JUDICIAL ETHICS : WHAT EVERY LAWYER NEEDS TO KNOW
Why should Virginia lawyers care about the codes of conduct that govern
judges? There are several reasons. First, effective January 1, 2000, the Virginia
Rules of Professional Conduct, which govern the conduct of Virginia lawyers,
implicitly require Virginia lawyers to have a working knowledge of the Canons of
Judicial Conduct for the Commonwealth of Virginia (hereafter called Virginia
Canons) and the Code of Conduct for United States Judges (hereafter called
Federal Canons), for dealing with certain judicial ethics violations. Second, the
judicial Canons dictate what a judge does regarding attorneys in the judge’s
courtroom. Finally, the judicial Canons have an impact on what attorneys do
outside of the courtroom when their acts impact a judge.
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Throughout this article, the following terms will be used:
"Rule" or "Rules" means the Virginia Rules of Professional Conduct, which
govern the activities of Virginia lawyers.
"Canons" means both the Canons of Judicial Conduct for the Commonwealth
of Virginia (hereafter called Virginia Canons) and the Code of Conduct for
United States Judges (hereafter called Federal Canons). [The specific
provisions of the current Virginia Canons and the federal Code, and where to
find them, are discussed later in this article.]
 "Virginia Canons" or "Va. Canon" means the Canons of Judicial Conduct
for the Commonwealth of Virginia.
 "Federal Canons" or "Fed. Canon" means the Code of Conduct for United
States Judges (hereafter called Federal Canons). The format for this
Code is somewhat similar to the Virginia Canons, including the use of the
term "Canons" to designate the major principles of judicial ethics, but the
language and numbering scheme has changed considerably beginning in
2009.
"Advisory Opinions" means an advisory opinion by a governmental body
charged with rendering ethics advisory opinions.
 "Va. JEAC Op." Means an opinion of the Virginia Judicial Ethics Advisory
Committee, which the Supreme Court of Virginia created to render formal
ethics opinions regarding the Virginia Canons.
"Compendium" means the federal compendium of published and unpublished
ethics opinions affecting federal judicial branch personnel (not just federal
judges).
When the discussion refers to both the Virginia and Federal Canons, reference
will be made to “Canons”. Otherwise, reference will be made to the Virginia or
Federal Canons as applicable. The same approach is used regarding advisory
opinions. References to the federal compendium of published and unpublished
opinions will be made to the Compendium.
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The Canons of Judicial Conduct impact litigators – what about
lawyers who maintain an office practice?
Many lawyers think that judicial ethics is important only to litigators. This
is not true. Judicial ethics also impact lawyers who:
 provide legal services to a judge,
 own assets jointly with a judge,
 participate in substantial financial activities with a judge,
 interact with a judge in matters to improve the law, the legal system or the
administration of justice, or
 have a social relationship with a judge.
For example, may you handle a real estate closing on the judge’s marital abode
for free because he or she is a judge, even if he or she is a former partner or
friend? Would it make any difference if you extended such professional courtesy
to other members of the bar? Also, what happens if a trust and estate lawyer
names an active state court judge as the sole executor in a will or as sole trustee
in a testamentary trust? Would it make any difference if the testator were a
member of the judge’s family? Would it make any difference if the judge is
retired, or is a substitute judge? Similarly, may the judge and the judge’s spouse
be invited to be the honoree at a charity fundraising dinner because of the
judge's many hours of service when in private practice? May a judge personally
ask you to join the charity? Would it make any difference if the judge and the
judge’s spouse were invited to a bar association’s annual dinner as guests of the
bar association? May you give a judge two hard-to-get tickets to a professional
football game? Would it make any difference if you and the judge were longstanding friends who periodically exchanged social gifts?
Keep reading for the answers to these and similar questions.
WHICH RULES REQUIRE KNOWLEDGE OF THE CANONS OF JUDICIAL
CONDUCT AND THE CODE OF JUDICIAL CONDUCT?
Rule 8.3(b) deals with reporting violations of the Canons by a judge. Rule
8.4(e) deals with lawyer misconduct for knowingly assisting a judge or judicial
officer in conduct that is a violation of applicable rules or judicial conduct or other
law.
What does Rule 8.3(b) REALLY require?
Rule 8.3(b) provides that: “A lawyer having reliable information 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.”
“[H]aving reliable information that a judge has committed a violation of
applicable rules of judicial conduct…” has several parts. First, “having reliable
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information” indicated more clearly than “knowledge” (which was in the ABA
Model Rules) the sort of information that should support a report of attorney
(including judicial) misconduct1. This means more than mere rumor. (In contrast,
see also Rule 8.2, which prohibits making false statements, etc., about the
qualifications or integrity of a judge, including the spreading of rumors.) The
“reliable information” standard is the same standard that an attorney would use in
deciding how to proceed with a case, including the quality of both the source of
information and the details of the events. Second, “committed” means “done or
perpetrated”, without regard to intent. Third, “violation” means “infringement or
breach” without regard to volition. Finally, “applicable rules of judicial conduct”
means:
 the Canons of Judicial Conduct for the Commonwealth of Virginia for matters
involving state court judges occurring on or after July 1, 1999,
 the Canons of Judicial Conduct for the State of Virginia for matters occurring
before that date, and
 the Code of Conduct for United States Judges for matters involving federal
court judges.
[The specific provisions of the current Virginia and Federal Canons are discussed
elsewhere in this article.]
Only a violation that “raises a substantial question as to the judge's fitness
for office” is required to be reported2. Comment [3] to Rule 8.3 notes that
“substantial” refers to the seriousness of the possible offense and not the
quantum of evidence of which the lawyer is aware. It also notes that the Rule
limits the reporting obligation to those offenses that a self-regulating profession
must vigorously endeavor to prevent. Some violations obviously raise such a
substantial question, such as accepting a bribe or conducting a trial ex parte
without legal authority to conduct an ex parte trial. Some violations do become
so only through repetition, and some are not obvious for lack of background
about prior behavior.
The Virginia Canons adopt an analogous concept: “It is not intended,
however, that every transgression will result in disciplinary action. Whether
disciplinary action is appropriate, and the degree of discipline to be imposed,
should be determined through a reasonable and reasoned application of the text
and should depend on such factors as the seriousness of the transgression,
whether there is a pattern of improper activity and the effect of the improper
activity on others or on the judicial system”3. Substantially the same applies in
the Federal Canons4.
Virginia lawyers should remember that even though a violation may not be
substantial and require reporting, any violation may be reported by informing the
appropriate authority. So-called minor violations should be reported so that the
appropriate authority can promptly address the matter and corrective action can
be taken before there is repetition that raises a substantial question. Public
confidence in the impartiality of the judiciary is maintained by the adherence of
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each judge to establishing, maintaining, enforcing and observing high standards
of conduct5.
There is more than one “appropriate authority” in many cases. The
judicial disciplinary organization is always an appropriate authority (for Virginia
judges, the Judicial Inquiry and Review Commission6; for federal judges, it
depends on the type of judge7). Each is the appropriate authority for a violation
that raises a substantial question about fitness for office8. For Virginia judges,
the chief judge of the circuit or district, or one of the judge’s colleagues, may be a
more appropriate authority for comparatively minor matters, especially where a
lawyer is simply seeking improvements in a judge’s demeanor (meaning conduct
or behavior)9. Most judges would rather have a minor problem be addressed to
the offending judge directly or to the judge’s colleagues than to the Judicial
Inquiry and Review Commission.
For the average practitioner, there may be questions as to whether a
particular incident or situation is a violation of the Canons and, if so, must it be
reported. Counsel to the Judicial Inquiry and Review Commission is available at
(804) 786-6636 for consultation regarding these matters involving state court
judges. The Virginia State Bar no longer interprets the Canons of Judicial
Conduct10.
How does Rule 8.4(e) REALLY apply?
Rule 8.4(e) provides that it is professional misconduct to knowingly assist
a judge in conduct in violation of the Canons or Code or other law. In the
Terminology portion of the Preamble of the Rules, “knowingly” is a defined term
that denotes actual knowledge of the fact in question. A person’s knowledge
may be inferred from the circumstances.”
The aphorism “ignorance of the law is no excuse” applies more strongly to
lawyers as a group than to any other group because of our education and
experience in the law. Under such circumstances, a lawyer’s knowledge of the
provisions of the Canons or Code may be presumed11. Thus, a lawyer may be
presumed to know if the conduct in question, at least in the abstract, is in
violation of the Canons or Code.
Consequently, the only question that may remain open is whether the
lawyer knew enough facts about the judge’s conduct to know, by applying the
Canon or Code, whether the conduct was in violation of the Canons or Code.
For example, if a senior partner appears with an associate before an out-of-town
judge and, unbeknownst to the senior partner, (1) the associate is the judge’s
niece and (2) the judge does not recuse and proceeds to hear the case, the
senior partner may not have violated Rule 8.4(e) because he or she did not know
that the judge and the associate are with the third degree of kinship which
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requires disqualification. However, the associate may have violated Rule 8.4(e),
assuming that she knew that the judge was her uncle.
While Rule 8.3(b) applies only to violations of the Canons that raise a
substantial question as to a judge’s fitness for office, Rule 8.4(e) applies to any
violation of the Canons or Code.
Rule 8.4(e) has a corollary in Rule 8.4(a), which provides that it is
professional misconduct to knowingly assist or induce a lawyer to violate the
Rules, or to do so through the acts of another. This includes all Virginia judges,
since they must be lawyers12 and are also governed by the Rules. [Note: The
application of the Rules to judges is beyond the scope of this article.]
WHERE DO I FIND THE CANONS OF JUDICIAL CONDUCT AND ADVISORY
OPINIONS?
The Canons of Judicial Conduct for the Commonwealth of Virginia,
effective July 1, 1999, as amended March 9, 2000, constitutes Part 6, § III of the
Rules of the Supreme Court of Virginia. They are found in Volume 11 of the
Code of Virginia (after the Rules of Professional Conduct), on the Supreme Court
of Virginia website, http://www.courts.state.va.us, under “Judicial Inquiry and
Review”, and in various Virginia law on-line and CD-ROM products. Formal
advisory ethics opinions for Virginia judges are rendered by the Virginia Judicial
Ethics Advisory Committee. Their opinions and the order of the Supreme Court of
Virginia creating their rules can be found at
http://www.courts.state.va.us/jirc/opinions.html or by contacting the Judicial
Inquiry and Review Commission, P.O Box 367, Richmond, Virginia 23218-0367.
These opinions apply to judges of the courts of the Commonwealth of Virginia.
The Code of Conduct for United States Judges as amended through
September 2009 is found in Westlaw, and in Volume Two, Part A of the Guide to
Judiciary Policies and Procedures, issued by the Administrative Office of U.S.
Courts (available in courts, depository libraries for federal documents, and from
the Government Printing Office). Go to www.uscourts.gov and, in the Search
box, insert Code of Judicial Conduct. The Guide to Judiciary Policies and
Procedures in Volume Two, Part B also contains published advisory opinions (go
to www.uscourts.gov and, in the Search box, insert Guide to Judicial Policy, then
click onto the reference to volume 2, Pat B) and a compendium of published and
unpublished opinions from the Committee on Codes of Conduct for federal
judges and judicial branch staff (not found online). Each opinion is a separate
document within that site. Caution should be exercised in using both the
advisory opinions and the compendium because some of the materials address,
in whole or in part, codes of conduct for other judicial branch personnel.
Virginia State Bar Ethics Advisory Opinions are found in two volumes titled
"Legal Ethics and Unauthorized Practice Opinions" (dated as 1991 and 1996
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Added Volumes) printed with the Code of Virginia. These volumes also contain
an index. Online versions of these opinions beginning with Opinion No. 1360 can
be accessed at www.vsb.org/profguides/opinions.html. Thomas E. Spahn,
Esquire, has created an index of all Virginia State Bar and American Bar
Association opinions. That index can be found through the above website or at
www.mcguirewoods.com/services/leo.
WHAT SHOULD LAWYERS KNOW ABOUT THE CANONS OF JUDICIAL
CONDUCT?
This part of the article will discuss the Canons and the Rules of
Professional Conduct. Comments regarding the Code of Conduct for United
States Judges, if different, will follow in the text or in the notes.
In some instances, these comments will be addressed to the impact of the
Canons on a judge and a lawyer. In other instances, these comments will
discuss only the impact on a judge so that a lawyer will know how the Canons
impact and can act accordingly.
Who is a “judge” under the Canons?
The Virginia Canons apply to all active Justice of the Supreme Court of
Virginia, Judges of the Court of Appeals of Virginia, Circuit Courts, General
District Courts, and Juvenile and Domestic Relations District Courts, and
Members of the State Corporation Commission and Virginia Workers’
Compensation Commission13. The Virginia Canons also apply with specific
exceptions to retired Justices, Judges and Members eligible for recall to judicial
service 14, substitute judges15, special justices, persons selected for a full-time
judgeship but who have not taken an oath of office (n.15.1) and (while so acting)
judges pro tempore16. The Virginia Canons do not apply to magistrates17. In this
article, when discussed as a group, these people are called Virginia judges.
The Federal Canons apply to all United States Circuit Judges, District
Judges, Court of International Trade Judges, Claims Court Judges, Bankruptcy
Judges, and special masters and commissioners18 and with specific exceptions
to part-time and retired judges and to judges pro tempore19. In this article, when
discussed as a group, they are called Federal judges.
WHAT ARE THE PROVISIONS THAT LAWYERS SHOULD KNOW?
Preamble and Canon 1 -- GENERAL -- INTEGRITY AND INDEPENDENCE OF
THE JUDICIARY
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The Preamble to the Virginia Canons contains many guiding principles, many of
which are found in the Scope and Terminology parts of the Preamble to the
Rules of Professional Conduct:
 The Canons and the Sections within a Canon are authoritative, the
Commentary is not.
 “Shall”, “shall not”, must”, and “must not” are binding; “should” and “should
not” are not binding but state what is or is not appropriate, and “may” is
discretionary.
 The Canons and Sections are rules of reason.
 The Canons are for guidance to judges, not to create a basis for legal action
or tactical advantage.
The last two items also are found in the Federal Code as Canon 1, Commentary.
The Federal Canons generally use "should", as was done in the 1972 ABA Code
of Judicial Conduct, which has often, but not always, been interpreted to mean
"shall".
Canon I is the guiding light of the Canons. It requires judges to establish,
maintain, enforce and observe high standards of conduct to preserve the integrity
and independence of the judiciary. The same concept is found in the Preamble
to the Virginia Rules of Professional Conduct.
As pointed out in the Commentary20, deference to court rulings and
judgments depends on public confidence in the integrity and independence of
judges, which depends on judges acting without fear or favor.
While judges are to be independent, they are expected to comply with the
law, including the Canons21. This is how the integrity of the judiciary is
established, and why the public will accept the independence that is necessary
for justice in decision-making.
Public confidence is maintained by adherence by each judge to this
responsibility, and it is correspondingly diminished by each violation of the
Canons22. The vast majority of the public accepts decision-making, even when
adverse, when there is a perception that everyone is “playing by the rules”. Each
time that a judge fails to observe this criterion, the image or the entire judiciary is
hurt.
To remedy individual shortcomings and to maintain its independence, the
judicial branch has two different review mechanisms. For errors in rulings and
decisions, there are the rehearing, extraordinary writs (mandamus, prohibition,
etc.) and appeal processes through the courts. For matters of judicial conduct
that violate judicial ethics, there is the disciplinary system through judicial
conduct organizations such as the Virginia Judicial Inquiry and Review
Commission.
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The usual purpose of the judicial disciplinary process is to determine if there
has been a failure to comply with the law governing judicial conduct (Canons and
statutes) and, if so, to change the judge’s conduct so that the judge complies with
the Canons in the future, including following the law. However, if the violations
are particularly persistent or egregious, the judicial disciplinary process may
impose punishment.
