges and lawyers have rules that govern their behavior and accountability to one another and to the public. To help ensure integrity, the Model Rules of Professional Conduct were established to help self-police and Rule 8.3 deals with reporting misconduct. For judges, the Model Code of Judicial Conduct Rule 2.15 covers judicial and law misconduct.

Colorado District Court Judge Adam Espinosa sees it as an “obligation” to report a fellow judge who may not be operating at full capacity. He said he hopes the profession will develop a culture where colleagues “would want you to be the best judge you can be.”

Mental impairments, judges falling asleep, lawyers telling lies, substance abuse, aging (which causes cognitive decline or dementia) and sexual misconduct all qualify as reasons to report a colleague.

The panel agreed that reporting misconduct is key to maintaining public confidence in the justice system.

“If a judge is routinely in the eye of the bar misinterpreting the law or being rude to attorneys, or those kinds of things, those are serious things,” said Greenstein.

“If you don’t report it, there is a price to pay,” said Judge Jeremy Fogel, executive director of the Berkeley Judicial Institute in Berkeley, California. “It’s rare there is no harm.”

The decisions made by lawyers and judges whether to report each other directly impacts the lives of others.

Recent news coverage of a Supreme Court justice’s possible ethics violations highlights the need for the “average person on the street” to know that judges and lawyers have rules they have to follow, said Greenstein.

However, sometimes there are barriers to reporting misconduct, including:

  • Concern about damaging friendships or alienating colleagues
  • Lack of understanding of disciplinary process or available resources
  • Perceived lack of consequence for failing to report
  • Fear the person being reported will exact revenge

State rules regarding how to report a lawyer or judge vary, and some states accept anonymous reports.

Greenstein said it’s not a judge’s job to know whether a judge is fit or not to serve, but if something is “questionable, report it.”