Thursday, Jan. 29, 1998; Page 7 

New Ethical Restrictions on Lawyers In Running for Judgeships

Part 1:  Rule 1-700 Closes a Loophole


By Roger M. Grace



A new aspect to judicial elections this year is that lawyers who run for judgeships may be disciplined by the State Bar for violations of the judicial canon relating to political conduct. 

Under new Rule 1-700, lawyers who become candidates for judicial office are subject to State Bar discipline if they run afoul of Canon 5 of the Code of Judicial Ethics. That would entail spewing falsehoods in trumpeting their own qualifications or denigrating those of opponents, making promises as to how they would rule, or violating restrictions on partisan political activity.  

Canon 5 is expressly applicable to all judicial candidates, a fact reiterated by Canon 6(E) ("A candidate for judicial office shall comply with the provisions of Canon 5.") However, prior to the promulgation of Rule 1-700, lawyers who sought election to the bench and lost faced no real prospect of discipline -- though those who won, and thus became subject to the authority of the Commission on Judicial Performance, could be punished for identical conduct.  

Too, sitting judges who were challenged could be disciplined for non-compliance while their lawyer-challengers could not be. This disparity became potentially significant in 1996 when a new truth-in-campaigning provision was added to Canon 5; judges faced discipline for campaign lies, while lawyers unsuccessfully challenging them did not. Given the nature of some challenges -- a disgruntled lawyer who had lost before a judge running against that judge out of spite, with no realistic prospect of winning -- the undesirability of uneven treatment of judicial candidates was patent. 

The new rule, effective Nov. 21, was intended to end the disparity of treatment.


California judicial canons were first promulgated in 1949 by the Conference of California Judges, a private voluntary organization now known as the California Judges Assn. The Supreme Court found that the canons "might usefully be consulted" in disciplinary cases. Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 796. Through the years, the high court, in acting on judicial disciplinary matters, did more than "consult" the canons; it became clear that judges were as much bound by those standards as lawyers were by the Rules of Professional Conduct. Indeed, the Supreme Court declared in 1989: "We...expect that all judges will comply with the canons." Kloepfer v. Commission (1989) 49 C3d 826, 838, fn. 6. Yet, the standards were wholly unofficial in nature. The Supreme Court had, in essence, delegated governmental rulemaking powers to a non-governmental entity. 

This was remedied when the voters on Nov. 8, 1994 approved Prop. 190, which made extensive changes in Art. VI of the state Constitution relative to judicial discipline. Among the reforms, effective March 1, 1995, was the addition of Art. VI, § 18(m), providing: 

"The Supreme Court shall make rules for the conduct of judges, both on and off the bench, and for judicial candidates in the conduct of their campaigns. These rules shall be referred to as the Code of Judicial Ethics." 

The Supreme Court on March 10, 1995 adopted the CJA’s 1992 Code of Judicial Conduct as a transitional code, pending further review.  

At that time, Canon 5 applied to "[j]udges and candidates for judicial office." It provided that they "should not" engage in specified partisan political conduct (§A); make promises to the electorate or the appointing authority as to how they would rule (§B); speak to political gatherings other than on behalf of themselves or other judicial candidates (§C); or engage in other political activities except "on behalf of measures to improve the law, the legal system or the administration of justice (§D)." 

On Aug. 1, 1995, the Administrative Office of the Courts released a proposed Code of Judicial Ethics, based on the CJA code, but with revisions by the Supreme Court Advisory Committee on Judicial Ethics, headed by then-Court of Appeal Associate Justice (now Presiding Justice) Charles S. Vogel of this district’s Div. Four. 

The draft changed, throughout, "should" to "shall." With respect to Canon 5, the most significant change was the addition of a provision in §B that a candidate for election or appointment to judicial office shall not "knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or his or her opponent."  

It was immediately apparent that there was an inequity is making campaign fibbing an offense for judges, backed up with the threat of discipline, while it was an offense for lawyers only if they won election. The State Bar has disciplinary authority over attorneys, but had no express power to discipline them for violations of a code for judges fn. 1

Concurrently with releasing the draft, the AOC issued an "invitation to comment." It noted that Vogel’s committee had "identified several additional issues related to the code" including "whether the Supreme Court should make certain recommendations affecting lawyer candidates for judicial office and lawyers serving in judicial capacities such as temporary judges or referees." 

