QUESTION #1:

The judge asks what he should do with lettersreceived from a pro se plaintiff. The judge didnot open the letters.

ANSWER #1:The judge was advised to have his clerk return the letters, unopened, to the pro se party with a letter from the clerk advising that the judge can only consider information presented in court with both parties present, and that the proper way to cause the judge to take action is by filing a motion with notice to the opposing party. Note: Ethics rules require that the judge not read ex parte letters.

QUESTION #2:

Multiple judges were contacted by an attorneywho wanted the judges to do a "facilitation" withrespect to a dispute between two cities. Thefacilitation (mediated settlement) would take placein a public forum with representatives of both citiespresent. It was likely that the press would be inattendance. Would it be proper for the judges toassist in this facilitation pro bono and perhapsresolve the dispute between the two cities?

ANSWER #2:

No. Canon 3 restricts public comments from judges. It is likely that these judges' public comments wouldbe noted by the media and thus cause a futuredisqualification. The public would also give thejudge's comments weight, and possibly prejudicefuture adjudication. The judge could also be calledas a witness in a later proceeding. Lastly, this is amatter outside the scope of his judicial activities andjudicial immunity would not apply.

QUESTION #3:

The judge's law clerk requested an opinionwhether it would be proper for the clerk to workas a "court visitor" in various cases beforemagistrates within the district. The court visitorwould prepare third party impartial reports forthe magistrate judge. Does work in such aposition fall within ethical restrictions?

ANSWER #3:

Yes. Although the work does not technicallyinvolve the practice of law, the work is a paidposition taking place at the law clerk'sworkplace and the magistrate cases could beappealed to her district judge. This work is adirect violation of Canon 4G.

QUESTION #4:

A local Republican Women's Group would like ajudge to appear at their next meeting anddiscuss "things a magistrate does". Is thisallowed by the Canons?

ANSWER #4:Yes. As allowed by Canon 4, a judge is allowed tospeak, write, lecture and teach in extra judicialactivities concerning the law. However, care shouldbe taken so as not to comment on matters of publiccontroversy or an issue likely to become before thecourt. Also recognize that statements made at suchmeetings may show up later in the press, letters to theeditor and blogs, etc. and that such statements are notalways accurately reported and may mis-state the judge'sposition in a significant fashion.

QUESTION #5:

A judge received a letter from an individualknown to the judge, requesting that the judgetestify as a character witness on behalf of theindividual at a criminal sentencing. Naturallythe judge is hesitant to get involved in thisactivity. What is the ethical way to handle thisissue?

ANSWER #5:

The judge was advised to send a letter to the party's attorney (always respect the attorney-client relationship), advising that the judge is unable to voluntarily testify in any matter. Canon 2 provides that a judge must not testify voluntarily as a character witness because to do so would lend the prestige of the judicial office in support of the party for whom the judge testifies.

QUESTION #6:

A judge wonders whether there is any ethicalconcern in presenting an award to an attorneyat an upcoming Prosecuting Attorney's meeting.

ANSWER #6:Canon 2 prevents judges from lending the prestige of judicial office to advance the private interests of others and prevents others from conveying the impression that they are in a special position and may be able to influence the judge. In the event the judge presented the award and said "this is the best prosecutor I've everknown" or made similar comments, other individuals in the room may feel that thejudge is biased toward the particular lawyer or that he is biased against others whodid not win the award. Similarly, the defense bar may be concerned that there hasbeen special treatment afforded. Members of the public may also feel that thejudge is not being impartial and has already taken sides in criminal cases. Unless the judge makes clear to the audience and recipient that 1) other qualifiedpersons made the decision that this individual was entitled to the award and 2) thatthe judge is simply reading the comments of the selection members and that theyare not the judge's personal view point, such activities would be in violation ofCanon 2.

QUESTION #7:

A district judge has a major malpractice case setfor pretrial in a few weeks. One of the attorneysIs well known to the judge, having had a friendlyrelationship with the judge over a five yearperiod. Additionally, the judge drafted a letterof recommendation for this attorney a few yearsago. What should the judge do?

