No complaints about lawyer rules ―
you could be a judge
By Diane Karpman
Lawyers will often complain that we are a beleaguered and overly regulated profession.
However, when compared to judges, we are footloose and fancy-free. Lawyers have
the Rules of Professional Conduct and the Business and Professions Code, which
are far less demanding and much more specific than the ethereal Code of
Judicial Ethics. For lawyers, it can be clear cut; whereas for judges,
it’s so foggy and counter-intuitive that the Judicial Ethics Committee of
the California Judges Association frequently issues numerous “informal
responses.” For example, in 2010, the committee issued 400, and they have
been doing this for three decades.
Judicial
officers are governed by the code, which is composed of broad declarations
called the “Canons,” which include issues involving the appearance
of impropriety ― that inherently includes the appearance of partiality.
According to the “IR’s,” a judge sitting on a traffic
calendar may not attend a holiday party given by local CHP and police
department traffic officers. (Canon 4 D(6)) Yet a judge may accept an award
given by the District Attorney’s Office to honor a former deputy attorney
for “Outstanding Contribution to the Cause of Justice.”
Or consider:
“For
example, service on the board of a public educational institution, other than a
law school, would be prohibited under Canon 4C(2), but service on the board of
a public law school or any private educational institution would generally be
permitted under Canon 4C(3).”
Usually, judges
may accept “ordinary social hospitality” from others. Therefore,
many advisory opinions allow judges to attend various legally related social
events. In some European countries (France), the judges are not lawyers and
attend an entirely separate educational track to reach their careers. However,
almost all judges in the U.S. are lawyers. If judges were not permitted to
associate and participate in “ordinary social hospitality” with
lawyers, nobody would be left on the bench. Obviously, judges need to be active
members of our community and not isolated (California Advisory Opinion 43
(1994)).
In the early
1990s, there was a controversial judicial investigation in San Diego County.
Some characterized it as a frenzied puritanical crackdown. Prominent lawyers
(and even former members of the State Bar Board of Governors) wrote letters in
support of the investigated bench officers. After all, how could a couple of
sweaters or a discount on car repairs constitute bribery or even impermissible
conduct?
But remember,
the most striking aspect of the vast majority of judicial bribery cases is the
“de minimis” amount of the gift. In a case from Michigan, it was a
couple of sixpacks and some bags of chips.
Once, while flying
cross country, I was seated next to a judicial prosecutor. I asked why bench
officers would endanger their positions for such trifling items? The prosecutor
explained that it’s always something small and inconsequential, which is
the reason the judicial officer does not “really believe” he or she
is engaging in wrongdoing. After all, how could someone ever believe that an
“oil and lube” could imperil a 20‑year career of outstanding
public service? The prosecutor explained that the fact that the gift is almost
inconsequential is the lure that catches many judges, because it supports the
impression that nothing wrong is occurring. In this complicated area, there is
always a trap for the unwary, including good people who have no intention of
doing anything wrong.
• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com