Legal Ethics Forum

Judges, Courthouses, and C-SPAN

The Virginia Judicial Inquiry and Review Commission (JIRC) has filed a complaint against two retired judges alleging that they violated the state’s judicial ethics code by campaigning against a referendum to relocate the Augusta County courts.

According to news reports, the judges criticized the proposed move in speeches to citizen groups and in newspaper commentaries. They also contributed $5,800 to an anti-courthouse relocation organization. Apparently, the JIRC concluded that opposing relocation of a courthouse violates Canon 5A(3) of the Virginia Code of Judicial Conduct which prohibits judges from engaging in political activity “except in behalf of measures to improve the law, the legal system, or the administration of justice.”

Contrary to the JIRC’s position, judicial ethics advisory committees have concluded that matters of courthouse construction, renovation, and relocation concern the administration of justice and therefore constitute a proper subject of comment by judges. That is why the Washington State Ethics Advisory Committee informed judges that they could speak before Rotary Clubs and issue press releases in support of a bond campaign for a new juvenile court facility. The Arkansas Judicial Ethics Advisory Committee agreed that a judge may take a public position “in favor of, opposed to, or indifferent to” a proposed tax increase to fund a new courthouse and jail. Common sense dictates that judges possess relevant information concerning the need to revamp or abandon court facilities.

Claims of unethical conduct have not been lodged against Chief Judge Thomas, Judge Bea, and Judge Kozinski for their testimony opposing the restructuring of the Ninth Circuit Court of Appeals before a subcommittee of the House Judiciary Committee. There seems to be little difference between federal judges trying to defeat a congressional proposal by presenting their arguments to Congress and C-SPAN, and state judges trying to defeat a referendum by presenting their arguments to the voters.

In Houston this week? Join us for the Yale L. Rosenberg Annual Lecture - "What Does it Mean to Be the First? Lessons from Women Shortlisted for the U.S. Supreme Court"

Dean Leonard M. Baynes cordially invites you and a guest to the The Yale L. Rosenberg Memorial Lecture featuring   Renee Knake Professor of Law and The Larry and Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center   "What Does it Mean to Be the First? Lessons from Women Shortlisted for the U.S. Supreme Court"  1 hour CLE Credit (.25 ethics credit) available   March 23, 2017 | 6:30 p.m. | Krost Hall University of Houston Law Center Reception to Follow Click here to RSVP   Commentary featuring:   Judge Vanessa Gilmore, '81 U.S. District Court for the Southern District of Texas   Diane Ralston, '94 Vice President and General Counsel at FMC Technologies   Doris Rodriguez, '80 Partner, Andrews Kurth Kenyon     YALE L. ROSENBERG MEMORIAL LECTURE An alumnus of Rice University, Yale L. Rosenberg graduated in 1964 from New York University Law School, where he was a Root-Tilden Scholar. Rosenberg joined the University of Houston Law Center in 1972 to pursue his true calling of teaching after a distinguished career in government. His inspired instruction in Civil Procedure, Federal Jurisdiction, Professional Responsibility, and Jewish Law at the UH Law Center earned him the UH Teaching Excellence Award in 2000. An award-winning scholar, Rosenberg has been called “America’s prophet” for his analysis of the decline of federal habeas corpus. Rosenberg’s successful academic career was matched only by his marriage to Irene Merker Rosenberg. Those who knew Yale and Irene marveled at the great love between them for more than 30 years, as marriage partners, collaborators, and colleagues. The Yale L. Rosenberg Memorial Fund was established to recognize and foster excellence at the UH Law Center. The endowment is used to fund a student writing prize and to bring distinguished speakers to the UH Law Center. Yale L. Rosenberg Renee Knake Professor Renee Knake joined the Law Center faculty in 2016 after serving as the Foster Swift Professor of Legal Ethics and co-director of the Kelley Institute of Ethics and the Legal Profession at Michigan State University College of Law. In 2015, she served as scholar-in-residence at Stanford Law School’s Center on the Legal Profession and as a visiting scholar at the American Bar Foundation. Her expertise and research interests include the First Amendment and the regulation of attorney speech; legal ethics, especially conflicts of interest; access to justice; innovation in the delivery of legal services; and gender and the legal profession.   Knake is an author of the casebook “Professional Responsibility: A Contemporary Approach,” and numerous scholarly articles. Her work has been cited in briefs before the U.S. Supreme Court as well as a range of media including the Wall Street Journal, National Public Radio, Bloomberg Law, and the ABA Journal. From 2014-2016, she served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. Her work on entrepreneurship and innovation in legal services has been recognized by numerous national awards and private grant funding.   Before her academic career, Knake practiced law at Mayer, Brown in Chicago and Hunton & Williams in Richmond, Va., where she specialized in commercial litigation, telecommunications, and labor/employment law. She earned her J.D. from the University of Chicago Law School in 1999.     Prof. Renee Knake  Event sponsored by: The University of Houston is a Tier One research institution and an EEO/AA institution. University of Houston System, Donor & Alumni Records 4800 Calhoun Rd Houston, TX, 77204-5035 If you wish to be removed from this group's mailing list, click here

