CHAPTER 14: JUDICIAL
CONDUCT
1
A judge shall uphold and promote the
independence, integrity, and impartiality
of the judiciary, and shall avoid
impropriety and the appearance of
impropriety.
Rules 1.1 through 1.3
2
A judge shall perform the duties of
judicial office impartially,
competently, and diligently.
Rules 2.1 through 2.16
3
A judge shall conduct the judge’s
personal and extrajudicial
activities to minimize the risk of
conflict with the obligations of
judicial office.
Rules 3.1 through 3.15
4
A judge or candidate for judicial
office shall not engage in political or
campaign activity that is inconsistent
with the independence, integrity, or
impartiality of the judiciary.
Rules 4.1 through 4.5
5
Model Code of Judicial Conduct RULE 1.3
Avoiding Abuse of the Prestige of Judicial
Office
A judge shall not abuse the prestige of
judicial office to advance the personal or
economic interests* of the judge or others,
or allow others to do so.
6
Model Code of Judicial Conduct RULE 1.3
COMMENT [1] It is improper for a judge to use or
attempt to use his or her position to gain personal
advantage or deferential treatment of any kind.
For example, it would be improper for a judge to
allude to his or her judicial status to gain
favorable treatment in encounters with traffic
officials. Similarly, a judge must not use judicial
letterhead to gain an advantage in conducting
his or her personal business.
7
RULE 2.2 Impartiality and Fairness
A judge shall uphold and apply the law,*
and shall perform all duties of judicial office
fairly and impartially.*
COMMENT [2] Although each judge comes
to the bench with a unique background and
personal philosophy, a judge must interpret
and apply the law without regard to whether
the judge approves or disapproves of the law
in question.
8
[3] When applying and interpreting the law, a judge
sometimes may make good-faith errors of fact or
law. Errors of this kind do not violate this Rule.
[4] It is not a violation of this Rule for a judge to
make reasonable accommodations to ensure pro
se litigants the opportunity to have their matters
fairly heard.
NOTE - Comment 3 above on Rule 2.2 is directed at
judges who deliberately or repeatedly disregard
court orders or other clear requirements of law
9
Model Code of Judicial Conduct RULE 2.6
Ensuring the Right to Be Heard
(A) A judge shall accord to every person who
has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard
according to law.*
(B) A judge may encourage parties to a
proceeding and their lawyers to settle matters
in dispute but shall not act in a manner that
coerces any party into settlement.
10
COMMENT [2] . . . Among the factors that a judge should
consider when deciding upon an appropriate settlement
practice for a case are
(1) whether the parties have requested or voluntarily
consented to a certain level of participation by the
judge in settlement discussions,
(2) whether the parties and their counsel are relatively
sophisticated in legal matters,
(3) whether the case will be tried by the judge or a jury,
(4) whether the parties participate with their counsel in
settlement discussions,
(5) whether any parties are unrepresented by counsel, and
(6) whether the matter is civil or criminal.
11
RULE 2.8 Decorum, Demeanor, and Communication with
Jurors
(B) A judge shall be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, court staff, court officials,
and others with whom the judge deals in an official capacity,
and shall require similar conduct of lawyers, court staff, court
officials, and others subject to the judge’s direction and
control.
(C) A judge shall not commend or criticize jurors for their
verdict other than in a court order or opinion in a
proceeding.
12
COMMENT [2] Commending or criticizing jurors
for their verdict may imply a judicial
expectation in future cases and may impair a
juror’s ability to be fair and impartial in a
subsequent case.
[3] A judge who is not otherwise prohibited by
law from doing so may meet with jurors who
choose to remain after trial but should be
careful not to discuss the merits of the case.
13
RULE 2.9 Ex Parte Communications
(A) A judge shall not initiate, permit, or consider
ex parte communications, or consider other
communications made to the judge outside the
presence of the parties or their lawyers,
concerning a pending* or impending matter,*
except as follows:
14
(1) When circumstances require it, ex parte
communication for scheduling, administrative, or
emergency purposes, which does not address substantive
matters, is permitted, provided:
(a) the judge reasonably believes that no party will
gain a procedural, substantive, or tactical
advantage as a result of the ex parte
communication; and
(b) the judge makes provision promptly to notify all
other parties of the substance of the ex parte
communication, and gives the parties an opportunity
to respond.
15
RULE 2.9 Ex Parte Communications – MORE
EXCEPTIONS
(2) A judge may obtain the written advice of a
disinterested expert on the law applicable to a
proceeding before the judge, if the judge gives
advance notice to the parties of the person to be
consulted and the subject matter of the advice to be
solicited, and affords the parties a reasonable
opportunity to object and respond to the notice and
to the advice received.
16
RULE 2.9 Ex Parte Communications – MORE
EXCEPTIONS
(3) A judge may consult with court staff and court
officials whose functions are to aid the judge in
carrying out the judge’s adjudicative responsibilities,
or with other judges, provided the judge makes
reasonable efforts to avoid receiving factual
information that is not part of the record, and does
not abrogate the responsibility personally to decide
the matter.
17
(4) A judge may, with the consent of the
parties, confer separately with the parties
and their lawyers in an effort to settle
matters pending before the judge.
(5) A judge may initiate, permit, or
consider any ex parte communication when
expressly authorized by law* to do so.
18
RULE 2.9 Ex Parte Communications – FURTHER RULES
(B) If a judge inadvertently receives an unauthorized ex
parte communication bearing upon the substance of a matter,
the judge shall make provision promptly to notify the parties
of the substance of the communication and provide the
parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter
independently, and shall consider only the evidence
presented and any facts that may properly be judicially
noticed.
