by the Honorable Franz E. Miller (Ret.)
Judge Johnston wrote a stellar article, Ethics Compliance for California Judges, appearing in this edition of Orange County Lawyer magazine. Although the article focuses on prohibitions and mandates for bench officers, it also provides valuable insights for lawyers.
“Why is that?” you may ask. (Please ask.) It’s because a judge’s ethical constraints sometimes put them in delicate situations. You can help that judge in numerable ways that violate no ethical proscription for lawyers but enhance your successes as a litigator.
Never Ever Offer to Give Anything to, or Pay for Anything for, a Judge This is a simple principle, although there are times when such largesse is technically permissible. But those instances involve situations like ordinary social hospitality, and other occasions where the benefit is de minimis.
Consider this: If your proffered kindness is worth effectively nothing, why risk putting the judge in a bind by offering it, or even worse, insisting upon it?
Never Bring Up to a Judge a Case You Had With That Judge, Even If It Is “Way Done” There is an exception to the general rule judges cannot discuss cases before them (save during official proceedings and/or in the presence of opposing counsel), but that exception only applies if the case is final (including appeals and/or time for appeal).
Again, take the prudent route. Just don’t talk with judges about cases you have/had before them. If the best use of your time outside court is doing that, you should consider a (new) hobby.
Don’t Talk at All to a Judge Outside of Court Proceedings When You Have a Pending Case Before That Judge Judges may attend law events (at least as long as it does not show bias to a particular side, such as attending only plaintiff lawyer events or defendant lawyer events). You put the judge in an awkward situation if you go up to them and chat, even if it has nothing to do with the case.
It’s an “appearance of favoritism” kind of thing. It just looks bad.
Further, there’s a risk (albeit unlikely) you could get caught up in proceedings before the Commission on Judicial Performance if the trial court action surrounding those communications was involved in those proceedings. Fun fact: You can’t bill for that time.
Don’t Brag to Other Lawyers About How Well You Know a Judge Judges have a duty of disclosure to all parties and attorneys in a matter if they have a close personal relationship with an attorney in the matter; if the relationship would cause the judge to lack impartiality, the judge has a duty to recuse.
Either you have the close relationship you are bragging about, or you don’t. If you have such a relationship, you and the judge should disclose it (and let the recusal discussion begin). If you don’t have such a relationship but say you do, you are making a material misrepresentation to the opposing counsel, which is its own ethical violation.
Don’t Misrepresent Anything to a Judge One of the linchpins of the judicial system is ascertaining the truth. It is not surprising, then, that the courts champion the truth as a vital component of an effective system (else why would they bother saying “the truth, the whole truth, and nothing but the truth?”).
To implement the goal of maximizing veracity, the system imposes duties on judges to report certain misrepresentations to the State Bar. Thus, the judicial mandate informs on the importance of truth telling by lawyers.
Besides avoiding the specter of Bar discipline, the prudent lawyer avoids misrepresenting facts to judges for another reason: If the lawyer wants to win, he or she needs the judge’s confidence the lawyer is representing fact and not untruths.
If the lawyer is prone to lies, their win ratio is sure to be diminished.
Refrain From Abusive Conduct Before the Court Judges have a duty to maintain decorum in their courtrooms. That duty goes beyond the truth mandate.
Harsh, snide, deprecative, and/or just plain snotty remarks by counsel do not sit well with judges. Such conduct is directed most often to witnesses and/or opposing counsel, but they can also be aimed at court staff.
No matter who the target is, it will not sit well, or even palatably, with any judge. If you engage in such prose, you may well be the recipient of a reproval from the judge, which is especially detrimental to your cause if you are in the middle of a jury trial.
But, wait, there’s more: From personal experience and anecdotes from colleagues, this has-been judge can assure you juries do not like such remarks. The vast, vast majority of jurors who sit on trials have a strong sense of civic duty and respect for the system which causes them to wince and look askance at lawyers who engage in abusive conduct. They will remember it all the way through closing argument and deliberations.
And, even if the judge does not scold the intemperate lawyer, the judge will remember it. And even though the judge will attempt not to allow their abhorrence of the conduct to impact their impartiality, no lawyer should run the risk the judge will be unsuccessful in that endeavor.
Conclusion We (I re-upped with the State Bar) are blessed to practice a noble profession. We should always be on our best behavior, whether it is for aspirational or practical reasons.
The Honorable Franz E. Miller (Ret.) is a retired judge of the Orange County Superior Court who taught professional responsibility at local law schools for almost twenty years, and served the committee that revised the California Judicial Conduct Handbook for its fourth edition.