Following further fine-tuning of the code by the Vogel Committee, the California Supreme Court adopted it fn. 2, effective Jan. 15, 1996. Minutes, Dec. 21, 1995. The court announced concurrently that it would request the State Bar of California to consider promulgation of a rule of professional declaring the violation of Canon 5 by lawyers running for judgeships to be a disciplinable offense. 

Such a rule came into existence with the California Supreme Court’s adoption of Rule 1-700 of the State Bar’s Rules of Professional Conduct, which went into immediate effect. Minutes, Nov. 24, 1997. While not fully incorporating Canon 5 into the Code of Judicial Ethics, it does so to the extend the canon relates to judicial elections fn. 3. It reads: 

Rule 7-100
Code of Professional Responsibility

(A) A member who is a candidate for judicial office in California shall comply with Canon 5 of the Code of Judicial Ethics.  

(B) For purposes of this rule, ‘candidate for judicial office’ means a member seeking judicial office by election. The determination of when a member is a candidate for judicial office is defined in the terminology section of the California Code of Judicial Ethics. A member’s duty to comply with paragraph (A) shall end when the member announces withdrawal of the member’s candidacy or when the results of the election are final, whichever occurs first. 


Nothing in rule 1-700 shall be deemed to limit the applicability of any other rule or law.



The bar on candidates misrepresenting their present positions would cover such conduct as that of attorney J.B. Casas, who two years ago challenged East Los Angeles Superior Court Judge Ruth Kwan. Casas, a former member of the Rio Hondo Municipal Court who was turned out of office by voters, implied in his candidate statement and campaign materials that he was the incumbent. On Jan. 19, 1996, Los Angeles Superior Court Judge Robert O’Brien enjoined the candidate "from referring to himself, in his candidate's statement or any other election-related materials, with the title ‘Judge.’ " Metropolitan News-Enterprise, Jan. 22, 1996, Page 3, "Ex-Judge Casas Enjoined From Calling Himself ‘Judge’ in Judicial Campaign." 

At that time, Casas could not be disciplined by the State Bar for his deceptive conduct. Now, any lawyer pulling a similar ploy would be subject to discipline. Indeed, a judicial determination of deceptiveness, as made by O’Brien, would be bound to be regarded with deference by the State Bar Court.  

The rule is bound to have a salutary effect on judicial elections. The prospect of discipline is sure to deter at least some lawyer-candidates from levelling untrue charges or making phony boasts. 


While the discussion below centers on the truth-in-campaigning provision of Canon 5 -- the meatiest portion of the canon -- that’s not all there is to the canon. It also forbids campaign promises of rulings (forbidding prejudgments and promises not to exercise discretion is hardly controversial) and certain types of political activity. 

Some of the political activity that is proscribed, such as speaking out on behalf of non-judicial candidates -- specifically allowable in some states -- might be subject to successful challenge on First Amendment grounds. Or, in light of the non-partisan nature of judicial elections in this state, a challenge might fizzle. In any event, so long as judges are subject to these restrictions on their political activities, and given that judges compete with lawyers in election contests, fairness demands that such restrictions be applied to lawyer-candidates. 

Canon 5
Code of Judicial Ethics


Judges are entitled to entertain their personal views on political questions. They are not required to surrender their rights or opinions as citizens. They shall, however, avoid political activity that may create the appearance of political bias or impropriety. Judicial independence and impartiality should dictate the conduct of judges and candidates for judicial office.  

A. Political Organizations 

Judges and candidates for judicial office shall not 

(1) act as leaders or hold any office in a political organization; 

(2) make speeches for a political organization or c andidate for nonjudicial office or publicly endorse or publicly oppose a candidate for nonjudicial office; or  

(3) personally solicit funds for a political organization or nonjudicial candidate; or make contributions to a political party or political organizationor to a nonjudicial candidate in excess of five hundred dollars in any calendar year per political party or political organization or candidate, or in excess of an aggregate of one thousand dollars in any calendar year for all political parties or political organizations or nonjudicial candidates. 