While there is some potential overlap between the two review mechanisms in
adjudicatory matters, a judicial conduct organization is not a substitute errorcorrecting court (rehearing, extraordinary writs, appeals) because, among other
things, it cannot change a judge’s rulings or decisions. Generally, judicial
conduct organizations will not address matters that could have been addressed
at trial or through the error-correction process because those processes are the
most appropriate ones for addressing the matter and there is a need to maintain
judicial independence. This is particularly true when a complainant has
information about a potential ethics matter and chooses not to act upon it at trial
or through the error-correction process. The Federal system excludes some
types of complaints from the judicial disciplinary process (because they can be
reviewed through the appellate process, such as bias towards a particular
person23) that might be considered by the Virginia system.
There are exceptions to this policy. They are discussed in this article when
the subject matter arises.
Since the Commission does not have the authority to change a judge’s
decision, counsel first should appeal or seek a rehearing or an extraordinary writ
to address the problem. Once the judge in question no longer has jurisdiction
over the case, a complaint also may be filed. In the meantime, it is a good idea to
begin composing the complaint while memories are fresh.
If a complaint is received while the case is pending, the Commission
generally will put it in abeyance until the judge in question no longer has
jurisdiction over it because the Commission does not want to do anything that
could appear to be taking action on behalf of a particular party.
Not all matters of judicial ethics involve a pending case. Examples include
improper business activity or acting as legal counsel for a charity. In such
instances, the matter can be addressed promptly.
As mentioned before, Counsel and Assistant Counsel to the Virginia Judicial
and Inquiry Commission are available for consultation regarding matters
involving state court judges. The Virginia State Bar no longer interprets the
Canons of Judicial Conduct24.
Canon 2 – IMPROPRIETY AND APPEARANCE OF IMPROPRIETY
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Canon 2 requires judges not only to avoid impropriety, but also the
appearance of impropriety. Thus, a judge shall act at all times (both in
professional and personal conduct) in a manner that promotes public confidence
in the integrity and impartiality of the judiciary25 and accept restrictions that might
be viewed as burdensome by ordinary citizens26.
Many of the restrictions placed on judges (and in turn on those who
interact with judges) are placed not because the action would be improper, but
because it can create the appearance of being improper and public confidence is
essential to preserving the integrity and independence of the judiciary. The same
concept applies to others who exercise power through government or private
sector organizations (conflict of interest provisions, etc.)
The language in Canons 2, 2A, 2B, 2C, and the Commentary to Canon 2A
are substantially the same in the Virginia Canons and the Federal Canons. In
the Commentary to Canon 2B, there are these differences:
 The Virginia Canons contain a paragraph dealing with prestige of office that is
not found in the Federal Canons.
 The Federal Canons contain comments on testifying as a character witness
and being a published author27, which the Virginia Canons do not have.
 The Virginia Canons comment on permitted use of court letterhead generally,
which the Federal Canons do not.
 The Virginia Canons deal with plea agreements involving charitable
contributions, which the Federal Canons do not.
 The Federal Canons have more nuanced provisions for determining invidious
discrimination and a 2-year window for a the organization to get into
compliance before a judge has to leave if there is no change.
The Canons address specific instances in which, to avoid impropriety or
its appearance, the judge must:
 Not allow family, social, political or other relationships to influence the judge’s
judicial conduct or judgment28 (see Rules 1.11(a)(2 & 3), 3.5(d), and 8.4(d) for
similar rules affecting attorneys);
 Not lend the prestige of judicial office to advance the private interests of the
judge or others29 (see Rule 1.11(a)(1) for similar rule affecting attorneys);
 Not convey or permit others to convey the impression that they are in a
special position to influence the judge30 (see Rule 8.4(d) for similar rule
affecting attorneys);
 Not testify as a character witness31; and
 Not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, religion or national origin32.
Two sources of ethics inquiries by judges that have been of interest to
lawyers have been membership in private clubs33 and letters of
recommendation34.
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Regarding membership in a private social organization, determining
whether an organization, including a neighborhood pool association, invidiously
discriminates or whether it fits one of the exceptions (such as belonging to a
group that requires a specific religious belief) can be quite complex. A judge
may not maintain membership in a club nor regularly use a club that practices
invidious discrimination on the basis of race, sex, religion, or national origin35.
These social organization matters deal with the appearance of impropriety and
diminution of public confidence in the integrity and impartiality of the judiciary36.
Similar provisions apply to federal judges, who may accept honorary
memberships in such clubs if such privileges are extended to other similarly
situated dignitaries unless the clubs practice invidious discrimination37.
However, fraternal organizations devoted to charitable work with religious
focus and not providing business or professional opportunities to members, and
which are dedicated to the preservation of religious and cultural values of
legitimate common interest to members, such as the Masonic orders, are not
considered to be organizations practicing invidious discrimination even though
women are not permitted to be full-fledged members38. The same would apply to
a purely social organization with a limited membership chosen by selective
criteria, having no business or commercial purpose or advantage, and which is
not in violation of state or local law39.
Historically, country clubs and similar exclusive-membership clubs owning
entertainment, exercise or dining facilities practiced invidious discrimination.
Many have eliminated all or most of these policies. The challenge for the judge
is to determine whether such organizations still have such discriminatory policies
in effect.
Regarding letters of recommendation, while a judge may write letters of
recommendations in certain circumstances (for example, the judge's law clerk40),
an attorney should not ask a judge for a letter recommending the attorney’s child
to the judge’s alma mater when the judge does not know the child. The reason
that a judge should not send such a letter absent personal knowledge of the
subject of the recommendation is that he or she is lending the prestige of the
judge’s office to the private benefit of another 41and there is no other reason for
the judge to write such a letter.
Similarly, an attorney should not ask a judge to write a letter on behalf of
a defendant to the sentencing judge or probation officer because it not only
lends the prestige of office, but also creates the appearance of undue influence 42
and puts the judge in the position of testifying in absentia as a character witness.
However, a judge may respond to a formal request for information43 because the
judge then is not acting on anyone’s behalf.
Similarly, the Virginia Judicial Ethics Advisory Committee has opined that
a judge may not initiate a contact with a legislator or write a letter on behalf of a
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judicial candidate, because doing so would both be lending prestige of judicial
office and testifying as a character witness (n. 42.1). It is proper for a judge toy
respond to a formal request from the appointing authority (legislator, Governor or
circuit court judge) for information when doing so to carry out their legal
responsibilities to select a judge, This extends to responding to their staff or
Division of Legislative Services, but not to informal selection committees created
by one or more legislators (n.42.2)
The Virginia Judicial Ethics Advisory Committee has opined that a judge may
not write or call the Virginia State Bar to support a petition for reinstatement of an
attorney or to support an attorney facing disciplinary action44. Doing so would be
lending the prestige of office, as well as testifying as a character witness, both of
which are prohibited by Virginia Canon 2B. However, a judge may testify as a fact
witness to events witnessed before becoming a judge45. Furthermore, while a judge
is incompetent to testify as to matters occurring before him or her in a subsequent
civil or criminal case46, this prohibition does not apply to testifying in a bar disciplinary
proceeding as a fact witness47, and the statute allows the judge to testify as to certain
crimes occurring before the judge.
The Virginia Judicial Ethics Advisory Committee has opined that a judge may
not write or call the Virginia State Bar to support a petition for reinstatement of an
attorney or to support an attorney facing disciplinary action48. Doing so would be
lending the prestige of office, as well as testifying as a character witness, both of
which are prohibited by Virginia Canon 2B. However, a judge may testify as a fact
witness to events witnessed before becoming a judge49. Furthermore, while a judge
is incompetent to testify as to matters occurring before him or her in a subsequent
civil or criminal case50, this prohibition does not apply to testifying in a bar disciplinary
proceeding as a fact witness 51, and the statute allows the judge to testify as to
certain crimes occurring before the judge, such as perjury.
The Commentary to Canon 2B addresses specific examples of lending
prestige of office for the private benefit of others. A judge must not use the judge's
judicial position to gain advantage in a civil suit involving a member of the judge's
family. In a criminal case, a judge may not approve a plea agreement or disposition
that requires or permits the defendant to make a charitable contribution or donation,
or any other monetary payment other than a statutorily authorized fine or restitution
or payment in satisfaction of an injury pursuant to Code § 19.2-151, as a condition of
a suspended sentence or the reduction or dismissal of charges.
The potential for improper use of the prestige of office has been the subject of
several formal opinions of the Virginia Judicial Ethics Advisory Committee. A
substitute judge may not list the judicial office in the judge’s biography in a law firm’s
public web site52 or in Martindale-Hubbell53. A substitute judge also may not perform
marriages in or her role as substitute judge in most circumstances54. A judge pro
tempore may not withhold services, issue a show cause process, hold a contempt
hearing, or take enforcement action while the case is pending before the judge pro
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tempore to collect his or her fee for services55. It is one of several ethical reasons
why a judge should not serve on a juvenile group home that accepts court referrals56
or regularly participate in media interviews concerning legal issues57, and was
addressed when considering if, and to what extent, a judge could serve on a
Community Criminal Justice Board58. Similarly, the Federal Committee on Codes of
Conduct has opined on such matters as judges writing a foreword to a new book or a
book review, or speaking about new technologies59, as long as they do not permit
exploitation of the judicial office.
Similarly, the Virginia Ethics Advisory Committee has addressed acting in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary. A substitute judge should not list his or her judicial status in a legal
directory60. A judge pro tempore may not take action while the case is pending
before the judge pro tempore to collect his or her fee61. A judge may remain in a
former law firm’s profit-sharing plan only if a separate self-directed sub-account is
created for the judge which, among other things, is controlled by the judge and not
the former law firm and no additional contributions are made by the firm62. If a
legislator inquires of the judge on behalf of a constituent about a pending or
impending case, a judge may not respond except to inform the legislator that it is
improper for a judge to permit such an ex parte communication63. A judge may hear
cases in which a sub-tenant attorney appears in his or her court only when the
tenant, whose cases the judge will not hear, has complete management authority
and can bear the risk of sub-tenant default, and only with disclosure64. The Virginia
State Bar Legal Ethics Committee found that it was not improper to hang in the
courthouse a portrait of a retired judge whose law firm members practice there,
although it was suggested both that it was more tasteful to hang it in a place other
than in the courtroom and that lawyers in the firm should be alert to not trading on the
former judge's status65. In a firm who has a lawyer who served as a commissioner in
chancery in a divorce before becoming a district court judge, it is not improper for a
member of the firm to represent one of the parties because the former member's
quasi-judicial status of the firm was personal to the officeholder66. A lawyer may not
serve as commissioner in chancery in a divorce involving a judge of the circuit in
which he is appointed67.
The Virginia State Bar Legal Ethics Committee has also addressed the
appearance of influencing the court by attorneys appearing before the judge
when a family member practices in that firm (disclosure by firm, recusal by judge,
with option for waiver of disqualification)68 or is a support staff member
(disclosure by firm)69.
Canon 3 -- JUDGE’S RESPONSIBILITIES TO THE JUDICIAL OFFICE
-- Being Faithful to the Law
Judges are required to respect, comply with, and be faithful to the law and
to maintain professional competence in it70. This provision appears both in
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Virginia and Federal Canon 2 (avoiding impropriety and its appearance) and
Virginia Canon 3B(2) and Federal Canon 3A(1) (duties of office). It also applies
to administrative duties (Va. Canon 3C(1) and Fed. Canon 3B(1)).
Similarly, attorneys are required to provide competent representation
(including legal knowledge applicable to the matter)71 within the permissible
scope of representation72 in the attorney’s role as advisor73, to avoid frivolous
actions74, to not knowingly fail to disclose controlling legal authority75, and to not
knowingly assist a judge in conduct that is in violation of law76.
Judges have to follow the law. However, the law is a constantly
developing matter with many nuances. Good faith efforts to develop the law or to
exercise judicial discretion in the absence of abuse of discretion are appropriately
reviewed only through the appellate process, even if the judge is later reversed
on appeal. Similarly, because even good judges are not perfect, claims of
mistakes of law ordinarily are reviewed through only through the error-correction
processes of rehearing, extraordinary writs, and appeal. As discussed earlier, the
judicial disciplinary process is not a substitute for the judicial error-correction
processes, and it cannot change a judge’s decision.
However, the judicial disciplinary process does address a judge’s failure to
follow the law when it affects fundamental legal rights to a fair trial, such as
denial of statutory right to counsel, the use of bail schedules instead of deciding
bail on the merits of the defendant and the defendant’s case, or denying a party
an opportunity to present its case. It also addresses a clear failure to follow wellestablished law, such as exceeding a statute’s maximum sentence, entering a
nolle prosequi not requested by the Commonwealth, and denying the right to a
first nonsuit.
There can be numerous causes for a judge failing to be faithful to the law.
It can be the result of lack of knowledge, a dislike of a part of the law, or a result
of bias or prejudice, which is an additional violation of the Canons (see below).
Regardless of its cause, it needs to be addressed when it arises.
-- Performance of Judicial Duties
The largest segment of the Canons is Canon 3, dealing with performance
of the duties of judicial office impartially and diligently. The Canon contains six
major parts: general, adjudicative, administrative, disciplinary, disqualification,
remittal of disqualification.
-- General - Priority to Judicial Duties
The first, Virginia Canon 3A and Federal Canon 3A(1) , requires that judicial duties
take precedence over all other activities and includes all duties of office prescribed by
law. All of the remaining five parts are further definition of this criteria. This does not
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mean that a judge is a slave to the office. It does mean that the judge should arrange
his or her affairs so that judicial duties normally are completed in a timely fashion
even if it conflicts with personal matters. Obviously, such matters that cannot be
anticipated such as seeking treatment for severe illness should not be deferred until
the docket is completed. However, regularly playing tennis on a weekday afternoon
before the end of the usual business day will have to be abandoned if it causes
additional delay in getting cases to trial or prevents the judge from timely completing
the judge’s administrative duties. Examples of this priority of duties are: requiring a
judge pro tempore not to withhold service as a judge if payment of the fee pursuant
to the agreement is not timely made77, and permitting a judge to serve as an officer
or director of a nonprofit property homeowners association if it does not interfere with
his or her judicial duties78.
-- Adjudicative - Promptness
Promptness by judges is addressed in numerous parts of the Virginia
Canons and once in the Federal Canons. In Virginia Canons 3B(1) and 3B(8)
and Federal Canon 3A(5) and the Commentary to each of them, a judge has a
duty to promptly hear, decide, and dispose of matters before the court. Where
an ex parte communication is permitted, Virginia Canon 3B(7)(a)(ii) requires that
a judge shall make provision to promptly notify all other parties of the substance
of the ex parte communication and offer an opportunity to respond. The chief
judge shall take reasonable measures to assure the prompt disposition of
matters before the court under Virginia Canon 3C(3). Federal Canon 3B(5)
Commentary employs the same concept.
Promptness by lawyers is also addressed in the Rules of Professional
Conduct. The second paragraph of “PREAMBLE: A LAWYER’S
RESPONSIBILITY” sets the tone: “In all professional functions a lawyer should
be competent, prompt and diligent.” Specific provisions are found in three
places. Rule 1.3(a) requires a lawyer to act with reasonable promptness in
representing a client. Rule 1.4(a) requires a lawyer to promptly comply with a
client’s reasonable requests for information. Rule 3.5(e)(2) prohibits
communicating or causing another to communicate with a judge or official before
whom an adversarial proceeding is pending except in writing if the lawyer
promptly delivers a copy to opposing counsel and pro se parties.
It is not by accident that these directives about promptness are in both
sets of Canons and the Rules, as one of the largest sources of discontent by
litigants and the general public is actual delay and the perception of delay. The
consequences of delay can be catastrophic to litigants. It reduces confidence in
both the bench and the bar, signaling that the bench and bar do not really care
about the litigants’ problems. In addition, where unnecessary continuances or
hearings occur, it puts demands on judicial and clerical resources beyond the
available resources in many courts and causes delays in other cases as well as
the cases in which the continuance was granted or the hearing was held.