 

Stop Calling Him "Judge" Napolitano

By now, everyone knows that Fox News contributor Andrew Napolitano was the source behind the recent White House claim that the British intelligence service, known as GCHQ, colluded with President Obama to conduct surveillance of Donald Trump in the midst of the 2016 campaign.  The British government has rightly branded the assertion “nonsense,” saying it was “utterly ridiculous and should be ignored.” Napolitano’s scoop was also disavowed by the actual news branch of Fox News itself.

But even as the story is repeatedly debunked, some reporters and commentators continue to refer to its originator as “Judge Napolitano,” which only serves to lend some unwarranted credence to his false report. 

It is true that Napolitano once served on the New Jersey Superior Court, but he resigned in 1995 and has not held judicial office since then.  Nonetheless, he insists on being addressed as “Judge” and he is said to have demanded that his set on Fox News be designed to resemble a judge’s chambers.  His website – which he calls JudgeNap.com – refers to him as “Judge Napolitano” in virtually every paragraph, as does his bio on the Fox News site.

The American Bar Association has cautioned against the exploitation of judicial titles by former judges, noting that it is wrong to use “Judge” or “The Honorable” in connection with law practice.  In its Formal Opinion 95-391, the ABA Commission on Ethics and Professional Responsibility noted that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.” 

Although the ABA opinion addressed only the use of the honorific in law practice, some states have gone further.  The Ohio Rules of Professional Conduct, for example, provide that a former judge may only use the title or honorific if it is preceded by the word “retired” (or “former,” if the judge had been defeated for reelection), and the rule does not limit the restriction to law practice.

Sean Spicer, of course, cited “Judge Andrew Napolitano” when he first introduced the phony story at a press briefing.  Fox News, InfoWars, the Daily Caller, and Breitbart, needless to say, always call him by the honorific.  But CNN’s Wolf Blitzer also repeatedly refers to “Judge Napolitano” in his television reports, as do other stories on CNN.com.  Mainstream news sources such as Business Insider, Real Clear Politics, the Huffington Post, the New York Daily News, and even the Washington Post have also referred to “Judge Napolitano,” and not in quotation marks.  In fact, the British GCHQ called him “Judge Napolitano,” even as it called for his ridiculous remarks to be ignored.

Nothing can be done about Napolitano’s insistence on calling himself “judge,” but there is no reason for anyone else to go along with him.  Fox News describes Napolitano as its “senior judicial analyst,” and the use of his former title is obviously for the purpose of enhancing his credibility.

To their credit, The New York Times, Politico, The Hill, and other outlets refer only to Mr. Napolitano or Andrew Napolitano.  Like everyone else, Napolitano is entitled to his opinion, even when trafficking in absurd conspiracy theories, but we do not need to afford him the respect of an office that he no longer holds. 

[Cross posted on The Faculty Lounge]

Did Giuliani Improperly Disclose Trump's Confidential Information?