19
RULE 2.11 Disqualification
(A) A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality* might
reasonably be questioned, including but not limited to
the following circumstances:
(1) The judge has a personal bias or prejudice
concerning a party or a party’s lawyer, or
personal knowledge* of facts that are in dispute in
the proceeding.
20
RULE 2.11 Disqualification
(2) The judge knows* that the judge, the judge’s spouse or
domestic partner,* or a person within the third degree of
relationship* to either of them, or the spouse or domestic
partner of such a person is:
(a) a party to the proceeding, or an officer, director,
general partner, managing member, or trustee of a
party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis* interest
that could be substantially affected by the
proceeding; or
(d) likely to be a material witness in the proceeding.
21
RULE 2.11 Disqualification
(3) The judge knows that he or she, individually
or as a fiduciary,* or the judge’s spouse,
domestic partner, parent, or child, or any other
member of the judge’s family residing in the
judge’s household,* has an economic interest* in
the subject matter in controversy or is a party
to the proceeding.
22
(4) The judge knows or learns by means of a
timely motion that a party, a party’s lawyer, or
the law firm of a party’s lawyer has within the
previous [insert number] year[s] made
aggregate* contributions* to the judge’s
campaign in an amount that [is greater than
$[insert amount] for an individual or $[insert
amount] for an entity] [is reasonable and
appropriate for an individual or an entity].
23
(5) The judge, while a judge or a judicial
candidate,* has made a public statement,
other than in a court proceeding, judicial
decision, or opinion, that commits or
appears to commit the judge to reach a
particular result or rule in a particular way
in the proceeding or controversy.
24
RULE 2.11 Disqualification
COMMENT [6] “Economic interest,” as set forth in the
Terminology section, means ownership of more than a
de minimis legal or equitable interest. Except for
situations in which a judge participates in the
management of such a legal or equitable interest, or
the interest could be substantially affected by the
outcome of a proceeding before a judge, it does not
include:
(1) an interest in the individual holdings within a
mutual or common investment fund;
25
RULE 2.11 Disqualification
COMMENT [6] continued
(2) an interest in securities held by an educational, religious,
charitable, fraternal, or civic organization in which the judge
or the judge’s spouse, domestic partner, parent, or child
serves as a director, officer, advisor, or other participant;
(3) a deposit in a financial institution or deposits or
proprietary interests the judge may maintain as a member of
a mutual savings association or credit union, or similar
proprietary interests; or
(4) an interest in the issuer of government securities held by
the judge.
26
A partner in a law firm has just been elected a judge of the
circuit court. She has been assigned to the probate division.
During her last week with the law firm, she filed a number of
very routine, uncontested probate motions. At the time, she
had no idea that she would be assigned to the probate
division. These routine probate motions have been assigned to
her courtroom by a lottery system of random assignment that
the circuit court regularly employs to assign cases. Is it
proper for the judge to rule on these motions?
a) Yes, because they are routine and uncontested.
b) Yes, because reassignment would cause delay.
c) No, because she has a conflict of interest.
d) No, because judges may never rule on issues when their
former law firm is involved.
See CJC Rule 2.11(A)(6)(a)
27
A partner in a law firm has just been elected a judge of the
circuit court. She has been assigned to the probate division.
During her last week with the law firm, she filed a number of
very routine, uncontested probate motions. At the time, she
had no idea that she would be assigned to the probate
division. These routine probate motions have been assigned to
her courtroom by a lottery system of random assignment that
the circuit court regularly employs to assign cases. Is it
proper for the judge to rule on these motions?
a) Yes, because they are routine and uncontested.
b) Yes, because reassignment would cause delay.
c) No, because she has a conflict of interest.
d) No, because judges may never rule on issues when their
former law firm is involved.
See CJC Rule 2.11(A)(6)(a)
28
NEW RULE - Model Code of Judicial Conduct
RULE 2.14 Disability and Impairment
A judge having a reasonable belief that the
performance of a lawyer or another judge is
impaired by drugs or alcohol, or by a mental,
emotional, or physical condition, shall take
appropriate action, which may include a confidential
referral to a lawyer or judicial assistance program.
29
COMMENT [1] “Appropriate action” means action intended and
reasonably likely to help the judge or lawyer in question address the
problem and prevent harm to the justice system. Depending upon the
circumstances, appropriate action may include but is not limited to
speaking directly to the impaired person, notifying an individual with
supervisory responsibility over the impaired person, or making a
referral to an assistance program.
[2] Taking or initiating corrective action by way of referral to an
assistance program may satisfy a judge’s responsibility under this Rule.
Assistance programs have many approaches for offering help to
impaired judges and lawyers, such as intervention, counseling, or
referral to appropriate health care professionals. Depending upon the
gravity of the conduct that has come to the judge’s attention, however,
the judge may be required to take other action, such as reporting the
impaired judge or lawyer to the appropriate authority, agency, or
body. See Rule 2.15.
30
RULE 3.1
Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except
as prohibited by law* or this Code. However, when
engaging in extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the
proper performance of the judge’s judicial duties;
(B) participate in activities that will lead to frequent
disqualification of the judge;
31
(C) participate in activities that would appear to a
reasonable person to undermine the judge’s
independence,* integrity,* or impartiality;*
(D) engage in conduct that would appear to a
reasonable person to be coercive; or
(E) make use of court premises, staff, stationery,
equipment, or other resources, except for incidental
use for activities that concern the law, the legal
system, or the administration of justice, or unless such
additional use is permitted by law.
32
RULE 3.1 COMMENT [3] Discriminatory actions and
expressions of bias or prejudice by a judge, even
outside the judge’s official or judicial actions, are
likely to appear to a reasonable person to call into
question the judge’s integrity and impartiality.
