INSIDE THIS ISSUE
Ex parte communications and independent investigations: Recent cases 2
Letters in adjudicative proceedings 11
Time limits on complaints about judicial misconduct 20
Recent cases
Legal error and injudicious conduct 23
Bourne (Arkansas Commission 2022)
Bourne (Arkansas Supreme Court 2022)
Tardiness, absences, and refusing to follow the law 24
Gundy, 877 S.E.2d 612 (Georgia 2022)
Cynthia Gray
Director
Center for Judicial Ethics
National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23185
© 2022
National Center for State Courts
An index and past issues are
available at www.ncsc.org/cje
Disclaimer: Opinions contained herein
National Center for State Courts.
JUDICIAL CONDUCT REPORTER Fall 2022
A PUBLICATION OF THE NATIONAL CENTER FOR STATE COURTS CENTER FOR JUDICIAL ETHICS
VOLUME 44, NO. 3 • FALL 2022
2
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
The Committee
stated that,
except for
certain family
court matters
and requests
for temporary
restraining
orders, it could
think of no
circumstances
in which a judge
would need to
communicate
ex parte with a
witness, even in
an emergency.
Ex parte communications and independent
investigations: Recent cases
by Cynthia Gray
Scheduling
One exception to the prohibition in Rule 2.9(A) of the 2007 American Bar Associa-
tion Model Code of Judicial Conduct allows ex parte communications for “sched
uling, administrative, or emergency purposes”—but only if “circumstances
require it,” if no substantive matters are discussed, if “no party will gain
a procedural, substantive, or tactical advantage,” and if the parties are
In a recent case, a New Jersey judge invoked the scheduling exception to
for a hearing in a trust case. Rejecting that defense, the Advisory Commit
tee on Judicial Conduct explained that “a judge’s ex parte communications
with a witness or potential witness for ‘scheduling’ purposes is fraught
knowledge or consent, as occurred here, may reasonably lead counsel and
the parties to question the judge’s integrity and impartiality.” In the Matter of
Bergman, Presentment (New Jersey Advisory Committee on Judicial Conduct
December 13, 2021), adopted, Order (New Jersey Supreme Court October
court matters and requests for temporary restraining orders, it could think
of no circumstances in which a judge would need to communicate ex parte
had other options than making an ex parte call.
because he “never met with, spoke to, or otherwise exchanged any infor
mation” with the witness but only left a voicemail message requesting that
the witness return his call. Disagreeing, the Committee explained that the
rule “prohibits not merely the act of communicating ex parte, but the initia
tion of that ex parte conversation,” regardless whether the communication
Committee emphasized that the judge could not “evade his responsibility
for this ethical breach” because the witness did not answer his call.
In Bergman, in addition to telephoning the witness, the judge had
into the trustee’s motion for reimbursement of personal funds he and his
daughter allegedly spent for improvements to a house that was an asset of
his daughter, who was living in the house.
when the trustee’s daughter and her husband had purchased their marital
home, and he had instructed his law clerk to contact the registrar for vital
3
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
statistics to determine on what date she was married and when her child
was born. Denying most of the trustee’s request for reimbursement, the
judge found based on his research that the daughter “was working on the
house as her future residence, and was willing to pay for certain personal
choices in exchange for the privilege of living in it rent free.”
In the discipline case, the Committee found that the judge had demon
strated judicial bias by considering it his duty to ascertain additional infor
he could take judicial notice of each of the facts on which he had based his
decision, but the Committee rejected that argument because he had failed
to provide the trustee the notice and opportunity to be heard that the state
rules of evidence require prior to taking judicial notice. As Bergman illus
trates, a judge’s research into even publicly available records is an inappro
priate independent investigation unless the parties receive notice and an
opportunity to correct or supplement the record.
Independent investigations
In disciplinary proceedings, an Ohio judge admitted that he should not
have inspected a home in response to concerns that a children services
agency had not removed the children living there after their father’s arrest
and that he should have recused himself from the custody case “triggered”
by his inspection. Disciplinary Counsel v. Lemons (Ohio Supreme Court October
were based on stipulations.
three oldest children; the children’s mother was also incarcerated. On the
the children rather than removing them from the home.
the refrigerator was not working, and the children had no beds. Dunham
reported his observations to the judge and to the children services agency.
the children.
After learning of the agency’s decision, the judge conducted his own
there were only dirty dishes in the cooler that presumably was a substitute
for the broken refrigerator; that a child who was not dressed appropriately
4
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
No matter how
well-intentioned,
the judge “could
not be both
the source
of a private
referral based
on his personal
knowledge and
an impartial
arbiter of the
issues as a
judge.”
for the weather was using the oven to warm himself; and that there were
which were colder than the rest of the house.
After the home visit, on his own motion and without a case number,
ordered the children services agency to take temporary custody and inves
emergency order to the children’s parents. Subsequently, at the request of
the children services agency, the judge entered an ex parte order giving the
its argument instead on the parents being unavailable to care for the chil
would be placed with their grandmother, the judge responded that if the
any possible home for the children would need to have running water and
mattresses with box springs.
order.
During his disciplinary proceeding, the judge said that he had investi
the county was the center of the opioid epidemic and that “every parent[ ]
seemed to be high and strung out,” but that the agency was not investigat
allowed his frustration to get the better of him.
idence—which included thoroughly inspecting the house and interacting
with the children and their grandfather—. . . [the judge] made an indepen
dent investigation of facts pertinent to what became a formal custody case
brought before him as a judge” and that his investigation was the “sole
basis” for his emergency order removing two of the children from the home.
not be both the source of a private referral based on his personal knowl
edge and an impartial arbiter of the issues as a judge.”