ANSWER #7:

The judge put on the record the facts regardingthe relationship during a conference call to bothsides. The judge should allow for disqualification,instructing the attorneys to "send your notice to myclerk, she will not disclose your response to me".Thus, an anonymous disqualification may result.The anonymous disqualification prevents parties orothers from claiming that there is some sort of biasagainst them in future cases.

QUESTION #8:

A judge wants to know if the judge's law clerkcan assist the school board in some of theirrecruitment activities and with respect to someof the decisions the school board is likely tomake in the upcoming year.

ANSWER #8:

Pro bono legal work which does not present anappearance of impropriety, which does not takeplace while on duty at the employee'sworkplace, and which does not interfere withthe employee's primary responsibilities to thejudiciary, is allowable. See Canon 4G.

QUESTION #9:A judge has a Rule 35 hearing (at recess when he calledthe Executive Director) wherein the defendant anddefense lawyer are of the same religion as the judge. Thedefense lawyer has made a pointed effort to bring religioninto the courtroom and to influence the judge's decisionmaking. Before the hearing, the judge had been planning ongranting the Rule 35 motion since the defendant had madesignificant improvement. However, now the judge felt he wasin a difficult position since in granting the Rule 35 it wouldappear that the judge was influenced by the religious focus ofthe defense. The judge asks what he should do? He wants todisqualify himself.

ANSWER #9:The judge was advised the recusal was notcompelled by the ethical rules, rather the ethicalrules required the judge to uphold the integrity andindependence of the judiciary and diligentlyperform the judge's work. The judge was advisedto make a detailed record, at the Rule 35 hearing,emphasizing that the judge's decision in criminal mattersis governed by the statutory factors and that religiousaspects have absolutely no place in his decision making. BAR counsel was also contacted with respect to theattorney's actions.

QUESTION #10:

A judge traveling to a smaller county to hearcases has received ex parte requests from theSheriff with respect to bond conditions, conditionsof release and probation violations. The Sheriff hasbeen sending this information directly to the judgeand requesting the court take action. Theprosecutor in this county has not been acting onthese violations of court orders. The judge feels hemust act to protect the public.

ANSWER #10:The judge was advised to return the documents tothe Sheriff, unread, with the notation drafted by thecourt's clerk that they be routed to the prosecutingattorney for action. The Sheriff should also beadvised if he wants a judge to act, one must file amotion and that the motion must come from theprosecuting attorney. Our system depends on eachparticipant in the process acting according to ethicalstandards; the judge is not allowed to aid the prosecutor.Bar counsel was contacted with respect to the attorney'sactions.

EX PARTE WRITTEN COMMUNICATIONS

“Nothing is more dangerous and destructive of theimpartiality of the judiciary than a one-sided communicationbetween a judge and a single litigant. Even the most vigilantand conscientious of judges may be subtly influenced by suchcontacts. No matter how pure the intent of the party whoengages in such contacts, without the benefit of a reply, ajudge is placed in the position of possibly receiving inaccurateinformation or being unduly swayed by unrebutted remarksabout the other side’s case. The other party should not haveto bear the risk of factual oversights or inadvertent negativeimpressions that might easily be corrected by the chance topresent counter arguments.”

It has been suggested that any ethical problem witha Judge receiving unsolicited letters is cured byproviding copies to both sides of the controversyand thus it is no longer ex parte because both sideshave been apprised of the contents of the information. However the language of Canon3(B)(7) doesn’t recognize that as an excuse. The language is that a “judge shall not initiate,permit, or consider ex parte communications, orconsider other communications made to the judgeoutside the presence of the parties concerning apending or impending proceeding…”

The Canon then lists the exceptions. It should be noted that the language doesn’t say that the judge can consider the information if such ex parte communication is copied to the lawyers – the rule proscribes considering any communication “made to the judge outside the presence of the parties.”

Certainly if such ex parte communication inadvertently is placed before the Court the best curative practice is to provide notice to both parties and provide the content of the communication to the both sides, however the mere receipt of such information may also cause other problems in continuing to adjudicate the case. It is suggested that the best practice is to have someone designated by the Judge to screen all incoming mail and that the Judge should not perform this task himself or herself.