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From the experience of the Judicial Inquiry and Review Commission come
these types of delay that may come within the scope of the Canons:
 Starting the first case scheduled to be heard that day,
 Between the time of filing and the conclusion of the case (including entry of
the final order), and
 Between the time of scheduled appearance (as set on court process or letter
or oral communication) and actual commencement of the hearing.
Not every delay rises to the level of an ethics matter. Only when the delay
becomes unreasonable does it become an ethics matter. Examples include:
 Persistently failing to call the first case of the day at the scheduled time.
 Repeatedly having all cases scheduled in court for 9:00 a.m., and not hearing
the last one until 4:00 p.m.,
 Having a case under advisement for more than two months,
 Not giving a hearing date after a hearing was canceled, etc.,
 Repeatedly granting continuances without cause.
In some courts, the judges have taken the lead to address this issue. In
some other courts, both bench and bar have worked to address this issue. The
Office of the Executive Secretary of the Supreme Court of Virginia has provided
significant amounts of assistance to many courts in both case processing and
docket control to help reduce delay.
Unreasonable delay is one of the few areas of ethics where the
Commission will not hold the complaint in abeyance until the litigation before the
judge in question is complete. It is also one in which attorneys can assist the
court by making changes needed to reduce delay and to avoid delays that rise to
an ethical concern for judges. For example, you should:
 Plan trial preparation so that last minute requests for continuances are
avoided.
 Request continuances only for cause, and as soon as a need is perceived. If
you wait until your case is called on the hearing date to request one, the
judge is likely to deny your request because of inconvenience to others. Also,
if a new client appears in the office to retain you shortly before trial, find out if
he or she has already received one or more continuances to retain counsel.
If so, do not be surprised if an additional continuance, if requested, is not
granted.
 Make timely response to various pleadings. Dilatory responses, especially if
it results in additional enforcement hearings or delayed trials, detracts from
your image as a professional to both bench and bar. If you are having
problems complying with discovery and cannot work it out with opposing
counsel, you should promptly request a hearing so that you are not perceived
as dilatory. Don’t forget that Rule 3.4(e) provides that an attorney shall not
make a frivolous discovery request or fail to make reasonably diligent effort to
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comply with a legally proper discovery request by an opposing party – failure
to do so may be grounds for attorney disciplinary action79.
In scheduling court appearances, find out whether your case is the only one
scheduled at the selected time:
 If so, you will be expected to be on time without excuse (including the
excuse of having another case in another court).
 If not, and if you will be trying to set additional cases for trial that day with
potential overlap between cases, you should find out if the court will
proceed if you are not present when the case is called. Some courts will
go ahead and try or dismiss your case; some will try another case and will
handle your case later on the docket, etc. Do not assume anything,
including that the judge will tolerate your not being in the courtroom when
you are expected to be there. Plan accordingly.
 In setting cases in different courts on the same day, allow reasonable
travel time between courts, including parking.
Give realistic time estimates in scheduling cases. Everyone gets upset when
a case goes beyond the allocated time, and some courts will not give you any
extra time that day because of case backlog. If this happens more than
rarely, all participants will need to address the problem.
Arrive on time for a hearing prepared to try your case. Organize your
documents and trial strategy in your office before court, not at counsel table
just before trial.
If the case is referred to a commissioner, ask the court to set a date by which
the report is due, and put the date in your “tickler” system. Then cooperate
with the commissioner in scheduling all further matters. If the report is not
filed when due, take appropriate action, including discussing the matter with
the commissioner and, if necessary, bringing it to the court’s attention.
If requested to prepare an order, do so promptly. Do not embarrass yourself
by receiving a call from the court asking about the order.
If a case is taken under advisement, ask when a decision should be
expected, and put the date in your “tickler” system if a date is given. If the
decision is not timely made (or within two months if no date was set), take
appropriate action, including asking the judge politely (after notice to opposing
counsel and pro se parties) or asking the judge’s secretary or the clerk of
court when may a decision be expected after pointing out the last hearing
date. NOTE: If the judge asked for briefs or other materials, be sure that you
have timely complied with the request. If opposing counsel or an agency has
not timely complied, use the same approach.
-- Adjudicative – Demeanor of others in courtroom
Demeanor is addressed in several parts of Canon 3B.
-- (1) Order, Decorum and Civility
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The Canons provide that the judge shall require order, decorum and (in
Virginia) civility in proceedings before the judge80. This is not optional for the
judge. This is addressed to everyone in the courtroom, and attorneys are not
excepted. There is a not-so-fine line between diligent advocacy of a client’s case
and the failure to be orderly, decorous and civil. When an attorney gets close to
that line, much less crosses it, the judge and jury start to lose respect for the
attorney and the attorney’s case. In addition, the judge has to maintain order,
decorum and civility to maintain public confidence in the fairness of the judicial
process because no one believes that fair and just decisions can be made if the
courtroom turns into bedlam. It is a rule of reason81, but that is not a license to
“push the envelope”. The Virginia standard is more stringent than that in many
other states and in the Federal Canons because the Supreme Court of Virginia,
in promulgating this part, added the civility requirement.
Justice Donald Lemons, in a speech to the Richmond Bar Association on
March 16, 2000, encouraged lawyers to ask judges to require civility. Why?
Because the feedback from Virginia bench and bar surveys shows an
overwhelming belief by both bench (91%) and bar (83%) that there are problems
with lawyer incivility. Each lawyer can also do his or her part by setting a good
example. Each lawyer can also deal with those attorneys who are not civil. For
example, you should:
 Discuss with attorneys their courtroom behavior if it is not civil, either through
more senior members of the attorney’s firm or, if a sole practitioner, directly. It
may be more effective to bring it to the local bar leadership’s attention and
ask that a representative of the bar discuss it with a senior member of the firm
or directly with a solo practitioner. Also, the local bar can bring their concern
to the local judges and ask the judge to discuss it with the offending attorney.
 In a pending case, tell the judge what you perceive to be the uncivil behavior
and ask the judge to address it. Some judges will allow you to request a
chambers conference or at sidebar, some will not. If it is in a jury trial,
consider how you inform the court to avoid a mistrial or creating a bad
impression of yourself in front of the jury, especially if the judge does not
grant the request.
 If the attorney is badgering the witness, object!
 If the attorney is contemptuous, move for summary contempt.
Rule 3.5 also address courtroom decorum of the tribunal in a more limited
fashion, as well as impartiality. Rule 3.5(a) concerns juries, and Rule 3.5(f) bars
engaging in conduct intended to disrupt a tribunal. The Canons create a higher
standard to be enforced by the judge.
As to civility, Rule 3.4, “Fairness to Opposing Party and Counsel”,
prohibits many different categories of behavior, from obstruction to access to
evidence to engage in activity to harass or maliciously injure another. These are
also matters of civility.
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-- (2) Patience, Dignity and Courtesy
The Virginia Canon 3B(4) and Federal Canon 3A(3) provides that the
judge shall require lawyers, staff, court officials and others subject to the judge’s
direction and control to be patient, dignified and courteous82. These listed groups
of courtroom participants are held to an even higher standard than civility
because they are the court participants who set the example for all other court
participants. Thus, more is expected of them in setting the tone of the court.
Carefully note that this provision is not limited like the order-decorum-civility
provision to behavior in proceedings, as it applies to all official dealings with the
judge. What Justice Lemons said about civility also applies to this provision.
Federal Canon 3A(3) was revised to add “including lawyers to the extent
consistent with their role in the adversary system.” It recognizes the conflict
between the attorney’s role and the judge’s role in the conduct of trials. Virginia
has no such provision.
This provision does not conflict with provisions requiring the prompt
disposition of the court’s business83. While judges are responsible for seeing that
both are achieved, lawyers are expected to participate in the process to see that
both are achieved.
-- (3) Bias and Prejudice
Virginia Canon 3B(5) requires a judge to perform his or her duties without
bias or prejudice, and Virginia Canon 3B(6) provides that the judge shall require
everyone in court to refrain from manifesting bias or prejudice, and Va. Canon
3C(2) extends that to court personnel both in and out of court. This is to maintain
both public confidence in the fairness and impartiality of the judicial process and
to eliminate a hostile environment that could inhibit the testimony of witness and
the effective argument of counsel. Similarly, this is not optional for the judge.
However, Virginia Canons 3B(5) and 3B(6) do not prevent legitimate advocacy
regarding one of these factors if it is an issue in the proceeding. Thus, these
provisions focus on personal behavior, not issues in the case.
The Federal Canons have no such explicit provision. However, Federal
Canon 3A(3) requires a judge, in addition to being patient, dignified and
courteous (see above), to also be “respectful”. The Commentary to that Canon
states that [t]he duty to be respectful includes the responsibility to avoid comment
or behavior that could reasonably be interpreted as harassment, bias or
prejudice”. Like Virginia Canons 3B(5) and 3B(6), it applies to lawyers “to the
extent consistent with their role in the adversary system”.
The bias prohibited by the Canons is any unfairly positive inclination towards
an entity or an unfairly negative inclination against an entity. Thus, the Virginia
Canons of Judicial Conduct have been interpreted to not prohibit a judge from
reporting a physician who overprescribes drugs to a regulatory entity based on
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information learned in a court proceeding, but this is subject to statutory reporting or
trial confidentiality statutes that were beyond the authority of the Virginia Judicial
Ethics Advisory Committee to interpret (n. 83.1). An example involving the potential
appearance of bias is the judge teaching at a police academy, in which a judge may
teach only under clearly educational circumstances and giving no appearance of
acting as agent for the police or sponsoring entity or which might reasonably cause
the judge to appear biased in the courtroom (n.83.2).
The provisions in Virginia Canons 3B(5) and 3B(6) are not found in the
Federal Canons. The reason is that the Virginia Canons are based on the 1990
ABA Model Code of Judicial Conduct, which contained this language, while the
Federal Canons are based on the 1972 ABA Code of Judicial Conduct, which did
not contain this language. The reporter for the 1990 revision noted that:
Sections 3B(5) and 3B(6) are new. They were added to emphasize the
requirement of impartial decision-making and the appearance of fairness
in the courtroom84.
However, in 1992, the Judicial Conference of the United States adopted a
revision that was gender neutral and provided anti-bias provisions in several
places. The predecessor to the current version of Canon 3A(3) Commentary
(second paragraph) contained this sentence:
For example, the duty to be respectful of others includes the responsibility
to avoid comment or behavior that can reasonably be interpreted as
manifesting prejudice or bias towards another on the basis of personal
characteristics like race, sex, religion, or national origin.
There is a difference between the scope of bias and invidious
discrimination as used in the Canons. Invidious discrimination in Canon 2C is
based upon race, sex, religion or national origin. It is narrower in scope than
bias, which is based not only on race, sex, religion or national origin, but also on
disability, age, sexual orientation, or socioeconomic status85.
Refraining from manifesting bias is a more detailed version of being civil
and courteous.
-- Adjudicative - Judge’s Personal Behavior
What the judge is required to expect from others is the minimum standard
to which the judge’s own behavior should be held. These include:
 Being patient, dignified and courteous86.
 Perform judicial duties without bias or prejudice, including discharging
administrative duties87.
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 Conducting extra-judicial activities so that they do not cast reasonable doubt
on capacity to act impartially as a judge, including expression of bias or
prejudice, even outside the office88.
-- (1) Failure to be patient, dignified and courteous
The failure to be patient, dignified and courteous is one of the largest, if not
the largest, type of valid complaints received by judicial disciplinary
organizations. The sources of such failures are manifold – physical ailments, job
stress, familial difficulties, etc. While the source of this type of failure may explain
the bad behavior, it does not excuse it. Such failures create distrust in the
fairness and impartiality of the judge as a decision-maker.
A lawyer can help in two ways. First, by being patient, dignified and
courteous89, you avoid creating a situation that leads to even a good judge failing
to be patient, dignified and courteous. This does not mean that an attorney
should not be a zealous advocate for or her client – far from it. But both can be
achieved at the same time. Second, if the case has proceeded for some time
and the judge is getting irritable, suggest a short recess. This will probably work
only in circuit court cases, as district court cases are generally short.
As mentioned before, dealing with minor violations before they develop into
major behavioral patterns is strongly encouraged. It is not unusual for a judge (or
anyone else) who is engaging in rude behavior to not realize that such is the
case. If you do not bring it to the judge’s attention directly, it should be brought to
the attention of an appropriate authority, such as the chief judge or another judge
whom the offending judge respects. If it continues past a reasonable time for
correction, then it should be reported to the Virginia Judicial Inquiry and Review
Commission or the appropriate Federal judicial conduct entity.
-- (2) Bias and Prejudice
Words or conduct that manifest bias or prejudice by a judge have a similar
effect upon the public’s perception of the courts as does a judge’s failure to be
patient, dignified and courteous. The scope of factors applicable to bias or
prejudice affecting a judge is broader than the factors affecting attorneys. This
would include but not be limited to biases based on personal likes and dislikes,
consanguinity, or financial interests (see Disqualification and Waiver of
Disqualification, supra.) The bias or prejudice is not always against the client or
other person – in can be in his or her favor. It goes beyond oral communication –
facial expression and body language are included90.
The Virginia Judicial Ethics Advisory Committee opined that the bias
prohibited by the Canons is any unfairly positive inclination towards an entity or
an unfairly negative inclination against an entity. Thus, the Virginia Canons of
Judicial Conduct have been interpreted to not prohibit a judge from reporting a
20
physician who overprescribes drugs to a regulatory entity based on information
learned in a court proceeding, but this is subject to statutory reporting or trial
confidentiality statutes that were beyond the authority of the Virginia Judicial
Ethics Advisory Committee to interpret91.
Again, the difference between the Virginia and Federal Canons regarding
expressions of bias and prejudice by others also applies here. The language of
the 1990 ABA Canons as adopted by Virginia adds emphasis, not new
requirements92.
While such provisions concerning bias and prejudice by lawyers are included
in the Rules, it is professional misconduct to knowingly assist a judge in conduct
in violating the Canons, including this one93. Therefore, if you pitch an argument
so as to appeal to an improper bias or prejudice, and the judge acts upon it, such
acts may constitute misconduct. For example:
 Your client is a college student on a bad check charge, and the student
attends the judge’s alma mater. You want to be careful not to seek favorable
treatment by mentioning your client’s attendance at the judge’s alma mater
(remember, Virginia Canon 3B(5) says, “including but not limited to” the list of
factors therein). The same would apply to mentioning that your client is a
college student (socioeconomic bias) unless you also describe the impact that
an adverse decision would have on your client’s future or attribute his or her
action to youth, inexperience, etc.
 A landlord is seeking to evict for nonpayment of rent and for judgment for rent
and damages from a husband and wife from Mexico. If you represent the
landlord, you want to be careful that you do not appear to be disparaging the
tenants because they are from a foreign country (national origin bias), but you
certainly can describe in unbiased terms how they damaged or failed to
maintain the premises.
Of course, if you choose such an approach and the judge does not like it, you
risk chastisement for your manifestations of bias94 whether you win or lose your
case.
The prohibition of expressions manifesting bias or prejudice is not limited
to in-court behavior. Probably the most likely out-of-court violations will involve
off-color, racist or sexist jokes. They tend to propagate profusely after the first
one is told. To avoid getting a judge in trouble, avoid them altogether when with
a judge – there are enough other jokes to fill the void.
-- Adjudicative - Ex Parte Communications
An ex parte communication occurs when there is an oral or written
communication for which one or more parties did not have notice and an
opportunity to appear and participate. The provisions of Va. Canon 3B(7) and
Fed. Canon 3A(4) spell out in much more detail than before when a judge may
21
receive an ex parte communication, and from whom – all other ex parte
communications are unethical. This provision is not just an abstract theory of due
process – it is designed to avoid creating a bias or prejudice in the judge and an
appearance of impropriety.
