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Ethics Byte

No complaints about lawyer rules ―
you could be a judge

By Diane Karpman

Diane KarpmanLawyers 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