The term "political activity" should not be construed so narrowly as to prevent private comment.  

This provision does not prohibit a judge from signing a petition to qualify a measure for the ballot without the use of the judge's official title.  

In judicial elections, judges are neither required to shield themselves from campaign contributions nor are they prohibited from soliciting contributions from anyone including attorneys. Nevertheless, there are necessary limits on judges facing election if the appearance of impropriety is to be avoided. Although it is improper for a judge to receive a gift from an attorney subject to exceptions noted in Canon 4D(6), a judge's campaign may receive attorney contributions. 

Although attendance at political gatherings is not prohibited, any such attendance should be restricted so that it would not constitute an express public endorsement of a nonjudicial candidate or a measure not directly affecting the administration of justice otherwise prohibited by this Canon.  

Subject to the monetary limitation herein to political contributions, a judge may purchase tickets for political dinners or other similar dinner functions. Any admission price to such a political dinner or function in excess of the actual cost of the meal shall be considered a political contribution. The prohibition in Canon 5A(3) does not preclude judges from contributing to a campaign fund for distribution among judges who are candidates for reelection or retention, nor does it apply to contributions to any judge or candidate for judicial office.  

Under this Canon, a judge may publicly endorse another judicial candidate. Such endorsements are permitted because judicial officers have a special obligation to uphold the integrity and impartiality of the judiciary and are in a unique position to know the qualifications necessary to serve as a competent judicial officer. 

Although members of the judge's family are not subject to the provisions of this Code, a judge shall not avoid compliance with this Code by making contributions through a spouse or other family member.  

B. Conduct During Judicial Campaigns  

A candidate for election or appointment to judicial office shall not (1) make statements to the electorate or the appointing authority that commit or appear to commit the candidate with respect to cases, controversies, or issues that could come before the courts, or (2) knowingly misrepresent the identity, qualifications, present position, or any other fact concerning the candidate or his or her opponent. 

C. Speaking at Political Gatherings  

Candidates for judicial office may speak to political gatherings only on heir own behalf or on behalf of another candidate for judicial office.  

D. Measures to Improve the Law  

Except as otherwise permitted in this Code, judges shall not engage in any political activity, other than in relation to measures concerning the improvement of the law, the legal system, or the administration of justice.



Where a lawyer runs afoul of Canon 5 in conducting a judicial campaign, and gets elected, should discipline be imposed? It could be argued that the election of a judicial candidate constitutes a popular grant of absolution to that candidate for any questionable campaign tactics. That view finds indirect support in case law. The California Supreme Court Dodds v. Commission on Judicial Performance (1995) 12 Cal.4th 163 found itself powerless to consider a charge, levelled by the commission in proceedings instituted in 1994, based on an improper remark allegedly made by a judge in 1987. Its power to act was cut off by the election of the judge to a new term. The majority, in a "By the Court" opinion, explained at 177: 

      Under former subdivision (c) of article VI, section 18 of the California Constitution, "the Supreme Court may...censure or remove a judge for action occurring not more than 6 years prior to the commencement of the judge's current term...." Petitioner's current term began on January 1, 1995. Six years prior to the commencement of petitioner's current term was January 1, 1989. Petitioner allegedly made the offensive remark in approximately 1987. Accordingly, we are without power to impose a sanction based on the alleged remark.
The court observed at 178: "The due deference to the will of the electorate in reelecting a judge to a new term." 

Likewise, it could be said that barring discipline based on shoddy campaign tactics of a lawyer who is elected to the bench gives "due deference to the will of the electorate" in casting their ballots for that candidate. 

That assumes, however, something that is not so: that the public pays attention to what candidates in judicial elections do and say. In 1994, then-Assemblyman Terry Friedman defeated attorney John Moriarity for a Los Angeles Superior Court seat notwithstanding an adjudication by then-Superior Court Judge John Zebrowski (now a member of the Court of Appeal) that Friedman had engaged in "a deliberate and cynical political effort to feed false information to the voters." Metropolitan News-Enterprise, Nov. 1, 1996, p. 8, "Judge Adjudicated as Campaign Liar to Discuss Judicial Elections." However, the public’s knowledge of the proceedings before Zebrowski was lacking. 