Examples include jokes or other remarks that demean
individuals based upon their race, sex, gender,
religion, national origin, ethnicity, disability, age,
sexual orientation, or socioeconomic status. For the
same reason, a judge’s extrajudicial activities must not
be conducted in connection or affiliation with an
organization that practices invidious discrimination.
See Rule 3.6.
33
[4] While engaged in permitted extrajudicial
activities, judges must not coerce others or take
action that would reasonably be perceived as
coercive. For example, depending upon the
circumstances, a judge’s solicitation of
contributions or memberships for an
organization, even as permitted by Rule 3.7(A),
might create the risk that the person solicited
would feel obligated to respond favorably, or
would do so to curry favor with the judge.
34
The State Bar and the State University are joint sponsors of the State
Continuing Legal Education Foundation. The purpose of the foundation is
to provide continuing legal education to lawyers and judges in the state.
Its board of directors is composed one-half members of the legal
profession and one-half of university personnel. A prominent judge has
been invited to serve on the board of directors, and is offered the same
modest salary paid to the other board members.
Which of the following is correct?
a) The judge may serve on the board of directors if it does not
interfere with her judicial duties.
b) It would not be proper for the judge to serve on the board of
directors because to do so
would involve her in the teaching of law.
c) It would not be proper for the judge to serve on the board of
directors because she would necessarily be fraternizing with attorneys
who had occasion to practice in her courtroom.
d) The judge may serve on the board of directors, but it would not be
proper for the judge to accept the modest salary that is paid to other
directors.
35
The State Bar and the State University are joint sponsors of the State
Continuing Legal Education Foundation. The purpose of the foundation is
to provide continuing legal education to lawyers and judges in the state.
Its board of directors is composed one-half members of the legal
profession and one-half of university personnel. A prominent judge has
been invited to serve on the board of directors, and is offered the same
modest salary paid to the other board members.
Which of the following is correct?
a) The judge may serve on the board of directors if it does not interfere
with her judicial duties.
b) It would not be proper for the judge to serve on the board of
directors because to do so
would involve her in the teaching of law.
c) It would not be proper for the judge to serve on the board of
directors because she would necessarily be fraternizing with attorneys
who had occasion to practice in her courtroom.
d) The judge may serve on the board of directors, but it would not be
proper for the judge to accept the modest salary that is paid to other
directors.
36
RULE 3.5 Use of Nonpublic Information
A judge shall not intentionally disclose
or use nonpublic information* acquired
in a judicial capacity for any purpose
unrelated to the judge’s judicial duties.
37
COMMENT [1] In the course of performing judicial
duties, a judge may acquire information of
commercial or other value that is unavailable to the
public. The judge must not reveal or use such
information for personal gain or for any purpose
unrelated to his or her judicial duties.
[2] This rule is not intended, however, to affect a
judge’s ability to act on information as necessary to
protect the health or safety of the judge or a member
of a judge’s family, court personnel, or other judicial
officers if consistent with other provisions of this Code.
38
RULE 3.6 Affiliation with Discriminatory Organizations
(A) A judge shall not hold membership in any organization that
practices invidious discrimination on the basis of race, sex,
gender, religion, national origin, ethnicity, or sexual orientation.
(B) A judge shall not use the benefits or facilities of an
organization if the judge knows* or should know that the
organization practices invidious discrimination on one or
more of the bases identified in paragraph (A). A judge’s
attendance at an event in a facility of an organization that the
judge is not permitted to join is not a violation of this Rule when
the judge’s attendance is an isolated event that could not
reasonably be perceived as an endorsement of the
organization’s practices.
39
COMMENT [4] A judge’s membership in
a religious organization as a lawful
exercise of the freedom of religion is
not a violation of this Rule.
[5] This Rule does not apply to national
or state military service
40
A full time trial judge, in addition to her judicial work, is the CEO of a
corporation that is closely held by the judge and her three brothers. The
corporation owns and operates a nursing home. Because of strong antihomosexual religious beliefs on the part of residents, the nursing home
does not employ gays and lesbians. The judge's responsibilities for the
corporation do not interfere with her judicial duties. Is it proper for the
judge to continue as CEO of the corporation?
a) Yes, because a judge is only prohibited from associating with an
organization that practices invidious discrimination on the basis of race,
sex, religion, or national origin.
b) Yes, because the management of the family owned business does not
take so much time that it interferes with the judge's judicial duties.
c) No, because a judge is not allowed to serve as an officer, director,
manager, general partner, advisor, or employee of a business entity.
d) No, because the nursing home practices employment discrimination
against gays and lesbians.
See CJC Rule 3.6, 3.11(B)
41
A full time trial judge, in addition to her judicial work, is the CEO of a
corporation that is closely held by the judge and her three brothers. The
corporation owns and operates a nursing home. Because of strong antihomosexual religious beliefs on the part of residents, the nursing home
does not employ gays and lesbians. The judge's responsibilities for the
corporation do not interfere with her judicial duties. Is it proper for the
judge to continue as CEO of the corporation?
a) Yes, because a judge is only prohibited from associating with an
organization that practices invidious discrimination on the basis of race,
sex, religion, or national origin.
b) Yes, because the management of the family owned business does not
take so much time that it interferes with the judge's judicial duties.
c) No, because a judge is not allowed to serve as an officer, director,
manager, general partner, advisor, or employee of a business entity.
d) No, because the nursing home practices employment discrimination
against gays and lesbians.
