CALIFORNIA CODE OF JUDICIAL
ETHICS
Hon. Tom Hollenhorst
Hon. Julie Conger
Hon. Dodie Harman
AMERICAN BAR ASSOCIATION
MODEL CODE OF
JUDICIAL CONDUCT
ABA MODEL CODE
Short History of the Code
 Initial
Draft was 1924
 ABA
undertook three major rewrites, 1990,
2003 and 2007.
 States
code.
are free to accept or reject all or part of
ABA MODEL CODE
Short History of the Code
 Most
differences in the code are because of
differences in selection of judges, ie,
appointment vs. elections.
 Rewrites
generally reflect changes in society,
family structure and national issues.
 Remaining
Issue: Appellate Disqualification
JUDICIAL SPEECH
CALIFORNIA CODE OF JUDICIAL ETHICS
 Canon
1 – High Standards of Conduct
 Canon
2 – Avoid Impropriety and Appearance
of Impropriety
 Canon
2A – Promote public confidence in
integrity and impartiality
JUDICIAL SPEECH
CALIFORNIA CODE OF JUDICIAL ETHICS
 Canon
2B – No use of prestige of judicial office
 Canon
3B(5) – No speech or gestures implying
bias or prejudice
 Canon
3B(7) – No ex parte communications
CALIFORNIA CODE OF JUDICIAL ETHICS
 Canon
3B(9) – No public comment on pending
or impending proceedings
 Canon
3B(9) – No nonpublic comment that
would substantially interfere with fair trial or
hearing
 Educational
exception
CALIFORNIA CODE OF JUDICIAL ETHICS
 Canon
4A(1) – No extrajudicial activity should
cast doubt on impartiality or demean judicial
office
 Canon
4C – No appearance or consultation at
public hearing or governmental body unless on
matters concerning law, legal system or
administration of justice or personal matters
JUDICIAL SPEECH
CALIFORNIA CODE OF JUDICIAL ETHICS
 Canon
5A – No inappropriate political activity – no
speeches for political organizations or
endorsements of nonjudicial candidates
 Canon
5B – Judicial candidate shall not make
statements to electorate or appointing authority
that commit with respect to cases, controversies or
issues that could come before courts
NEW CANON 2A – JUDICIAL SPEECH
A
judge shall not make statements, whether
public or nonpublic, that commit the judge with
respect to cases, controversies, or issues that
are likely to come before the courts or that are
inconsistent with the impartial performance of
the adjudicative duties of judicial office.
NEW CANON 2A – JUDICIAL SPEECH
 Covers
public AND nonpublic statements
 No
commitment on issues likely to be subject
of litigation
OR
 No
statements inconsistent with impartiality
SOURCE OF CANON 2A ?
CANON 5B
 Applies
only to conduct during election
campaign
 Audience:
Electorate or Appointing Authority
SOURCE OF CANON 2A?
ABA MODEL CODE OF JUDICIAL CONDUCT
 Rule
2.10(A) A judge shall not make any public
statement that might reasonably be expected
to affect the outcome or impair the fairness of
a matter pending or impending in any court, or
make any nonpublic statement that might
substantially interfere with a fair trial or hearing
SOURCE OF CANON 2A ?
ABA MODEL CODE OF JUDICIAL CONDUCT
 Rule
2.10 (B) A judge shall not, in connection
with cases, controversies, or issues that are
likely to come before the court, make pledges,
promises or commitments that are inconsistent
with the impartial performance of the
adjudicative duties of judicial office.
ABA MODEL CODE RULE 2.10(B)
 Prohibited
statements only “in connection with
cases, controversies, or issues likely to come
before the court”
 “Inconsistent
with impartiality” modifies the
term “commitments” and does not apply to ALL
statements
NEW COMMENTARY ON CANON 3B(9)
 Cautionary
 “Judges
reminder of Canon 2A
should be cautious when making (nonpublic
comments about pending or impending cases) that such
a comment can be misheard, misinterpreted or
repeated….(When making such a nonpublic comment)
the judge must keep an open mind and not form an
opinion prematurely or create the appearance of having
formed an opinion prematurely.”
NEW CANON 3E(3)
A
judge is disqualified if the judge, while a
judge or candidate for judicial office, has made
a statement, other than in a court proceeding,
judicial decision, or opinion, that a person
aware of the facts might reasonably believe
commits the judge to reach a particular result
or rule in a particular way in a proceeding.