Indeed, in 1994, two candidates for the Los Angeles Superior Court were forced into a run-off even though they were the only aspirants in the contest. A third candidate, Samuel Rubino, had announced he was withdrawing, but it was too late for his name to be removed from the ballot. The public has so little knowledge of judicial races -- at least in a county the size of Los Angeles -- that it gave him 15 percent of the vote. Metropolitan News-Enterprise, June 8, 1994, Page 1, "Candidates in Six Judicial Races Preparing for Runoffs." 

Too, the election of a candidate who has engaged in deceptive tactics could hardly be said to reflect public condonation of the conduct of that candidate where the opposing candidate likewise engaged in deceit. Two years ago, a Citrus Municipal Court judge, Michael Duggan, employed certain unethical approaches, such as creating the false impression that he had served in the Vietnam War. (Rather, he served locally in the National Guard.) However, his challenger, attorney Laurie Howard, engaged in like trickery, including appearing in a photo in a judicial robe, falsely implying membership in the judiciary, and creating the impression on a campaign leaflet that she was a prosecutor, when she was not. Metropolitan News-Enterprise, editorial, March 22, 1996, Page 8, "Lying Is Regrettably Rampant in This Year's Judicial Elections." 

In 1986, voters had a choice between two candidates for a Los Angeles Municipal Court seat: incumbent David Kennick and challenger Robert Furey, a judge of the erstwhile Justice Court on Catalina Island. Kennick was reelected in Nov. 4, 1986 balloting. On Dec. 10, 1986, the Commission on Judicial Performance filed formal charges against Kennick. The commission did not seem to think that "due deference to the will of the electorate" required a forgiveness of Kennick’s various and varied acts of misconduct (including abusiveness to police in connection with his arrest for drunk driving). The California Supreme Court, when it acted on the charges in 1990 did not regard the imposaition of discipline as a defianmce of the "will of the electorate." Notwithstanding that Kennick had retired in July 1988, the high court ordered his removal from office for persistent failure or inability to perform his judicial duties, and censured him for his willful misconduct in office and conduct prejudicial to the administration of justice. Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297. This case illustrates why a judicial candidate’s winning of favor with the electorate should have no dampening effect on disciplinary efforts: 

1.) Judges, such as Kennick, have been held accountable for conduct preceding their current terms. There is no reason why a judge should not be held accountable for prior conduct merely because that judge was not an incumbent when the prior conduct occurred. 

2.) Most of Kennick’s misdeeds were not matters of public record until after the election; even assuming the public had awareness of publicly available information as to judicial candidates’ qualifications, it could not have taken cognizance of that which was unreported. 

3.) The electorate had a choice between two black kettles. It was a matter of public record at the time of the election that Furey was facing disciplinary charges. See Metropolitan News-Enterprise, March 26, 1986, Page 1, "Justice Court Judge Furey Won’t Comment on Disciplinary Charges Pending Against Him." (The Supreme Court removed Furey from office, upon the recommendation of the Commission on Judicial Performance, after sustaining eight charges of willful misconduct and 10 charges of prejudicial conduct. Furey v. Commission on Judicial Performance (1987) 43 Cal.3d 1297.)  

It makes no sense to render judicial candidates who lie in connection with their campaigns subject to discipline, but to exempt from discipline one class of mendacious judicial candidates: lawyers who win their elections. 


A lawyer who runs for judicial office and succeeds is, upon ascending to judicial office, no longer a member of the State Bar (Const., Art. VI, §9; Business & Professions Code §6002 fn. 4) and is no longer subject to its authority fn. 5. Therefore, with respect to an attorney who has violated Canon 5 and gained election to a judgeship, the State Bar loses jurisdiction if it has not completed the disciplinary process prior to the commencement of the term of office as a judge (which, under Art. VI, §16(c) is the first Monday succeeding Jan. 1 of the year following the election). The State Bar is simply not apt to act with such alacrity. It could re-open its disciplinary files on the person once he or she leaves the bench fn. 6 -- but the term of office is six years (Ibid.) and the judge might not leave the bench for six, 12, or who knows how many years off. The chances of the files being re-opened would be remote. 

