TOPIC K: JUDICIAL ETHICS P.R Prof. Janicke

SOURCES 28 U.S.C. § 455 ON DISQUALIFICATION ABA MODEL CODE OF JUDICIAL CONDUCT (2007) –NOT STRICTLY BINDING –SOME CIRCUITS HAVE RULES AND PROCEEDINGS TO ENFORCE THEM 2016TOPIC K: JUDICIAL ETHICS2

JUDICIAL DISCIPLINE APPLIES EVEN TO FEDERAL JUDGES –CIRCUIT COMMITTEE ON JUDICIAL CONDUCT CAN SANCTION A JUDGE –CRIMINAL PROCEEDINGS ARE POSSIBLE, EVEN W/O IMPEACHMENT –IMPEACHMENT IS POSSIBLE IF THE VIOLATION IS A CRIME 2016TOPIC K: JUDICIAL ETHICS3

FORMER JUDGE IN A CASE CANNOT THEREAFTER BE LAWYER FOR A PARTY IN THAT SAME CASE R –UNLESS ALL PARTIES CONSENT IN WRITING SAME RULE APPLIES TO MEDIATORS AND ARBITRATORS 2016TOPIC K: JUDICIAL ETHICS4

USUALLY, NO EX PARTE COMMUNICATIONS JR 2.9 RULE FOR LAWYERS IS SIMILAR R. 3.5 EXCEPTION FOR JUDGES: IF NEED BE, CAN DISCUSS SCHEDULING OR ADMIN. MATTERS –BUT MUST NOTIFY ALL PARTIES AND GIVE OPPORTUNITY TO RESPOND 2016TOPIC K: JUDICIAL ETHICS5

MORE ON EX PARTE COMMUNICATIONS JUDGE CAN CONTACT AN OUTSIDE LAW EXPERT IF NEEDED JR 2.9(a)(4) –MUST INFORM THE PARTIES WHAT WAS SAID –MUST GIVE OPPORTUNITY TO REBUT 2016TOPIC K: JUDICIAL ETHICS6

MORE ON EX PARTE COMMUNICATIONS CAN CONFER EX PARTE WITH A PARTY TO THE CASE RE. SETTLEMENT, IF ALL PARTIES AGREE JR 2.9(a)(4) MANY JUDGES DO THIS, FOR DOCKET MANAGEMENT [NOTE: BEST TO SAY “NO”] 2016TOPIC K: JUDICIAL ETHICS7

MORE ON EX PARTE COMMUNICATIONS IF COMMUNICATION IS RECEIVED INADVERTENTLY, JUDGE MUST: – –NOTIFY PARTIES –PROVIDE OPPORTUNITY TO RESPOND JR 2.9(b) 2016TOPIC K: JUDICIAL ETHICS8

JUDGE CANNOT INVESTIGATE THE CASE PRIVATELY R. 2.9(c) MORE DIFFICULT TO OBEY THAN IT SOUNDS SUPPOSED TO GO BY THE EVIDENCE AND ARGUMENTS BROUGHT BY THE PARTIES 2016TOPIC K: JUDICIAL ETHICS9

JUDGE CANNOT SUPPORT “INVIDIOUS DISCRIMINATION” JR 3.6(a) BASED ON RACE, GENDER, SEXUAL ORIENTATION, ETC. PURPOSE: TO PRESERVE PUBLIC CONFIDENCE IN JUDICIAL IMPARTIALITY 2016TOPIC K: JUDICIAL ETHICS10

SUPPORT IS SHOWN BY: –MEMBERSHIP –ATTENDING FUNCTIONS –PATRONIZING COMMERCIAL ESTABLISHMENT, e.g., RESTAURANT 2016TOPIC K: JUDICIAL ETHICS11

NO VOLUNTARY APPEARANCE BEFORE LEGISLATIVE OR EXECUTIVE BODIES JR 3.2 EXCEPTION: ON LAW MATTERS EXCEPTION: JUDGE’S PERSONAL INTEREST, e.g., ZONING 2016TOPIC K: JUDICIAL ETHICS12

NO VOLUNTARY APPEARANCE AS CHARACTER WITNESS JR 3.3 REGARDED AS AN ABUSE OF PRESTIGE OF JUDICIAL OFFICE 2016TOPIC K: JUDICIAL ETHICS13

THE JUDICIAL JOB COMES FIRST TAKES SCHEDULING PREFERENCE OVER PERSONAL AND NON-JUDICIAL WORK JR 2.1 BUT JUDGES ARE ENCOURAGED TO PARTICIPATE IN EDUCATIONAL OR PROFESSIONAL EVENTS JR 2.1 C2 –CAVEAT: WHO IS PAYING? AND FOR WHAT? 2016TOPIC K: JUDICIAL ETHICS14

ALL DUTIES PERFORMED FAIRLY AND IMPARTIALLY JR 2.2 REALLY: MUST BLOCK ANY OBVIOUS PERSONAL BELIEFS MUST PRETEND NEITHER TO LIKE OR DISLIKE A LAW JR 2.2 C2 2016TOPIC K: JUDICIAL ETHICS15

NO ENGAGING IN PREJUDICE JR 2.3 NO WEIGHT TO RACE, RELIGION, ETC. MUST ASSURE STAFF OBSERVES THIS TOO NO STEREOTYPING JOKES, OR EVEN FACIAL EXPRESSIONS JR 2.3 C2 2016TOPIC K: JUDICIAL ETHICS16