5
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
Other examples of independent investigations for which judges have
been disciplined:
•
league’s authority and use of city parks. Inquiry Concerning Andress, Order
• After a hearing on a motion to suppress, a judge decided that not all of
the facts had been presented, issued a subpoena duces tecum for an
motion. Letter of Reprimand to Crow (Arkansas Judicial Discipline and
•
regarding the petitioner and had his clerk bring him the petitioner’s
In the Matter of Friedenthal, Decision and order (California Commission on
• While presiding over a breach of contract suit between two software
developers, a judge solicited computer consultants and experts ex parte
for information about technical issues relating to damages in the case.
Inquiry Concerning Baker
• While lunching with two state senators, a state supreme court justice
asked about the accuracy of the dollar amounts reported in newspapers
related to a case about school funding. Inquiry Concerning Nuss, Findings
of fact, conclusions of law, and disposition (Kansas Commission on Judicial
• In a small claims case, a judge had her constable obtain the police
report of an altercation between the parties. In re Foret, 144 So.3d 1028
(Louisiana 2014).
• In an eviction case, a judge visited the apartment without the landlord’s
representative and then stayed the warrant of removal. Commission on
Judicial Performance v. Sutton
• During the trial in a civil case against an oil change company, a judge went
to her chambers, called a mechanic friend to ask about the validity of
the parties’ arguments, called another judge to ask about the testimony
given at an initial hearing, and then ruled based on the information
she received. Commission on Judicial Performance v. Bozeman, 302 So.3d
• In a divorce case, a judge used Zillow and tax records to determine the
value of the marital home, to choose a valuation date, and to determine
the approximate rental value of a second unit in the home. In the Matter of
Albee, Reprimand and caution
• While presiding over a child custody and support hearing, a judge used
6
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
visited her website several times, viewed her photographs, and read
her poems, which gave him “hope for the kids and showed that [she]
Public Reprimand of Terry (North
•
the parties that she was going to conduct an “investigation,” spoke
repeatedly with the county children services agency, and concluded
that because the agency was not treating the case like an emergency,
neither would she. Disciplinary Counsel v. Squire
• During a recess in a hearing regarding a protective order, a judge
placed an ex parte call to the hospital where the petitioner said that
she had been treated after being assaulted. Judicial Inquiry and Review
Commission v. Shull
• A judge relied on his ex parte contacts with several medical societies
In re Hutchinson, Decision (Washington State
• In a petition to modify a parenting plan, a judge solicited information
ex parte about how she had reached the conclusions in her report. In re
Tollefson, Stipulation, agreement, and order (Washington State Commission
on Judicial Conduct August 21, 2000).
• A judge spoke with the police chief about a petition for a harassment
In the Matter of Calvert
•
controlled substances, a judge used the internet to investigate her
nursing licenses in other states, discovered what he believed to be
incriminating information, and sentenced her based on incorrect
deductions he made from that information. Judicial Commission v.
Piontek
Social media
over which he was presiding. In re Denton,
At the request of the Department of Children and Family Services, the
judge had ordered two children removed from their mother’s custody
where they had been cared for primarily by their maternal grandmother,
dren in need of care.
7
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
a hearing, the judge granted custody of the children to the father with mon
itoring by DCFS, ordered visitation for the mother and the grandparents to
be facilitated by a relative, and set a case review hearing for April 12.
ing a “small circle of friends that we share and both consider friends” and
listen to me . . . since my attorney was pretty much thrown out of the court
room and my pleading petition was not heard. . . . I’m asking to please let
me have a heart to heart conversation with you, again on a personal level, I
want to explain my situation/self how those babies are loved how they are
to her message.
vene and granted sole custody of the children to the father, with supervised
he would keep his eyes on the children’s father and gave her the name and
number of a private investigator.
For the following six months, the judge frequently exchanged messages
answer, but I am working on the entire situation. I assure you because I am
not happy with the current exigencies as currently exist. Keep praying and
I will do the same.”
judge a lengthy message about her grandchildren, her daughter, and their
and drug abuse, and his alleged mental and emotional abuse of the mother
“I do strenuously suggest you go hire the best lawyer you can afford[,] get
legal advice and go to court where jurisdiction over custody can be fought
over. I wish I could do more but I have a court of limited jurisdiction.” A few
it currently sits my hands are tied. I wish you the very best! I will continue
I just appreciate you listening . . . .”
Follow the
Center for Judicial
Ethics blog.
New posts every
Tuesday plus
Throwback
Thursdays.
8
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
allow him to retain jurisdiction as a “professional courtesy.” After brief
against the father, stating that Judge Denton’s court was the more appro
priate forum.
stated that she had trusted the judge and followed his advice, only to feel
acting in her “best interest,” adding that “[y]ou can[‘t] trust the system at all.”
Agreeing with the Commission, the Court found that the judge’s “words
tion” for his communications with her except that he was “sympathetic to
the plight of the grandmother,” which may have “impacted and overshad
owed some of [his] judgment,” and that he had been receptive to her ini
suspended the judge for four months without pay based on stipulations
Examples of other ex parte communications on social media for which
judges have been sanctioned:
• A judge used several Facebook aliases to communicate with the parties
in a domestic relations case. In the Matter of Blocton, Final judgment (Alabama
Court of the Judiciary December 10, 2021).