For judges, this is no small concern. It is not unusual for a judge to
withdraw or limit the contacts that the judge or she had with other lawyers before
becoming a judge because the judge does not want to inadvertently receive an
ethically improper ex parte communication about a pending case when talking
with lawyers in a social context. Why? Because lawyers (like many
professionals) “talk shop” in social conversations with fellow lawyers and judges.
Similarly, there are those (usually lay persons) who try to purposely engage in ex
parte communications95. An example would be an attempt by a legislator to
contact a judge on behalf of a constituent in a pending or impending case96.
Most judges use the clerk or secretary to screen their calls and mail to
avoid attempted ex parte communications. You should not take offense if, when
you call the clerk or secretary, you are asked what is the nature of the call – it
may be done to screen out such attempts (some attorneys have tried to engage
in ex parte discussions, sometimes out of ignorance of this prohibition). Also,
some judges restrict access to their chambers, especially before trial, not only to
avoid the appearance of impropriety, but also to avoid improper ex parte
communications.
There are several things that lawyers can do to avoid improper ex parte
communications. First, learn what are permissible ex parte communications from
the Canons and Rules 3.3(c) and 3.5(e) of the Rules of Professional Conduct,
such as scheduling matters and where expressly authorized by law (temporary
injunction, etc.), and avoid the rest. Second, be alert to clients or witnesses who
may try to contact the judge so that they may be counseled to avoid improper ex
parte communications. Everyone wants to avoid the embarrassing situation in
which the judge writes or tells the person engaged in the improper ex parte
communication that the communication is improper, and to cease the
communication97. Disqualification by the judge is required only if the judge
reasonably believes that the judge’s impartiality might reasonably be questioned
by the ex parte communication98.
The Canons spell out the exceptions to the prohibition against ex parte
communications:
 Scheduling, administrative or emergencies not dealing with substantive
matters or issues on the merits if the judge reasonably believes no one gains
a procedural or tactical advantage and makes provision promptly to notify all
parties of the substance of the communication and allows an opportunity to
respond99.
 A scheduling or emergency exception would be if you called the judge on
the day before trial seeking a continuance because your client is sick. The
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judge would arrange for all other attorneys and pro se parties to be
notified, which the judge can accomplish by directing you as the
requesting attorney to promptly notify all other attorneys and pro se parties
about the continuance. Alternatively, if you had called the other attorneys
and pro se parties in the case and obtained their agreement both to the
continuance and to your contacting the judge to so request without their
presence, and you told the judge that you had done so, it would not be
treated as an ex parte communication because all had notice and an
opportunity to appear, which they waived when they agreed to both parts
of your request. While this alternative is not required by the Rules100
because it does not involve the merits of the case, it is the professionally
courteous way to proceed.
 An emergency exception would be where a probation officer submits a
written communication to determine if exigent circumstances exist to issue
a bench warrant for a probation violation101.
Obtaining advice from a disinterested expert on the law if the judge gives
notice of the person consulted and the substance of the advice, and affords
an opportunity to respond102. It may take the form of a brief amicus curiae103.
A judge should not conduct an independent investigation, but rely only on
evidence produced by counsel and pro se parties104. Otherwise, all
information gathered would be an ex parte communication, and counsel could
never be sure if a judge was influenced by information that or she failed to
disclose through inadvertence or design, thus depriving counsel of the ability
to subject the information to scrutiny. However, the judge may use such an
expert to gather information while providing counsel with an opportunity to
subject the information to scrutiny.
Consult with a law clerk or other judges105. This includes, for Virginia judges,
the use of the Court Legal Research Assistance Project of the Supreme Court
of Virginia106, which is a pool of law clerks. Unlike the use of experts, there is
no requirement of disclosure of the communications with law clerks107.
However, the judge must make reasonable efforts to prevent improper ex
parte communications through law clerks108.
With consent, confer separately with each party to attempt a settlement109.
Again, there is no disclosure requirement. When a judge (including a retired
judge, substitute judge, or judge pro tempore) functions under this provision in
a pending case, the judge is not subject to the provisions in the Rules of
Professional Conduct concerning an intermediary110, a third party neutral111,
or a mediator112 even though some of the functions are the same. While an
active Virginia judge may not serve as a mediator or arbitrator, an active
Federal judge may do so under limited circumstances113. In the absence of a
local rule prohibiting it, a federal judge may handle a trial subsequent to or her
handling of the settlement negotiations unless the judge’s impartiality may
reasonably be questioned114.
Initiate or consider ex parte communications when expressly authorized by
law. There are approximately 27 Virginia statutes authorizing ex parte
proceedings, most having narrow application115.
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The Commentary to Virginia Canon 3B(7) addresses some related matters:
 A judge may request a party to prepare proposed findings of fact and
conclusions of law, provided all other parties are apprised of the request and
are given an opportunity to respond. Note the complementary requirement of
promptly providing a copy to all other parties in Rule 3.5(e). While still ex
parte, the disclosure and opportunity to respond cure any procedural defects.
 A judge may teach, advise and mentor new lawyers, but should be careful not
to give unfair advantage to the recipient or prejudice to others in a pending
case. This qualifies the provision that judges may teach about the law, the
legal system, and the administration of justice as an extra-judicial activity 116.
The Judicial Ethics Advisory Committee opined that a Virginia circuit court judge
may not have ex parte communications with a probation officer preparing a
presentence report. It determined that such communications are not exempted
from the prohibition against ex parte communications because of the Virginia
statutory provisions regarding presentence reports and hearings117, which give
more due process rights than is required by federal constitutional case law118.
Because a different process and procedure applies to federal presentence
reports, this opinion would not even be persuasive authority in federal matters.
-- Adjudicative - Comments about Cases
The Canons restrict judges’ comments about cases to avoid creating
undue influence on matters not yet decided or the appearance of impugning
another judge’s rulings and decisions. Thus, a judge may not publicly comment
about a pending or impending case except where the judge is a litigant in a
personal capacity or, for Federal judges, in scholarly presentations for legal
education119, nor may a Virginia judge commend or criticize jurors for their verdict
except in a court order or opinion120. A judge may thank jurors off-the-record for
their services121.
Because judges cannot speak publicly in their official capacity about
pending or impending cases, it is important for lawyers, either individually or
through the organized bar, to speak in defense of a judge if that judge is being
unfairly criticized by the media. Similarly, while Rule 3.6 permits lawyers to
speak within limits to the media about such cases, including disagreement with
the judge’s ruling, such comments should avoid attacks on the judge, who is
unable to respond, especially if they are barred by Rule 8.2.
Administrative Duties (Appointments)
Other issues regarding bias, promptness and faithfulness to the law have
been addressed elsewhere.
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The Canons prohibit judges from making unnecessary appointments,
requires that appointments be made impartially and on merit while avoiding
nepotism and favoritism, and limiting compensation to fair value122. For Federal
judges, both statutory and Canon provisions apply, and explicit interpretative
provisions have been printed123. Much of these provisions also cite to Canon 2
concerning the avoidance of the appearance of impropriety.
Historically, the bar has responded well to requests by judges to serve as
counsel, guardians, guardians ad litem, receivers, administrators,
commissioners, etc. Some of these positions have been financially rewarding;
some have not. Selection practices vary, but must conform to the applicable
Canon, applicable statutes, and case law. For example, Virginia statutory criteria
processes exist for guardians ad litem124, and for court-appointed counsel in
capital cases125. Where no public defender office serves a court, court-appointed
counsel are selected by a fair system of rotation126, but this is not an entirely
mechanistic process since the judge will want counsel capable of handling the
assigned case to avoid later habeas corpus challenge.
This can be a very sensitive topic, and one has to be wary to distinguish
between envy and fact. If there is widespread perception that this problem exists
locally, the local bar leaders should separate fact from fiction and, if factual, bring
it to the judge’s attention.
Use of Nonpublic Information
A judge shall not disclose or use, for any purpose unrelated to judicial
duties, nonpublic information acquired in a judicial capacity127. Similar provisions
regarding disclosure and use of information applying to lawyers are found in the
Rules of Professional Conduct128. However, Canon 3B(11) of the Virginia Canons
of Judicial Conduct prohibit judges from abusing the public trust for private gain.
Therefore, subject to statutory provisions, a judge may report an overprescribing
physician based on facts learned in a court proceeding129.
Disciplinary Responsibilities
Judges and lawyers have similar responsibilities for reporting disciplinary
matters130. Because judges are also lawyers, they may have to comply with both
sets of requirements. However, these differences exist:
 For reporting violations, the Canons use “should”131, the Rules use “shall”132.
The term “shall” is an imperative as used in the Rules133. The term “should”,
as used in the Virginia Canons, is intended as a statement of what is
appropriate conduct but not as a binding rule. The term “should”, as used in
the Federal Canons, is not defined.
 The Canons and Code provide for taking appropriate action on reliable
information or evidence of the likelihood of unprofessional conduct by a judge,
25
and the Virginia Canons provide the same for such conduct by a lawyer 134;
the Rules only require reliable information135.
 The Virginia Canons and the Rules require reporting to a disciplinary entity
where substantial questions of fitness are raised136; the Federal Canons do
not137.
If a judge files a complaint with the Virginia State Bar against a lawyer, the
judge is not required to recuse in cases in which that lawyer represents a party in
the absence of bias or prejudice against the lawyer 138.
A judge who has reliable evidence that a colleague engaged in
unprofessional conduct may initiate appropriate action short of filing a complaint
with the appropriate judicial conduct organization, such as discussing it with or
her colleague or reporting it to the chief judge139. If it involves fitness for office, a
Virginia judge should report it to the Judicial Inquiry and Review Commission140.
The parallel obligations on attorneys were discussed earlier in analyzing Rule
8.3(b).
There is a conflict between the Rules and the Canons regarding whether a
violation must be reported – the Rules use “shall” and the Canons use “should”.
Since all Virginia state court judges must be Virginia lawyers and all federal
judges are Virginia lawyers, are judges required to report violations as lawyers
even when they are not required to do so as judges? No provisions were found
for resolving this matter.
Disqualification
Virginia Canon 3E is a significant change from prior Virginia Canons
regarding when a judge’s impartiality might reasonably be questioned. Formerly,
the only criteria were general in nature. Now, many situations are more
specifically described. These more specific provisions in varying degrees and
with some difference from jurisdiction to jurisdiction have existed in other states
and in the Federal Canons141, and their cases may be persuasive authority in
these matters142.
Federal Canon 3C on disqualification, which the Virginia Canons now
resemble, should be reviewed in connection with 28 U.S.C.A. §§ 144 and 455,
which are not always the same as the Federal Canons143. The correlation
between Canon and statute is beyond the scope of this article.
The Virginia State Bar Legal Ethics Committee has issued many opinions
dealing with disqualification issues. Most dealt with attorney ethics issues,
although some dealt with judicial ethics issues. Of late, the Legal Ethics
Committee has declined to opine on judicial ethics matters as being beyond its
purview.
26
The keystone, then and now, is that a judge shall disqualify when the
judge’s impartiality might reasonably be questioned144. Note the term
“reasonably”. This reinforces the concept in the Virginia Canons Preamble that
the Canons are rules of reason. Thus, the rule of necessity may override the rule
of disqualification145. The rule of necessity has been created by case law, and
provides that a judge who is otherwise disqualified may decide a case or conduct
a hearing where no other judge who is not disqualified is available. Someone
has to try the case involving judicial salaries. An otherwise disqualified judge
who is the only one available may have to deal with a matter requiring immediate
action, such as a hearing on probable cause or a temporary restraining order146,
or to continue the case if the judge does recuse.
For many of the more specific provisions requiring disqualification,
additional considerations should be examined. For example:
 Bias or prejudice147 -- It is not restricted to any specific types of bias or
prejudice148. Note that the filing of a complaint by a Virginia judge against a
lawyer with the Virginia State Bar does not result in automatic recusal – bias
or prejudice against the lawyer must also be present149. Similarly, mere (1)
acquaintance with a party, attorney or witness, (2) prior prosecution of a
defendant when the judge was the prosecutor, (3) appearance by a judge’s
spouse before the judge, (4) participating as best man in a lawyer’s wedding,
(5) familiarity with a party’s prior legal difficulties through prior judicial
proceedings, or (6) defendant being an attorney who regularly appears before
the judge does not require recusal150. Nor does a judge remaining in a former
law firm’s profit-sharing plan or hearing cases in which one of the attorneys is
a sub-tenant if certain steps are taken to remove potential influence by the
law firm or sub-tenant, but disclosure of the relationship is required151.
 Personal knowledge of disputed evidentiary facts concerning the
proceedings152 -- It does not apply to knowledge learned from other cases in
the course of trying such cases, but only to information gathered from
extrajudicial sources153.
 Prior service as lawyer in matter in controversy154 -- Generally, a judge may
not hear the case if it involves a former client and the former representation,
no matter how long ago the representation ended155. This is different from
recusal involving the same client, but in a different matter, in which case the
recusal period should be for a reasonable time156. This provision does not
preclude former prosecutor from hearing cases involving a person whom or
she previously prosecuted unless it involves the same facts under which the
defendant formerly was prosecuted or was a case in the now-judge’s office
when or she was the prosecutor157.
This provision is narrower than the conflicts of interests provisions in the
Rules of Professional Conduct regarding former clients158, which reflects the
difference in roles between judge and lawyer. While a substitute judge may
not handle a civil case arising from a traffic accident where he or she tried the
traffic offense159, other members of the firm may do so160, (but see the
discussion below about imputed disqualification). The Legal Ethics
27
Committee declined to opine on whether a substitute judge's law firm may
collect fines and costs for the court161. The Committee also observed that a
lawyer who was the judge's law clerk three years ago has no duty to disclose
the relationship since the matter before the court was not before the court
when the lawyer served as a law clerk162.
 Practiced previously with an attorney while that attorney was involved as an
attorney in the matter now before the court163 -- There is an exception to this
imputed disqualification that generally excludes serving as a lawyer in a
government agency, such as Commonwealth’s Attorney or city attorney164.
That exception does not apply to Federal judges who, while a government
attorney, participated in the proceeding or expressed an opinion about the
merits of the proceeding165. That exception also does not apply if the judge’s
impartiality might reasonably be questioned because of such association 166.
For example, if the judge were an assistant city attorney with supervisory
authority, this provision would preclude the judge from hearing cases being
handled by attorneys over whom or she or she exercised supervisory control
if the subordinates were involved with the case before or she left that
position167.
The concept of imputed disqualification of lawyers is addressed in the
Rules of Professional Conduct generally168, as to successive government and
private employment 169, and for a former judge or arbitrator170. While the
general concept is the same, the specific rules are different because of the
difference in roles between judge and lawyer. Generally, if the former judge
may not participate in the matter, other lawyers in that firm also may not
participate unless the former judge is screened from the matter and the
appropriate tribunal is notified so that the tribunal can ascertain compliance
with the exception171. This new rule appears to have modified the opinion that
there is no imputed disqualification where a former judge is a partner172.
A variation of this issue involves a firm who has a lawyer who served as a
commissioner in chancery in a divorce before becoming a district court judge.
A member of the firm may represent one of the parties because the former
member's disqualification of the firm was personal to the officeholder173.
As a corollary, judges should recuse from hearing cases from their former
firm for a reasonable period of time.
 Judge has been a material witness in the matter174 -- See personal
knowledge of disputed facts, above. Also, with few exceptions, the Virginia
judge is statutorily precluded from testifying as a witness to matters occurring
before him in criminal or civil cases175, but the general prohibition does not
apply to testifying in bar disciplinary proceedings 176. In lieu of testifying
personally, a district court judge is required to make a record of the events
leading to a contempt finding, which may be introduced as evidence in a
circuit court appeal177. Similarly, the Rules prohibit an attorney from acting as
an advocate in a case where the attorney is likely to be a “necessary
witness”, with certain exceptions178.
