A case in Texas recently reminded me of some critical constraints on judges and their involvements. Law and Crime reported Judge Teresa Hawthorne was publicly reprimanded regarding a two cases, one involving a family member.
In one instance, she sent an email to the presiding judge regarding the warrant upon which her nephew had been arrested. Judge Hawthorne then called the presiding judge to request a bond be set. At that time, she assured the presiding judge that "she was allowed to represent members of her family under an unspecified rule." Judge Hawthorne later sent another email requesting that the judge and "District Attorney agree to remove the warrant."
Judge Hawthorne later testified at her nephew's probation hearing. Voluntarily testified, she was not subpoenaed to testify. During her testimony, she "referenced her judicial position on three separate occasions," and "offered her opinion as to her nephew's character."
In an unrelated case, "Judge Hawthorne presided over a jury trial." The jury "rendered a guilty verdict, and assessed a prison sentence of 99 years." The judge then elected to meet "with the jurors to discuss their verdict." In that meeting, the judge told the jurors "Quite frankly, I am disturbed. I am disturbed by the way you came back with such a harsh verdict and sentence for this man's life in such a short time."
She allegedly criticized the jurors, telling them that if she (the judge) had been a juror on the case, "it would have been a hung jury." She allegedly told them she "could not believe that we found the defendant guilty," that they "were extremely harsh," and that they were "too quick to judge the defendant." She also allegedly told them that she "did not believe the victim was raped at all." Judge Hawthorne later denied most of those alleged comments.
The Texas State Commission on Judicial Conduct cited the Texas Code of Judicial Conduct, specifically Canon 2B, 3B(8) and 3B(4). Those provisions are substantially the same as the corresponding sections of the Florida Code of Judicial Conduct.
Canon 2B precludes a judge from lending "the prestige of judicial office to advance private interests." This includes a prohibition on testifying "voluntarily as a character witness." Canon 3B(8) says a judge shall not "initiate, permit, or consider ex parte communications." And, Canon 3B(4) requires that judges "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others."
The Commission found fault with Judge Hawthorne on three points. It concluded she violated the Code by communicating ex-parte with the judge presiding over her nephew's case and testifying on behalf of her nephew. In a more general sense, the Commission concluded that in both instances, she "used the prestige of her judicial office to help resolve her nephew's" case. The Commission concluded also that the Judge's comments to the jury in the second case were also inappropriate, and that she "shamed and reprimanded" the jurors. The Commission therefore publicly reprimanded the judge.
Ex-parte communication is not appropriate. This is discussed in Judicial Behavior and Ex Parte (October 2015) and What is Ex Parte (January 2018). A judge should not communicate with one side of a case; conversely, no party should communicate with the judge, or attempt to, without including all the parties in the communication. The premise is simple, what the judge hears from any party should be heard by all the parties. This is the foundational reason that "notice" is provided for proceedings, so that anyone involved may be present, see Notice is Notice (August 2017).
There are instances of ex-parte communication. Unrepresented parties sometimes send the judge a letter. Judges have to be aware of that, and should immediately alert all the parties when it occurs. Unfortunately, lawyers also sometimes make that mistake, through inadvertence usually. The simple fact is that everyone makes mistakes. But, this is the first case I recall when a judge "forgot" the rules and made ex parte contact with the assigned judge, representing a family member.
Back to the "unspecified rule" the judge believed allowed her to "represent members of her family." It is permissible for a judge to provide uncompensated limited legal services to a family member. Canon 5(G) of the Florida Code of Judicial Conduct specifically addresses this:
G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.
The Texas code is similar or identical. Note that this is a broad prohibition that "shall not practice law," with a specific exception for providing "legal advice" or "review(ing) documents." There appears to be no exception "to represent members" or "advocate on behalf" of the judge's family. The broader exception to "act pro se" might allow a judge to actually represent her/himself in a legal proceeding, a nod to the individual right to personal freedom of expression. However, there appears no provision in the Code allowing a judge to "represent" a family member.
It is unlikely in most workers' compensation proceedings that the jury criticism circumstance would arise (seemingly, only Alabama currently has juries in primary workers' compensation proceedings, though other states have jury trials in their appellate process). But, this disciplinary proceeding is an opportunity to appreciate the broad implications of Canon 3B(4), which requires that judges "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others." It is not the Judge's business to criticize personality or person. The judge may have to criticize evidence, testimony, and conclusions as part of the ruling, but not the person generally.
The Texas judge was found to have been inappropriate with the jurors in the second case, but similar conclusions might be reached if critical or discourteous communication was directed in a workers' compensation proceeding to the parties, witnesses, or lawyers. This prohibition has been cited as impeding communication between judges and lawyers, as lamentably impeding the mentoring that was once prevalent between bench and bar. There was a time when a judge would ask a young lawyer to "stay after" a hearing and we were provided critique and advice. But, that was in private and in the spirit of professional growth and development (mentoring). And, that was done courteously, not harshly (in my experience).
There is no prohibition in this rule on communication with counsel. That communication should not be ex parte (at least while a particular case is pending). But there is no prohibition on communication that is critical or instructive ("perhaps you shouldn't have . . . " or "it might have worked better if you had . . . "). Such communication opens dialogue and perhaps leads to better advocacy (mentoring). The prohibition is that such communication should be "patient, dignified and courteous." Surely, we are all capable of communicating in a "patient, dignified and courteous" manner, even when that communication may be critical, disagreement, or dissent?
Judge Hawthorne's reprimand helps with reminders of the scope of judicial activity. But perhaps its greatest lesson is this last one. Everyone involved in the legal process is entitled (not a word I use frequently or lightly) to patience, dignity, and courtesy. Wouldn't it be a better world if those standards were the guide for us all? If you agree, remember you can impose them on yourself, no rule is required. The very best litigators I have seen in years on the bench are the ones who keep their cool, remain focused on their point or goal, and who treat even the most obsequious witness with dignity and respect. The very best make their point with cool, measured professionalism (and sometimes the adverse witness does not even seem to notice they are helping).
Judges and lawyers can all take a lesson from the reprimand of Judge Hawthorne. And, that is the point of making it public. If we learn from the mistakes of others, we need not make them all ourselves. And, we can all be thankful for a mentor. If you were lucky enough to have one, pick up the phone today and reach out to say thanks. It is the right thing to do when someone helps you.
