ABA releases new Formal Ethics Opinion on a lawyer's obligation to disclose information about a judge's disqualification

The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 522 - Lawyer’s Obligation to Disclose Information About Grounds for a Judge’s Disqualification. Its abstract reads as follows: 

ABA Model Rule of Professional Conduct 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. When a lawyer in a proceeding possesses information that the lawyer knows is reasonably likely to give rise to a judicial disqualification obligation, Rule 8.4(d) requires the lawyer, as an officer of the court, to disclose that information to the tribunal. When the lawyer possesses the information only because it is “information relating to the representation of a client,” then the lawyer’s disclosure obligation is subject to the lawyer’s duty of confidentiality under Model Rule of Professional Conduct 1.6.

For now (before it is archived), you can read the opinion here. 

Harvard Law Review blog essay on judicial ethics for the Supreme Court

The Harvard Law Review has published a very short blog essay titled "Enforceable Ethics for the Supreme Court" on the recent discussion about the need for an, you guessed it, enforceable code of ethics for the Justices of the Supreme Court.  You can read it here. 

Short article on why criticizing judges can be dangerous

 The New York Legal Ethics Reporter has published a good short article called "Criticizing Judges Can Be Hazardous to Your Professional Health."  You can read it in full here. 

More commentary on the Supreme Court's code of conduct - UPDATED

 A few days ago I reported that the US Supreme Court adopted a code of conduct and that it was immediately generally criticized as inadequate.  See here.  I also posted links to the story and many of those critical reviews.

As expected, the criticism kept coming.  Here are a few more links: 

Supreme Court fails to quiet ethics critiques with new code of conduct (Courthouse News Service)

The Supreme Court’s new ethics code is a joke (Vox)

US Supreme Court adopts new ethics code (Jurist)

SCOTUS Ethics Code Is Just PR (Bloomberg audio podcast)

Código de Conducta del Tribunal Supremo federal es inútil (Microjuris)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (2Civility)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (Lex Blog)

UPDATE 11/20/23:  The Supreme Court’s new ‘code’ does nothing to enhance ethics (The Hill)

UPDATE 11/21/23:  Today I saw an article that "defends" the new code.  It is the only article I have seen that describes the code positive terms.  It is called The Supreme Court’s new ethics rules affirm the rule of law and you can find it here.

UPDATE 11/23/23:  The Supreme Court is not necessary (The Hill), which starts saying "The Supreme Court’s new ethics code shows that the Court values its power more than its integrity. The justices don’t even hide it."

UPDATE 11/24/23:  The SCOTUS blog has a comment here.

Supreme Court adopts code of conduct, which is immediately widely criticized as inadequate

In response to mounting criticism over the conduct of some justices, the Supreme Court announced that it has adopted an ethics code.  Yet, now the criticism has turned to the content of the new code, which many have concluded is simply irrelevant because it has no enforcement mechanism, because it actually does not impose any duties and because it creates what one commentator called "an entirely toothless standard for disqualification".  Rather it is an aspirational document that essentially amounts to saying that the justices should try to do the right thing.

Of note is the fact that the code does not use the typical language used in codes of professional conduct when describing duties.  The drafters of the Model Rules of Professional Conduct, for example, avoided using the word "should" when describing duties because that word is ambiguous.  As you probably know, when describing a mandatory duty, the drafters use the word "shall" and when the duty is discretionary, the drafters use the word "may."  Yet, in the Supreme Court's code, the word "should" is the word constantly used to describe the expected conduct, while the word "shall" is used exactly zero times.  So, are the provisions in the code mandatory or simply suggested?  Given how all other codes of conduct are written, it is fair to assume, this one is merely suggested.  

So what does the new code add to what we had before?  Words on a piece of paper.  That's all, apparently.  The "unwritten rules" are now written.  But don't just take my word for it, take a look at the introduction to the code which states that it "largely represents a codification of principles that we have long regarded as governing our conduct."

Some are calling that a good first step, or some progress. Senate Judiciary Committee Chairman Dick Durbin said it "falls short."  

You can read the text of the code itself here or here.

There is news and commentary all over, but here are some links, in order of publication.