 Judge knows that the judge (personally or as fiduciary) or certain family
members has certain economic interest in the case.179. For Virginia judges, it
28
applies to the judge’s spouse, parent or child wherever residing, and any
family member in the household, not just those within the third degree of
relationship as provided in Va. Canon 3E(1)(d). Also:
 “has an economic interest in the subject matter” – see “rule of necessity”
exception180. For a discussion of the rule of necessity, see the beginning
of this topic.
 “has an economic interest in … a party to the proceeding” – the ownership
of a de minimus percentage of stock in a corporate party does not require
recusal181.
 “has more than a de minimus interest that could be substantially affected
by the proceeding – all parts of this provision (“more than de minimus”,
“could be” and “substantially affected”) must be met for this provision to
apply.
For Federal judges, it applies to persons within the third degree of relationship
or their spouse, including a person other than a spouse with whom the judge
maintains both a household and an intimate relationship (n.181.1). Also,
“financial interest” is defined to apply to any interest, however small, with
several different exemptions to this definition and a provision for disposing of
certain financial interests to eliminate the disqualification182. In contrast, a
recent Virginia ethics opinion defined de minimus to be one percent (1%) or
less of a publicly held corporation, but also cautioned that other
circumstances may warrant recusal, such as the significance of the stock to
the judge183.
 Judge or judge’s spouse or a person “within the third degree of
relationship”184 or the spouse of a person who is, in the proceeding:
 A party (or officer, director or trustee of a party)185 – Identifying the officers
and directors and their spouses, especially for nonprofit organizations with
a large number of directors or a bank with many vice-presidents, can be
an easily overlooked matter of potential disqualification.
 Acting as a lawyer in the proceeding186. This includes acting as counsel,
guardian, guardian ad litem, commissioner in chancery, special
commissioner, etc. The Commentary to the Federal Canons applies its
disqualification provision only if the attorney in the case is within the third
degree of relationship. There is no imputed disqualification solely
because a lawyer-relative is affiliated with a firm to which counsel of
record is affiliated, but additional circumstances described in the
Commentary could cause an imputed disqualification187.
The Virginia State Bar Legal Ethics Committee opined several
times that a judge or substitute judge may not hear cases in which a
lawyer is from a firm in which a son, daughter, brother or brother-in-law
practiced law unless the disqualification is waived188, but it is not unethical
for the lawyer to so appear189. It is the judge's problem, not the attorney's
problem. Two exceptions exist. First, an Assistant Commonwealth'
Attorney may not appear before a judge when he or she is a spouse of the
judge; appear in, inspect the files of, discuss with the spouse judge or
other lawyers in the prosecutor's office any case assigned to the judge-
29
spouse190. Second, an attorney whose spouse is a law clerk may not
appear before the judge whom the law clerk serves or handle files or
cases ultimately to be assigned to such judge191.
 Known by the judge to have an interest that could be substantially affected
by the proceeding192. This is broader than the provision in Va. Canon
3E(1)(c) or Fed. Canon 3C(1)(c), which they overlap, because the person
affected does not have to reside in the judge’s household or be a Virginia
judge’s spouse, parent or child. The Virginia provision requires that the
interest be more than a de minimus interest193; there is no such exception
in the Federal provision194. The Virginia State Bar Legal Ethics Committee
opined that a judge was not required to recuse solely because the judge's
wife worked in the judge's son's law office if she does not handle cases
being heard by the judge (but see above for recusal where son is a lawyer
in the firm)195 or is an administrator in a law office not having a family
member as an attorney if such fact is disclosed on the record196. Similarly,
the judge is not required to disclose if a nephew is a lessee of a partner in
a firm in which the judge's son is a member197, but see above for
discussion about disqualification where family member is a lawyer
practicing in the firm.
 To the judge’s knowledge, is likely to be a material witness in the
proceeding198. This is similar to the disqualification of a judge hearing a
matter in which the judge may be a material witness199.
The Federal Canons definition of “degree of relationship” includes whole and
half blood relatives, and most step relatives and a person other than a spouse
with whom the judge maintains both a household and an intimate relationship
200, while the Virginia Canons are silent on this point.
The Federal Canons contain a disqualification exception not found in the
Virginia Canons. It allows a judge to whom a case has been assigned and who,
learns that the judge or other family member has a financial interest in a party
other than an interest that could be substantially affected by the outcome, is not
required to disqualify if the person having the financial interest divests of the
interest that provides for the disqualification201. The Virginia Canons do not have
such a provision. However, as discussed below, the disqualification could be
waived under Virginia Canon 3F, whereas it could not be waived under Federal
Canon 3D.
For Federal judges, there are many opinions about disqualification in the
Compendium202. The table of contents of the Compendium is in Appendix, and
the appropriate part should be consulted if it applies to the situation.
You should determine early in your case development if there is a possible
disqualification situation:
 In a Virginia state court case, have the client review Canon 3E and its
Commentary, then ask the client if any of the provisions of Canon 3E apply to
the trial judge (or judges in that court if the case is not assigned to a particular
30


judge before trial). If in federal court, do the same with Canon 3C and its
Commentary. For example, did the judge represent your client or a family
member before he or she became a judge? Is your client or your client’s
spouse related to the judge or the judge’s spouse? Has your client had
personal or business dealings with the judge, and what are they? Who are
the officers and directors of your corporation-client, and are they related to the
judge or the judge’s spouse? Is a witness a person with whom the judge
would have more than an acquaintance relationship?
Document this conversation to protect yourself if your client later “remembers”
a disqualifying fact after an adverse ruling is made and the time for both an
appeal and a rehearing have passed.
If a disqualifying fact is found, bring it to the court’s attention promptly,
especially if is coupled it with an agreement for waiver of disqualification (see
below). Do not wait until the day of trial or just before trial to raise the issue.
No one, least of all the judge, will appreciate your having caused a disruption
and continuance if the judge has to recuse and get a replacement when
inconvenience and cost to the other parties and witnesses could have been
avoided and the judge could have used his or her time to handle another
case. Don’t forget that a waiver of disqualification is available for most
situations if all concur (see below).
Waiver of Disqualification
The Virginia and Federal remittal of disqualification provisions are
substantially the same. Please note these provisions:
 The clerk, as well as the judge, may ask if waiver will be considered203.
 The consideration of the waiver must take place out of the judge’s presence
and without any participation by the Virginia judge204.
 All grounds for disqualification can be waived except:
 Virginia – personal bias or prejudice concerning a party205.
 Federal – circumstances specifically set out in Canon 3C(1)(a through
e)206
 Agreement for Waiver of Disqualification:
Virginia Canons: Agreement must be reduced to writing – oral waivers “on the
records” are not sufficient (after all, many circuit court cases are never
transcribed, and almost all Virginia district court cases have no court
reporter)207. Circuit courts have a copiable form, CC-1100, Order of
Recusal/Remittal of Disqualification, and district courts have a copiable form
in DC-91, Order of Disqualification/Waiver of Disqualification.
Federal Canons: Agreement may be in writing or on the record208. However,
if the recommended form is used, all waivers are reduced to writing 209.
 Each attorney and each party must agree to the waiver210. Virginia Canons
require each attorney and each party to sign the waiver211.
 Unlike the mandatory nature of the grounds for disqualification, the decision
to accept the agreement for waiver and continue hearing the case is in the
judge’s discretion212.
31
Canon 4 – EXTRA-JUDICIAL ACTIVITIES
No judge can effectively lead a cloistered life, nor would it be wise to try to
do so. However, to maintain impartiality and to avoid the appearance of
impropriety, Virginia Canon 4 and Federal Canons 4 and 5 place some
restrictions on a judge’s non-judicial activities. It is in this context that every
attorney, even those with an office practice, may come into an ethics encounter.
General
The governing principles are described in Virginia Canon 4 – a judge may
engage in extra-judicial activities designed to improve the law, the legal system,
and the administration of justice, and shall conduct any such extra-judicial
activities in a manner that minimizes the risk of conflict with judicial obligation.
The Federal Canons split the principles into Canon 4A (law related) and Canon
4B and 4C (other), with less restriction in 4A than in 4B and 4C. Thus, a Federal
judge can provide investment advice to a law related non-profit organization, but
not to any other non-profit organization (n.212.1) The “minimizes the risk”
provision applies to both law–related activities and other activities because the
judicial duties of a judge take precedence over all the judge’s other activities 213.
In engaging in extra-judicial activities, a judge may not do those things that cast
reasonable doubt on the judge’s capacity to act impartially, demean the judicial
office, or interfere with the proper performance of judicial duties214. This includes
out-of-court expressions that demean someone on the basis of race, gender,
etc215, which tracks the provisions of Va. Canons 3B(5) and 3B(6) for in-court
conduct.
Avocational Activities
Canon 4B reflects a democratic philosophy that a judge may do anything
except those specific things that are prohibited. In particular, judges are
encouraged to speak, write, lecture, teach, etc., concerning the law, the legal
system and the administration of justice216, both in individual and group activities.
For example, they may speak to civic groups217, write law books218, work with bar
groups for legislative changes to civil and criminal procedure219, and talk about
the legal system in school assemblies. In doing so, judges enhance the public’s
respect for the judicial process and educate the bar and the public. The Federal
Canons Commentary noted: “As a judicial officer and person specially learned in
the law, a judge is in a unique position to contribute to the improvement of the
law, the legal system, and the administration of justice, including revision of
substantive and procedural law and improvement of criminal and juvenile justice.
To the extent that the judge’s time permits, the judge is encouraged to do so,
either independently or through a bar association, judicial conference or other
organization dedicated to the improvement of the law”220.
32
There are restrictions. For example, a Virginia judge should not publicly speak about
a pending case except his or her own personal case that is not a mandamus action,
while a federal judge also may do so in a legal education setting 221. Similarly, while
a judge may deliver a lecture about the law to a group that is not a general interest
group (such as criminal defense attorneys or prosecutors), the judge should not give
advice as to how to proceed222. Also, in teaching at a police academy, a judge must
act so as to maintain the appearance of impartiality and independence by teaching
only under clearly educational circumstances and by not giving any appearance of
acting as agent for the police or sponsoring entity or which might reasonably cause
the judge to appear biased in the courtroom223. Federal judges should not use
judicial system resources to a substantial degree for extra-judicial activities224. In
addition, Federal judges are subject to the provisions of various statutory ethics acts
that are beyond the scope of this article.
Judges can also teach, write, speak, etc., on non-legal matters225, and
some judges teach such non-legal subjects as business administration and
history.
Governmental, Civic or Charitable Activities
These provisions apply to all active and retired judges. Virginia substitute
judges are exempt except for use of prestige of office for fundraising and
membership solicitation226.
-- Appearance before Governmental Body
The Canons recognize that a judge does not give up all rights in dealing
with the government when or she becomes a judge. Therefore, the judge can
appear pro se at a public hearing before, or otherwise consult with, an executive
or legislative body or official in a matter involving the judge or the judge’s
interests227, but not those of a family member228. For example, a judge could
appear before the board of zoning appeals pro se to oppose a rezoning of
property adjacent to the judge’s property. However, the judge should identify
himself as a property owner and not as a judge to avoid using the prestige of
office for the judge’s personal, private benefit or others229, nor may the judge
represent his or her neighbors230.
Otherwise, when a judge appears before a legislative or executive body,
the subject matter is restricted to the law, the legal system or the administration
of justice231. A Federal judge also may consult with, and appear before, a
legislative or executive branch body or official to the extent that it would generally
be perceived that the judge’s judicial experience provides special expertise in the
area (n.231.1). The further the subject matter gets from court procedure and
resources, the more likely that it will not be considered within the ambit of “the
law, the legal system or the administration of justice”. For example, a request for
33
another full-time judge would be within the ambit, while educational standards for
prison guards would not.
-- Governmental Appointments
Similarly, the Canons do not allow a judge to accept appointment to a
governmental body or position that is concerned with issues of fact or policy on
matters other than the improvement of the law, the legal system or administration
of justice and, for Federal judges, if an appointment of a judge is required by
statute232. For example, a judge should not serve on a parks commission
because it is not concerned with improvements of the law, the legal system or the
administration of justice even if it were to recommend allowing prepayment of
violations of ordinances governing the parks. Its primary purpose is to deal with
parks233. Similarly, a judge should not serve on a statewide crime commission
because its powers extend beyond matters dealing with the law, the legal system
and the administration of justice234.
There was substantial criticism of the late Chief Justice Earl Warren
chairing the Kennedy assassination committee because his judicial expertise was
not essential to the operations of the committee, it involved him in a
controversial, non-judicial activity that detracted from public confidence in the
courts because the prestige of office was lent to this committee235. The Federal
Canons Commentary observed: “Valuable services have been rendered in the
past to the states and the nation by judges appointed by the executive to
undertake important extra-judicial assignments. The appropriateness of
conferring these assignments on judges must be reassessed, however, in light of
the demands on judicial resources created by today’s crowded dockets and the
need to protect the courts from involvement in extra-judicial matters that may
prove to be controversial. Judges should not be expected or permitted to accept
governmental appoints that could interfere with the effectiveness and
independence of the judiciary”236.
Even where the entity is concerned with the law, the legal system, and the
administration of justice, a judge may not participate if, in so doing, it could create
in reasonable minds a perception that the judge’s ability to carry out judicial
responsibilities with integrity, impartiality and competence is impaired237. Justice
Jackson’s absence from the court for over a year while acting as prosecutor in
the Nuremberg trials was criticized because, among other things, it took time
away from his judicial duties238. While the Virginia State Bar Legal Ethics
Committee opined that a substitute judge may serve as a member of a Board of
Zoning Appeals because the substitute judge has no jurisdiction over appeals
from the Board239, a substitute judge should not serve if such service would
create such a perception.
Even where a judge is statutorily mandated to participate in a
governmental entity, that judge should not participate in activities that would give
34
the appearance of compromising his or her impartiality240. While there is an
exception for Federal judges where the appointment is by an Act of Congress,
there is cautionary language in the Canon and the Commentary about the priority
of judicial duties and the nature of the extra-judicial activity241.
Note, however, that a judge may represent the locality or state in a
historical, educational or cultural activity, such as the dedication of a historic
site242. This exception exists because the activities are ceremonial in nature, do
not substantially impinge on a judge’s primary duties, and generally are not
controversial.
-- Service for Governmental and Non-profit Organizations
When a judge can serve as an officer, director, trustee or non-legal advisor of a
governmental body or a non-profit educational, religious, etc., organization, the
judge cannot serve as a legal advisor243, nor may the judge serve if it is likely that
the entity will be engaged in proceedings that ordinarily come before the judge or
will be involved frequently in adversary proceedings that come before the judge’s
court or any subordinate court from which appeals would come to his or her
court244. For example, a juvenile and domestic relations district court judge
should not serve as president of a private environmental group that frequently
litigates even though none of that litigation would be in the judge’s court because
it would it would appear to be lending the prestige of office to anticipated
litigation245. A judge can serve as a nonvoting member of the Board of Directors
of Lawyers Helping Lawyers (n.245.1), and this Commentary to Virginia Canon
4C(2) Commentary superseded an earlier JEAC opinion (JEAC Op. 03-3).
-- Fund-raising and Soliciting Memberships
The Canons permit within limits a judge to participate in the organization’s
fundraising activities. The judge may plan fundraising, and may solicit funds from
other judges over whom the judge does not exercise appellate or supervisory
authority.246 A judge otherwise may not personally solicit funds247, nor may the
judge use or permit the use of the prestige of judicial office for fundraising248.
However, the judge’s name may appear on the letterhead of a fundraising letter
(with some restrictions)249. A judge may attend a fundraising event, but may not
be the speaker or guest of honor250.