 

In the various challenges to Trump's two travel bans, the challengers cited and the courts referenced Giuliani's TV interview in which he disclosed that Trump had asked him to fashion a travel ban that would achieve Trump's goals legally. Specifically, the Washington Post reported Giuliani's comments on Fox quoted below. Did Giuliani disclose confidential information? Maybe he had express or implied permission if so. It might have seemed that the disclosure would help Trump, though it has made the bans appear to be a subterfuge. 

From the Post:

“I'll tell you the whole history of it,” Giuliani responded eagerly [to a question in a Fox interview]. “So when [Trump] first announced it, he said, 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.' "

Giuliani said he assembled a “whole group of other very expert lawyers on this,” including former U.S. attorney general Michael Mukasey, Rep. Mike McCaul (R-Tex.) and Rep. Peter T. King (R-N.Y.).

“And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us,” Giuliani told Pirro. “Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that's what the ban is based on. It's not based on religion. It's based on places where there are substantial evidence that people are sending terrorists into our country.”

 

SCOTUS Justices and Fund Raising

My piece is up on Slate today.  Here are the opening paragraphs:

Supreme Court justices are popular figures on the banquet circuit, but they come with a serious drawback. Canon 4C of the Code of Conduct for United States judges provides that a judge may not be a speaker or the guest of honor at “fund-raising” events. Although the Supreme Court has never formally adopted the code, which applies only to judges on the lower federal courts, Chief Justice Roberts has reported that the justices will look to it as “a uniform source for guidance” on ethical matters. Consequently, the justices refrain from speaking at money-making events, even for their favorite nonprofits.

The rule against fundraising is an important principle in judicial ethics, dating back to at least 1924, when an American Bar Association Committee, chaired by then Chief Justice William Taft, promulgated the first Canons of Judicial Ethics. The canons provided that a judge should not use “the power or prestige of his office” to solicit charitable donations, lest he (the judges were all men in 1924) give the appearance of either coercing contributions or encouraging others to curry favor. Similar provisions have been included in successive iterations of what is now called the Code of Judicial Conduct, including the version embraced by the Judicial Conference of the United States. It is that rule that seems to have been disregarded when the Claremont Institute recently honored Justice Samuel Alito.

You can read the article here.

Note: This post has been edited by adding the second paragraph of the Slate article, which I had inadvertently omitted.

Was Sally Yates relying on Ronald Dworkin? If so, is that a problem?

Brad Wendel has posted a critique of Sally Yates' justification for her decision not to enforce the Trump administration's travel ban.  An excerpt:

Whether the order is lawful will be determined by the courts. What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community’s political morality. The interpretation must fit with past legal decisions, but the judge’s aim is also to show the community’s legal practices in their best moral light.  I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality.

Wendel's scholarship is always worth reading, and this essay is no exception.  In previous work, I've pushed back a bit on his recurrent thesis that a lawyer's duty of loyalty to the client is vindicated through the lawyer's duty of loyalty to the law, period.  My core concern with Wendel's approach is that our focus on the client as a citizen may obscure a view of the client as a person, though the dynamics are a little different in the context of a government lawyer, and I share his misgivings about Yates' explanation.  If you're interested, you can read a fuller explanation of my reservations with Wendel's approach here.

Investigator Bias and the PACE Trial

My short commentary on the role of bias in the PACE trial has been published by the Journal of Health Psychology.  The piece develops an analogy between the role of judges and investigators in research trials, concluding that latent or implicit bias needs to be addressed in both sorts of trials, and suggesting that the recusal standard under U.S. law -- whether "impartiality might reasonably be questioned" -- may be useful in both contexts.

Here is the gist:

Investigator bias and the PACE trial - Mar 07, 2017

By virtue of their own experience, the PACE investigators were confident in the effectiveness of CBT and GET as ME/CFS treatments. Their earlier public statements—attributing ME/CFS symptoms to “false cognitions”—certainly appeared to dispose them toward a result. Coupled with their mid-trial revision of certain outcome measures—in a direction favorable to their own theories of improvement and recovery—it is reasonable to conclude that non-blinded trials of CBT/GET should be designed and overseen by investigators with no preexisting stake in the outcome.

You can read the entire commentary here.

[Cross-posted from The Faculty Lounge]