• A judge failed to immediately recuse from all cases involving a female
in sexual communications and ex parte communications with her about
her cases. Letter of resignation and prohibition from office (Throesch) (Arkansas
• A judge communicated ex parte on Facebook with counsel for a party in
a child custody and support matter being tried before him, stating, for
example, “I have two good parents to choose from.” Public Reprimand of
Terry
• A judge had numerous communications with a litigant on Facebook
Disciplinary Counsel v. Winters, 184 N.E.3d 21 (Ohio 2021).
• A judge reviewed a social media post in which the wife of a criminal
defendant criticized the judge. Staggs, Order (Arizona Commission on
• A court commissioner reviewed comments that the parties in two child
9
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
One ex parte
hazard into
which several
judges have
stumbled is,
after a hearing
is over, talking
about a case
with whoever
is still in the
courtroom after
other parties
or attorneys
have already
departed.
forum. In the Matter of Friedenthal, Decision and Order (California Commission
In the courtroom
One ex parte hazard into which several judges have stumbled is, after a
hearing is over, talking about a case with whoever is still in the courtroom
after other parties or attorneys have already departed.
• A judge often remained on the bench after the day’s docket was
in the courtroom, for example, giving defendants advice or pep talks. In
the Matter of Rand
• In a lengthy ex parte conversation with the petitioner after the other
party left the courtroom following a hearing on a petition for a stalking
protection order, a judge discussed the evidence in the case, expressed
her views of the absent party’s integrity, indicated how she intended
to rule, made inappropriate comments about the parties’ religions, and
used profanity. Disciplinary Counsel v. Porzio
• In a harassment case in which the defendant was appearing by
telephone, a judge continued to speak with the plaintiff for 10 minutes
after disconnecting from the defendant, for example, advising the
plaintiff that her other option for “dealing with” the situation would be
to pursue criminal charges and stating about the defendant, “people
don’t understand that the way they comport themselves in a hearing is
important.” Inquiry Concerning Parker, Order (Arizona Supreme Court June 4,
2012).
•
when the defendant and his attorney were not present, a judge said to an
assistant district attorney gathering his papers to leave the courtroom,
“Do you want to know what I would have done?” and talked to him
about an argument that might have “defeated the defense theory” on
the accuracy of the breathalyzer. Inquiry Concerning Mills, Decision and order
• After the jury returned a guilty verdict in a resisting arrest case, when
the assistant district attorney returned to the courtroom to pick up her
things, a judge gave her feedback on her trial technique, complimented
her style, suggested that she could make her direct examinations
shorter, and told her that he would have been much more aggressive on
rebuttal. In the Matter of Scott, Decision and order (California Commission on
In a recent discipline case, in In the Matter of Arndt, Determination (New York
State Commission on Judicial Conduct September 28, 2022), the judge had
ex parte communications in two small claims cases after one of the parties
had left the courtroom. In one case, after the plaintiff left the courtroom,
the judge told the defendant that the plaintiff had “bombarded [him] with
10
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
a bunch of stuff,” which was “impossible” for him “to try to decipher,” and
the defendant that he was “going to adjourn the case, probably do a dis
of the claim until the court clerk told the defendant that the judge had to
“stop hearing,” which prompted the judge to state, “Yeah, I can’t really hear
judge replied, “I’m going to think this out and do a judgment against him,
more than likely . . . And then you put a lien on his house, but I’m not sure
allowed the plaintiff and his wife to continue talking to him about the sub
stance of their claim until an attorney in the courtroom for an unrelated
case intervened and advised the plaintiff that the judge was not permitted
to give him legal advice or listen to him after the proceeding had ended.
After the plaintiff and his wife left the courtroom, the attorney told the
judge that he was “making the wrong decision.” In response, the judge said
that he had “some more thinking” to do but that the defendant “was getting
real snotty” and had “disappeared” on the plaintiff.
on Judicial Conduct censured the judge for his conduct in these two small
claims cases and unrelated misconduct
In another recent case from New York, while presiding over a small
claims dispute between a homeowner and a plumber, a judge, without
tion the witness. A spectator who was in the courtroom for another small
claims case, interjected his own opinion, but the judge did not admonish
him. After exchanges between the judge, the defendant, and the judge’s
clerk, the judge accused the defendant of attempting to take advantage of
the plaintiff. Eventually, a sheriff’s department sergeant interceded and
suggested that the judge end the proceeding because both sides had pre
sented their cases and it was “starting to get heated.”
After the defendant left the courtroom, the judge allowed the plaintiff
to tell him that the plumber who was her witness was an “honest man. Very
honest man.”
with the man who had interjected in the hearing and the plaintiff’s witness,
who was still present, about the substance of the case and the defendant’s
business practices.
the judge for allowing the proceedings in that case to get out of hand and
unrelated misconduct. In the Matter of Kraker, Determination (New York State
11
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
Letters in adjudicative proceedings
by Cynthia Gray
Model Code of Judicial
Conduct provided: “A judge shall not testify voluntarily as a character
witness.” A comment explained:
A judge must not testify voluntarily as a character witness because to
a lawyer who regularly appears before the judge may be placed in the
awkward position of cross examining the judge.