The Canons also permit a judge to personally solicit membership in such
organizations if it is not reasonably perceived as coercive or is not essentially a
fundraiser251. It is not coercive for a Virginia judge to solicit if neither the person
solicited nor a person affiliated with the person solicited is ever likely to appear in
the judge’s court252. A Virginia judge may solicit membership from a judge to
whom a solicitation for funds ethically could be directed253. If a Virginia judge is
an officer, the judge may send a general membership solicitation letter signed by
the judge254.
35
Lawyers historically have been very active in both governmental and nonprofit activities, and often have held leadership positions. These changes try to
strike a reasoned and realistic balance between the need for public confidence in
the impartiality and probity of the judge while continuing as a society to benefit
from lawyer-judges continued participation in public-spirited activities. Thus, a
judge may help design and implement the membership solicitation and
fundraising activities, which occur behind the scene, while limiting his or her
public activities in those efforts to those that reasonable people can agree do not
create an appearance of impropriety. Of course, these efforts take second place
to judicial duties255.
Because a Virginia substitute judge does not regularly sit as a judge and
generally is identified to the public as a lawyer rather than as a judge, there are
no restrictions on his or her governmental, civic or charitable activities other than
not lending the prestige of office for fundraising or membership solicitation256. In
contrast, the federal restrictions apply to part-time and pro tempore Federal
judges, but not to special masters (with one exception)257. Also, a Virginia or
Federal retired judge, senior judge or justice is so restricted except that or she
may serve on a governmental commission not concerned with issues involving
the law, the legal system and the administration of justice258.
Financial Activities
Contact with a judge’s financial activities is another area where nonlitigating lawyers are likely to come into contact with the Canons of Judicial
Conduct. These Canons address general prohibitions, investments, business
entities, and gifts.
-- Financial and Business Dealings Generally
The Canons provide that a judge may not engage in financial or business
dealings that may be reasonably perceived to exploit his or her judicial
position259. For example, a substitute judge may not accept payment for
performing a marriage in the one instance where the substitute judge may
perform a marriage260.
This can lead to some fine distinctions, and some differences between
Virginia and Federal judges. For example, a Federal judge may not ask for
discounted or free services because he or she is a judge, but may accept
professional courtesy extended to other attorneys in the locality unless the law
firm appears or is likely to appear before the judge in the future 261. Attorneys
who represent judges may discount their fees to judges as a professional
courtesy if they would do the same for other friends and colleagues, but the
representation in the real estate transaction would have to have terminated
before the attorney could appear in a case before the judge262. The difference
36
between the Federal judge ethics provisions and the Virginia attorney ethics
provisions is that an attorney may offer such professional courtesy discount to a
Virginia judge as long as the attorney is not appearing before the judge during
the representation on the real estate matter, but a Federal judge may not accept
such discounted fee as long as the law firm is or is likely to appear before the
judge.
This provision is not conditioned on the judge initiating the deal – it would be
inappropriate for a judge to accept an offer to invest in a local real estate
development if told that or she has to pay less for his or her share because or
she is a judge.
Judges should discourage family members from dealings that appear to
exploit the judge’s position263.
A judge may not engage in financial or business dealings that involve the
judge in frequent transactions or continuing business relationships with those
lawyers or other persons likely to come before the court on which the judge
serves264. For example, a judge must recuse if a lawyer, who is also the judge's
partner in a real estate matter, appears in court, unless the recusal is waived 265.
This can be a particular problem for new judges trying to make the transition from
bar to bench. The immediate remedy is for a judge to recuse when a party or
attorney having such dealings appears before the judge266.




Lawyers face similar prohibitions. Some examples of this are
A partner may not appear before another partner who is a substitute judge 267.
An attorney representing the judge may not accept court appointments from
any judge of the judge's circuit during the representation268.
An attorney may not serve as court-appointed counsel in mental commitment
cases when the landlord for the attorney's office is the special justice. 269
An attorney may not rent space from a judge if the attorney expects to appear
before the judge270. However, the judge is not prohibited from hearing cases
involving attorneys who are subtenants of the judge where the judge has
taken certain steps are taken to insulate the judge from influence by the subtenant and tenant and to maintain the judge’s independence271.
Federal judges should also refrain from such transactions that interfere with
the proper performance of judicial duties272. This provision applies to Virginia
judges through the provisions requiring judges to avoid the appearance of
impropriety273.
A judge may own and manage property for himself and family members that does
not cause frequent disqualification or appear to be exploiting the judicial office274. A
Virginia judge may be an officer of director of a nonprofit property owners association
where the judge owns property subject to such an association275, and a Federal
judge may serve in a similar capacity for a condominium or cooperative in which he
37
or she is a property owner276 because they are treated as part of the management of
property co-owned with others.. However, a judge may not take an active role in any
capacity in a business unless it is closely held by the judge and/or members of the
judge’s family 277. For a Virginia judge, the business also must be at least 50%
owned by the judge and/or the judge’s family278 or is primarily engaged in investing
the judge’s family’s resources279. For a Federal judge, the business must be both
owned and controlled by the judge and/or family members280. Also, the business
must not take too much time from judicial duties, involve misuse of prestige of office,
create the appearance of impropriety, subject the judge to criticism, or come before
the judge’s court281. Note carefully that the scope of “members of the judge’s family”
is not the same as that term is used elsewhere – it includes not only relatives within
the third degree of relationship, but also a relative or person with whom the judge
maintains a close familial relationship282.
Except for the prohibitions against exploiting the judicial position or involving
frequent transactions with those who appear before the judge’s court, these
business and investment provisions do not apply to Virginia substitute judges283
or to retired judges, senior judges or justices284. They do not apply to part-time or
pro tempore Federal judges285.
The purposes of these provisions are to complement the requirement that
judicial duties take precedence over all other activities and to avoid lending the
prestige of judicial office for the private benefit of the judge or others (for
example, by sitting on a bank’s board of directors). They can be achieved
relatively easily when a judge is only an investor in a business, but not if or she
or she is serving in a more active capacity. An exception is made for the family
business because of the possible hardship to the family if a judge could not
participate, and in a family investment business because of the less demanding
aspects of such a business. Notwithstanding that exception, other provisions in
the Canons may prohibit a judge from managing a family business286.
A judge is required to arrange his or her financial affairs to minimize the number
or cases in which the judge is disqualified, even being required to divest those
financial interests that might require frequent disqualification287. No one is able to
avoid all possible disqualifications. However, to meet the mandate that a judge’s
judicial duties take precedence over all the judge’s other activities288, a judge must
minimize both actual and potential conflicts arising from the judge’s financial
activities, although the Canons provide that a judge divest such conflicts as soon as
can be done without serious financial detriment289. This especially affects not only
new judges who need to rearrange their financial activities, but judges who inherit
property. To avoid divestiture, a judge may be able to structure a judge’s interest in a
former law firm’s profit-sharing plan to create the degree of independence needed to
avoid the appearance of impropriety and to maintain independence as a method of
compliance, but disclosure will be required.290.
38
A lawyer putting together a business or other investment in which a judge is
or becomes an investor needs to carefully consider whether the judge is also a
client. If so, then the judge and lawyer need to consult not only the canons
dealing with financial activities, but also the disqualification provisions, especially
as to whether there is an ongoing attorney-client relationship when the attorney
appears in court in front of the judge291. The conflicts of interest provisions in the
Rules about prohibited transactions with clients and their exceptions apply if a
judge is the client292. Also, it may become important to establish when the
attorney-client relationship terminates, as a judge should not hear cases in which
counsel of record has an ongoing attorney-client relationship with the judge.
If the client is a Federal judge, the lawyer should consult not only the Code
Judicial Conduct, but also the advisory opinions and the Compendium. If outside
earned income or outside employment is involved, the Ethics Reform Act
Concerning Outside Earned Income, Honoraria, and Outside Employment and
the opinions in the Compendium should also be reviewed.
-- Gifts and Loans
Unlike most other provisions which allow a Virginia judge to do everything
except that which is prohibited, Virginia Canon 4D(5) allows judges to accept
only certain types of gifts, loans or benefits. They must be: (1) related to law, the
legal system and the administration of justice293, (2) incident to a resident family
member’s activities294, (3) ordinary social hospitality295, (4) special occasion gift
from a relative or friend (such as a birthday)296, (5) from a relative or close
personal friend whose appearance or interest in a case would in any event
require disqualification297, (6) loans obtained from a lending institutions without
special favors298, and (7) scholarship or fellowship without special terms299. Even
then, such gifts, loans or benefits should not be excessive or with special terms
to avoid questions about the judge’s impartiality and integrity or which might
create disqualification where such would not otherwise be required300.
On this topic, Federal Canon 4D(4) is different. It refers to the Judicial
Conference Gift Regulations, which can be found at:
http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/JudicialConference
RegulationsGifts.aspx It is over 8 pages of regulations in addition to statutes
cited therein.
Gifts are areas where interactions between judges and lawyers are likely to
be called into question. For example, “ordinary social hospitality” would include
exchange of small gifts at Christmas and mutual exchange of dinner invitations
because of mutuality and comparatively small value of such hospitality. The
further from both of these factors, the more likely that the item may not be
“ordinary social hospitality”. Thus, inviting a judge to complete a foursome for a
round of golf at a country club to which the judge does not belong could be
problematic if the other guests are clients of the host and there was no prior
39
social relationship between the judge and the host. On the other hand, if all in
the foursome were social acquaintances and did different things together, there
probably would not be a violation. Similarly, under “special occasion gifts”, an
engraved silver tray from the judge’s former partners on the judge’s twenty-fifth
wedding anniversary probably would not be a violation, whereas the same gift
from a lawyer who was not a social acquaintance would be a violation because
the donor is not a relative or friend, and the judge should decline the gift. For
federal judges, there is an advisory opinion on gifts for newly appointed
judges301.
Federal special masters are exempt from these gift provisions302.
Loans are a similar area of potential exposure. Lawyers are not lending
institutions, and should not loan money to judges. That does not prevent a
lending institution in which a lawyer as an interest from lending money to a judge
on commercially reasonable terms available to others who are not judges
(n.302.1). However, if the lawyer controls the lending institute, it would be
difficult for the judge to request or accept such a loan because of the appearance
of impropriety and related ethical concerns303.
Somewhat less restrictive provisions apply to lawyers. Rule 3.5(d) only
prohibits a lawyer from giving or lending anything of value to a judge under
circumstances that might give the appearance that the gift or loan is made to
influence official action. Thus, there are many other circumstances where a
lawyer ethically may seek to give a gift to a judge. However, the judge ethically
may not accept it if the acceptance would be in violation of the Canons.
To avoid embarrassment, a lawyer desiring to give a gift to a judge should
consider the appropriate Canons (depending on whether the judge is a Virginia
or Federal judge) in making that decision. If the recipient is a Federal judge, the
lawyer should consult not only the Code Judicial Conduct, but also the advisory
opinions, the Compendium, the Ethics Reform Act Concerning Gifts, and the
Ethics Reform Act Concerning Outside Earned Income, Honoraria, and Outside
Employment should also be reviewed
Fiduciary Activities
Basically, an active judge may not serve as a fiduciary of any sort304. The
only exception is serving as a fiduciary for a family member305, but only if it does
not interfere with the proper performance of judicial duties306, it is not likely that
the fiduciary-judge will be engaged in proceedings that ordinarily come before the
judge’s court, nor the subject of the fiduciary relationship will become involved in
adversary proceedings in the court where the judge serves or is under its
appellate jurisdiction307. In addition, the financial activities provisions that affect
a judge’s financial activities personally also apply to the judge as a fiduciary308,
such as being the executor of an estate having a partnership interest in an
40
apartment complex that regularly files landlord-tenant actions in the judge’s
court309.
This Canon affects new judges who must rearrange their affairs before
coming on the bench. There is no transition provision for new Virginia judges as
in other financial affairs310 -- a judge must resign or otherwise terminate such
fiduciary relationships before taking the oath of office. For new Federal judges,
there is an a one year transition period, and also an exception where continuing
to serve as a fiduciary without compensation is permitted where termination
would unnecessarily jeopardize a substantial interest and the circuit judicial
council approves311.
It also affects active judges who were named trustees in deeds of trust or
as fiduciaries in a will while practicing law before becoming a judge, and are now
requested to serve because of default on the loan or death of the testator. In
such circumstances, a judge must refuse to assume office.
A judge or judge-elect should take appropriate steps to see that someone
else assumes the fiduciary office. Usually, a judge notifies a co-fiduciary or
beneficiary and suggests that they take appropriate action. If no one is able to
take action, a petition may have to be filed to have a different judge appoint a
replacement fiduciary. If a deed of trust is involved and there is no co-trustee,
the noteholder should be notified and, if needed, to appoint a substitute trustee
and petition for an order appointing a substitute trustee. It is not unusual for the
successor attorneys to the judge’s law practice to help handle these transition
matters to the extent that the judge was unable to complete them before taking
the oath of office.
This Canon does not apply to Virginia substitute judges312 or to retired
judges, senior judges or justices313. It does not apply federal part-time and pro
tempore judges314.
Serving as Arbitrator or Mediator
A Virginia judge may not serve as an arbitrator or mediator or otherwise
perform judicial functions in a private capacity, but may participate in settlement
conferences performed as part of the judicial duties, while a Federal judge may
serve as a settlement judge or mediator only as authorized by law in connection
with a case before the judge315. The primary purpose is to insure that judicial
duties take precedence over an active judge’s other activities316. This does not
apply to Virginia substitute judges317 and retired judges, senior judges and
justices318 because their time is their own except when actually called to serve as
a judge. It also does not apply to Federal part-time and pro tempore judges319.
Practice of Law
41
The general rule in the Canons and statutes is that a full-time judge may
not practice law320.
One exception is that a judge may act pro se321. This provision is a bit
redundant since the definition of the practice of law in the Rules of Court is
derived from the attorney-client relationship322 and a judge acting pro se has no
client as contemplated by this definition. (Notwithstanding the aphorism, “A
person who represents himself has a fool for a client”, nothing in the definition
addresses such self-representation.) The Commentary to the Virginia and
Federal Canons note that the prohibition refers to the practice of law in a
representative capacity and not in a pro se capacity323. Thus, a judge may
represent himself or herself before a city zoning commission, but may not
represent the developer or neighbors.324
The other exception allows a judge, without compensation, to give legal
advice to and draft or review documents for a member of the judge’s family 325.
When compared with the definition of the practice of law in the Rules of Court326,
the giving legal advice or reviewing documents without compensation does not
appear to be one of the acts deemed to be practicing law. The drafting of certain
documents with or without compensation is one of the acts deemed to be the
practice of law. However, the provisions would be construed as not being an
ethical violation since (1) both the definition of the practice of law and the Canons
of Judicial Conduct are rules of the Supreme Court of Virginia, (2) the Canons
were adopted later than the provisions defining the practice of law and later
enactments govern over earlier ones if in irreconcilable conflict,327.
Both the Virginia and Federal Canons admonish judges not to abuse the
prestige of office to advance the interests of a judge or the judge’s family when
exercising one of these two exceptions328.
A judge may respond to factual questions from successor counsel as to
historical facts not readily apparent from the file, factual details in the judge’s
peculiar knowledge, and similar matters of clarification, but may not actively
assist successor counsel on appeal, including advice, counsel or opinions about
the legal issues or conducting the appeal329.
This Canon does not apply to substitute judges except to cases in which
they acted as judge or proceeding relating thereto330. Also exempt are retired
judges and senior judges and justices331, but they may not appear as counsel of
record in a Commonwealth of Virginia court if they are drawing retirement
benefits from the Judicial Retirement System332. Some judges have resigned
from office and deferred drawing retirement benefits so that they could return to
the courtroom in Virginia courts as counsel of record.
