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QUESTION #1: The judge asks what he should do with letters received from a pro se plaintiff. The judge did not open the letters.

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Presentation on theme: "QUESTION #1: The judge asks what he should do with letters received from a pro se plaintiff. The judge did not open the letters."— Presentation transcript:

1 QUESTION #1: The judge asks what he should do with letters received from a pro se plaintiff. The judge did not open the letters.

2 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.

3 QUESTION #2: Multiple judges were contacted by an attorney who wanted the judges to do a "facilitation" with respect to a dispute between two cities. The facilitation (mediated settlement) would take place in a public forum with representatives of both cities present. It was likely that the press would be in attendance. Would it be proper for the judges to assist in this facilitation pro bono and perhaps resolve the dispute between the two cities?

4 ANSWER #2: No. Canon 3 restricts public comments from judges. It is likely that these judges' public comments would be noted by the media and thus cause a future disqualification. The public would also give the judge's comments weight, and possibly prejudice future adjudication. The judge could also be called as a witness in a later proceeding. Lastly, this is a matter outside the scope of his judicial activities and judicial immunity would not apply.

5 QUESTION #3: The judge's law clerk requested an opinion whether it would be proper for the clerk to work as a "court visitor" in various cases before magistrates within the district. The court visitor would prepare third party impartial reports for the magistrate judge. Does work in such a position fall within ethical restrictions?

6 ANSWER #3: Yes. Although the work does not technically involve the practice of law, the work is a paid position taking place at the law clerk's workplace and the magistrate cases could be appealed to her district judge. This work is a direct violation of Canon 4G.

7 QUESTION #4: A local Republican Women's Group would like a judge to appear at their next meeting and discuss "things a magistrate does". Is this allowed by the Canons?

8 ANSWER #4: Yes. As allowed by Canon 4, a judge is allowed to speak, write, lecture and teach in extra judicial activities concerning the law. However, care should be taken so as not to comment on matters of public controversy or an issue likely to become before the court. Also recognize that statements made at such meetings may show up later in the press, letters to the editor and blogs, etc. and that such statements are not always accurately reported and may mis-state the judge's position in a significant fashion.

9 QUESTION #5: A judge received a letter from an individual known to the judge, requesting that the judge testify as a character witness on behalf of the individual at a criminal sentencing. Naturally the judge is hesitant to get involved in this activity. What is the ethical way to handle this issue?

10 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.

11 QUESTION #6: A judge wonders whether there is any ethical concern in presenting an award to an attorney at an upcoming Prosecuting Attorney's meeting.

12 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 ever known" or made similar comments, other individuals in the room may feel that the judge is biased toward the particular lawyer or that he is biased against others who did not win the award. Similarly, the defense bar may be concerned that there has been special treatment afforded. Members of the public may also feel that the judge 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 qualified persons made the decision that this individual was entitled to the award and 2) that the judge is simply reading the comments of the selection members and that they are not the judge's personal view point, such activities would be in violation of Canon 2.

13 QUESTION #7: A district judge has a major malpractice case set for pretrial in a few weeks. One of the attorneys Is well known to the judge, having had a friendly relationship with the judge over a five year period. Additionally, the judge drafted a letter of recommendation for this attorney a few years ago. What should the judge do?

14 ANSWER #7: The judge put on the record the facts regarding the relationship during a conference call to both sides. The judge should allow for disqualification, instructing the attorneys to "send your notice to my clerk, she will not disclose your response to me". Thus, an anonymous disqualification may result. The anonymous disqualification prevents parties or others from claiming that there is some sort of bias against them in future cases.

15 QUESTION #8: A judge wants to know if the judge's law clerk can assist the school board in some of their recruitment activities and with respect to some of the decisions the school board is likely to make in the upcoming year.

16 ANSWER #8: Pro bono legal work which does not present an appearance of impropriety, which does not take place while on duty at the employee's workplace, and which does not interfere with the employee's primary responsibilities to the judiciary, is allowable. See Canon 4G.

17 QUESTION #9: A judge has a Rule 35 hearing (at recess when he called the Executive Director) wherein the defendant and defense lawyer are of the same religion as the judge. The defense lawyer has made a pointed effort to bring religion into the courtroom and to influence the judge's decision making. Before the hearing, the judge had been planning on granting the Rule 35 motion since the defendant had made significant improvement. However, now the judge felt he was in a difficult position since in granting the Rule 35 it would appear that the judge was influenced by the religious focus of the defense. The judge asks what he should do? He wants to disqualify himself.

18 ANSWER #9: The judge was advised the recusal was not compelled by the ethical rules, rather the ethical rules required the judge to uphold the integrity and independence of the judiciary and diligently perform the judge's work. The judge was advised to make a detailed record, at the Rule 35 hearing, emphasizing that the judge's decision in criminal matters is governed by the statutory factors and that religious aspects have absolutely no place in his decision making. BAR counsel was also contacted with respect to the attorney's actions.

19 QUESTION #10: A judge traveling to a smaller county to hear cases has received ex parte requests from the Sheriff with respect to bond conditions, conditions of release and probation violations. The Sheriff has been sending this information directly to the judge and requesting the court take action. The prosecutor in this county has not been acting on these violations of court orders. The judge feels he must act to protect the public.

20 ANSWER #10: The judge was advised to return the documents to the Sheriff, unread, with the notation drafted by the court's clerk that they be routed to the prosecuting attorney for action. The Sheriff should also be advised if he wants a judge to act, one must file a motion and that the motion must come from the prosecuting attorney. Our system depends on each participant in the process acting according to ethical standards; the judge is not allowed to aid the prosecutor. Bar counsel was contacted with respect to the attorney's actions.

21 EX PARTE WRITTEN COMMUNICATIONS “Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant. Even the most vigilant and conscientious of judges may be subtly influenced by such contacts. No matter how pure the intent of the party who engages in such contacts, without the benefit of a reply, a judge is placed in the position of possibly receiving inaccurate information or being unduly swayed by unrebutted remarks about the other side’s case. The other party should not have to bear the risk of factual oversights or inadvertent negative impressions that might easily be corrected by the chance to present counter arguments.”

22 It has been suggested that any ethical problem with a Judge receiving unsolicited letters is cured by providing copies to both sides of the controversy and thus it is no longer ex parte because both sides have been apprised of the contents of the information. However the language of Canon 3(B)(7) doesn’t recognize that as an excuse. The language is that a “judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding…”

23 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.

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