CODE OF CIVIL PROCEDURE 170.2
 It
shall not be grounds for disqualification that
the judge…..has in any capacity expressed a
view on a legal or factual issue presented in the
proceeding.
QUESTIONS
How to reconcile these two provisions?
Will this lead to more challenges under CCP
170.1?
Will these more stringent constraints upon
judicial speech instigate increased attention by
the Commission on Judicial Performance?
CHANGES TO CANON 3
A
judge shall perform the duties of judicial
office impartially, competently, and diligently.
CHANGES TO CANON 3
 What
 AOC
is “competence”?
staff memo: “supports the principle that
judges should engage in continuing education.”
CHANGES TO CANON 3
 Competence:
requires the legal knowledge,
skill, thoroughness, and preparation reasonably
necessary to perform judge’ responsibilities of
judicial office
 Canon
1: incorrect legal ruling is not itself a
violation of this code
CHANGES TO CANON 3
 Proposed
new CJP Rule 1.14:
 Discipline
shall not be imposed for mere legal error
without more.
 Exception
added: clearly and convincingly reflects
bad faith…or any purpose other than the faithful
discharge of judicial duty is subject to investigation
and discipline.
CHANGES TO CANON 3
 Oberholzer
 “critical
v. CJP (1999) 20Cal. 4th 371:
inquiry is whether petitioner’s action
clearly and convincingly reflected bad faith,
bias, abuse of authority, disregard for
fundamental rights, intentional disregard of the
law, or any purpose other than the faithful
discharge of judicial duty.”
CHANGES TO CANON 3
 “Competent”
requirement – directly relates to
continuing education standards.
 Will
this be “underlying misconduct” to justify
investigation and discipline by the Commission?
CANON 3B(7)
EX PARTE COMMUNICATIONS
 No
independent investigation of the facts
 Consider
only evidence presented or judicially
noticed
 All
media, including electronic
 Must
make reasonable efforts to avoid ex parte
communications
CANON 3B(7)
EX PARTE COMMUNICATIONS
 Adds
language prohibiting communication with
disqualified judge or one with appellate
jurisdiction
CANON 3B(7)
EX PARTE COMMUNICATIONS
 Consultation
with court personnel or others
authorized by law:
 Allowed
“so long as the communication relates
to that person’s duty to aid the judge in
carrying out the judge’s adjudicative
responsibilities.”
CANON 3B(7)
EX PARTE COMMUNICATIONS
 Court
Personnel includes:
 Bailiffs,
court reporters, court externs
 Research
 Other
attorneys, courtroom clerks
employees of the court
CANON 3B(7)
EX PARTE COMMUNICATIONS
 Court
personnel does not include:
 Lawyers
in a proceeding
 Persons
appointed by the court
 Employees
of government agencies, such as
lawyers, social workers or representatives of
probation department
CANON 3B(7)(b) and (c)
 Standardizes
use of “initiate, permit or consider”
 Authorizes
ex parte communication when
authorized to do so by stipulation of the parties
 Eliminates
“disinterested expert on the law”
exception but Evidence Code 730 expert
appointment permitted
NEW CANON 3B(7)(d)
 If
judge receives ex parte communication:
 Must
promptly notify parties of substance
 Provide
opportunity to respond
CANON 3D(2)
REPORTING RESPONSIBILITIES
 Canon
3D(2) amended to read: J must take
corrective action whenever a lawyer has
committed misconduct or has violated the rules
of Professional misconduct.
CANON 3D(2)
REPORTING RESPONSIBILITIES
B
and P sec. 6096.7 requires reporting attorney
to state bar if there has been a modification or
reversal based in whole or in part on
misconduct, incompetent representation, or
willful misrepresentation by an attorney.
CANON 3D(2)
REPORTING RESPONSIBILITIES
 Report
to who? When? Record of Compliance
(perhaps years later)
 Difficulties
for Appellate Justices, limited
options for compliance, deterrence to
identifying and labeling misconduct to avoid
reporting, courts with huge calendars.
Canon 3D(2)
REPORTING RESPONSIBILITIES
 This
change is consistent with the ABA Model
Code requiring some corrective action be taken
irrespective of whether the outcome of the
case changed because of misconduct.
CANON 3D(2)
REPORTING RESPONSIBILITIES
 Commentary
has changed : Now requires
corrective action when there has been
misconduct or violation of rules irrespective of
change in disposition of case
 Issues:
Redundancy, chilling effect on making
the initial determination, lapse of time since
the incident occurred.