Compensation and Reimbursement – Extra-Judicial Activities
42
When any judge engages in extra-judicial activities permitted by these
Canons, or she may receive reasonable compensation and reimbursement for
actual travel expenses333. There are limits on compensation to a reasonable
amount that do not exceed what a non-judge would receive334. Reimbursement
for travel expenses are limited to actual cost for the judge and spouse or guest,
with anything in excess being treated as compensation335. The Federal Canon
Commentary notes additional statutory restrictions that apply336.
Reporting requirements vary. In Virginia, only Virginia active judges are
required to report receipt of such funds337. These reports are filed with the
Secretary of the Commonwealth and are open to public inspection338. An
attorney may wish to examine them for purposes of determining if the judge has
a conflict of interest. Federal active and pro tempore judges and certain retired
judges are required to file such reports339.
Canon 5 -- POLITICAL ACTIVITY
Except for political activity in behalf of measures to improve the law, the
legal system, and the administration of justice340, a judge may not engage in
political activity341. These provisions do not apply Federal special magistrates342.
This has been an area of change in Virginia judicial ethics. A Virginia judicial
ethics opinion that judges should not vote in primaries343 was the subject of a
federal suit that was dismissed on jurisdictional grounds344. Subsequently,
Canon 5A Commentary was added (and Canon 2A Commentary amended) to
clarify that voting in an open primary (no party membership, no loyalty oath, no
pledge of support) conducted by the State Board of Elections was a discharge of
civic duty and not political activity, and superseded the earlier JEAC opinions.
Also, The Virginia State Bar Legal Ethics Committee opined that a member of a
county board of supervisors may not serve as a substitute judge345.
FAMILY MEMBERS
Because family members are not judges, the Canons of Judicial Conduct do
not directly regulate their financial activities. However, the Canons do address
family involvement in a judge’s financial activities by directing the judge to
discourage family activities that create ethics problems. For example, they
should not engage in financial dealings that appear to exploit the judge’s judicial
position346. They should not accept gifts except as allowed by the Canons347.
Virginia judges are to urge family members residing in the judge’s household not
to accept the types of gifts and loans that the judge may not accept348 including
gifts that could reasonably be perceived as intended to influence the judge in
performing his or her judicial duties349, nor give excessive gifts even on special
occasions to the judge350. Federal judges should endeavor to prevent such
family members soliciting or accepting anything of value except to the extent that
the judge may accept such gifts351. In addition, the judge is to make reasonable
efforts to keep informed about the personal economic interests of the judge’s
43
spouse and minor children residing in the judge’s household for disqualification
purposes352.
In dealing with a judge’s “family”, there are different scopes depending upon
the part of the Canons involved, and some differences between the definitions
used in the Virginia and Federal Canons:
 Disqualification:
 “Third degree of relationship” – Va. Canon 3E(1)(d) and Commentary,
Fed. Canon 3C(1)(d).
 “Judge’s spouse and minor children residing in the judge’s household” –
Va. Canon 3E(2) and Commentary, Fed. Canon 3C(1)(c).
 Investments:
 “Members of the judge’s family” – Va. Canon 4D(2), Canon 4D(3)(b) and
Commentary; Fed. Canon 4D(2).
 Gifts, loans, favors:
 “Members of the judge’s family residing in the judge’s household” – Va.
Canons 4D(5), 4D(5)(b). Fed Canon 4D(4).
 “Relative” – Va. Canon 4D(5)(e).
 Fiduciary Activities: “a member of the judge’s family” – Va. Canon 4E(1),
Fed. Canon 4E(1) and Commentary, and 4D(4).
 Practice of Law: “a member of the judge’s family” – Va. Canon 4G and Fed.
Canon 4A(5).
EPILOGUE
Remember the questions asked at the beginning? Here are the answers.
A judge may not ask a lawyer to handle a real estate closing on the
judge’s marital abode for a reduced fee because the judge would be lending the
prestige of the judge’s office to advance the private interests of the judge and
others (spouse)353. A Federal judge may accept discounted services
(professional courtesy) if also extended to other lawyers in the locality, but not if
the law firm appears or is likely to appear before the judge in the future354.
Attorneys who represent judges may discount their fees as a professional
courtesy if the would do the same for other friends and colleagues and is not
appearing before the judge during the representation355.
A trust and estate lawyer generally should not name an active state court
judge as the sole executor in a will or as sole trustee in a testamentary trust
unless the testator is a member of the judge’s family, and then only after
consulting with the judge, as judges may serve as a fiduciary only for family
members and if it does not interfere with his or her judicial duties and is not likely
to come before him as a judge356. However, that restriction does not apply to
retired or substitute state court judges357 or state court judges pro tempore358.
There may be instances where an active state court judge is so named on the
expectation that the judge will be retired by the time that he or she is called to
44
serve as executor, in which case, but the testator should be made aware that the
judge may have to decline to serve if the testator dies before the judge retires.
NOTE: The same thing applies to medical powers of attorney and general
powers of attorney, whether they are durable powers or not.
Planning a charity fundraising dinner with a judge as the honoree, even if
so honored because of the judge’s service when in private practice, creates a
problem since a judge may not be the honoree at a fundraiser359. The judge
could not attend the event.
A judge may not personally solicit your membership unless you a judge of
a court over which the judge does not exercise supervisory or appellate authority,
or you are a person who is not likely ever to appear in the court served by the
judge360. A Virginia judge and the judge’s spouse may accept an invitation to a
bar association’s annual dinner as guests of the bar association361. A Virginia
judge may accept from a lawyer the two hard-to-get tickets to a professional
football game to a Virginia judge only if the gift is fairly commensurate with the
occasion and relationship or is ordinary social hospitality362; a Federal judge
would have to consult the Judicial Conference gift regulations363. In addition, if
the lawyer has a case pending before the judge, the judge may have to decline
the gift if it creates an appearance that the lawyer is in a position to influence the
judge364.
_______________________________________________________________
Author's Credits and Disclaimer
Kenneth Montero is the retired Assistant Counsel for the Judicial Inquiry and Review
Commission, and was the Director of Legal Research in the Office of the Executive
Secretary to the Supreme Court of Virginia. The opinions expressed herein are the
author's personal opinions and are not the official opinions of the Judicial Inquiry and
Review Commission or any other entity.
The author wishes to thank the following reviewers: Cynthia Gray, Director, Center
for Judicial Conduct Organizations, American Judicature Society; James M.
McCauley, Ethics Counsel, Virginia State Bar; and especially Thomas E. Spahn,
Esquire, McGuire Woods LLP. They reviewed the earlier version that was printed in
the Virginia Lawyer Register, Vol. 49, no. 4 (November 2000), pp. 13-14 and 16-19;
Vol. 49, no. 6 (January 2001) pp. 18, 20, 22-30; and Vol. 50, no. 2 (AugustSeptember 2001), pp. 10-15.
45
1
Rule 8.3, Committee Commentary.
But see Rule 8.3, Comment [4] creating a partial exception for a lawyer who is
representing a judge.
3 Va. Canons, Preamble.
4 Fed. Canon 1 Commentary.
5 Va. and Fed. Canon 1, Commentary.
6 P.O. Box 367, Richmond, Virginia 23218-0367, tel. (804) 786-6636. See also
“What every lawyer needs to know about the Judicial Inquiry and Review
Commission”, 46 Va. Lawyer Register, No. 8, pp. 6-8 (March 1988).
7 Go to www.uscourts.gov and search under “Judicial Conduct and Disability
Act”.
8 Va. Const. Art. VI, § 10; Va. Code § 2.1-37.4; 28 U.S.C.A. § 372.
9Rule 8.3, Comment [3], “A report should be made the bar disciplinary agency
unless some other agency, such as a peer review agency, is more appropriate in
the circumstances. Similar considerations apply to the reporting of judicial
misconduct.”
10 Va. LE Op. No. 1548.
11 See Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.2nd 63(1988)(Every
lawyer in Virginia is expected to be fully aware of each and every disciplinary rule
and cannot escape a finding of misconduct by claiming ignorance of the rules.)
12 Va. Const. Art. VI, § 7; Va. Code § 16.1-69.15.
13 Va. Canons, Preamble.
14 Va. Canons, Preamble, and Canon 6B.
15 Va. Canons, Preamble, and Canon 6C.
15.1 Va. Canons, Preamble, and Canon 6D.
16 Va. Canons, Preamble, and Canon 6A.
17 Va. Canons, Preamble.
18 Fed. Canons, Introduction to title.
19 Fed. Canons, Compliance with the Code of Conduct (hereafter called
“Compliance”), A., B, and C.
20 Va. and Fed. Canon 1, Commentary.
21 Compare Va. and Fed. Canon 1, Commentary. Virginia uses “must comply”,
while Federal uses “should comply”
22 Va. and Fed. Canon 1, Commentary.
23 Rules of the Judicial Council of the Fourth Circuit Governing Complaints of
Judicial Misconduct and Disability, Notice to Persons Considering Filing a
Complaint of Judicial Misconduct or Disability.
24 Va. LE Op. No. 1548.
25 Va. and Fed. Canon 2A and Commentary.
26 Va. and Fed. Canon 2A, Commentary.
27 See also Fed. Advisory Op. 9, Testifying as a Character Witness.
28 Va. and Fed. Canon 2B.
29 Va. and Fed. Canon 2B.
30 Va. and Fed. Canon 2B.
2
46
31
Va. and Fed. Canon 2B.
Va. and Fed. Canon 2C.
33 Va. and Fed. Canon 2C, Commentary.
34 Va. Canon 2B, Commentary.
35 Va. and Fed. Canon 2C and Commentary; also Canon 2 and 2A.
36 Va. and Fed. Canon 2C, Commentary.
37 Fed. Advisory Op. 47.
38 Commentary, § 2.14(b)(Masonic orders, not permitting women to become
members). This opinion is not without its critics (Memorandum dated August 8,
2000, to Kenneth Montero from Cynthia Gray, Director, Center for Judicial
Conduct Organizations, American Judicature Society, opining that the opinion is
not well reasoned).
39 Commentary, § 2.14((c-1).
40 VA. JEAC Op. 06-1; Compendium, § 2.1(k).
41 Va. Canon 2B, Commentary; Va. JEAC Op. 06-1; Fed. Advisory Op. 73.
42 Va. Canon 2B, Commentary; Fed. Advisory Op. 65.
42.1 Va. Canon 2B and Commentary: JEAC Op. 03-2.
42.2 Va. Canon 2B and Commentary: JEAC Op. 03-2.
43 Va. Canon 2B, Commentary; Fed. Advisory Op. 65, Compendium § 2.1(b), (c).
44 Va. JEAC Op. 00-08.
45 Va. JEAC Op. 01-02.
46 Va. Code § 19.2-271.
47 1982-83 Op. Va. Att’y Gen. 744.
48 Va. JEAC Op. 00-08.
49 Va. JEAC Op. 01-02.
50 Va. Code § 19.2-271.
51 1982-83 Op. Va. Att’y Gen. 744.
52 Va. JEAC Op. 99-1.
53 Va. JEAC Op. 99-8.
54 Va. JEAC Op. 99-2.
55 Va. JEAC Op. 01-05.
56 Va. JEAC Op. 00-03.
57 Va. JEAC Op. 99-7.
58 Va. JEAC Op. 00-02.
59 Compendium, § 2.1(d).
60 Va. JEAC Op. 99-8.
61 Va. JEAC Op. 01-05.
62 Va. JEAC Op. 01-03.
63 Va. JEAC Op. 00-07.
64 Va. JEAC Op. 01-07.
65 Va. LE Op. No. 433.
66 Va. LE Op. No. 1439.
67 Va. LE Op. No. 737.
68 Va. LE Op. Nos. 624, 676, and 750.
69 Va. LE Op. No. 845.
32
47
70
Va. and Fed. Canon 2A, Va. Canon 3B(2) and Fed. Canon 3A(1).
Rule 1.1.
72 Rule 1.2(c and d).
73 Rule 2.1.
74 Rule 3.1.
75 Rule 3.3(a)(3).
76 Rule 8.4(e).
77 Va. JEAC Op. 01-05.
78 Va. JEAC Op. 00-09.
79 Rule 8.4(a).
80 Va. Canon 3B(3); Fed. Canon 3A(2)(does not specifically include civility).
81 Va. Canon 3B(3), Commentary.
82 Va. Canon 3B(4); Fed. Canon 3A(3).
83 Va. Canon 3B(4), Commentary; Fed Canon 3A(3), Commentary (also requiring
Federal judges to be respectful).
83.1 Va. JEAC Op. 01-01.
83,2 Va. JEAC Op. 01-04.
84 L. Milord, The Development of the ABA Judicial Code, pp. 18-19 (1992).
85 Va. Canons 3B(5), 3B(6), Fed. Canon 2C Commentary.
86 Va. Canon 3B(4); Fed. Canon 3A(3).
87 Va. Canons 3B(5) and 3C(1), Fed. Canon 3A(3).
88 Va. Canon 4A, Commentary; Fed. Canon 4 and Commentary and Canons 5A,
5B and 5C.
89 Va. Canon 3B(4); Fed. Canon 3A(3).
90 Va. Canon 3B(5), Commentary.
91 Va. JEAC Op. 01-01.
92 See text at Footnote 47.
93 Rule 8.4(e).
94 Va. Canon 3B(6), Fed. Canon 3A(3).
95 Examples of such problems are addressed in Va. JEAC Op. 99-5 (prisoners)
and 00-04 (probation officers).
96 Va. JEAC Op. 00-04.
97 Fed. Canon 3A(4), Compendium § 3.9.2, JEAC Op. 99-5, JEAC Op. 00-7.
98 Compendium § 3.9.2.
99 Va. Canon 3B(7)(a), Fed. Canon 3A(4)(b).
100 Rule 3.5(e).
101 Va. JEAC Op. 00-04. The Judicial Ethics Advisory Committee opined only
upon the ethics issue, and expressly declined to opine on the legality of this
process.
102 Va. Canon 3B(7)(b); Fed. Canon 3A(4)(c).
103 Va. Canon 3B(7), Commentary; Fed. Canon 3A(4), Commentary.
104 Va. Canon 3B(7), Commentary.
105 Va. Canon 3B(7)(c); Fed Canon 3A(4), Commentary.
106 Va. Canon 3B(7), Commentary.
107 Va. Canon 3B(7), Commentary; Fed. Canon 3A(4).
71
48
108
Va. Canon 3B(7), Commentary; Fed Canon 3A(4), Commentary.
Va. Canon 3B(7)(d); Fed. Canon 3A(4)(d).
110 Rule 2.2.
111 Rule 2.10.
112 Rule 2.11.
113 Va. Canons 4F and 6; Fed. Canon 4A(4) and Commentary, and Compliance.
114 Fed. Advisory Op. 95.
115 Va. Code §§ 6.1-110, 6.1-195.88, 8.01-114, 8.01-540, 9-183.4, 9-196.11,
16.1-251, 16.1-253, 16.1-253.1, 16.1-253.4, 18.2-54, 18.2-68, 18.2-70.2, 18.2119, 18.2-152.8, 18.2-152.9, 19.2-392.3, 20-88.55, 32.1-324.1, 42.1-90, 54.1307, 54.1-3936, 55-230, 63.1-198.04, 64.1-57.1, 64.1-85, and 64.1-151.4. No
attempt has been made to search the U.S. Code for the same.
116 Va. Canon 4B. See also Fed. Canon 4A and Commentary to Canon 4.
117 Va. JEAC Op. No. 00-04.
118 Williams v. New York, 337 U.S. 241 (1949).
119 Va. Canon 3B(9); Fed. Canon 3A(6) and Commentary.
120 Va. Canon 3B(10).
121 Va. Canon 3B(10); Compendium 2.7(m).
122 Va. Canon 3C(4); Fed. Canon 3B(3).
123 See generally Compendium §§2.8 and 3.10-2, and sources cited therein.
124 Va. Code § 16.1-266.1.
125 Va. Code § 19.2-163.8.
126 Va. Code § 19.2-159.
127 Va. Canon 3B(11); Fed. Canon 4D(8).
128 Rules 1.6, 1.8(b), 1.9(b)(2) and (c), 1.11(c).
129 Va. JEAC Op. 01-01.
130 Va. Canon 3D(1 and 2), Rule 8.3.
131 Va. Canon 3D(1 and 2), Fed. Canon 3B(5).
132 Rule 8.3 (a, b and c).
133 Rules, Preamble, Scope.
134 Va. Canon 3D(1 and 2), Fed. Canon 3B(3). Virginia Canons require
“substantial likelihood”.
