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Judges and Judiciary,
Ethics/Professional Responsibility

Apr. 17, 2023

A high bar for the high court: ethics and the judiciary

Judicial officers are well-advised to avoid any type of conduct that has the potential not only to create a conflict of interest, but the appearance of impropriety. The challenge, however, is identifying what type of conduct actually crosses the line.

Wendy L. Patrick

Wendy is a San Diego lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed here are her own, and do not reflect that of her employer. This article does not constitute legal advice.

Lawyers and judges are committed to upholding the highest standards of ethics and integrity in both their professional and personal dealings. When their conduct is questioned, especially within the current politically charged atmosphere, the scrutiny does not take place in a court of law where there are legal and evidentiary rules of admission, it happens within the court of public opinion, where there are no rules and no one takes an oath to tell the truth before they "speak."

Competence, Candor, and Conflict of Interest

Attorneys and judges are presumed to know the ethical rules, and be transparent about behavior or associations that would arguably create an appearance of conflict of interest. Judicial officers are well-advised to avoid any type of conduct that has the potential not only to create a conflict of interest, but the appearance of impropriety. The challenge, however, is identifying what type of conduct actually crosses the line.

Supreme Court Justice Clarence Thomas recently came under scrutiny over the lavish hospitality he accepted from billionaire Harlan Crow, described by many media outlets as a Republican mega donor. Justice Thomas responded, both explaining and defending his actions, stating that during his early years on the Court he had been advised by those from whom he sought guidance, both colleagues and "others in the judiciary," that this type of personal hospitality from "close personal friends, who did not have business before the Court" did not have to be reported. He went on to explain, "I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines." (Contributed by Justin Elliott, ProPublica.)

The specific issue in the case of Justice Thomas was the failure to report the travel trips made on Crow's dime, on his own financial disclosures as required by law. Although Justices are not subject to the same types of rules (or sanctions) as lower court judges or attorneys, they are nonetheless required to submit financial disclosures.

In a broader sense, all members of the judiciary are also trained to avoid putting themselves in positions where they may need to recuse. And although the Justices may not be subject to a specific Code of Ethics, they are regulated, including on that front. Consider 28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge, which mandates any justice of the United States to recuse in situations where his or her impartiality may reasonably be questioned, in addition to several enumerated circumstances. As Justice Thomas points out, there is no suggestion Crow had personal business in front of the High Court.

On a broader scale, for those who are calling for an "enforceable ethical code" for the United States Supreme Court, the most obvious question is: "enforceable by whom?"

State Judicial Ethics Rules

In every lower court in America, Judges have Codes of Judicial Ethics. Although they are bound by different ethical rules than lawyers, one area in common is the propriety of accepting gifts. California Rule of Professional Conduct 1.8.3, Gifts from Client, prohibits lawyers from "soliciting" a client to make a "substantial" gift, which is further defined to include a testamentary gift, to the lawyer (or a relative of the lawyer) unless the lawyer or gift recipient is related to the client." Comment [1] of this Rule states that discipline is appropriate in response to "impermissible influence."

For Judges, the California Code of Judicial Ethics in Canon 4, discussing quasi-judicial and extrajudicial activities, with respect to financial activities, in paragraph (D)(5) states that "Under no circumstance shall a judge accept a gift, bequest, or favor if the donor is a party whose interests have come or are reasonably likely to come before the judge." The paragraph goes on to mandate judges to "discourage members of the judge's family residing in the judge's household" from accepting similar benefits under similar circumstances from parties who have or are likely to appear before the judge.

However, Cannon 4 (D)(6) (a) notes an exception to the "no gifts" rule as one from someone "whose pre-existing relationship with the judge" would prevent the judge from hearing a case involving that person anyway, per Canon 3E.

Federal Guidance

The Code of Conduct for United States Judges has been in existence since 1973. It includes the ethical canons that apply to the behavior of federal judges, as well as useful guidance on the performance of official duties, as well as guidance regarding judges' engagement in a variety of activities off the bench.

Canon 1 states that a Judge "Should Uphold the Integrity and Independence of the Judiciary." Canon 2 advises Judges to avoid not only impropriety, but also the appearance of impropriety in "all activities." Unfortunately, by its own language, this Code of Conduct does not apply to the United States Supreme Court. Although according to Chief Justice John Roberts, SCOTUS members "consult" that code for guidance.

Supreme Court Justices are Not Judged

SCOTUS has not adopted its own Code of Ethics. That means their behavior is not judged - or policed. And as a practical matter, what agency would function as the SCOTUS Police? As the highest Court in the land, there is nowhere to report allegedly improper judicial behavior or "appeal" an adverse decision. True, as some have noted, at least a SCOTUS Ethical Code of Conduct would reveal to the public what the justices expect of themselves. But they already have guidance in that regard. And stricter regulations implemented in March now require federal judges, including Supreme Court justices, to disclose when they receive gifts and what is termed "personal hospitality."

The recent discussion at the Supreme Court regarding even the perception of undue influence is emblematic of an ongoing, broader discussion within legal and judicial circles generally. Careful thought and attention to real versus apparent potential conflicts or shades of undue influence, true or not, will promote the highest degree of justice and integrity both in a court of law, and in the court of public opinion.


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