See CJC Rule 3.6, 3.11(B)
42
RULE 3.7 Participation in Educational, Religious, Charitable,
Fraternal, or Civic Organizations and Activities
(A) Subject to the requirements of Rule 3.1, a judge may
participate in
activities sponsored by organizations or governmental
entities concerned
with the law, the legal system, or the administration of
justice, and those
sponsored by or on behalf of educational, religious,
charitable, fraternal, or civic organizations not conducted for
profit, including but not limited to the following activities:
43
…including but not limited to the following activities:
(1) assisting such an organization or entity in planning
related to fund-raising, and participating in the
management and investment of the organization’s or entity’s
funds;
(2) soliciting* contributions* for such an organization or
entity, but only from members of the judge’s family,* or from
judges over whom the judge does not exercise supervisory
or appellate authority;
(3) soliciting membership for such an organization or entity,
even though the membership dues or fees generated may
be used to support the objectives of the organization or
entity, but only if the organization or entity is concerned with
the law, the legal system, or the administration of justice;
44
RULE 3.7 MORE PERMISSIBLE ACTIVITIES
(4) appearing or speaking at, receiving an award or other
recognition at, being featured on the program of, and
permitting his or her title to be used in connection with an
event of such an organization or entity, but if the event
serves a fund-raising purpose, the judge may participate
only if the event concerns the law, the legal system, or the
administration of justice;
(5) making recommendations to such a public or private
fund-granting organization or entity in connection with its
programs and activities, but only if the organization or
entity is concerned with the law, the legal system, or the
administration of justice; and
45
RULE 3.7 MORE PERMISSIBLE ACTIVITIES
(6) serving as an officer, director, trustee, or nonlegal
advisor of such an organization or entity, unless it is
likely that the organization or entity:
(a) will be engaged in proceedings that would
ordinarily come before the judge; or
(b) will frequently be engaged in adversary
proceedings in the court of which the judge is a
member, or in any court subject to the appellate
jurisdiction of the court of which the judge is a
member.
(B) A judge may encourage lawyers to provide
pro bono publico legal services.
46
A judge is a loyal member of the alumni association of the
women's college from which she graduated. The 25th reunion
of her graduating class is coming up, and she has been asked
to participate in some activities designed to raise money for a
gift from the class to the college scholarship fund. Which of
the following activities would be improper for the judge to
do?
a) Make a substantial personal donation to the class gift
fund.
b) Telephone other members of her graduating class and
urge them to make a donation to the class gift fund.
c) Serve on the scholarship fund committee, which devises the
various fund-raising strategies.
d) Attend a fund-raising dinner for the class gift.
See CJC Rule 3.7(A)
47
A judge is a loyal member of the alumni association of the
women's college from which she graduated. The 25th reunion
of her graduating class is coming up, and she has been asked
to participate in some activities designed to raise money for a
gift from the class to the college scholarship fund. Which of
the following activities would be improper for the judge to
do?
a) Make a substantial personal donation to the class gift
fund.
b) Telephone other members of her graduating class and urge
them to make a donation to the class gift fund.
c) Serve on the scholarship fund committee, which devises the
various fund-raising strategies.
d) Attend a fund-raising dinner for the class gift.
See CJC Rule 3.7(A)
48
RULE 3.8 Appointments to Fiduciary Positions
(A) A judge shall not accept appointment to serve in a
fiduciary* position, such as executor, administrator, trustee,
guardian, attorney in fact, or other personal representative,
except for the estate, trust, or person of a member of the
judge’s family,* and then only if such service will not
interfere with the proper performance of judicial duties.
(B) A judge shall not serve in a fiduciary position if the judge
as fiduciary will likely be engaged in proceedings that
would ordinarily come before the judge, or if the estate,
trust, or ward becomes involved in adversary proceedings in
the court on which the judge serves, or one under its
appellate jurisdiction.
49
(C) A judge acting in a fiduciary capacity shall be
subject to the same restrictions on engaging in
financial activities that apply to a judge
personally.
(D) If a person who is serving in a fiduciary position
becomes a judge, he or she must comply with this
Rule as soon as reasonably practicable, but in no
event later than [one year] after becoming a judge
50
The mother of a full-time trial judge owns a small business that she
wishes to sell. After she and a prospective buyer come to terms on the
sale, the buyer has his lawyer draw up a sales contract and presents it
to the judge's mother, who asks her son, the judge, to review it for her.
The judge agrees, marks up the contract, and returns it to his mother to
present to the buyer's attorney. The judge's mother did not tell the
buyer that her son reviewed the contract. The buyer has no known
reason for being likely to appear in the judge's court. Were the judge's
actions proper?
a) Yes, because the buyer is not likely to appear in the judge's court in
the future.
b) Yes, because he did not charge his mother a fee.
c) No, because a full-time judge is not permitted to practice law.
d) No, because the judge's identity was not disclosed to the buyer of
the buyer's attorney.
See CJC Rule 3.10
51
The mother of a full-time trial judge owns a small business that she
wishes to sell. After she and a prospective buyer come to terms on the
sale, the buyer has his lawyer draw up a sales contract and presents it
to the judge's mother, who asks her son, the judge, to review it for her.
The judge agrees, marks up the contract, and returns it to his mother to
present to the buyer's attorney. The judge's mother did not tell the
buyer that her son reviewed the contract. The buyer has no known
reason for being likely to appear in the judge's court. Were the judge's
actions proper?
a) Yes, because the buyer is not likely to appear in the judge's court in
the future.
b) Yes, because he did not charge his mother a fee.
c) No, because a full-time judge is not permitted to practice law.
d) No, because the judge's identity was not disclosed to the buyer of
the buyer's attorney.
See CJC Rule 3.10
52
RULE 3.11 - Financial, Business, or Remunerative
Activities
(A) A judge may hold and manage investments of the
judge and members of the judge’s family.*
(B) A judge shall not serve as an officer, director,
manager, general partner, advisor, or employee of any
business entity except that a judge may manage or
participate in:
(1) a business closely held by the judge or members
of the judge’s family; or
(2) a business entity primarily engaged in investment
of the financial resources of the judge or members of
the judge’s family.