It would be logical to entrust the discipline of a new judge to the Commission on Judicial Performance where the State Bar has not already performed that chore. But does that body have jurisdiction over judges based on pre-bench conduct? 

Under flip-flop circumstances, there is no question as to the power of the State Bar to discipline a former judge, at least where the judge resigned with disciplinary charges pending. Art VI, §18(e) provides, in part: "The State Bar may institute appropriate attorney disciplinary proceedings against any judge who retires or resigns from office with judicial disciplinary charges pending." There is, however, no analogous provision expressly authorizing the Commission on Judicial Performance to institute disciplinary proceedings against judges who ascended to the bench with State Bar disciplinary charges pending (or based on conduct which could have given rise to attorney disciplinary proceedings but had not yet been acted upon when the lawyer entered the judiciary). 

Nonetheless, the commission has disciplined judges based on pre-bench conduct: 

1.) It issued a private admonishment to a judge in 1988 based on pre-bench dealings with clients. "While still practicing law, a judge accepted a grant deed to two clients’ property as security for fees. In arranging for this transfer, the judge did not fully explain to the clients in writing the terms and significance of the transaction, thereby violating the Rules of Professional Conduct, rule 50101. Later the judge sold the property without informing the clients." Commission on Judicial Performance Annual Report, 1988, Page 10. 

2.) Also in 1988: "Before appointment to the bench, a judge committed prosecutorial misconduct that tended to mislead the fact-finder. [Severe private admonishment.]" (Brackets in the original.) Id. at Page 11. 

Additionally, in two instances it publicly disciplined judges of justice courts in connection with their conduct as lawyers (at a time when practicing law on the side was permitted). 

1.) In publicly reproving then-Justice Court Judge Glenda Doan in 1989, the commission acted based on her violation of the State Bar Rules of Professional Conduct in connection with the questionable receipt of funds. Annual Report, 1989, Page 18. 

2.) In 1995, the commission publicly reproved Alpine County Justice Court Judge Thomas M. Kelly based on client abandonment in two cases, resulting in dismissals of the cases, and for associating in a Nevada attorney not licensed to practice law here and not appearing pro hac vice, thus aiding and abetting the unauthorized practice of law. Annual Report, 1995, at 18-19. 

In disciplining judges based on pre-bench activities, the commission has acted "sometimes by referrals of the State Bar,"fn. 7 its director-chief counsel, Victoria B. Henley, relates. Interview, Jan. 21, 1998. 

She expresses the view the commission does have jurisdiction over judges based on campaign misconduct prior to their embarking on judicial service. Ibid. A review of the relevant constitutional provisions supports that view. 

The Commission on Judicial Performance has jurisdiction over judges, conferred by Art. VI, §18 of the state Constitution. 

Art. VI, §18(d)(2) provides that the commission may "...censure a judge or former judge or remove a judge for action occurring not more than 6 years prior to the commencement of the judge's current term...that constitutes...conduct prejudicial to the administration of justice that brings the judicial office into disrepute." 

Where a judge has gained his or her office through deception, this stains the judiciary, not the State Bar. The judiciary is the body of which the unscrupulous one is a member. The conduct is "conduct prejudicial to the administration of justice that brings the judicial office into disrepute." There is nothing in the article limiting conduct in the past six-year period to conduct during a judicial term. And there is nothing in that grant limiting jurisdiction to misconduct committed in connection with judicial duties. 

"Conduct prejudicial to the administration of justice" includes "wilful misconduct out of office, i.e., unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity." Doan v. Commission on Judicial Performance (1995) 11 Cal.4th 294, 312. 

This provision, however, is limited to conduct so egregious as to warrant censure or removal. It is difficult to imagine election misconduct that serious which did not also entail criminality. (In the event of a conviction for a felony or other crime involving moral turpitude, suspension from office without pay would be automatic under Art. VI, §18 (c).) 

There is also constitutional authority vested in the commission under Art. VI, §18(d)(3) to "publicly or privately admonish a judge or former judge found to have engaged in an improper action...." Violations of Canon 5 clearly are improper actions. Under this provision, however, there is no authority for considering conduct going back six years, or even going back one day before the judge’s term commenced. Does this render the provision inapplicable to pre-bench violations of Canon 5? 

