Introducing the Code of Judicial Conduct The Ethics of Ex Parte Communications, Judicial Demeanor and other ethical considerations

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1 Louisiana Judicial College Domestic Relations Seminar New Orleans August 8-9, 2013 Introducing the Code of Judicial Conduct The Ethics of Ex Parte Communications, Judicial Demeanor and other ethical considerations Presented to Hearing Officers By: Madeleine M. Landrieu Court of Appeal, Fourth Circuit

2 I. Abuse of the Prestige of Judicial Office Canon 2B states, in part: A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others. Interceding in a relative s or friend s criminal cases Traffic stops Communicating with creditors Letters of support or recommendation on court letterhead Related issue: Canon 2B also mandates that judges not write letters on behalf of a defendants facing sentencing in another court; on behalf of an attorney facing a disciplinary proceeding before the Attorney Disciplinary Board; or letters of recommendation on court letter head. Cases: In re Parro, No (La.5/02/03), 847 So.2d 1178 In re Decuir, 654 So.2d 687 (La. 1995) In re Marullo, No (La. 4/8/97), 692 So.2d 1019 In re Miller, No (La.1/26/07), 949 So.2d 379 In re Burgess, No (La. 1/24/12), 85 So.3d 604

3 II. Personal Conduct that Impugns the Integrity of the Judiciary Judges are held to a higher standard of conduct than the general public and lawyers. Canon 1 states, in part: A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. Canon 2A states, in part: A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. personal conduct that disgraces the judiciary and places the judiciary in disrepute criminal conduct, convictions failure to file tax returns associating with known convicted felons inappropriate relationships Cases: In re Ellender, No (La. 12 /13/04), 889 So.2d 225 In re Huckaby, 656 So.2d 292 (La. 1995) In re Whitaker, 463 So.2d 1291 (La. 1985) In re Hughes, No (La. 4/22/04), 874 So.2d 746 In re Harris, No (La. 7/8/98), 713 So.2d 1138

4 In re Miller, No (La. 1/26/07), 949 So.2d 379 III. Substance Abuse Related Misconduct If you are having a substance abuse problem, whether it is alcohol or drugs, please call: Cases: LAWYERS /JUDGES ASSISTANCE PROGRAM Buddy Stockwell, Executive Director lap@louisianalap.com In re Doggett, No (La.05/25/04), 874 So.2d 805 In re Krake, No. 06-O-165 (La.10/27/06) In re Krake, No (La. 02/26/08) 976 So.2d 162 In re Alford, No (La. 02/15/08), 977 So.2d 811 IV. Administrative Incompetence Canon 3B (1) states, in part: A judge shall... maintain professional competence in judicial administration. Canon 3B (7) states, in part: A judge shall dispose of all judicial matters promptly, efficiently and fairly. a judge is also an administrator and not merely a decider travel advances, travel vouchers and CLE transcripts

5 court by phone and failing to observe regular court hours decisional delay Cases: In re Lee, No (La.7/06/06), 933 So.2d 736 In re Hunter, No (La. 8/19/02), 823 So.2d 325 In re Hughes, No (La. 4/22/04), 874 So.2d 746 In re Roe, No (La. 7/31/08), 987 So.2d 250 In re Tuck, No (La. 11/25/96) 683 So.2d 1214 In re Wimbish, No, (La. 4/13/99), 733 So.2d 1183 In re Emmanuel, No (La. 4/13/99,) 755 So.2d 862 In re Sharp, No (La. 10/29/03) V. Demeanor and Abuse of Authority Including Abuse of Contempt Authority Canon 3A(3) relative to Adjudicative Responsibilities states: A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. profanity name calling don t physically touch

6 knowingly exceed authority and allowing family to influence actions don t threaten litigants or attorneys abuse of contempt authority Cases: In re Best, No (La. 10/20/98), 719 So.2d 432 In re Bowers, No (La. 12/1/98), 721 So.2d 875 In re Fuselier, No (La. 1/28/03), 837 So.2d 1257 In re Cresap, No (La.10/17/06), 940 So.2d 1242 In re Sassone, No (La. 06/29/07), 959 So.2d 859 In re Johnson, No (La. 1/21/09), 1 So.3d 425 In re Morvant, No (La. 6/26/09), 15 So.3d 74 In re Ellender, No (La. 07/01/09), 16 So.3d 351 In re Justice of the Peace Herbert G. Williams, No (La. 1/24/12), 85 So.2d 5 VI. Ex Parte Communications Canon 3A(6) relative to Adjudicative Responsibilities states: Except as permitted by law, a judge shall not permit private or ex parte interviews, arguments or communications designed to influence his or her judicial action in any case, either civil or criminal. The problem with ex parte communications

7 practical considerations Cases: In re Fuselier, No (La. 1/28/03), 837 So.2d 1257 In re Cresap, No (La. 10/17/06), 940 So.2d 1242 In re Benge, No (La. 11/6/09), 24 So.3d 822 VII. Misuse of Court Staff for Political Campaigns Not only can a judge not personally accept or solicit campaign contributions [Canon 7 D(1)] but court staff are not permitted to do for you what you are not permitted to do. [Canon 7B(1)(b)] court staff may not be required to work on a judge s political campaign See also Canon 3B(2) A judge shall require staff, court officials and others subject to the judge s direction and control to observe the standards of fidelity and diligence that apply to the judge... Cases: In re Cannizzaro, No (La. 5 /6/05), 901 So.2d 1035 In re King, No (La.10 /21/03), 857 So.2d 432 In re Alford, No (La. 2/15/08), 977 So.2d 811 VIII. Lying and Misrepresentations to the Commission The cover-up is worse than the crime Honesty is a minimum qualification expected of every judge.