53
RULE 3.11 - Financial, Business, or Remunerative
Activities
(C) A judge shall not engage in financial activities
permitted under paragraphs (A) and (B) if they will:
(1) interfere with the proper performance of
judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or
continuing business relationships with lawyers or
other persons likely to come before the court on
which the judge serves; or
(4) result in violation of other provisions of this
Code
54
RULE 3.11 - Financial, Business, or Remunerative Activities
COMMENT [1] Judges are generally permitted to engage
in financial activities, including managing real estate and
other investments for themselves or for members of their
families. Participation in these activities, like participation in
other extrajudicial activities, is subject to the requirements of
this Code. For example, it would be improper for a judge to
spend so much time on business activities that it interferes
with the performance of judicial duties. See Rule 2.1.
Similarly, it would be improper for a judge to use his or her
official title or appear in judicial robes in business
advertising, or to conduct his or her business or financial
affairs in such a way that disqualification is frequently
required. See Rules 1.3 and 2.11.
55
RULE 3.11 - Financial, Business, or
Remunerative Activities
[2] As soon as practicable without serious
financial detriment, the judge must divest
himself or herself of investments and other
financial interests that might require frequent
disqualification or otherwise violate this Rule.
56
Before a judge was elected to the bench, she and her law partner
purchased a piece of property to be held in co-tenancy by the judge
and her law partner. After the judge was elected to the bench, she
agreed to pay her law partner an annual fee to manage the property
because her own time would be severely limited by her judicial duties.
The judge and her law partner meet every three months to discuss the
status of the property. The law partner sometimes appears as an
attorney in the judge's courtroom. Was it proper for the judge to
make this arrangement with her law partner?
a) Yes, because the judge acquired the property before she became
a judge.
b) Yes, because the judge made arrangements to ensure that her
judicial duties would not suffer.
c) No, because judges should not engage in remunerative outside
enterprises.
d) No, because the law partner appears in cases before the judge's
court.
See CJC Rule 3.11(C)(3); CJC Rule 3.11(A)
57
Before a judge was elected to the bench, she and her law partner
purchased a piece of property to be held in co-tenancy by the judge
and her law partner. After the judge was elected to the bench, she
agreed to pay her law partner an annual fee to manage the property
because her own time would be severely limited by her judicial duties.
The judge and her law partner meet every three months to discuss the
status of the property. The law partner sometimes appears as an
attorney in the judge's courtroom. Was it proper for the judge to
make this arrangement with her law partner?
a) Yes, because the judge acquired the property before she became
a judge.
b) Yes, because the judge made arrangements to ensure that her
judicial duties would not suffer.
c) No, because judges should not engage in remunerative outside
enterprises.
d) No, because the law partner appears in cases before the judge's
court.
See CJC Rule 3.11(C)(3); CJC Rule 3.11(A)
58
RULE 3.12
Compensation for Extrajudicial Activities
A judge may accept reasonable
compensation for extrajudicial activities
permitted by this Code or other law* unless
such acceptance would appear to a
reasonable person to undermine the judge’s
independence,* integrity,* or impartiality.*
59
RULE 3.12 COMMENT
[1] A judge is permitted to accept honoraria,
stipends, fees, wages, salaries, royalties, or other
compensation for speaking, teaching, writing, and
other extrajudicial activities, provided the
compensation is reasonable and commensurate with
the task performed. The judge should be mindful,
however, that judicial duties must take precedence
over other activities. See Rule 2.1.
[2] Compensation derived from extrajudicial
activities may be subject to public reporting.
See Rule 3.15
60
RULE 3.13 Acceptance and Reporting of
Gifts, Loans, Bequests, Benefits, or Other
Things of Value
(A) A judge shall not accept any gifts, loans,
bequests, benefits, or other things of value, if
acceptance is prohibited by law* or would
appear to a reasonable person to undermine
the judge’s independence,* integrity,* or
impartiality.*
61
RULE 3.13 Acceptance and Reporting of Gifts, Loans, Bequests,
Benefits, or Other
Things of Value
(B) Unless otherwise prohibited by law, or by paragraph (A), a
judge may accept the following without publicly reporting such
acceptance:
(1) items with little intrinsic value, such as plaques, certificates,
trophies, and greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value
from friends, relatives, or other persons, including lawyers,
whose appearance or interest in a proceeding pending* or
impending* before the judge would in any event require
disqualification of the judge under Rule 2.11;
(3) ordinary social hospitality;
62
(4) commercial or financial opportunities and
benefits, including special pricing and discounts, and
loans from lending institutions in their regular course
of business, if the same opportunities and benefits or
loans are made available on the same terms to
similarly situated persons who are not judges;
(5) rewards and prizes given to competitors or
participants in random drawings, contests, or other
events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or
awards, if they are available to similarly situated
persons who are not judges, based upon the same
terms and criteria;
63
(7) books, magazines, journals, audiovisual
materials, and other resource materials
supplied by publishers on a complimentary
basis for official use; or
(8) gifts, awards, or benefits associated with
the business, profession, or other separate
activity of a spouse, a domestic partner,* or
other family member of a judge residing in the
judge’s household,* but that incidentally
benefit the judge.
