I never bothered to learn about judicial ethics--until I became a judge. I was too busy trying to obey the rules that governed attorneys. And so I never thought there was something wrong when a judge sent her bailiff to drive me to a private club for lunch and return me to my office. Or when, during a trial in the Bay Area, the judge and opposing counsel emerged together from chambers every morning.
Of course, most attorneys know that the canons of the California Code of Judicial Ethics1 forbid us from talking with them privately about their cases, cursing in open court, hearing matters involving our children, and so on.2 Yet many ethical provisions remain unknown or misunderstood among lawyers. Hence, my purpose here is to illuminate some of the lesser known provisions of the rules judges live by. It is not intended to be a comprehensive discussion of the subject.3
Los Angeles lawyers first need to realize that one code of ethics applies to all state judges in California. Yes, the canons that govern the behavior of judges in Los Angeles County also apply to judges in Butte County, Del Norte County, and all those other places where there are fewer residents than partners in some of the major law firms. Many in the Los Angeles legal community believe that a judge ought to recuse whenever he or she knows a party or an attorney on the case. Were that the standard, the two judges in Alpine County probably would never be able to hear cases. A judge's decision to recuse must be based on very specific conditions that are spelled out in the Code of Civil Procedure. Knowing counsel or a party--even being their friend--does not automatically mandate disqualification.
Disqualification and Disclosure
The Code of Civil Procedure provides the bases upon which judges must disqualify themselves from a case. Although generally a judge will explain his or her reason for recusing, this is not required. Judges can simply enter a minute order removing themselves from the case. This is a good rule, because sometimes judges recuse for deeply personal reasons. (For example, a party plans to call a psychologist who is treating the judge's spouse for bipolar disorder.)
Certain grounds for disqualification cannot be waived. Others can be, but a judge cannot try to induce a waiver. That is why counsel should not expect a judge to say something like, "Of course if you are willing to waive the disqualification, I'll go ahead and hear you today." It is the lawyer who should raise the topic.
A number of situations call for disclosures4 but do not constitute statutory grounds for disqualification. The point of a disclosure is not to give counsel a reason to disqualify a judge. Instead, its purpose is:
[To reaffirm] the integrity and impartiality of the judicial institution. It provides the parties with the reassurance the judge has examined whether or not certain factors in regard to the case require recusal, that the judge has determined that recusal is not required, and that, in spite of that determination, the judge believes the parties and their counsel should be made aware of the factors.5
When a judge makes a disclosure, he or she is not giving an attorney the "option" of asking the judge to recuse, because the judge has already determined that despite the facts being revealed to the parties, the judge still can be fair to all sides. It is a mistake for a judge to say, for example, "Plaintiff's counsel and I worked together last year on such and such a committee, so if you want me to recuse, just say so and I'll do it." That moves the decision to counsel, and under the law the choice is not theirs.
If we think we can be fair, we have a duty to decide the case.6 A judge's properly worded disclosure will acquaint the lawyers with the facts and inform them that the judge sees no basis for disqualification. If an attorney disagrees, it is up to the attorney to file an affidavit under Code of Civil Procedure Sections 170.3(c) or 170.6. Disclosure also places the parties in a better position to alert the judge regarding information about which the judge was unaware in making the decision not to recuse.
No Practicing Law
Several days after Governor Pete Wilson's office called about my appointment, the State Bar sent me a letter that read like a warm and fuzzy disbarment notice. To put it simply, "A judge shall not practice law."7 The prohibition means what it says.
For that reason, judges are not being snobbish or impolite when they refuse to give legal advice. In his seminal work on judicial ethics, the California Judicial Conduct Handbook, retired Judge David Rothman advises judges to "develop a standard polite response that resists the natural tendency to help people with problems."8 This extends to close friends asking for advice about cases that are not pending before the judge. Judge Rothman warns us to "decline" such requests:
A judge must avoid being seen as assisting a party in litigation before the court. There is also no distinction between substantive and procedural questions. It must be assumed the information is being sought to advance the interests of the lawyer's client, however innocuous the question may seem.9
Many judges have the experience of seeing attorneys who regularly appear before them. Prosecuting agencies as well as the public and alternate public defenders routinely assign deputies to cover a particular courtroom, and these lawyers often develop close relationships with the judge. Attorneys representing landlords may routinely appear before judges who handle unlawful detainers. Even if judges and the counsel who frequently appear before them become friends, Judge Rothman cautions those judges to resist the natural urge to help.
Ex Parte Communications
Lawyers generally know that judges cannot talk about the lawyers' matters unless all parties are present.10 Less obvious are situations that arise in a multiparty case.
Assume the plaintiff sues 10 defendants. One demurs. If during the hearing the lawyers who are in court segue into a discussion of some other aspect of the case (for example, "While we're here, Your Honor, can we ask you about a discovery dispute?"), that becomes an improper ex parte communication unless all counsel are present. The notice that the defendant served said that the court would hear a demurrer. It did not say the court would hold a status conference, resolve a discovery dispute, or do anything else with the case.