Similarly, Rule 3.3 of the 2007 model code provides: “A judge shall not testify
as a character witness in a judicial, administrative, or other adjudicatory pro
ceeding or otherwise vouch for the character of a person in a legal proceed
ing, except when duly summoned.” Comment 1 explains: “A judge who, without
sions caution that, “except in unusual circumstances where the demands
of justice require, a judge should discourage a party from requiring the
judge to testify as a character witness.” As noted below, some of the cases
request for a character letter, suggesting that a reference might be appro
priate in response to a formal request from the adjudicatory body even in
the absence of a subpoena or other summons.
Sentencing
Absent a summons, Rule 3.3 prohibits judges from testifying as a charac
ter witness in a sentencing hearing or submitting a letter to be used as a
reference in the sentencing of a defendant. Although a written reference
may not be testimony as it is not under oath, submitting a letter is clearly
included in the prohibition on “vouch[ing] for the character of a person in a
version, courts held that sending a letter on judicial or court stationery to a
a character witness. Judges were sanctioned for that conduct, particularly
as judges frequently crossed the line between describing a defendant’s
See In re Decuir
to other misconduct, writing a letter on personal judicial stationery to a
federal judge recommending leniency in the sentencing of a friend); In re
For an article
on letters of
recommendation
in employment,
education, bar
admission, and
other contexts,
see the summer
2022 issue of the
Judicial Conduct
Reporter.
12
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
Marullo
the judge had known for 25 years); In re Bonner, Stipulation, agreement, and
order
(admonishment for, at a defendant’s personal and informal request, writing
a letter on court stationery addressed to a sentencing judge).
defendant, an attorney and personal friend of the judges who had pled
encompass written statements voluntarily submitted with the knowledge
and understanding that such statements may be used directly or indirectly
in some adjudicatory proceeding.’” Inquiry Concerning Fogan
request. Rejecting the argument that a judge’s letter was merely “informa
tion” and, therefore, permissible, the Court noted that the letter extolled
the defendant’s virtues and recommended probation, making it a character
reference. Inquiry Concerning WardAccord
Inquiry Concerning Stafford Inquiry Con-
cerning Abel
letters, the New York State Commission on Judicial Conduct emphasized
that ethical transgressions are not excused by “a ‘sincere, albeit misguided
desire’ to help.” In the Matter of Martin, Determination (New York State Commis
lated proceedings, sending to sentencing judges ex parte letters on judicial
stationery seeking special consideration for defendants who were the sons
of family friends). See also In the Matter of Engle, Determination (New York State
letter on judicial stationery requesting a lenient sentence for a defendant
the judge knew personally).
Consistent with that caselaw, judicial ethics opinions have advised that
tencing proceeding for family members, friends, family members of friends,
lawyers, court staff, and others. See Arkansas Advisory Opinion 2005-1 (on behalf
of a lifelong friend); Connecticut Informal Advisory Opinion 2013-30 (on behalf of a
; Florida Advisory Opinion
2010-34 (on behalf of a relative of a friend regarding a drug program as an
alternative to incarceration); Florida Advisory Opinion 1975-18 (to a federal judge);
Illinois Advisory Opinion 1995-12 (to a federal judge); Indiana Advisory Opinion 5-1991
(to a federal court on behalf of a lawyer in the judge’s county); New York Advi-
sory Opinion 1991-46 (on behalf of a close friend); New York Advisory Opinion 1989-73
13
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
(on behalf of a lawyer awaiting sentencing); New York Advisory Opinion 1988-63
(to the probation department on behalf of a court employee); Oklahoma Advi-
sory Opinion 2015-2 (on behalf of the judge’s grandson awaiting sentencing in
another court); Pennsylvania Formal Advisory Opinion 2021-1; Pennsylvania Informal
Advisory Opinion 9/13/2005 (on behalf of their son’s former coach); Washington
Advisory Opinion 1992-17 (on behalf of the adult child of a family friend even if the
letter would be on plain paper and the judicial title would not be used); West
Virginia Advisory Opinion 2007-3 (on behalf of a family member of a good friend).
But see Canon 2B(3), California Code of Judicial Ethics (“A judge may initiate com
munications concerning a member of the judge’s family with a representa
tive of a probation department regarding sentencing, . . . provided the judge
a sentencing judge within the state on behalf of a family member even if
in contact with one another, be it at conferences, while serving on commit
tees or at other professional or social functions” and “may well have col
Arizona
Advisory Opinion 2010-5
far less likely to be aware of the writer’s judicial status or to be perceived
as harboring any feelings of judicial collegiality,” the Arizona committee
created a limited exception that allows a judge to send a letter to a judge in
another state, if the letter is on behalf of a family member, on plain paper,
and with no reference to the writer’s judicial status.
that a judge may not write a letter on behalf of a family member even if
they are awaiting sentencing in another state and the letter is not on court
letterhead, does not mention what the writer does for a living, and does not
include “any reference to the Wyoming Judiciary.” Wyoming Advisory Opinion
2016-2
pled guilty to a very serious crime in another state and who had drafted
a letter they wanted to send to the sentencing judge without a subpoena.
to “have any idea who the Wyoming judge is or what he does for a living.”
where harm is uncertain or where the motives of the writer are pure,” the
proposed letter would violate the code of judicial conduct.