64
RULE 3.13 Acceptance and Reporting of Gifts, Loans,
Bequests, Benefits, or Other Things of Value
(C) Unless otherwise prohibited by law or by
paragraph (A), a judge may accept the following
items, and must report such acceptance to the extent
required by Rule 3.15:
(1) gifts incident to a public testimonial;
65
RULE 3.13 Acceptance and Reporting of Gifts, Loans, Bequests,
Benefits, or Other Things of Value
(2) invitations to the judge and the judge’s spouse, domestic
partner, or guest to attend without charge
(a) an event associated with a bar-related function or other
activity relating to the law, the legal system, or the
administration of justice; or
(b) an event associated with any of the judge’s educational,
religious, charitable, fraternal or civic activities permitted by
this Code, if the same invitation is offered to nonjudges who
are engaged in similar ways in the activity as is the judge; and
(3) gifts, loans, bequests, benefits, or other things of value, if
the source is a party or other person, including a lawyer, who
has come or is likely to come before the judge, or whose
interests have come or are likely to come before the judge.
66
An attorney has a high-profile divorce law practice in the town in which
he resides. Because of his heavy caseload, the attorney often appears
before the four chancery judges of the county court. One of the
chancery judges is getting married, and he sends a wedding invitation
to the attorney. The attorney wishes to send the judge, as a wedding
gift, an imported Italian machine that makes espresso and cappuccino
coffee because he knows that the judge loves fine coffee. The coffee
machine sells for $200 at the town's best cooking equipment store. The
attorney sent the coffee machine, to the judge, and the judge duly made
a public report of the gift. Was it proper for the attorney to send the
coffee machine to the judge?
a) Yes, because the judge would not be unduly influenced by a $200
gift.
b) Yes, because the judge made a public report of the gift.
c) No, because the gift was not a campaign contribution, and lawyers
should not give other types of gifts to judges.
d) No, because the value of the gift exceeded $150.
See ABA Model Rule 3.5(a); CJC Rule 3.13(C)(3)
67
An attorney has a high-profile divorce law practice in the town in which
he resides. Because of his heavy caseload, the attorney often appears
before the four chancery judges of the county court. One of the
chancery judges is getting married, and he sends a wedding invitation
to the attorney. The attorney wishes to send the judge, as a wedding
gift, an imported Italian machine that makes espresso and cappuccino
coffee because he knows that the judge loves fine coffee. The coffee
machine sells for $200 at the town's best cooking equipment store. The
attorney sent the coffee machine, to the judge, and the judge duly made
a public report of the gift. Was it proper for the attorney to send the
coffee machine to the judge?
a) Yes, because the judge would not be unduly influenced by a $200
gift.
b) Yes, because the judge made a public report of the gift.
c) No, because the gift was not a campaign contribution, and lawyers
should not give other types of gifts to judges.
d) No, because the value of the gift exceeded $150.
See ABA Model Rule 3.5(a); CJC Rule 3.13(C)(3)
68
A judge presides over a state trial court. Every six years, trial judges in
the state must stand as candidates in a partisan public election to
determine whether they will retain their positions. The judge will be a
retention candidate in the election to be held nine months from now. In
that same election, the judge's husband, an attorney, will be a candidate
for lieutenant governor of the state. The state allows judicial candidates
to form campaign committees up to a year before the election. Which
of the following may the judge do?
a) Establish a campaign committee that will solicit reasonable
contributions for the judge's campaign.
b) Publicly endorse her husband as a candidate for lieutenant
governor.
c) Attend political gatherings in the company of her husband, and
speak on behalf of both herself and him.
d) Personally solicit contributions to her own campaign.
See CJC Rule 4.2(B)(1), 4.3(A)(3), 4.1(A)(8)
69
A judge presides over a state trial court. Every six years, trial judges in
the state must stand as candidates in a partisan public election to
determine whether they will retain their positions. The judge will be a
retention candidate in the election to be held nine months from now. In
that same election, the judge's husband, an attorney, will be a candidate
for lieutenant governor of the state. The state allows judicial candidates
to form campaign committees up to a year before the election. Which
of the following may the judge do?
a) Establish a campaign committee that will solicit reasonable
contributions for the judge's campaign.
b) Publicly endorse her husband as a candidate for lieutenant
governor.
c) Attend political gatherings in the company of her husband, and
speak on behalf of both herself and him.
d) Personally solicit contributions to her own campaign.
See CJC Rule 4.2(B)(1), 4.3(A)(3), 4.1(A)(8)
70
LAWYER RULES RELATED TO
JUDGES
71
A lawyer shall not negotiate for employment with any
person who is involved as a party or as lawyer for a party
in a matter in which the lawyer is participating personally
and substantially as a judge or other adjudicative officer or
as an arbitrator, mediator or other third-party neutral.
A lawyer serving as a law clerk to a judge or other
adjudicative officer may negotiate for employment with a
party or lawyer involved in a matter in which the clerk is
participating personally and substantially, but only after
the lawyer has notified the judge or other adjudicative
officer.
72
72
A lawyer who knows that a judge has
committed a violation of applicable rules of
judicial conduct that raises a substantial
question as to the judge's fitness for office shall
inform the appropriate authority.
73
It is professional misconduct for a lawyer
to knowingly assist a judge or judicial
officer in conduct that is a violation of
applicable rules of judicial conduct or
other law.
74
Yes/No questions from casebook:
(6) Retired Judge RJ is subject to recall, to serve as a
trial judge when she is needed. When she is recalled,
she is paid a generous per diem in addition to her
ordinary retirement pay. As a judge subject to recall,
she is not permitted to practice law. During a month
in which she is certain not to be recalled as a trial
judge, would it be proper for her to serve for pay as
the mediator of a work-assignment dispute between
two labor unions?
75
Yes/No questions from casebook:
(6) Retired Judge RJ is subject to recall, to serve as a trial judge when
she is needed. When she is recalled, she is paid a generous per diem
in addition to her ordinary retirement pay. As a judge subject to recall,
she is not permitted to practice law. During a month in which she is
certain not to be recalled as a trial judge, would it be proper for her
to serve for pay as the mediator of a work-assignment dispute
between two labor unions?