There appears to be no authority directly in point. However, two members of the high court have indicated the belief that this provision authorizes consideration of past misconduct with no time limitation.  

Justice Marvin Baxter expressed that view in footnote 6 to his concurring and dissenting opinion in Dodds v. Commission on Judicial Performance (1995) 12 Cal.4th 163, and Justice (now Chief Justice) Ronald M. George concurred. The footnote reads: 

      By rejecting the Commission's recommendation of public censure, we leave the case at large for a determination by the Commission whether it should exercise its own power of private admonishment. (Cal. Const., art. VI, § 18, former subd. (c).) The Commission's constitutional power of private admonishment derives from a discrete, self-contained sentence which, unlike the provisions for censure and removal, specifies no time limitation on the conduct which may be considered. (Ibid.) It appears the Commission may therefore take the 1987 incident into account for admonishment purposes, and I do not read the majority's opinion as holding otherwise.
(Emphasis in the original.) 

Under the constitutional revisions brought about in 1994, by Prop. 190, Art. VI, § 18(m), was added, as discussed supra. It mandated promulgation by the Supreme Court of Judicial Ethics which would include rules "for judicial candidates in the conduct of their campaigns." Since this is a part of Art. VI, §18, dealing with powers of the Commission on Judicial Performance, the clear implication is that judicial candidates who violate Canon 5 and do not remain subject to the authority of the State Bar are subject to discipline by the commission for those violations.


Though it does appear that the commission has the constitutional authority to discipline a new jurist based on campaign deceptiveness while a lawyer, this hardly means that the State Bar, once apprised of election shenanigans, should wait to see if the lawyer wins or not. Indeed, if it is possible to act prior to the election on complaints of Canon 5 violations to election day, the State Bar should do so. Complaints of such violations would lend themselves to such treatment; seldom would there be any disputed factual issues as to what was said in the candidates’ speeches or literature. If the issue of deceptiveness can be decided quickly in writ proceedings to bar portions of candidate statements, they could be decided with dispatch in State Bar Court proceedings, if fast-track procedure were instituted. Relevant to discipline, though not to writ proceedings, is intent, though the "Gosh, I really didn’t intend to deceive anybody" defense would hardly warrant extensive testimony.  

In State Bar proceedings, a member’s "only due process entitlement is a ‘fair hearing,’ and the rules of criminal procedure do not apply...." Rosenthal v. State Bar (1987) 43 Cal.3d 612, 634. Fairness is not synonymous with slowness. 

If a lawyer had committed misdeeds prior to becoming a candidate that resulted in discipline, that fact obviously would be a legitimate issue for the opponent to invoke. There is no reason why the State Bar should shy away from adjudicating during a campaign any lawyer misconduct committed in connection with that campaign. To the contrary, it is in the interest of the public that misconduct on the part of lawyers seeking places in the judiciary be bared so that those voters who do seek to cast an informed ballot have available to them the widest information possible. Moreover, the prospect of discipline being imposed prior to election day would stand as a meaningful disincentive for lawyers to engage in the sort of deception that has been increasingly in evidence in recent judicial elections. 

Toward this end, legislation mandating expedited proceedings in the State Bar Court in connection with alleged Canon 5 violations would be desirable. Expedited procedures in connection with elections are not unknown. For example, Government Code §83121 provides that if judicial review is sought in connection with determinations by the Fair Election Practices Commissions relating to the upcoming election, "the matter shall be advanced on the docket of the court and put ahead of other actions." The statute adds: "The court may, consistent with due process of law, shorten deadlines and take other steps necessary to permit a timely decision." Under Code of Civil Procedure §44, "Appeals in probate proceedings, in contested election cases, and in actions for libel or slander by a person who holds any elective public office or a candidate for any such office alleged to have occurred during the course of an election campaign shall be given preference in hearing in the courts of appeal, and in the Supreme Court when transferred thereto...." Code of Civil Procedure §460.7 calls for expediting of campaign libel or slander cases. 