If an attorney and the judge start to talk about a discovery dispute, counsel for the remaining parties will have no idea that is occurring. Even if the judge does not make any rulings, the remaining parties would have every right to be upset when they learn what happened. In order to avoid this problem, some judges schedule a status conference whenever a motion will come up for hearing in a multiparty case. That way the judge is free to talk about everything. If that is not the judge's practice and one of the parties wishes to raise other issues at a hearing, that party should file a request to hold a status conference at the same time the motion is set to be heard.
Equally problematic are discussions about a case with attorneys who are not connected with it.11 These discussions fall within Canon 3B of the Code of Judicial Ethics.12
The rule against ex parte communications also blocks judges from performing their own factual research. Under Canon 3B(7), a judge is not allowed to "consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding…." Even a judge's brief Google search of the parties is unethical. Sometimes during hearings, lawyers may urge their judge to "go onto the Web site and see for yourself." They might as well have asked the judge to drive alone to the scene of an accident. Judges cannot do that.13 The appropriate move is to file a declaration that authenticates pages from the Web site just as lawyers would with any other document.
There is one exception to this proscription. In small claims cases, judges are free to conduct their own investigations and even consult witnesses informally with or without notice to the parties.14
Lawyers probably know that the court may allow, or even initiate, ex parte communications in certain narrow instances.15 One of them involves discussions among judges about a case. As long as they are not disqualified from hearing the matter, judges can talk with each other about it. Indeed, judges are encouraged to do so--and we like these conversations. So when attorneys are well-prepared, judges do not hesitate to tell their colleagues in the lunchroom that they are handling a case with wonderful lawyers. Yes, judges name them, and the attorneys' reputations rise accordingly.
Fund-raising and Political Activities
Judges cannot solicit money for a lawyer's favorite charity--or even for their own. (There is one exception: Judges can solicit their colleagues. Commissioners, however, do not fall under this exception, because they are the judges' employees.16) Judges can help a charity plan its fund-raising and can process contributions in the background. They can be speakers or guests of honor. Judges can receive an award for public or charitable service. But they cannot personally solicit funds.17
Although almost any judge whom the governor appoints has some political connection somewhere, the judiciary's relationship with the political process is rather tender.18 In support of judicial candidates, bench officers can give all the money they want, raise all the funds they can, speak, endorse, walk precincts, and do anything else they wish.19 But the Code of Judicial Ethics reins in activities with respect to candidates for nonjudicial office.20
Even if a person is running for an office associated with law and the administration of justice (such as attorney general or district attorney), judges can do precious little. They can neither campaign nor endorse. Most important, judges cannot give more than a total of $1,000 a year to nonjudicial candidates and no more than $500 a year to any one nonjudicial candidate. That means, for example, a judge can write a $500 check to Sally Roe for Governor and five checks for $100 to five other candidates.21 We can attend, but cannot speak at,22 a political event--and we should not allow ourselves to be introduced.23 In private, of course, judges can reveal their preferences,24 but query when a private conversation (for example, at a dinner party for six close friends) becomes public (perhaps a dinner party for 30 people, at which the judge knows only the host?).
Even giving advice to a nonjudicial candidate can be risky. If a judge's college roommate is running for Congress and wants to talk about the campaign over dinner at the roommate's house, can the judge privately discuss campaign strategy? Judge Rothman would say no, because "there are no secrets in politics. Publicity to the effect that a judge undertook the role of confidential advisor to a political cause or nonjudicial candidate could undermine the public perception of the impartiality of the judge and judicial institution."25
Recommendations and References
Sometimes people ask judges to recommend attorneys. A judge can do so, although there are judges who are concerned that making referrals may create an appearance that the judge is vouching for the lawyer's competence or using the prestige of the office to advance the pecuniary interests of others.26 To avoid, or at least lessen, the appearance of favoritism, most judges will suggest one or more lawyers, even though they do not have to use this approach.27
Judges usually can write letters of recommendation as long as they personally know the individual.28 Judge Rothman advises judges to "include facts and information in any recommendation or letter of reference that demonstrates 'personal knowledge of the person.'"29 As long as a judge knows the person well enough to vouch for him or her, it is fine to write the governor on behalf of a judicial candidate,30 a potential employer on behalf of an applicant, and a college admissions committee on behalf of a high school student. However, a judge cannot be a character witness unless the judge is subpoenaed.31
Regardless of how well a judge may know someone, the judge cannot supply recommendations for publicity purposes. For example, a judge should not write a letter of recommendation for a lawyer if the judge knows that the lawyer wants to include the letter in a brochure.32 A judge cannot write blurbs for an attorney's book. To do so is using our title to advance a lawyer's personal, and probably financial, goals.33
Abuse of Power
It still feels good when someone calls me "Judge"--even after 17 years on the bench. But judges court danger if they bandy around their titles. Bench officers should not make their restaurant reservations in the name of Judge So-and-So. The Los Angeles Superior Court gives judges a badge, but its use is limited to judicial activities like getting into a courthouse parking lot. Judges must not flash their badges to avoid a traffic ticket or get through airport security faster. These types of activities would constitute an abuse of the office.34
For the same reason, judges should not arrange for relatives or friends to avoid jury duty or give anyone back-channel phone numbers to the jury commissioner, the traffic clerk, and others in similar positions. These actions would constitute serious ethical violations.