YES. CJC Rule 3.9 prohibits full-time judges from
serving as mediators or arbitrators, except as part
of their judicial duties. But retired judges subject to
recall are exempted from this rule , and many
retired judges work as mediators and arbitrators.
76
Answer the following Yes/No questions:
(10) Justice JZ sits on the State Supreme Court. To reduce
their state and federal income tax burden, JZ and his wife
knowingly and grossly overstated the fair market value of
some property they donated to a charity. The IRS charged
them with willful failure to pay income tax, a serious criminal
offense. Eventually the IRS dismissed the case in return for
full payment of all the taxes due, plus interest, and a stiff
penalty. Is JZ subject to discipline?
77
Answer the following Yes/No questions:
(10) Justice JZ sits on the State Supreme Court. To reduce their state
and federal income tax burden, JZ and his wife knowingly and grossly
overstated the fair market value of some property they donated to a
charity. The IRS charged them with willful failure to pay income tax, a
serious criminal offense. Eventually the IRS dismissed the case in return
for full payment of all the taxes due, plus interest, and a stiff penalty.
Is JZ subject to discipline?
YES. The rules requires judges to obey the law and
avoid conduct that tarnishes the integrity of the
judiciary. Tax delinquency is a common ground for
disciplining lawyers, and judges are held to the same
standard.
78
Answer the following Yes/No questions:
(11) The North Virginia Legal Assistance Corporation (NVLAC) is a
tax-exempt, publicly chartered corporation that seeks charitable
donations and in turn grants funds to locally operated Legal Aid
offices. Those offices provide legal services to needy people in noncriminal matters. Justice JL sits on the North Virginia Circuit Court of
Appeal. She allows her name and title to be used on the letterhead
that the NVLAC uses to solicit contributions from the public and
memberships from lawyers. The Justice also makes speeches at bar
association meetings, urging lawyers to become dues-paying members
of NVLAC and to provide pro bono services. Finally, the Justice serves
as an unpaid instructor in quarterly workshops that train lawyers how
to do Legal Aid Work. Are Justice JL’s activities proper?
79
Answer the following Yes/No questions:
(11) The North Virginia Legal Assistance Corporation (NVLAC) is a tax-exempt, publicly
chartered corporation that seeks charitable donations and in turn grants funds to locally
operated Legal Aid offices. Those offices provide legal services to needy people in noncriminal matters. Justice JL sits on the North Virginia Circuit Court of Appeal. She allows her
name and title to be used on the letterhead that the NVLAC uses to solicit contributions from
the public and memberships from lawyers. The Justice also makes speeches at bar association
meetings, urging lawyers to become dues-paying members of NVLAC and to provide pro
bono services. Finally, the Justice serves as an unpaid instructor in quarterly workshops that
train lawyers how to do Legal Aid Work. Are Justice JL’s activities proper?
YES. CJC Rule 1.2, Comment 4 encourages judges to
participate in access-to-justice causes, and Comment 6 says
judges should participate in community outreach. Rule
3.7(A)(3) allows judges to solicit dues-paying memberships
for law related organizations, and 3.7(A)(4) allows judges
to speak at fundraising events for such organizations.
Judges are also allowed to train lawyers for pro bono work.
80
Answer the following Yes/No questions:
(12) On her way to work one morning, Superior Court Judge
JE was stopped by a State Highway Patrol Officer for driving
her little red car 83 miles per hour through a 45 mph
construction zone. The officer gave JE a $400 speeding ticket.
In response, JE ordered the officer to appear at 10 a.m. the
following day in her courtroom. The officer appeared as
ordered, in uniform and wearing his service pistol on his belt.
JE ordered him to place his pistol on the bench. She picked it
up and pointed it at the officer’s mid-section and said,
“Officer, the next time you see my car on your little piece of
highway, think carefully about this moment.” With that, she
handed the pistol back and dismissed him. She later paid the
speeding ticket on time and without complaint. Is JE subject to
discipline?
81
Answer the following Yes/No questions:
(12) On her way to work one morning, Superior Court Judge JE was
stopped by a State Highway Patrol Officer for driving her little red
car 83 miles per hour through a 45 mph construction zone. The officer
gave JE a $400 speeding ticket. In response, JE ordered the officer to
appear at 10 a.m. the following day in her courtroom. The officer
appeared as ordered, in uniform and wearing his service pistol on his
belt. JE ordered him to place his pistol on the bench. She picked it up
and pointed it at the officer’s mid-section and said, “Officer, the next
time you see my car on your little piece of highway, think carefully
about this moment.” With that, she handed the pistol back and
dismissed him. She later paid the speeding ticket on time and without
complaint. Is JE subject to discipline?
YES. The CJC Rule 1.3 Comment 1 specifically
addresses this type of abuse.
82
If a case or issue is likely to come before a judge or judicial
candidate’s court, they must not make a pledge, promise, or
commitment that is inconsistent with their duty to decide that
case or issue impartially. See CJC 2.10(B) and 4.1(A)(13).
The 1990 predecessor of those rules was more restrictive, as
it prohibited judicial candidates from making pledges or
promises of “conduct in office other than the faithful and
impartial performance of the duties of office,” and from
making statements that “commit or appear to commit the
candidate with respect to cases, controversies, or issues that
are likely to come before the court.”
83
One provision of the 1972 CJC was still more restrictive, in
saying:


A judicial candidate must not “announce his views on disputed legal or political issues.”
The clause is now known as the “announce clause” as a means of distinguishing it from the
“commit clause” of the 1990 version.