Ordinarily, the "goal and policy" at the complaint level is to forward the results of investigations to the chief trial counsel, if charges might be warranted, within six months of receipt of a written complaint about a member (and 12 months if the matter is complicated). Bus. & Prof. Code §6094.5. In light of the general simplicity of the issues relating to allegations of unfair campaigning, the procedure could be streamlined -- and in light of the public’s interest in the outcome, should be streamlined. 

Ordinarily, a disciplinary proceeding is kicked off with the service upon a member of a "Notice of Disciplinary Charges" containing a statement of facts and certain warnings. Rule 101. Service is made by certified mail, return receipt requested. Rule 60(b). The time allotted for a response is 20 days. Rule 103. Discovery is permitted. Rule 180. Following decision, a motion for reconsideration must be made within 15 days. Rule 224 (a). 

There is no prescribed form for a complaint to the State Bar. It could well be a barely decipherable hand-scribbled diatribe by a bilked ex-client with little education. On the other hand, where there is a complaint by a judicial candidate or a lawyer representing that candidate complaining of conduct by a rival candidate, and seeking expedited treatment, there is no reason it could not be required that the complaint take the form of the initial pleading. Thus, the complaint would supplant the "Notice of Disciplinary Charges." Inclusion of the warnings prescribed by Rule 101 (as modified to reflect a shortened time within which to answer) would be mandated. Allowing five days within which to respond would be reasonable. 

Canon 5(B) forbids a judicial candidate to "knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or his or her opponent." While the canon does not require that the misrepresentation be uttered publicly fn 8, the usual case would entail a public statement in a campaign writing or in a speech. Under that circumstance, discovery would hardly be necessary to uncover the statement. If the statement was made, the party making the statement would be expected to have in his or her possession such proofs as would justify the statement, if it was true. Under these circumstances, discovery would seem inappropriate. Provision should simply be made for attaching declarations and exhibits to the initial pleading and the response, with discovery allowable only upon motion showing a particularized need for it. 

The number of judicial contests in the state is not so great, and the instances of disciplinary complaints being filed alleging Canon 5 violations not foreseeably so many, as to preclude provision for the immediate forwarding to the chief trial counsel of all such papers relating to such matters. It could reasonable be required that within five days, the complaint be rejected, with reasons stated, or charges be filed with the State Bar Court, whose hearing department would be obliged to hold a hearing within five court days. 

Dissemination of falsehoods near the end of a campaign could not be dealt with by the State Bar prior to election day, consistent with affording due process. Of course, if the eleventh-hour deception came in the primary and the candidate engaging in the misconduct was forced into a run-off, an adjudication could come prior to the vote in November.  

The sine qua non to establishment of expedited State Bar proceedings to deal with complaints of Canon 5 violations would be the institution of like procedures by the Commission on Judicial Performance. If lawyers faced the prospect of incurring official chastisements prior to the vote for defying the canon, and the judges they opposed did not, equal protection problems clearly would emerge.


Rule 1-700 was needed, and should be aggressively enforced by the State Bar to discourage its members from engaging in the sort of campaign deception that all too often has occurred in recent elections. Where a lawyer has strayed beyond the bounds of truthful electioneering but won, and has taken office without having been disciplined by the State Bar, the Commission on Judicial Performance constitutionally may, and to fulfill its charge must, take disciplinary action.

1. Bus. and Prof. Code §6077 provides that the Rules of Professional Conduct "are binding upon all members of the State Bar" and authorizes the State Bar to impose a public or private reproval for "a willful breach of any of these rules." (Emphasis added.) In the absence of  Rule 1-700, the State Bar - whose disciplinary functions have been delegated to the State Bar Court (Bus. & Prof. Code §6086.5) - would be unable to impose discipline, itself, for a violation of Canon 5. It could, apart from that rule, make a recommendation to the Supreme Court for suspension or disbarment (Bus. & Prof. Code §6078). While the Supreme Court, aside from its inherent powers to discipline, does have express authority to impose discipline based on "any act involving moral turpitude, dishonesty or corruption (Bus. & Prof. Code §6106)," and while a violation of Canon 5 necessarily entails dishonesty, it is unlikely that campaign deceptiveness would often reach the level that would result in suspension or disbarment. Return to text