8 Cases: In re King, No (La.10 /21/03), 857 So.2d 432 In re Davis, No (La. 2 /4/04), 865 So.2d 693 IX. Recusal and Relationships Canon 3C concerning Recusation states: A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself. See also LA C.Civ.P. art 151 and C.Cr.P. art. 671 your attorney appears before you ongoing close personal relationships with a litigant or attorney Cases: In re Cooks, No (La. 5/20/97), 694 So.2d 892 In re Miller, No (La.1/26/07), 949 So.2d 379 In re Cresap, No (La.10/17/06), 940 So.2d 1242 In Re Benge, No (La. 11/6/09), 24 So.3d 822

9 Rules of the District Courts Rule 6.3 Code of Professionalism in the Courts Attorneys and judges should conform to the Code of Professionalism adopted as Section 11 of Part G, General Administrative Rules, Supreme Court of Louisiana: The Code of Professionalism in the Courts PREAMBLE The following standards are designed to encourage us, the judges and lawyers, to meet our obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of professionalism and civility, both of which are hallmarks of a learned profession dedicated to public service. These standards shall not be used as a basis for litigation or sanctions or penalties. Nothing in these standards alters or detracts from existing disciplinary codes or alters the existing standards of conduct against which judicial or lawyer negligence may be determined. However, these standards should be reviewed and followed by all judges of the State of Louisiana. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards. JUDGES' DUTIES TO THE COURT We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will maintain control of the proceedings, recognizing that judges have both the obligation and authority to insure that all litigation proceedings are conducted in a civil manner. We will not employ hostile, demeaning, or humiliating words in opinions or in written or oral communications with lawyers, parties, or witnesses. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we will notify counsel, if possible.

10 We will be considerate of time schedules of lawyers, parties, and witnesses in scheduling all hearings, meetings and conferences. We will make all reasonable efforts to decide promptly all matters presented to us for decision. We will give the issues in controversy deliberate, impartial, and studied analysis and consideration. While endeavoring to resolve disputes efficiently, we will be considerate of the time constraints and pressures imposed on lawyers by the exigencies of litigation practice. We recognize that a lawyer has a right and a duty to present a cause fully and properly, and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time, we will allow lawyers to present proper arguments and to make a complete and accurate record. We will not impugn the integrity or professionalism of any lawyer on the basis of clients whom or the causes which a lawyer represents. We will do our best to insure that court personnel act civilly toward lawyers, parties, and witnesses. We will not adopt procedures that needlessly increase litigation expense. We will bring to lawyers' attention uncivil conduct which we observe. We will be courteous, respectful, and civil in opinions, ever mindful that a position articulated by another judge is the result of that judge's earnest effort to interpret the law and the facts correctly. We will abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge in all written and oral communications. We will endeavor to work with other judges in an effort to foster a spirit of cooperation in our mutual goal of enhancing the administration of justice.

11 CODE OF JUDICIAL CONDUCT Abridged CANON 1 A Judge Shall Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code are to be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of judicial independence. CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. As used in this Code, "impartiality" or "impartial" denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. [Amended effective February 1, 2005] B. A judge shall not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness. Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. Letters of recommendation may be written only on private

12 stationery which does not contain any official designation of the judge's court, but the judge may use his or her title. A judge shall not initiate the communication of information in any court or disciplinary proceeding, but may provide such information for the record in response to a formal request by a court or disciplinary agency official. C. A judge shall not hold membership in any organization that arbitrarily excludes from membership, on the basis of race, religion, sex or national origin, any persons who would otherwise be admitted to membership. The term "organization" shall not include, however, an association of individuals dedicated to the preservation of religious, ethnic, historical or cultural values of legitimate common interest to its members; or an intimate, distinctly private association of persons whose membership limitations would be entitled to constitutional protection. CANON 3 A Judge Shall Perform the Duties of Office Impartially and Diligently The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of office prescribed by law. In the performance of these duties, the following standards apply: A. Adjudicative Responsibilities. (1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall be unswayed by partisan interests, public clamor, or fear of criticism. (2) A judge shall maintain order and decorum in judicial proceedings. (3) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control. (4) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or