Courthouse News Service

The Hill

Politico

NPR

MSNBC

The Guardian

Faughnan on Ethics

The Guardian, again

Howe on the Court

SCOTUS blog

NPR (audio), also here

Above the Law

Law Dork

Legal Ethics Roundup

Politico, again

Otherwise

Bloomberg law (audio)

The Nation ("The Supreme Court’s New Ethics Code Won’t Stop the Corruption")

MSNBC ("Why the Supreme Court’s new ethics code falls far short")

Article: "The Supreme Court’s excuses for ethics violations insult our intelligence"

 Steven Lubet (Northwestern) has published a short article called "The Supreme Court’s excuses for ethics violations insult our intelligence." 

Oklahoma court: past sexual relationship between judge and prosecutor entitles criminal defendant to new trial; should more cases be reversed?

An Oklahoma court recently held that the fact that a judge and a prosecutor were involved in a sexual relationship during the beginning stages of a murder trial entitles the defendant to new trial.  The ABA Journal has the story here.  

You can read the court's opinion here.

If the relationship had been ongoing during the trial, this result would not be surprising, of course.  In this case, the judge and prosecutor were in a relationship during the initial stages of the case only.  The trial itself happened two or three years later. 

One interesting question is whether the judge and the prosecutor should be subject to discipline for concealing the relationship while it was ongoing.  The judge resigned his judgeship in spring 2021—after the prosecutor and two other lawyers accused him of sexual misconduct.

The judge acknowledged sexual relationships with two prosecutors, but he said they were consensual.  A special prosecutor declined to bring charges in connection with the allegations.

Now I wonder if all the criminal cases tried by those prosecutors and presided by the judge should be looked into.  If I were a criminal defense lawyer, I would look to see if I had represented any defendants during the years that they had ongoing relationships.

Richard Painter: "I did Alito’s ethics prep for his confirmation hearing. His new excuses are nonsense."

Richard Painter, the chief White House ethics lawyer from 2005 to 2007 who helped prepare Justices Roberts and Alito for their confirmation hearings, has published an op-ed commenting on "what went wrong?" or, more specifically, "Why today do so many Americans have far less confidence in the ethics of the Supreme Court than we did in 2006?"

You can read the full article here.  

Calling some of Alito's arguments "utter nonsense," Painter answers the question, partly, by concluding that "[t]he problem is that the justices interpret federal statutes that apply to themselves and ethics norms for judges as they see fit. And when their actions depart from generally accepted ethics practices, they claim that as an independent branch of government they can do whatever they want."

And then concludes as follows:

The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.

And that Congress can fix the issue by passing legislation installing an ethics lawyer and an inspector general for the Supreme Court. The inspector general would investigate and report to Congress on alleged violations of ethics rules by justices and other Supreme Court employees.

Illinois Supreme Court has adopted a new Code of Judicial Conduct

Last week, the Illinois Supreme Court adopted a new Code of Judicial Conduct which includes guidance on the use of social media and financial disclosures. The new Code will take effect on January 1, 2023.  You can access the text of the new Code here.  You can read more about here and here.

Suspension Recommended For Judge Accused Of Calling Juror ‘Aunt Jemima'

Not too surprisingly, the ethics complaint says the judge failed to promote public confidence in the judiciary; manifested bias or prejudice in the performance of his duties; and failed to conduct himself in a patient, dignified, and courteous manner.  

Above the Law has the story here.

Colorado Supreme Court holds that a man convicted by a jury that included judge's wife isn't entitled to new trial

Reading some old news I came across this headline:  "Man convicted by jury that included judge's wife isn't entitled to new trial..."  Here is the story.

New ABA Formal Opinion on Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts

The ABA Standing Committee on Ethics and Professional Responsibility just released a new formal opinion (Formal Opinion 490) on the ethical obligations of judges in collecting legal financial obligations and other debts.  The summary is as follows:

This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.

You can read the opinion here.

Discipline System Changes Proposed In Ohio

The Ohio Supreme Court is asking for public comments on proposed amendments to address the process for investigating and prosecuting allegations of professional misconduct by Ohio judges and attorneys.  The report includes a variety of recommendations to the Court aimed at improving and promoting trust in the disciplinary system.  Proposals include:

- Expanding the role and responsibilities of local bar counsel in certified grievance committee investigations and prosecutions

- Streamlining and improving the process for investigating, prosecuting, and adjudicating grievances against Supreme Court justices

- Creating procedures to address lawyer and judicial fitness questions that arise during a disciplinary investigation

- Expediting disciplinary cases, through measures such as service by electronical mail and the use of disciplinary orders in lieu of full opinions in certain cases

- Increasing the time limit for filing a claim for reimbursement with the Lawyers’ Fund for Client

- Increasing the maximum reimbursement amount to $100,000.