2. It had one reservation: the court was uncertain whether it wanted to continue to permit endorsements by judges of judicial candidates. On April 12, the Supreme Court voted to retain the rule permitting such endorsements. Metropolitan News-Enterprise, April 15, 1996, Page 1, "Supreme Court Retains Ethics Rule Allowing Judges to Endorse Candidates for the Judiciary." Return to text
3. Canon 5(B) prohibits deception on the part of a candidate "for election or appointment to judicial office." The new rule of professional conduct, however, renders it a disciplinable offense for a lawyer who violates provisions of Canon 5 only where that lawyer is "a candidate for judicial office," (Rule 1-700(A)), defined as "a member seeking judicial office by election." (Rule 1-700(B)). Accordingly, a lawyer who commits fraud or deception in applying for a judgeship could be disciplined by the Commission on Judicial Performance for violating Canon 5 if successful in obtaining appointment, but, if turned down by the Governor's Office, could not be disciplined by the State Bar. There appears no good reason for not importing Canon 5, in toto, into the Code of Professional Responsibility. If a lawyer applies for a judgeship, lies to the appointing authority, is caught at the lie, and the Governor's Office reports this to the State Bar, why should this act of dishonesty not be made subject to discipline? Since the avowed purpose of the rules is "to protect the public and to promote respect and confidence in the legal profession" (Rules of Professional Conduct, rule 1-100), how can connivery in seeking appointment to a judgeship be ignored? A sitting judge who lied in the course of applying for appointment to higher judicial office, on the other hand, would be covered by the canon. Thus, a lawyer seeking appointment to the Superior Court may lie to the appointments secretary with impunity, while a Municipal Court judge seeking elevation may be disciplined for lies to this same person. Return to text
4. Art. VI, §9, reads in pertinent part: "Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record" Bus. & Prof. Code §6002 says: "The members of the State Bar are all persons admitted and licensed to practice law in this State except justices and judges of courts of record during their continuance in office." References to judges as "inactive members" of the State Bar, though common, are incorrect. Inactive members, as denied by Bus. & Prof. Code §6005 "are those members who have requested that they be enrolled as inactive members or who have been enrolled as inactive members by action of the board of governors as in Section 6007 of this code provided." Those who have requested inactive status are those who have done so because they have retired from law practice (§6006), and those who have become inactive members. Return to text

5. State Bar of California v. Superior Court (1929) 207 Cal. 323, 337. Return to text
6. Ordinarily, under Rule 5(a) of the State Bar Rules, a disciplinary proceeding would have to be instituted "within five years from the date of the alleged violation." However, there is a tolling under subd. (c)(7) where [t]he disciplinary investigation or proceeding is abated consistent with the Rules of Procedure of the State Bar." An abatement would be required where the lawyer's membership in the State Bar was in abeyance during judicial service. Return to text

7. Bus. & Prof. Code §6086.1(b) provides that "[a]ll disciplinary investigations areconfidential until the time that formal charges are filed..." except that, "(2) The Chief Trial Counsel or President of the State Bar may waiveconfidentiality, but only when warranted for protection of the public" and after notice to the member. Pursuant to that authority, the State Bar has enacted Rule 2302 (d)(1) which authorizes the "Chief Trial Counsel or designee or the President of the State Bar, after private notice to the member" to waive confidentiality where "specific individuals should be advised of the nature of the allegations." Factors to be taken into account include whether "(C) A member or non-member is under investigation by a regulatory or licensing agency, or ascommitted acts or made omissions which may reasonably result in investigation by a regulatory or licensing agency...." From this, authorization for the chief trial counsel to release otherwise confidential information to the commission may reasonably be inferred. It would bepreferable if the authority were expressly stated. Bus. & Prof. Code §6044.5(b) provides that the State Bar may furnish such information to the Commission on Judicial Appointments. Reference to the Commission on Judicial Performance should be added. Return to text

 8. Public utterance of the falsehood is not, and should not be, a requirement of the anon. A falsehood told to a single person or a small group could have as much effect on an election as a falsehood widely disseminated - as, for example, gaining campaign funds or an endorsement through prevarication. Return to text

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