Most people understand that judges cannot comment publicly about cases, but few appreciate the reach of the restriction. According to Canon 3B(9) of the Code of Judicial Ethics, "A judge shall not make any public comment about a pending or impending proceeding in any court, and shall not make any nonpublic comment that might substantially interfere with a fair trial or hearing." This means that members of the judiciary cannot discuss cases that are pending in any court, not just our own and not just in California. Moreover, judges cannot comment about cases that have yet to be filed--in other words, cases that are impending.35 If a New York celebrity is arrested for a crime committed in Maine, California superior court judges must not publicly discuss the event.
The language of Canon 3B(9) also applies to social situations. If a judge attends a small dinner gathering with, for example, a lawyer who is involved in a trial or a reporter who is interested in a trial, the judge should not make any remarks about the matter. During the O. J. Simpson criminal trial, judges were repeatedly warned not to discuss the case at private gatherings. Had a judge done so, someone could have repeated the comments and--given the supercharged coverage the Simpson trial received--the impact of those comments could have been significant.
In the realm of public comment, the latest subject of controversy among bench officers is online social networking. After considerable thought, the California Judges Association (CJA) Judicial Ethics Committee issued an opinion about this phenomenon.36 The opinion states that judges may participate on social networking sites like Facebook37 and may even "friend" a lawyer who may appear before the judge.38 Nevertheless, the opinion warns judges that joining social networking sites like Facebook presents a spate of ethical pitfalls, such as commenting publicly on pending cases, engaging in impermissible political activity, demeaning the judicial office, and casting doubt on the ability of a judge to act impartially.39
Judges who use Facebook must be careful to monitor their pages. Consider another dinner party scenario, at which a judge remarks, "I'm handling a murder trial this week." If another person makes a sarcastic comment, such as, "Hang 'em high," the judge can ignore it, and usually no harm will be done. If this exchange occurs online, however, problems may arise. In the Facebook scenario, the judge posts that "I'm handling a murder trial this week" on his or her Facebook page, and someone answers by posting "Hang 'em high" on the judge's Facebook wall. Hundreds of the judge's Facebook friends can read the quip on the judge's Facebook wall--and the comment calls into question the judge's impartiality. Worse yet, if the comment triggers replies such as, "I know the defense attorney; she's great," or "My uncle was in Las Vegas with the alibi witness the night the robbery went down, and the defendant wasn't with them," the judge has received an ex parte communication that must be disclosed in court.
The opinion concludes:
[I]t is not permissible to interact with attorneys who have matters pending before the judge. When a judge learns that an attorney who is a member of that judge's online social networking community has a case pending before the judge, the online interaction with that attorney must cease i.e. the attorney should be "unfriended" and the fact this was done should be disclosed….40
Thus, joining sites like Facebook requires judges to be careful. A large number of judges have decided simply to pass. Some participate but do so sparingly, and they severely limit their online contacts. So if readers of this article try to "friend" a judge and find themselves ignored, do not take it personally.
No Gifts, Please
The default position of the canons of the Code of Judicial Ethics is that judges cannot accept gifts--not even a diet Pepsi. This rule is ironclad regarding parties to a lawsuit,41 while limited exceptions exist for gifts from nonparties.42 Attorneys also should not give gifts to the judge's staff. While bench officers can take "ordinary social hospitality" from attorneys,43 judges must be careful about attending events such as holiday parties at law firms whose members they know only casually: "Events that have at their essence a business purpose are simply not 'social hospitality' as we all understand the meaning of these words."44
Even if the canons permit a judge to accept a gift from an attorney, the judge generally must disclose it on his or her annual statement of economic interests--a cumbersome process. If an attorney gives a judge a reportable gift, the attorney's name and address will appear in the statement, along with the date the judge received the gift, a description of what it was, and, yes, its cost. If the judge does not know that amount, he or she may have to call the lawyer and ask. Many judges consider the process to be a thorough hassle and decline all gifts for that reason alone.
These topics constitute a few of the areas that appear not to be well known among attorneys. Every lawyer should read the Code of Judicial Ethics at least once. The code is available online at the Judicial Council's Web site.45 Judge Rothman's book is available from the CJA,46 which also publishes occasional ethics opinions--66 as of this writing. The opinions cover such topics as letters of recommendation (No. 40), appearances on television programs (No. 28), fund-raising (No. 41), judges using social media (No. 66), and the propriety of judges associating with attorneys at social and educational settings (No. 47).47 The Commission on Judicial Performance issues annual reports that document the facts for each of the commission's disciplinary actions against judges for that year.48
A working knowledge of judicial ethics will help attorneys avoid a faux pas in their own dealings with the bench. It also can help lawyers recognize--and respond appropriately to--improper conduct by judicial officers.