Comments should be submitted in writing by letter or via email by March 26 to ruleamendments@sc.ohio.gov or to John VanNorman, Chief Legal Counsel, Ohio Supreme Court 65 S. Front St., Seventh Floor, Columbus, OH 43215-3431.

Judge reprimanded for refusing to perform same sex marriages

Back in April I reported that the ABA Standing Committee on Ethics and Professional Responsibility released a Formal Opinion (No. 485) concluding that a judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples and that a judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages.  See here.

I am writing about this today again, because I just read that on November 12, 2019, the Texas State Commission on Judicial Conduct “publicly warned” a judge who performed opposite-sex marriages, but who “declined to perform same-sex weddings.” In “warning” the judge, the Commission cited Texas Code of Judicial Conduct Canon 4A(1), which requires a judge to handle extra-judicial activities in a manner so as to “not cast reasonable doubt on the judge’s capacity to act impartially as a judge.” The case is called In re Hensley, Tx. CJC No. 17-1572 (Nov. 12, 2019).

Go here for more on this story.

Judge reprimanded for posting racist articles on Facebook

Several sources, including the Daily Memphian, are reporting that a Memphis Criminal Court Judge has received a reprimand from the Tennessee Board of Judicial Conduct for re posting an article and some images on social media that included language that depicted bias or prejudice.  The article was by a Holocaust denial and included derogatory language in reference to Muslims and immigrants.

The reprimand letter of the Tennessee Board of Judicial Conduct concludes that there was no proof that the judge had engaged in any actual bias, prejudice, or impartiality in his official capacity as a judge but that the posts were partisan in nature and a clear violation of the code of judicial conduct.  The Board also pointed out that dissemination on social media of articles and images that express racist or discriminatory ideas can easily be perceived by reasonable minds to undermine the impartiality of the judiciary or be perceived as prejudice of bias.

The text of the reprimand letter is here. The ABA Journal has more on the story here.

Judge orders attorney to violate a rule of professional conduct!

We all know that attorneys have an ethical obligation to provide competent and diligent representation to all their clients. We also know that being unable to do so is a proper argument to refuse a court appointed representation. 

Yet, this does not seem to apply to public defenders in Kansas City, where a judge has decided to order specifically ordering PDs to violate their ethical duties, and at least another one thinks the problem is that public defenders want time to meet their clients and prepare for their cases when they should just be entering guilty pleas.  Here is a copy of one such order. 

Aside from the fact that the state needs to do something about the PD system, the conduct of the judge who signed the order is outrageous and I hope he is reprimanded for it.  If there is a crisis in the system, it needs to be addressed but purposely ordering an attorney to be unethical, and to violate a defendant's constitutional rights in the process is reprehensible.

Critics of the way the criminal justice system is being run in Missouri have called it "assembly line justice," in which judges want to push defendants to plead guilty while giving defense lawyers little to no opportunity to meet their clients privately, or prepare for their cases.  The ABA Journal has the story here. 

Wisconsin Appellate Court disqualifies judge because of a "Facebook friendship"

At the end of last year, I reported that the Florida Supreme Court issued an opinion holding that sometimes, the relationship between a judge and a litigant or lawyer might be a basis for disqualification of the judge but that there is no reason that Facebook “friendships” should be singled out and subjected to a per se rule of disqualification.

More recently, I reported that the ABA Committee on Ethics and Professional Responsibility issued a new Ethics Opinion on whether judges’ social or close personal relationships with lawyers or parties should be considered grounds for disqualification, in which the Committee did not discuss the issue of "Facebook friendships."  See here and here.

I am writing about this today because I just read that the Wisconsin Appellate Court has issued an opinion disqualifying a judge because of an undisclosed "Facebook friendship."

Although the court decided not to create a bright-line rule regarding the use of social media by Wisconsin judges, it ultimately concluded that a judge’s undisclosed social media connection with a party in the case created an appearance of impropriety, and thus, was enough to disqualify the judge.