Post-conviction proceedings
Similarly, judges may not submit written statements or otherwise weigh in
on requests for parole, pardon, clemency, or expungement, at least absent
See Col-
orado Advisory Opinion 2021-1 (a judge who was the prosecutor in a case may
Sign up to receive
notice when the
next issue of the
Judicial Conduct
Reporter
is available.
14
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
comment on an application for clemency and on the applicant’s character if
solely as the former prosecutor and should not identify themself as a judge
or use judicial letterhead); Kansas Advisory Opinion JE-103 (2000) (a judge may
not write a letter of recommendation for a former client knowing that the
letter will be submitted to another judge who is considering expunging the
former client’s conviction); Nebraska Advisory Opinion 2007-4 and Virginia Advi-
sory Opinion 2006-1 (a judge may not initiate letters supporting someone’s
efforts to have their civil rights restored); New York Advisory Opinion 2019-95 (a
judge may not write a letter in support of an inmate’s clemency application
at the request of the inmate or his attorney, but the inmate may list the
judge as a reference); Pennsylvania Formal Advisory Opinion 2021-1 (a judge may
not offer character evidence in any form, including a letter, on behalf of an
individual in connection with parole, pardon, or clemency). See also “Vouch-
ing for pardon, parole, or clemency,” Judicial Conduct Reporter (NCSC Fall 2018).
involved. Alaska Advisory Opinion 2003-1 states that a judge may write a letter
to the pardon or parole board “in their personal capacity when a member
of their immediate family is either the victim of the crime or the convicted
person.” Canon 2B(3) of the California code provides: “A judge may initiate com
ing parole, pardon, or commutation of sentence, provided the judge is not
defendant to provide a character reference:
•
(South Carolina Advisory Opinion 21-2005);
• In support of a bail application for a former client (New York Advisory
Opinion 1998-88);
•
bargain (New York Advisory Opinion 1989-4);
•
close friend arrested for driving while intoxicated (Pennsylvania Informal
Advisory Opinion 3/12a/08); or
• Absent a subpoena, in a habeas corpus action regarding the judicial
California Expedited Opinion
2022-49).
See also In the Matter of Freeman, Determination (New York State Commission
court stationery to another judge in support of a customer of his sporting
goods shop who was attempting to have his pistol permit reinstated after
a conviction for driving while ability impaired).
15
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
The rule
prohibiting
voluntary
character
testimony has
been applied
to attorney or
judicial conduct
proceedings,
unless requested
by the discipline
authorities.
Discipline proceedings
attorney or judicial conduct proceedings.
•
to a request by an attorney who is the subject of a grievance. Connecticut
Informal Advisory Opinion 2014-9.
• A judge may not provide a letter of reference for use in a bar adversarial
Connecticut Informal Advisory Opinion
2008-15.
• Unless requested by the bar, a judge may not write a letter of
trial over which the judge presided. Florida Advisory Opinion 1992-1.
• A judge may not provide a letter on behalf of a disbarred attorney
Florida Advisory Opinion 1988-19.
• A judge may not submit a character letter to the state supreme court
in bar proceedings to suspend an attorney pending an appeal from a
conviction for tax evasion. Florida Advisory Opinion 1975-6.
• A judge may not write a letter to the attorney grievance commission
attesting to the character of a former employee. Maryland Opinion Request
2020-22.
•
character, competence, and service to the bar for use at a hearing to
determine the sanction in a discipline proceeding. Nebraska Advisory
Opinion 2002-2.
• A judge may not provide a letter on behalf of a disbarred attorney
New York Advisory Opinion 1995-75.
• A judge may not provide a letter of support for a lawyer in a proceeding
involving discipline or reinstatement. North Dakota Advisory Opinion 1991-1.
• A judge may not provide a character reference for an attorney being
investigated for conduct that occurred in a trial over which the judge
presided. New York Advisory Opinion 1990-156.
• A judge may not provide a character reference on behalf of a lawyer
seeking reconsideration of their disbarment. New York Advisory Opinion
1989-73.
• A judge may not write a letter on behalf of a lawyer who appeared before
Pennsylvania Informal Advisory Opinion 5/1/2013.
• A judge may not write a letter in support of a lawyer who is being
investigated by a discipline committee. Pennsylvania Informal Advisory
Opinion 7/29/2002.
•
for use in a grievance proceeding. Texas Advisory Opinion 277 (2001).
16
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
• A judge may not write a letter to the state bar supporting a petition for
practice law. Virginia Advisory Opinion 2006-1.
• A judge may not voluntarily write a letter of support in a lawyer
disciplinary proceeding. West Virginia Advisory Opinion 2020-25.
• A judge may not offer character evidence in any form, including a letter,
on behalf of an individual in connection with discipline. Pennsylvania
Formal Advisory Opinion 2021-1.
• An administrative judge should not write a letter to the State Com
mission on Judicial Conduct expressing their views on the professional
performance of a judge but may authorize the judge’s lawyer to tell the
Commission that it may directly contact the administrative judge, who
may write a letter in response. New York Advisory Opinion 1999-101.
• In the review of a determination of the State Commission on Judicial
Conduct, individual judges and a judges’ association should not
communicate with the Court of Appeals that a judge, who is a member of
the association, should not be removed. New York Advisory Opinion 1997-97.
• A judge may not voluntarily write a letter of support in disciplinary
proceedings involving judges. West Virginia Advisory Opinion 2020-25.