135 Rule 8.3 (a, b, and c).
136 Va. Canon 3D (1 and 2), Rule 8.3 (a, b, and c).
137 Fed. Canon 3B(5).
138 Va. JEAC Op. 99-4; Fed. Advisory Op. 66, Compendium § 3.6-7(b).
139 Compendium, § 3.10-4(a).
140 Va. Canon 3D(1).
141 Fed. Canon 3C.
142 For examples, see R. E. Flamm, Judicial Disqualification, Little, Brown (now
Aspen) 1996.
143 For a more detailed discussion of the statutes, see Flamm, infra, at ch. 23-26.
144 Former Va. Canon 3C, current Va. Canon 3E(1); Fed. Canon 3C.
145 Va. Canon 3E(1), Commentary.
146 Va. Canon 3E(1), Commentary.
109
49
147
Va. Canon 3E(1)(a); Fed. Canon 3C(1)(a), 28 U.S.C.A. §§144 (an affidavit of
bias is required under the statute) and 455(1).
148 For similar provision, see Va. Canon 3B(5).
149 Va. JEAC Op. 99-4.
150 Va. JEAC Op. 01-08.
151 Va. JEAC Op. 01-03.
152 Va. Canon 3E(1)(a); Fed. Canon 3C(1)(a), 28 U.S.C.A. § 455(1).
153 Liteky v. U. S., 510 U.S. 540, 114 S. Ct. 1147 (1994).
154 Va. Canon 3E(1)(b); Fed. Canon 3C(1)(b), 28 U.S.C.A. § 455(2).
155 Compendium, § 3.6-5(a), Va. LE Op. No. 1070.
156 Compendium, § 3.6-5(b, d), which recommends a two year period.
157 Compendium, § 3.4-4, Va. LE Op. No. 1070.
158 Rules 1.7 and 1.9.
159 Va. LE Op. No. 686.
160 Va. LE Op. Nos. 520 and 686.
161 Va. LE Op. No, 1548.
162 Va. LE Op. No. 1624.
163 Va. Canon 3E(1)(b) Fed. Canon 3C(1)(b), 28 U.S.C.A. § 455(2).
164 Va. Canon 3E(1)(b), Commentary.
165 28 U.S.C.A. § 455(3), Compendium § 3.4-4.
166 Va. Canon 3E(1)(b), Commentary.
167 Compendium, § 3.4-4(b).
168 Rule 1.10.
169 Rule 1.11.
170 Rule 1.12.
171 Rule 1.12(c).
172 Va. LE Op. No. 502.
173 Va. LE Op. No. 1439.
174 Va. Canon 3E(1)(b); Fed. Canon 3C(1)(b), 28 U.S.C.A. § 455(2).
175 Va. Code § 19.2-271.
176 1982-83 Op. Va. Att’y Gen. 744.
177 Va. Code § 18.2-459.
178 Rule 3.7.
179 Va. Canon 3E(1)(c); Fed. Canon 3C(1)(c), 28 U.S.C.A. § 455(4).
180 Va. Canon 3E(1), Commentary.
181 Va. Canon 3E(2), Commentary.
181.1 Fed.Canon 3C(1) and 3C Commentary.
182 Fed. Canon 3C(1)(d), 3C(3)(c)(3) and 3C(4); see also Fed. Advisory Op. No.
49.
183 Va. JEAC Op. 00-05.
184 As defined in Va. Canon 3E(1)(d), Commentary, and Fed. Canon 3D.
185 Va. Canon 3E(1)(d)(i); Fed. Code 3C(1)(d)(I), 28 U.S.C.A. § 455(5)(I).
186 Va. Canon 3E(1)(e)(ii); Fed. Canon 3C(1)(d)(ii) and Commentary, 28
U.S.C.A.§ 455(5)(ii).
187 Fed. Canon 3C(1)(d)(ii),Commentary.
50
188
Va. LE Op. No. 623, 676 and 750.
Va. LE Op. No. 676 and 750.
190 Va. LE Op. No. 624.
191 Va. LE Op. No. 881.
192 Va. Canon 3E(1)(e)(iii); Fed. Canon 3C(1)(d)(iii), 28 U.S.C.A. § 455(5)(iii).
193 Va. Canon 3E(1)(d)(iii).
194 Fed. Canon 3C(1)(d)(iii) and 3C(3)(c).
195 Va. LE Op. No. 676.
196 Va. LE Op. No. 845.
197 Va. LE Op. 676.
198 Va. Canon 3E(1)(d)(iv); Fed. Canon 3C(1)(d)(iv), 28 U.S.C.A. §45(5)(iv).
199 Va. Canon 3E(1)(b); Fed Canon 3C(1)(b).
200 Fed. Canon 3C(3)(a) and 3(C) Commentary.
201 Fed. Canon 3C(4).
202 Compendium, §§ 3.0 to 3.8-2[1].
203 Va. Canon 3F, and Commentary; Fed. Canon 3D, Commentary.
204 Va. Canon 3F, and Commentary.
205 Va. Canon 3F.
206 Fed. Canon 3D.
207 Va. JEAC Op. 00-4.
208 Fed. Canon 3D.
209 Fed. Canon 3D, Commentary.
210 Va. Canon 3F; Fed. Canon 3D.
211 Va. Canon 3F.
212 Va. Canon 3F; Fed. Canon 3D.
212.1 Compare Fed. Canon 4A(3) with Fed. Canon 4B(2).
213 Va. Canon 3A; Fed. Canon 3.
214 Va. Canon 4A.
215 Va. Canon 4A, Commentary.
216 Va. Canons 3B(9) and 4B; Fed. Canons 3A(6) and 4A(1) and 4 Commentary.
217 Compendium, § 4.3(g).
218 Compendium, § 4.2(a).
219 Va. Canon 4B, Commentary; Fed. Canons 4A(2) and 4 Commentary.
220 Fed. Canon 4, Commentary.
221 Va. Canon 3B(9); Fed Canon 3A(6).
222 Compendium § 1.2(g-1).
223 Va. JEAC Op. 01-04.
224 Fed. Canon 4G.
225 Va. Canon 4B; Fed. Canon 4A.
226 Va. Canon 6C.
227 Va. Canons 4C(1) and 4G; Fed. Canons 4D.
228 Va. Canon 4G, Commentary.
229 Va. Canons 2B, 4C(1), Commentary, and 4G, Commentary; Fed. Canon 2B,
4B, and Commentary.
189
51
230
Va. Canon 4G and Commentary; see also Va. Code §§16.1-69.12 and 17.1102; Fed Canon 5F, Compendium § 5-6(i).
231 Va. Canon 4C(1); Fed. Canon 4B.
231.1 Fed. Canon 4A(2)(b).
232 Va. Canon 4C(2); Fed. Canons 4F.
233 Compendium § 5.3-7[4](m).
234 Va. JEAC Op. 00-06.
235 Shaman, § 9.04.
236 Fed. Canon 4F and Commentary.
237 Va. JEAC Op. 00-3.
238 Shaman, § 9.04.
239 Va. LE Op. 500.
240 Va. JEAC Op. 00-2.
241 Fed. Canon 4F and Commentary.
242 Va. Canon 4C(2); Fed. Canon 4F.
243 Va. Canons 4C(3) and 4G, see also Va. Code §§16.1-69.12 and 17.1-102;
Fed. Canon 4A(3) and 4B.
244 Va. Canon 4C(3)(a)(i. and ii); Fed. Canons 4A(3) and 4B, Fed. Advisory Op.
34.
245 Canon 2B.
245.1 Va. Canon 4C(3) (a) Commentary.
246 Va. Canon 4C(3)(b)(i), Va. JEAC Op. 99-3, Fed. Canon 4C.
247 Va. Canon 4C(3)(b)(i), Va. JEAC Op. 99-3, Fed. Canon 4C.
248 Va. Canon 4C(3)(b)(iv), Fed. Canon 4C.
249 Va. Canon 4C, Commentary; Fed. Canon 4C and Commentary.
250 Va. Canon 4C(3)(b)(v); Fed. Canons 4C and Commentary.
251 Va. Canon 4C(3)(b)(iii), and Commentary; Fed Canon 4C.
252 Va. Canon 4C(3)(b), Commentary.
253 Va. Canon 4C(b)(iii).
254 Va. Canon 4C(3)(b), Commentary.
255 Va. Canon 3A, Fed. Canon 3.
256 Va. Canon 6C.
257 Fed. Canons, Compliance, A and B.
258 Va. Canon 6B, Va. JEAC Op. 99-3; Fed Canon Compliance, C.
259 Va. Canon 4D(1), see also Canon 2B; Fed. Canon 5C(1).
260 Va. JEAC Op. 99-2.
261 Compendium, § 5.4-4(b).
262 Va. LE Op. 1730.
263 Va. Canon 4D(1) Commentary.
264 Va. Canon 4D(1)(b), see also Va. Canon 2B; Fed. Canon 4D(1).
265 Va. LE Op. Nos. 552 and 1034.
266 Va. Canons 3E and 4D(4); Fed. Canons 3C and 4D(1 and 3).
267 Va. LE Op. No. 215.
268 Va. LE Op. Nos. 422 and 1730.
269 Va. LE Op. No. 791.
52
270
Va. LE Op. No. 368.
Va. JEAC Op. 01-07.
272 Fed. Canon 4D(1,2,3) Commentary.
273 Va. Canon 2.
274 Va. Canon 4D(2); Fed. Canon 4D(2). For who constitutes members of the
judge’s family, see Va. Canon 4D(3) Commentary and Fed. Canon 4D (2).
275 Va. JEAC Op. 00-09.
276 Fed. Advisory Op. 29.
277 Va. Canon 4D(3); Fed. Canon 4D(2).
278 Va. Canons 4D(3) and Commentary.
279 Va. Canon 4D(2).
280 Fed. Canon 4D(2).
281 Va. Canon 4D(3), Commentary; Fed. Canon 4D(2.
282 Va. Canon 4D(3), Commentary; Fed. Canon 4D(2).
283 Va. Canon 6C.
284 Va. Canon 6B.
285 Fed. Canon, Compliance A and B.
286 Va. Canon 4D(3), Commentary; Fed. Canon 4D(2), Commentary.
287 Va. Canon 4D (4), see also Canon 4D(1), Commentary; Fed. Canon 4D(3).
288 Va. Canon 3A; Fed. Canon 3.
289 Va. Canon 4D(4); Fed. Canon 4D(3).
290 Va. JEAC Op. 01-03 (continued participation in the former law firm’s profit-sharing
plan through a self-directed sub-account meeting certain provisions).
291 Va Canon 3E; Fed. Canon 3C. See also Rules of the Supreme Court of
Virginia, Part 6, § 1(B), “Definition of the Practice of Law”, which describe when
the attorney-client relationship arises.
292 Rule 1.8.
293 Va. Canon 4D(5)(a).
294 Va. Canon 4D(5)(b).
295 Va. Canon 4D(5)(c).
296 Va. Canon 4D(5)(d).
297 Va. Canon 4D(5)(e).
298 Va. Canon 4D(5)(f).
299 Va. Canon 4D(5)(g).
300 See Va. Canon 4D(5) and Commentaries.
301 Fed. Advisory Op. 98.
302 Fed. Canons, Compliance B.
302.1 Va. Canon 4D(5)(f).
303 See also Va. Canons 2, 2A, 2B and 4D(1)(b); Fed. Canons 2, 2A, 2B and
4D(1).
304 Va. Canon 4E(1through 3); Fed. Canon 4E(1 and 2).
305 Va. Canon 4E(1); Fed. Canon 4E(1).
306 Va. Canon 4E(1), see also Canon 3A; Fed. Canon 4E(1).
307 Va. Canon 4E(2); Fed. Canon 4E(1).
308 Va. Canon 4E(3); Fed. Canon 4E(2).
271
53
309
Va. Canon 4E, Commentary; Fed. Canon 4D(1), Commentary.
For example, financial affairs -- Va. Canon 4D(4).
311 Fed. Canon, Applicable Date of Compliance.
312 Va. Canon 6C.
313 Va. Canon 6B.
314 Fed. Canon, Compliance, A and B.
315 Va. Canon 4F and Commentary; Fed. Canon 3A(4) Commentary, Canon
4A(4) and Commentary.
316 Va. Canon 3A; Fed. Canon 3.
317 Va. Canon 6C.
318 Va. Canon 6B.
319 Fed. Canon, Compliance A and B.
320 Va. Canon 4G, Va. Code §§ 16,1-69.12, 17.1-102; Fed. Canon 4A(5).
321 Va. Canon 4G; Fed Canon 4A(5).
322 Rules of the Supreme Court of Virginia, Part 6, § 1(B), “Definition of the
Practice of Law”
323 Va. Canon 4G, Commentary; Fed. Canon 4A(5) and Commentary.
324 Compendium, § 5-6(i).
325 Va. Canon 4G; Fed. Canon 4A(5).
326 Rules of the Supreme Court of Virginia, Part 6, § 1(B), “Definition of the
Practice of Law”
327 N. Singer, Sutherland Statutory Construction, § 51.02, n.5, 14 (5th Ed. 1992)
328 Va. Canon 4G, Commentary; Fed. Canon 4A(5), Commentary.
329 Compendium, § 5-6 (g).
330 Va.Canon 6C, see also Va. Code s 16.1-69.12.
331 Va. Canon 6B.
332 Va. Code § 51.1-309.
333 Va. Canon 4H(1); Fed Canons 4H (1-3).
334 Va. Canons 4H and 4H(1)(a); Fed. Canon 4H(1).
335 Va. Canon 4H(1)(b); Fed. Canon 4H(2).
336 Fed. Canon 4H, Commentary.
337 Va. Canons 4H(2), 6B, 6C.
338 Va. Code § 2.1-639.13.
339 Fed. Canon 4H(3), Compliance B and C.
340 Va. Canon 5A(3), see also Canons 4B, 4C(1) and 4C(2); Fed. Canon 5C, see
also Canon 4A(1).
341 Va. Canon 5A; Fed. Canon 5.
342 Fed. Canon, Compliance B.
343 Va. JEAC Op. 99-6, aff'd. Va. JEAC Op. 00-1.
344 Kemlar, et al. v. Poston, et al., Civ. No. 3:00cv146 (E. D. Va. 8/11/00).
345 Va. LE Op. No. 476.
346 Va. Canon 4D(1) Commentary, see also Va. Canon 2B.
347 Va. Canon 4D(5) and Commentary; Fed. Canon 4D(4).
348 Va. Canon 4D(5).
349 Va. Canon 4D(5)(b).
310
54
350
Va. Canon 4D(5)(d).
Fed. Canon 4D(4).
352 Va. Canon 3E(2), Fed. Canon 3C(2).
353 Va. Canon 2B.
354 Compendium, § 5.4-4.
355 Va. LE Op. 1730.
356 Va. Canon 4E, Fed. Canon 4E.
357 Va. Canon 6B and 6C.
358 Va. Canon 6A.
359 Va. Canon 4C(3)(b)(v); Fed Canon 4C Commentary.
360 Va. Canon 4C(3)(b)(iii) and Commentary; Fed. Canon 4C.
361 Va. Canon 4D(5)(a); Fed. Canon 4C and Fed. Advisory Op. 17.
362 Va Canon 4D(5)(b, c, and d).
363 Fed. Canon 4D(4).
364 Va. and Fed. Canon 2B.
351
55