The court held that the use of social media is not, by itself, enough to disqualify a judge, but on this particular instance, the judge's acceptance of the friendship request amounted to an ex parte communication and “created a great risk of actual bias resulting in the appearance of partiality.”

The case is called In re Paternity of BJM, and you can read the opinion here.

More on the issue of facebook friendships with judges

About three weeks ago I posted a comment on the ABA Committee on Ethics and Professional Responsibility's recent Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure, and pointed out that the opinion did not address an issue that had been in the news not too long ago regarding "facebook friendships."

Thankfully, Karen Rubin of The Law For Lawyers Today, did a bit more research on the issue than I and posted this short comment.  In it, she links several state ethics opinions on social media friendships.  Go read it!

ABA Committee on Ethics and Professional Responsibility issues new Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure -- UPDATED

The ABA Committee on Ethics and Professional Responsibility has issued a new Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure.  Here is the summary:

Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned including cases implicating some familial and personal relationships, but it is silent with respect to obligations imposed by other relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. 

In short, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.

The end result seems to be based on common sense, but it does not quite provide a way to deal with the tough cases since it seems to amount to saying that "it depends" and that it will be the judge who decides how much it depends.  The opinion also does not address an issue that had been in the news not too long ago regarding "facebook friendships."  For more on that go here.

You can read the opinion (No. 488) here.

UPDATE 10/24/2019:  Legal Ethics in Motion has posted a short comment on the opinion here.

Ohio imposes discipline on lawyer for criticizing judges without reasonable factual basis

I have discussed in the past whether it would be constitutional to discipline attorneys for expressing their views when criticizing judges.  (See here, and here for example.) Clearly, there is a distinction between speech that may be a threat to someone's reputation (which may be protected by the First Amendment) and speech that actually expresses a threat of physical harm (which would not be).  (See here.) But even when the speech is merely a threat to someone's reputation, it may give rise to civil liability for defamation, and in such a case, should it also justify discipline?

For example, in one case that explores the fine line between the authority of the state to regulate attorney speech and an individual attorney's right to express his or her opinion about judges, the United States Court of Appeals for the Sixth Circuit ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  See here.

In contrast, in other cases, courts have justified disciplinary action against lawyers for expressions about judges.  See here and here for example.

Model Rule 8.2(a) states, in part, that a lawyer "shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..."  This standard resembles the standard used in defamation cases involving public figures because judges are public officials.  It would be unconstitutional for the state to impose discipline based on a lower standard.

Another important element of the standard, however, is that there is a distinction between statements of fact and statements of opinion.  A defamation action is not justified if the statement upon which it is based is merely an opinion.  A defamatory statement must be, by definition, false, and only a factual statement can be true or false.

For this reason, it is interesting to see how courts handle cases in which lawyers express their opinions about judges, while the state argues that the statement is based on a factual assertion.

I am writing about this today because I just read a short comment over at The Law For Lawyers Today  about a new case in Ohio in which an attorney was disciplined for expressing his opinion about certain judges.

In answering a complaint, the lawyer wrote that the appellate judges who had decided against his client had “contrived” their rationale “to justify a decision . . . premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.”  In a different document, the lawyer also alleged that The lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”

If the lawyer's statement had ended when he said the judges opinion was contrived, there would be no justification for discipline.  We say that often when criticizing opinions we think are wrongly decided, and it is an opinion.

The problem is in the rest of the statement which suggests a fact, ie, that the judges decided the case due to outside influences and for "non-legal reasons."  That is a statement of fact.  Either it is true or it isn't.  Thus, since this statement could give rise to a defamation action, it may give rise to a disciplinary inquiry.

Now the next question, however, is whether the state can meet the Constitutional standard of showing that the speaker issued the statement with knowledge of falsity or reckless disregard for the truth.

Here is where the case gets interesting.  In applying that standard, the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations.  Note how this is a lower standard than the one the board was supposed to apply.  Reasonableness is not recklessness, and it certainly is not knowledge.  I don't understand how an analysis based on reasonableness meets the constitutional standard.

Having said that, the ultimate decision was justified because of the lawyer’s own testimony admitting that he “did not actually know why the judges ruled as they did” and that he had not conducted “any investigation” before making his allegations.  The court could have said that this was evidence of recklessness.   Instead it suggested it was evidence of unreasonableness, which is not the same thing and which creates an unnecessary confusion about the proper analysis.

The case is called Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018) and you can read it here.