13 prejudice, and shall not permit staff, court officials or others subject to the judge's direction and control to do so. A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the abilities of all litigants, including selfrepresented litigants, to be fairly heard, provided, however, that in so doing, a judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person. COMMENTARY TO CANON 3A(4) (2013) Steps judges may consider in facilitating the right of self-represented litigants to be heard, and which (they might find) are consistent with these principles include, but are not limited to: (1) making referrals to any resources available to assist the litigant in preparation of the case; (2) providing brief information about the proceeding and evidentiary and foundational requirements; (3) asking neutral questions to elicit or clarify information; (4) attempting to make legal concepts understandable by minimizing use of legal jargon; and (5) explaining the basis for a ruling. [Amended effective March 18, 2013] (5) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice against parties, witnesses, counsel or others. (6) Except as permitted by law, a judge shall not permit private or ex parte interviews, arguments or communications designed to influence his or her judicial action in any case, either civil or criminal. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the

14 advice, and affords the parties reasonable opportunity to respond. Where circumstances require, ex parte communications are authorized for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication. A judge shall not knowingly accept in any case briefs, documents or written communications intended or calculated to influence his or her action unless the contents are promptly made known to all parties. Judges of appellate courts shall also avoid all actions or language which might indicate to counsel, litigants or any member of the public, the particular member of the court to whom a case is allotted or assigned for any purpose. Similar circumspection should be exacted on the part of court officers, clerks and secretaries. (7) A judge shall dispose of all judicial matters promptly, efficiently and fairly. (8) A judge shall not, while a proceeding is pending in any Louisiana state court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness, and shall require similar abstention on the part of court personnel subject to his or her direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. [Amended effective February 1, 2005] (9) Except as herein provided a judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto at least during sessions of court or recesses between sessions. REMAINDER OF PROVISION RELATED TO BROADCASTING, RECORDEING, ETC. OMITTED HERE B. Administrative Responsibilities. (1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

15 (2) A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties. (3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. Acts of a judge in the discharge of disciplinary responsibilities, as set forth above, are part of the judge's judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge. (4) A judge shall not make unnecessary appointments. A judge should exercise the power of appointment impartially and on the basis of merit. A judge should avoid appointments which tend to create the appearance of impropriety. A judge shall not approve the compensation of appointees beyond the fair value of services rendered. A judge shall avoid nepotism. No spouse or member of the immediate family of a judge shall be employed in the court to which that judge was elected. "Immediate family" means a judge's children, parents, brothers and sisters; the children and parents of a judge's spouse; the spouses of a judge's children; and all step relationships to the same degree. The provisions of this Subsection shall not prohibit the continued employment of any employee of a court employed by such court on or before December 31, 1990; nor shall such provisions be construed to hinder, alter, or in any way affect promotional advancements for any such employee. The provisions of this Subsection pertaining to nepotism shall not apply to mayors or justices of the peace. C. Recusation. A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself. APPENDIX TO CANON 3 Guidelines for Extended Media Coverage of Proceedings in Appellate Courtrooms (Omitted here)

16 Remaining Canons are omitted for purposes of this presentation but identified here: CANON 4 Quasi-Judicial Activities CANON 5 Extra-Judicial Activities CANON 6 Compensation, Gifts, Loans, Bequests, and other things of value for Quasi-Judicial and Extra-Judicial Activities and certain reporting requirements. [Amended effective January 1, 2013 with new version which follows existing Canon 6] CANON 7 Political and Campaign Activity Compliance with the Code of Judicial Conduct All elected judges and anyone, whether or not a lawyer, who is an officer of a court of record performing judicial functions, including an officer such as a judge ad hoc, judge pro tempore, referee, special master, court commissioner, judicially appointed hearing officer, or magistrate, and anyone who is a justice of the peace, is a judge for the purpose of this Code. All judges shall comply with this Code. A. Part-Time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge. A part-time judge: (1) is exempt from Canons 5C(2), 5D, and 5E; (2) shall not practice law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the court on which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.

17 B. Pro Tempore and Ad Hoc Judges. A judge pro tempore is a person who is appointed to act temporarily as a judge. A judge ad hoc is a person who is appointed to act with regard to a specific case or cases. (1) While acting as such, a judge pro tempore or ad hoc is not required to comply with Canons 5C(2), 5C(3), 5D, and 5E. (2) A person who has been a judge ad hoc or judge pro tempore shall not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto. C. Retired Judge. A retired judge is not governed by the provisions of this Code, except when sitting by assignment, and then the judge shall be subject to the rules applicable to judges pro tempore and ad hoc. D. Judicially Appointed Hearing Officers. Judicially appointed hearing officers are required to comply with all canons of the Code except Canons 5C(2), 5D, and 5E.

TEXT OBTAINED BY WORLD WIDE WEB PAGE: STATE.MN.US; 29th APRIL 2003.

MINNESOTA CODE OF JUDICIAL CONDUCT TEXT OBTAINED BY WORLD WIDE WEB PAGE: STATE.MN.US; 29th APRIL 2003. Effective January 1, 1996 Research Note: See Minnesota Statutes Annotated, Volume 52, for case annotations,