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Judicial Ethics

Judicial Ethics. CANI 2017 Judge Douglas F. Johnson Separate Juvenile Court of Douglas County, NE. Maybe this Monday afternoon, you’re a little tired, or distracted?. You’re not alone. A Word from Our Sponsors. This training is not legal advice.

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Judicial Ethics

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  1. Judicial Ethics CANI 2017 Judge Douglas F. JohnsonSeparate Juvenile Court of Douglas County, NE

  2. Maybe this Monday afternoon, you’re a little tired, or distracted? You’re not alone . . .

  3. A Word from Our Sponsors This training is not legal advice. If that little voice in your head suggests you better look before you leap—LISTEN! Find an ethics advisory opinion or ask for one. The job you keep may just be your own.

  4. Appropriate Judicial Discipline Provide sanctions sufficient to restore and maintain the dignity and honor of the judicial office

  5. Judicial Discipline Options Reprimand: public or private Censure: public or private Suspension: with or without pay Removal from Office Appropriate judicial demeanor is always a best practice principle.

  6. State Judicial Discipline in2016 According to the American Judicature Society: 11 judges were removed from office; 2 judges were banned from serving in a judicial office. 13 judges retired or resigned in lieu of discipline. 103 judges received public sanctions. 15 judges were suspended without pay (5 days to 1 year, $2500 fine).

  7. 2016 Judicial Discipline Cont’d 11 judges--censured. 37 judges--publically reprimanded 21 judges—public admonished. 3 judges--public warnings. 1 judge--privately reprimanded, but was made public with the judge’s consent.

  8. Judicial Ethics Controlling authority for state judges: • The Code of Judicial Ethics as adopted by your state’s Supreme Court. • Advisory Opinions and Disciplinary Cases provide guidance on appropriate and inappropriate behavior. • State Judicial Ethics Committees publish opinions on proper judicial conduct.

  9. Judicial Code of Ethics Old code: 5 to 7 Canons Revised code (2007): 4 Canons

  10. Revised ABA Code In 2007, the ABA adopted a Revised Model Code of Judicial Ethics with changes in both form and substance. As of May 22, 2017: • 35 states approved a revised code: AZ, AR, CA, CO, CT, GA, DE, HI, ID, IA, IN, KS, MA, MD, MA, MN, MO, MT, NE, NH, NJ, NM, ND, NV, OH, OK, OR, PA, SD, TN, UT, WA, WY & including the wannabe state D.C. • 1 state proposed final revisions: MS. • 10 states established committees to review their code: AK, IL, KY, LA, NY, NC, RI, SC, TX & VT. • 5 states no committee: AL, FL, MI, VA & WI.

  11. Major Code Changes Four Canons state overarching principles that are given effect by Rules which follow. A judge cannot be disciplined for violating a Canon without violating a Rule.

  12. Canon 1 A judge shall uphold and promote the independence, integrity and impartiality of the judiciary . . . shall avoid impropriety and the appearance of impropriety. This includes: Complying with the Law Promoting confidence in the Judiciary Avoiding Abuse and the Prestige of Office

  13. Rule 1.3 Comment 1 Judges must not use their name, influence or prestige of their office to support private or personal causes. Judges should not allow others to think that they are in a “special position” to influence decisions that judges will make.

  14. Judges and Social Media

  15. Idaho Code of Judicial Conduct Comment 5 to Rule 3.1: While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat . . . they should exercise restraint and caution in doing so. A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code. (https://isc.Idaho.gov/orders/Idaho Code of Judicial Conduct 7.1.16.pdf)

  16. New Mexico’s Code of Judicial Conduct Judges and judicial candidates are encouraged to pay extra attention to issues surrounding emerging technology, including social media, and are urged to exercise extreme caution in its use so as not to violate the Code. (http://www.nmcompcomm.us/nmrules/nmruleset.aspx?re=21, effect. 12/31/15)

  17. West Virginia Code of Judicial Conduct Comment 6 to Rule 3.1: The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook. (Dec. 1, 2015)

  18. Consider This . . . Judge Jones loves social media. He wonders whether it is ethical to “friend” attorneys and others who work in the juvenile court. Your thoughts?

  19. OK Adv. Op. 2011-3 A judge may hold a social networking account and “friend” court staff but not attorneys, law enforcement officers, social workers, and others who may appear in the judge's court.

  20. MA Adv. Op. 2011-6 The Code does not prohibit judges from joining social networking sites… taking care to conform your activities with the Code. But, judge may not “friend” any attorneys who may appear before the judge . . . to do so creates the impression that those attorneys are in a special position to influence the judge.

  21. CA Adv. Op. 66 (2010) A judge may interact on a social media site with attorneys who may appear before the judge but should not interact with attorneys who have cases pending before the judge.

  22. KY Adv. Op. JE-119 (2010), NY Adv. Op. 2008-176, OH Adv. Op. 2010-7 Less Restrictive: Judges may “friend” attorneys who may appear before them while emphasizing that judges must exercise caution in their use of social networking.