After the ABA abandoned the announce clause and
substituted the commit clause, most states followed the ABA’s
lead, but Minnesota kept the announce clause and applied it
to both incumbent judges and lawyers seeking their first
judgeship.
84
Minnesota’s announce provision led to the Supreme Court decision
of Republican Party of Minnesota v. White, 536 U.S. 765 (2002),
where the Court struck down the announce clause.


In writing the opinion, Justice Scalia called the clause an impermissible content-based restriction that
burdens a kind of speech that is at the core of First Amendment freedoms—speech about the
qualifications of a candidate for public office.
The restriction is subject to strict scrutiny, thus forcing the Minnesota officials to prove that the clause
was (1) narrowly tailored and (2) to serve a compelling state interest.
85
The recusal of federal judges, including the Justices
of the U.S. Supreme Court, is governed by a federal
statute. See 28 U.S.C. § 455 (2000).
The statute begins with a broad catch-all provision,
which says that a federal magistrate, judge or justice
“shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.”

Recusal is mandatory if a reasonable person might have a reasonable doubt
about the impartiality of the magistrate, judge or justice.
86
This provision, however, is subject to a
judicially created exception called the
“extrajudicial source rule,” which requires
that the alleged judicial bias must arise
from an out-of-court source, and must not
derive from evidence, conduct, or
information obtained during the course of
judicial proceedings.
 Thus,
if the judge is not showing impatience or annoyance
with a litigant, the judge is not subject to disqualification
87
The second part of the statute lists specific grounds for recusal, which
are similar to those listed in the 2007 CJC and its 1990 predecessor.
 Examples include:
 Personal knowledge of a disputed fact
 Prior role as a witness or lawyer in the matter
 Personal or close family interest in the matter or in a party
Recusal is mandatory, not permissive.
 Section 455(a) sets an objective standard for the catch-all
provision—the reasonable person who might have a reasonable
doubt about the judge’s impartiality.
 The present objective standard replaced the subjective approach
used prior to 1976.
88
The Sierra Club sued Vice-President Cheney and members of the
National Energy Policy Development Group.
The federal district court allowed the Sierra Club to conduct
discovery. President Cheney filed an interlocutory appeal and
requested a writ of mandamus to prevent discovery. The D.C.
Circuit Court of Appeals dismissed Cheney’s interlocutory appeal
and denied his writ of mandamus.
The Vice-President then petitioned the Supreme Court for
certiorari, and on December 15, 2003, the Court granted the
writ.
89
Three weeks later, Justice Scalia went on a
duck hunting trip to Louisiana with VicePresident Cheney.

A media uproar disrupted, and the Sierra Club moved to disqualify
Justice Scalia.
Justice Scalia wrote a memorandum opinion to
explain his decision on the recusal motion, and
stated that the recusal should depend on “the
facts as they existed, and not as they were
surmised or reported.”

Justice Scalia provided a summary of the facts as to his relationship,
or lack thereof, with Vice-President Cheney.
90
The Sierra Club argued that doubts about impartiality
should be resolved in favor of recusal.
 Justice Scalia responded that resolving doubts in favor of
recusal may be good advice for lower court judges,
because they can simply be replaced; however, there are
no substitutes at the Supreme Court level and granting a
recusal motion is effectively the same as casting a vote
against petitioner.
Justice Scalia also stated that a Justice’s personal friendship
with a litigant would be grounds for recusal if the friend’s
personal fortune or personal freedom were at stake in the
case, but historically recusal has not been required where
the friend is a government official and is a litigant only in his
or her official capacity.
91
Ordinarily a statute or judicial ethics rule
determines whether a judge might recuse
him or herself, but on rare occasion, a
judge’s failure to step out of case is so
patently unfair as to constitute a violation
of due process.
92
In Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), Caperton and
other plaintiffs sued Massey Coal for destroying their business by fraud
and interference with contract. The plaintiffs won a jury verdict of $50M.
Massey Coal knew that the verdict would be appealed to West Virginia’s
highest court and that incumbent Justice McGraw would be running for
reelection.
Massey Coal’s CEO, Blankenship, started working to defeat Justice
McGraw and to replace him with a lawyer named Benjamin.
 Blankenship gave Benjamin’s campaign committee $1,000.
 Blankenship gave $2.5M to a PAC that supported Benjamin.
 Blankenship spent almost a half million dollars on direct mail
solicitations for donations, television time, newspaper ads to support
Benjamin.
Blankenship’s $3M contributions were double the amount given by all other Benjamin
supporters combined, and triple the amount spent by Benjamin’s own campaign
93
committee.
Benjamin won the election with a 6% margin, and the West
Virginia Justices overturned the plaintiff’s jury verdict by a 3-2
vote (with Benjamin in the majority).
The United States Supreme Court granted certiorari to decide
whether Benjamin’s refusal to recuse himself had deprived the
plaintiffs of due process.
The Court held that it did, and argued that routine questions of
judicial bias are governed by state or federal statutes or judicial
ethics rules and do not raise due process issues. But where the
facts at hand create a “probability of bias,” a judge’s refusal to
recuse himself can deprive a litigant of due process.
94
Massey Coal clarifies that due process does not require judges to recuse
themselves whenever a campaign donor appears in a case as either litigant
or lawyer.
The factors that made Blankenship’s donations extraordinary were:
 their size compared with the total donated by other people and with the
total Benjamin’s campaign spent,
 the timing of the donations when case was headed to the court, and
 the apparent effect the donations had on the outcome of the election.
The Dissent argued that the majority’s “probability of bias” formula is not
clear enough to guide judges and lawyers in future cases. Many rule-making
bodies have now undertaken the task of drafting new recusal rules that ought
to answer the dissent’s issues.
95