• At the request of another judge’s lawyer, a judge may not write a letter
about their impressions of the other judge to be submitted to the
supreme court with their response to judicial discipline charges. West
Virginia Advisory Opinion 1997-22.
See also Barth, Order (Arizona Commission on Judicial Conduct September
an attorney in a reinstatement proceeding without being duly summoned);
In re Whitaker
former judge from the practice of law for, in addition to other misconduct,
Chief Disciplinary Counsel in support of a disbarred lawyer); Canon 2B, Lou-
isiana Code of Judicial Conduct (“A judge shall not initiate the communication
of information in any court or disciplinary proceeding, but may provide
such information for the record in response to a formal request by a court
North Dakota Advisory Opinion 1992-1 (advising
a judge to consider not writing a letter for an attorney who is being disci
plined unless requested to do so by the disciplinary board); In the Matter
of Waddick
for a judge to write a letter about the character of a respondent in a judicial
disciplinary proceeding). See New York Advisory Opinion 2005-107 (a judge may
not write a letter of recommendation on behalf of an attorney applying for
a life insurance policy who has been rehabilitated from their addiction to
a controlled substance); Washington Advisory Opinion 1987-1 (a judge may not
write a “to whom it may concern” letter on behalf of an attorney who had
their insurance policy canceled as a result of a malpractice claim).
17
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
request.
Several advisory opinions allow Alabama judges to submit a letter of
support or an assessment of an attorney’s performance in discipline pro
ceedings. Alabama Advisory Opinion 1978-48 (a judge may respond to a general
notice of a petition for reinstatement to the state bar that requests that
members of the public furnish information about the petitioner’s quali
Alabama Advisory Opinion 1980-84 (a judge may submit a letter in
support of an attorney’s application for reinstatement at the attorney’s
request); Alabama Advisory Opinion 1986-269 (a judge may submit a letter to the
ciplinary action has been taken or is being contemplated); Alabama Advisory
Opinion 1989-390 (a judge may submit an assessment of an attorney’s perfor
mance at a trial over which the judge presided to the state bar grievance
committee even if the case is pending on appeal).
A Washington advisory opinion reasoned that a judge could write a
character letter to the state bar association about the reinstatement of
a disbarred attorney because the bar operates as an arm of the supreme
court. Washington Amended Advisory Opinion 1988-5. See also Washington Advisory
Opinion 2003-8 (a judge may provide factual testimony to a bar association
about an attorney’s professional skills in a letter that will be part of the
the attorney is considered an excellent trial attorney).
In an exception for judicial discipline proceedings, Canon 2B(2)(b) of the
California code states that, even without a subpoena, a judge may “provide
containing . . . information related to the character of a judge who has a
matter pending before the commission, provided that any such factual or
character information is based on personal knowledge.” Comment 2 to Rule
3.3 of the Nevada code provides that the rule against a judge acting as a char
acter witness does not apply to “attorney or judicial discipline proceed
ings,” adding that “a judge may voluntarily appear and testify as to the
character of the bar applicant, attorney, or judge who is the focus of those
proceedings.”
Opinions have also prohibited judges from providing letters of refer
ence in disciplinary proceedings involving court employees.
• A judge may not write a letter attesting to a court employee’s character
and opposing termination of the employee for use in the appeal
from a termination decision. Massachusetts Advisory Opinion 2004-4 and
Massachusetts Advisory Opinion 2004-5.
• A judge may not, at the request of a court employee, provide a letter for
use in the employee’s disciplinary proceeding, but may authorize the
employee to provide the judge’s name as a reference and respond to a
New York Advisory Opinion
2011-16.
Join Us in Our Mission.
Donate | NCSC
18
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
• A judge should not write a letter at the request of a court employee
facing disciplinary charges attesting to the employee’s good character,
work ethic, and job performance. New York Advisory Opinion 2005-34.
Finally, judges have been advised not to participate as character ref
erences in employment actions in professional settings not related to the
courts.
• A judge should not send a letter to an employer recommending that
a former employee be reinstated. Nebraska Judicial Ethics Opinion 2007-4;
Virginia Advisory Opinion 2006-1.
• A judge may not write a letter of support on behalf of their personal
physician in a hearing by state medical licensing authorities considering
whether the doctor may continue to practice. Nevada Advisory Opinion
JE2004-004.
• A judge may not offer character evidence in any form, including a letter,
on behalf of an individual in connection with discipline. Pennsylvania
Formal Advisory Opinion 2021-1.
See also In the Matter Concerning Meyer, Decision and order (California Com
court stationery endorsing and supporting two detectives who were being
investigated for their conduct in a case over which the judge had presided).
Other adversarial proceedings
Family court matters
•
judge may not write a recommendation to the effect that their stepson
is a person of good character for use in a marital dissolution involving
child custody. California Judges Association Advisory Opinion 40
• A judge may not provide information on character issues to a guardian
personal friend even if it is pending outside their circuit. Florida Advisory
Opinion 2003-19.
• A judge may not voluntarily provide a reference in support of an
attorney’s application to adopt a child that will be considered by a court
in the county where the judge presides, but the judge may permit the
attorney to submit their name to the adoption agency as a reference
and respond to the agency’s inquiry. New York Advisory Opinion 2008-211.
• A judge may not provide a reference for a friend’s application to be a
foster parent because the application will be heard in family court. New
York Advisory Opinion 2005-60.