  23. FL Adv. Op. 2009-20, reaffirmed FL Adv. Op. 2010-6 More Restrictive: Judges are directed not to add lawyers who may appear before them in courts as “friends” on social networking sites or permit those lawyers to add them as “friends”. The issue is not whether the lawyer actually is in a position to influence the judge, but the impression that the lawyer is in a position to influence the judge.

  24. ABA Model Code of Judicial Conduct Formal Opinion 462 February 21, 2013 “A judge may participate in electronic social networking . . . as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct . . . avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety. Footnote 1. “the laws, court rules, regulations, rules of judicial conduct, and opinions promulgated in individual jurisdictions are controlling.” Formal Opinion 462 - American Bar Association www.americanbar.org/.../aba/.../formal_opinion_462.authcheckdam.pdf‎ Cached

  25. In the Matter of Johns, 793 S.E. 296 (South Carolina 2016) A South Carolina judge posts on Facebook about a case, political matters, and a fund-raiser for a local church. Your thoughts? Held: Suspended 6 months without pay.

  26. Chase v. Loisel, 170 So. 3rd 802 (Florida 5th Dist. Crt. Of App. 2014) Would an ex parte “friend” request a judge sent on Facebook to the petitioner in a custody case create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial? Held: Judicial Disqualification

  27. Canon 2 A judge shall perform the duties of judicial office impartially, competently, and diligently.

  28. Canon 2Rule 2.2 Impartiality and Fairness Comment (4) -- not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.

  29. Canon 2Rule 2.3 Bias, Prejudice and Harassment (A) A judge shall perform the duties of judicial office & administrative duties without bias or prejudice. • A judge shall not . . . by words or conduct manifest bias or prejudice . . . engage in harassment based on . . . not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation & shall not permit others . . . subject to the judge’s direction and control to do so.

  30. Canon 2Rule 2.5 Competence, Diligence, and Cooperation (A) A judge shall perform judicial and administrative duties competently and diligently. (B) A judge shallcooperate with other judges and court officials in the administration of court business. Comment [3] Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties . . . be punctual in attending court and expeditious in determining matters.

  31. Consider This . . . Social worker reports are not filed in a timely fashion. The Court, the parties and their attorneys are affected. Is there anything you can do? Timeliness of court reports relates to the orderly management of court proceedings and is under the authority of the court.

  32. Canon 2Rule 2.8 Decorum, Demeanor… • A judge shall require order and decorum in proceedings . . . • A judge shall be patient, dignified, and courteous . . . TO EVERYONE . . .and shall require similar conduct of EVERYONE . . . subject to the judge’s direction and control.

  33. Simon, 63 N.E.3rd 1136 (New York 2016) “Terrible minus ten” and “don’t listen to the f***s from Syracuse.”—Judge after observing a new judge’s first arraignment and the new judge said he had followed the procedures he learned in training. Held: Removal for this and other conduct

  34. Portelli (New Jersey 2016) “You look nice today.”—Judge in a note he showed to a family specialist while she was testifying. Held: Reprimand for this and other comments (http://tinyurl.comgqkwerg)

  35. Canon 2Rule 2.9 Ex Parte Communication (A) A judge shall not initiate, permit, or consider ex parte communication outside the presence of the parties or their lawyers concerning a pending or impending matter except: (1) . . Scheduling, administrative, or emergency purposes provided: (a) no party will gain procedural, substantive, or tactical advantage (b) judge promptly notifies all other parties (C) A judge shall notinvestigate the facts independently, and shall consider only the evidence presented…

  36. In Re Branch, No. 220A14, N.C. S. Sct (2015) Judge entered an ex parte default judgment in a civil complaint for custody, child support, alimony, etc. and without first appointing counsel for him –despite knowing he was a soldier in Korea and contrary to the Servicemember’s Civil Relief Act of 2003. Held: Public Reprimand

  37. May a juvenile court judge, ex parte, contact a therapist regarding the merits of a case, adoption, continued relationships with non-adopting relatives, assessments, and the child’s best interest? No. Public Reprimand. NE Comm. Jud. Eth. Op. No. S-35-0600001 (2006)

  38. And Yet . . . .

  39. The rule against ex parte communications does not apply to judges in specialized therapeutic mental health or drug courts where they must often interact with parties, treatment providers, probation officers, social workers and others. Rule 2.9 Comment [4] Is there a limit to this Rule & Comment?

  40. Disciplinary Counsel v. Squire(Ohio 2007) Judge was suspended for, inter alia, conducting ex parte investigations on cases presented in her court. The judge argued that the decisions of judges in “specialized” courts that lie within the discretion of the judge should not be the subject of sanction. DC noted specifically that - “There is no lowering of professionalism standards for judges in “specialized” courts, such as drug courts, mental health courts, and elder courts.”

  41. Canon 2Rule 2.10 Judicial Statements on Pending and Impending Cases (A) Judge must not make any public statements that might be expected to affect the outcome or impair the fairness of a matter in any court.

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