Monday, April 8, 2013
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Ethics Panel Says Judges May Ask Lawyers for Advocacy Help
Opinion Is Big Change From Widely Panned Draft Released Last Fall
By KENNETH OFGANG, Staff Writer
Judges may, within limits, ask attorneys to assist the court by urging lawmakers and the public to oppose budget cuts, the judicial branch’s official ethics committee said in a formal opinion released Friday.
“A judges activities relating to court budgets and appropriations fall within the scope of ‘measures concerning improvement of the law, the legal system, or the administration of justice,’” the Committee on Judicial Ethics Opinions said, citing canon 5D of the Code of Judicial Ethics. “As a judicial officer, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice…Therefore, it is ethical for judges to invite attorneys to attend a meeting at which the judge makes a presentation concerning potential budget cuts to the court(s) and asks the attorneys to assist the court in dealing with the impacts of those cuts.”
The opinion represents a substantial turnaround from last fall, when the committee released a draft opinion that was widely panned by judges who submitted comments. In a statement released yesterday through the Administrative Office of the Courts, the committee said it “carefully considered all of the public comments and revised the opinion.”
Redrafted Query
As originally drafted, the question addressed by the opinion was whether it was appropriate for a presiding judge to call a meeting of lawyers “at which the presiding judge makes a presentation about potential budget cuts and asks the attorneys…to help the court in whatever way they believe is appropriate.‟
The draft suggested that doing so was “fraught with the possibility that the attorneys will believe they will be disadvantaged if they do not provide assistance or will gain special favor or influence by providing assistance.”
To address the problem, the draft suggested that invitations not be limited to a “select few,” and that judges not ask attorneys to help in “whatever way they believe is appropriate,” as such a request may be “too broad, may imply or invite too much, and potentially crosses the line of what is permissible.”
The draft also explained that if attorneys were asked to write letters or meet with lawmakers, it would be the judges’ responsibility to ensure “that the attorneys’ actions are voluntary.” And it suggested that judges not directly enlist the aid of attorneys who were their friends, so as to avoid the risk of actual or perceived coercion.”
Considerable Modification
The draft language was modified considerably, however, after drawing fire from the California Judges Association and the Los Angeles Superior Court, among others. The local trial court criticized the guidelines as “vague and overly broad” and said they would lead to “unintended consequences,”
The CJA said the draft might “be interpreted as restricting the conduct of judges advocating for their courts beyond what is warranted by the Canons.” Both the CJA and the Los Angeles court took issue with the suggestion that judges “only take positions that inure to the benefit of all the courts in the State,” a suggestion for which there was no legal authority, the CJA said.
In the formal opinion, the committee restated the question in order to have “a broader discussion.”
As restated, the question was:
“May a judge meet with attorneys who practice in the court to discuss the impact of fiscal reductions on the court’s budget and request assistance to help communicate to the public and to the Legislature the impacts of proposed budget cuts on the court’s operations?”
Warning on Appearances
While generally answering that question in the affirmative, the committee warned judges to be careful in avoiding any appearance of coercion, or any suggestion that lawyers who assisted the court would receive favorable treatment.
“When determining whom to invite and what to ask,” the committee summarized, “a judge should be mindful of (1) the appearance of impropriety, (2) the impression of special influence, and (3) the potential for disqualification and disclosure. With these standards in mind, judges will be able to conduct the analysis necessary to make ethical decisions.”
Judges should also consider whether it is appropriate to ask the assistance of attorneys who have cases before them, and whether they are ethically required to disclose any such requests to opposing counsel or to disqualify themselves from those cases, the committee said.
The Supreme Court Committee on Judicial Ethics Opinions is made up of a dozen active and retired judicial officers from around the state. Third District Court of Appeal Justice Ronald Robie is the chair, Justice Douglas Miller of the Fourth District’s Div. Two serves as vice-chair, and Los Angeles Superior Court Judges Joanne O’Donnell and John S. Wiley Jr. are also members.
CJEO Formal Opinion No. 2013-001 is available online at judicialethicsopinions.ca.gov.
Copyright 2013, Metropolitan News Company