See also In re Poyfair, Stipulation, agreement, and order (Washington State
19
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
pending in a different county, identifying himself as a judge, and stating
that his opinion was shared by other judges in the county). But see New
Hampshire Advisory Opinion 2005-1 (a judge who has relevant personal knowl
edge may voluntarily serve as a reference in connection with the investiga
tion of a close friend by the division for children, youth, and families).
Firearm permits
• A judge may not initiate letters supporting an individual’s attempts
to renew permits such as those allowing the possession of concealed
weapons. Nebraska Advisory Opinion 2007-4; Virginia Advisory Opinion 2006-1.
• A judge may not be a character reference for a court intern who has
applied for a pistol permit. New York Advisory Opinion 2016-18.
• A judge may not serve as a character reference for a friend who is
applying for a pistol permit. New York Advisory Opinion 2010-17.
• A judge may not write a letter of reference in connection with the
New York Advisory
Opinion 1995-33.
Immigration proceedings
• A judge may not provide a letter of recommendation for submission to a
government agency at the request of a friend who is seeking permission
to enter a foreign country. New York Advisory Opinion 2014-33.
• A judge may not write a letter to the Immigration and Naturalization
Service attesting to the good character of a member of the judge’s
church and requesting an expedited exclusion hearing. New York Advisory
Opinion 2003-51.
• A judge may not write a letter to the state department of labor
the request of a waiter at a neighborhood restaurant the judge and their
family know. New York Advisory Opinion 2003-47.
• A judge may not write a letter of reference for their dog walker to be
submitted to the U.S. embassy in a foreign country to help the dog
New York Advisory Opinion 2002-123.
For an article on letters of recommendation in employment,
education, bar admission, and other contexts, see the
summer 2022 issue of the Judicial Conduct Reporter.
20
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
In several states,
allegations about
misconduct
outside a certain
period can be
investigated only
if the commission
finds that there
is good cause to
proceed.
Time limits on complaints about
judicial misconduct
Judicial conduct commissions may receive complaints about judges years
after the alleged misconduct took place. Some commissions have provi
sions that address whether that time gap affects their review of a com
commission. For example, an administrative policy in Arizona explains:
As a general rule, the Commission [on Judicial Conduct] will not inves
tigate complaints involving allegations of misconduct that occurred more
than three years prior to the date of the complaint, unless the allegations
require a judge to respond to a complaint involving conduct that occurred
so far in the past that neither the judge nor the witnesses, if any still exist,
if the alleged misconduct took place during a court proceeding for which
records may no longer exist.
Arizona Commission on Judicial Conduct Administrative Policy 4.
ing whether action with regard to a judge is warranted, . . . [to] consider all
the circumstances, including the age of the allegations and the possibility
of unfair prejudice to the judge because of the staleness of the allegations
or unreasonable delay in pursuing the matter.” Michigan Court Rules, Subchap-
ter 9.200, Rule 9.205(B)(3).
In several states, allegations about misconduct outside a certain period
to proceed.
all occurred more than three years prior to the date the complaint was
which is made by weighing “any prejudice to the judge” “against the seri
ousness of the conduct alleged in the complaint.” Maryland Court Rules, Division
3, Rule 18-421(d)(2).
Except where the commission [on judicial conduct] determines oth
erwise for good cause, the commission shall not deal with complaints
arising out of acts or omissions occurring more than one year prior to the
date commission proceedings are initiated . . . .
Massachusetts General Laws c.211C, §2(3).
last episode of an alleged pattern of recurring judicial conduct arises
within the one year period, the commission may consider all prior acts or
omissions related to such alleged pattern of conduct.”
21
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
A Vermont rule states:
or omissions discovered by the complainant more than three years prior
to the date of the complaint.
Vermont Supreme Court Rules for Disciplinary Control of Judges, Rule 6(18)
notes that, “when the last episode of an alleged pattern of recurring judi
all prior acts or omissions related to that alleged pattern of conduct, even
if the prior acts or omissions are part of a complaint that was previously
dismissed.”
the limit there is four years:
ring more than four years prior to the date of the complaint, provided,
however, that when the last episode of an alleged pattern of recurring
consider all prior acts or omissions related to such an alleged pattern of
conduct.
Pennsylvania Judicial Conduct Board Rules of Procedure, Rule 15.
rized to inquire into an allegation of misconduct that took place “not more
of the commission’s inquiry based on its own motion.” Alaska Statutes,
§22.30.011
investigating “alleged acts occurring more than six years before receiving
a complaint.” North Dakota Century Code 27-23-03.
In some states, when the complainant learned or should have learned
about the misconduct is the relevant starting point or can extend the dead
line. For example, a rule requires the West Virginia Judicial Investigation
complainant knew, or in the exercise of reasonable diligence should have
known, of the existence of a violation of the Code of Judicial Conduct . . . .”
West Virginia Rules of Judicial Disciplinary Procedure, Rule 2.12.
be docketed “within two (2) years after the commission of the alleged mis
conduct except when the acts or omissions that are the basis of the report
were not discovered and could not reasonably have been discovered at the
two years of the time the reporter discovers, or in the exercise of reason
able diligence should have discovered, the acts or omissions complained
of.” Rules of the New Hampshire Supreme Court, Rule 40(4)(c)
that misconduct is “deemed to have been committed when every element
22
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
of the alleged misconduct has occurred, except, however, that where there
is a continuing course of conduct, misconduct will be deemed to have been
committed beginning at the termination of that course of conduct.”