NO EXTERNAL INFLUENCES CAN’T BE SWAYED BY: –PUBLIC CLAMOR JR 2.3(a) –FAMILY VIEWS JR 2.3(b) –POLITICAL VIEWS JR 2.3(b) –FINANCIAL INTERESTS JR 2.3(b) 2016TOPIC K: JUDICIAL ETHICS17

FURTHER ON FINANCIAL INTERESTS A FEDERAL STATUTE – 28 U.S.C. § 455 –MANDATES RECUSAL FOR: EVEN A SMALL FINANCIAL INTEREST EXCEPT FOR: NORMAL PERSONAL BANKING RELATIONS; GOVT. BOND HOLDING; MERE HOLDER OF SHARES IN MUTUAL FUND THAT HOLDS STOCK IN A PARTY; ETC. 2016TOPIC K: JUDICIAL ETHICS18

–MANDATES RECUSAL FOR: SPOUSE OR MINOR CHILD AT HOME HAS EVEN A SMALL INTEREST JUDGE AS FIDUCIARY (e.g. GUARDIAN, TRUSTEE) HAS EVEN A SMALL INTEREST 2016TOPIC K: JUDICIAL ETHICS19

–MANDATES RECUSAL WHERE: –RELATIVE OR IN-LAW IS: A PARTY IN THE CASE A LAWYER IN THE CASE [UNLCEARE ABOUT FIRMS] HAS AN INTEREST THAT COULD BE SUBSTANTIALLY AFFECTED BY OUTCOME 2016TOPIC K: JUDICIAL ETHICS20

–MANDATES RECUSAL FOR: JUDGE OR HER FORMER LAW FIRM COLLEAGUE HAD A ROLE IN THE CASE JUDGE, WHILE IN GOVERNMENT, EXPRESSED A VIEW ON THE MERITS OF THE CASE 2016TOPIC K: JUDICIAL ETHICS21

SOMETHING THAT IS ACTUALLY ALLOWED HEARING A CASE WHERE JUDGE IS AN OFFICIAL IN A NONPROFIT and THE NONPROFIT HOLDS SHARES IN ONE OF THE PARTIES TO THE CASE 28 USC § 455(d)(4) – NOT A “FINANCIAL INTEREST” OF THE JUDGE; EVEN THOUGH IF THE PARTY DOES BADLY, THE NONPROFIT’S SHARE HOLDINGS COULD SUFFER 2016TOPIC K: JUDICIAL ETHICS22

ABA RULE IS THE SAME ABA JUD. CODE DEFINITIONS, “ECONOMIC INTEREST” ¶ TOPIC K: JUDICIAL ETHICS23

JUDGE CAN PARTICIPATE IN A NONPROFIT BUT CANNOT PERSONALLY DO FUND- RAISING EXCEPTION: CAN RAISE FUNDS FROM HER OWN FAMILY MEMBERS, AND FROM OTHER JUDGES JR 3.7(A)(2) 2016TOPIC K: JUDICIAL ETHICS24

ALSO, CANNOT PARTICIPATE AT ALL IN AN ORGANIZATION THAT IS FREQUENTLY A PARTY IN CASES IN THE JUDGE’S COURT JR 3.7(A)(6) 2016TOPIC K: JUDICIAL ETHICS25

PRACTICING LAW IS FORBIDDEN FOR FULL-TIME JUDGES JR 3.10; ABA CODE APPLICABILITY, SEC. I(A) PART-TIME JUDGES: RULES ARE COMPLEX 2016TOPIC K: JUDICIAL ETHICS26

NO PUBLIC STATEMENTS ON PENDING CASES JR 2.10 OBVIOUS EXCEPTION: WHEN IN THE COURSE OF JUDICIAL DUTIES –E.G., DECIDING A CASE THIS RULE DOES NOT APPLY WHERE JUDGE IS A PERSONAL LITIGANT 2016TOPIC K: JUDICIAL ETHICS27

ANOTHER EXCEPTION JUDGE CAN RESPOND, EVEN IN THE PRESS, TO ALLEGATIONS ABOUT HER HANDLING OF A CASE R. 2.10(e) 2016TOPIC K: JUDICIAL ETHICS28

DISQUALIFICATION IN STATE COURTS 28 U.S.C. § 455 DOES NOT APPLY IN STATE COURTS R APPLIES, AND IS SIMILAR >>> 2016TOPIC K: JUDICIAL ETHICS29

JUDGE MUST DISQUALIFY IF IMPARTIALITY CAN REASONABLY BE QUESTIONED SPECIFICALLY: JUDGE KNOWS HE, RELATIVE, OR IN-LAW HAS MORE THAN A DE MINIMIS INTEREST THAT COULD BE AFFECTED BY OUTCOME OF THE CASE JR 2.11(a)(2) 2016TOPIC K: JUDICIAL ETHICS30

CAMPAIGN CONTRIBUTIONS ABA R LEAVES A BLANK FOR LEVEL OF CONTRIB. THAT WILL TRIGGER DISQUAL. TEXAS RULE HAS NO DIRECT PROVISION OF THIS KIND 2016TOPIC K: JUDICIAL ETHICS31

2016TOPIC K: JUDICIAL ETHICS32