No complaint against a judge, compensation commissioner or family
support magistrate . . . shall be brought . . . but within one year from the
date the alleged conduct occurred or was discovered or in the exercise of
reasonable care should have been discovered, except that no such com
plaint may be brought more than three years from the date the alleged
conduct occurred.
Connecticut General Statutes, Chapter 872a, § 51-51l (d).
Similarly, in Nevada, the Commission on Judicial Discipline is prohibited
from considering “complaints arising from acts or omissions that occurred
more than 3 years before the date of the complaint or more than 1 year
after the complainant knew or in the exercise of reasonable diligence
should have known of the conduct, whichever is earlier.” Nevada Revised Stat-
utes, Chapter 1, §1.4655(2). In Nevada, those time limits are extended under
certain circumstances.
• “Where there is a continuing course of conduct, the conduct will be
deemed to have been committed at the termination of the course of
conduct.”
• “Where there is a pattern of recurring judicial misconduct and at least
Commission may consider all prior acts or omissions related to that
pattern.”
• “Any period in which the judge has concealed or conspired to conceal
evidence of misconduct is not included in the computation of the time
In North Carolina, the time limit depends on the type of misconduct. In
general, disciplinary proceedings “must be commenced within three years
of the act or omission allegedly giving rise to the violation,” but complaints
about violations of the rules regarding political and campaign activities
be instituted at any time against a judge convicted of a felony during the
North Carolina Code of Judicial Conduct, Limita-
tion of Proceedings.
In California, the time limit is measured backwards from the beginning
ment of the judge's current term or of the former judge's last term . . . .”
California Constitution Article VI, §18(d).
Past issues of the
Judicial Conduct
Reporter and an
index are available
on the CJE website.
23
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
Recent cases
Legal error and injudicious conduct
Discipline & Disability Commission and suspended by the state supreme
court.
consider the legal standard for appointing the public defender for misde
meanor defendants. Bourne, Letter of censure and recommendation of suspension
(Arkansas Judicial Discipline & Disability Commission August 1, 2022).
dants from seeking appointments, telling them they would ‘probably not’
qualify” and “frequently just respond[ing] with, ‘I am not going to appoint
a lawyer for you. Get a job’.”
an investigative reporter had interviewed many citizens who were denied
appointed counsel on misdemeanor charges in the judge’s court. In an
Although the Commission noted that the decision to appoint counsel is
a legal determination and that a judge could incorrectly decide the issue
without violating the code of judicial conduct, it concluded that the judge’s
pattern of failing to appoint counsel, his disregard for the proper proce
dure, and his failure to consider the legal standard “pushes his legal error
into the realm of judicial misconduct.”
sion in abeyance subject to conditions; the Court also ordered that he
31, 2024. Judicial Discipline & Disability Commission v. Bourne, Per curiam (Arkan
the public signal that a suspension without pay sends, the suspension also
proceedings and had no purpose in determining guilt, sentence, or admin
istrative matters,” and made “rash statements” about the “appearance,
background, residency, and ethnicity of the people who appeared in his
•
English if they are going to be in this country/county/city.”
24
JUDICIAL
CONDUCT
REPORTER
FALL 2022
(continued )
•
been laid off. Go get a job and get that crap out of your eyebrows.”
•
and hairstyles.”
•
county, for example, “You should have stayed in south Arkansas;” “I
wish you would stay in California;” “I wish you would have stayed in
Illinois;” “I get a lot of troublemakers from California;” “You should have
stayed in Chicago;” and “You should have stayed in California.”
Tardiness, absences, and refusing to follow the law
Accepting a discipline by consent agreement and the recommendation of
that she be publicly reprimanded for (1) regularly arriving to work much
later than when she was scheduled to preside over matters; (2) being
tunity to appear in court to which they were entitled by law. Inquiry Con-
cerning Gundy
that:
•
arriving after 10 a.m., when her second calendar was scheduled to
•
until after her second calendar was scheduled to begin.
•
10:00 a.m. calendar was scheduled to begin.
• From January 1 through February 22, 2018, the judge arrived late on
illness, resulted in the court expending resources to employ senior judges
or judges pro tem to cover for her.
municipal court calendars that included at least six defendants who
25
JUDICIAL
CONDUCT
REPORTER
FALL 2022
reached these defendants on the call, however, the judge either bound the
cases over to state court or reset the arraignment dates without giving
and defense counsel informed her that the law required that the six defen
dants be brought into the courtroom and seen that morning, but the judge
refused because she was attempting to hurry through the calendar. As a
result, the six defendants remained incarcerated for approximately a week
after they were entitled to release.
ing that “the allegations, all of which Judge Gundy either admits altogether
or agrees that the JQC could prove, are serious, especially the refusal to
follow the law—over objection by both the State and defendants—that led
noting that the discipline proceedings had been pending for over three
tions it has ever imposed short of removal, it concluded that the judge and
“the people she serves deserve a resolution (which would be delayed even
further if we reject this agreement).”
Recent posts on the blog of the Center for Judicial Ethics
Supporting or opposing political candidates
Degrading stereotypes
Code provisions about social media
More Facebook fails
Professional connections, reactions, and monitoring on social media
Institutional concerns
Intent and impact
COVID comments, likes, and warrants
Recent cases (August)
Recent cases (September)
A sampling of recent judicial ethics advisory opinions
