French philosopher and author Albert Camus once noted "Integrity has no need of rules." He also noted that "A man without ethics is a wild beast loosed upon this world." And yet, man is an imperfection. Integrity alone is insufficient for some, and to prevent the loosing of a beast rules have come to the fore.
The judicial role involves a handful of challenges and seeks various attributes. Society needs judges who are industrious, dedicated, transparent, timely, and honorable. In our historical evolution, we have found men and women who lacked an attribute or two, and just over 100 years ago a set of rules was promulgated to correct and constrain judicial behavior.
The Code of Judicial Conduct is rules for judges. It was proposed and crafted by lawyers participating in the American Bar Association and was proposed in 1924. The result has survived in various incarnations since. The idea of rules for judges is merely 100 years old, and before them, a nation relied instead on honor. See The History of the Code and Free CLE. For a video tour of the history, see History of United States Judicial Ethics on YouTube (the history is both astounding and educational).
The code is a series of prescriptions and proscriptions, arranged in the modern "code" similar to their organization in the original "canons." Thus, within today's code, there are multiple "canons" used to categorize and organize various thoughts and address concerns. One of the most critical is expressed in an overarching spirit of the Code in "Canon 2. A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities."
Thus, a prohibition not only on acting inappropriately but even on appearing to. Contrary to what your mom may have assured you, what people think of you absolutely matters. This is particularly true if you are a judge.
Another of the critical points of the code is that judges are supposed to be fair, impartial, and unbiased. Failure in these does occur. In one glaring example, such failure is clear: ex parte communication. It is not a new topic, see Judicial Behavior and Ex Parte Communication (October 2015); The Sleuthing Judge (October 2017); What is Ex Parte (January 2018); The Judicial Witness (February 2018); Ex Parte Yet Again (September 2019); A Miserable Example (February 2022); Medical Excuse
(April 2022).
In short, it is inappropriate for a judge to communicate with any party in a case without affording all the parties the same opportunity to be present. This is part of the mandate of due process (essentially this comes down to "notice" and the "opportunity to be heard").
This does not mean process or progress is hamstrung when someone does not show up after getting notice. Frequently, a judge will proceed with a hearing at which only one or some of the parties have appeared. That is not ex parte. That is a noticed hearing to which all were invited and from which some have elected to be absent. Every party has the right to notice and the opportunity, but their election not to be present does not preclude a hearing proceeding.
No, ex parte is a phone call to one party or another. Ex parte is a conversation in the hall. Ex parte is a text to one party providing guidance, advice, or frankly anything beyond "have a nice day," and even that is not necessarily appropriate. There is nothing wrong with "have a nice day," but if someone out of earshot sees the judge speak without hearing the "have a nice day" then there is the potential for an appearance, for misperception, for difficulties.
All judges have to avoid ex parte, and in a broader sense should avoid even the appearance of it. Thus, sitting at a restaurant having dinner with an attorney who appears before a judge might appear to some as facilitating or at least risking such communication. The appearance of such an intimate interaction might be troublesome even if only football and rocket science were actually discussed.
I strive to make it a habit not to speak to attorneys outside of hearings unless there is a group setting. Such a setting, like a bar meeting or similar, is likely to both discourage any inappropriate reference to a case or claim and is generally public and open. Nonetheless, the presence of social lubricants has periodically resulted in challenging settings for judges at receptions, bar association parties, and similar settings. However, inappropriate communications occur periodically at such events, though they are often inadvertent and unintended.
Should intent matter? perhaps. Should the judge's reaction to an inadvertent communication matter? perhaps.
A judge in California was recently "sanctioned for texting (a) prosecutor during (a) murder trial." The Commission on Judicial Performance concluded that Judge Emily Cole behaved inappropriately. With her text, "She attempted to put a thumb on the scales of justice." Her actions "crossed the line from impartial judicial officer to an advocate." She sent a text to a prosecutor questioning trial tactics, and why a rebuttal witness was not called to testify. The investigators concluded the judge's actions were "antithetical to her role as a judge."
Despite not calling the rebuttal witness, the prosecutor secured a guilty verdict. In the end, the party she tried to help neither wanted nor needed her help.
As a side note, lawyers make tactical and challenging decisions throughout the preparation and trial of a case. Those are calculated and strategic. Often, they are right on track, but errors can be made. In the end, only retrospect will make some of them clear. Nonetheless, those decisions are for the party and counsel. It is not the judge's business to second guess such decisions to call or not call this or that witness, to ask or not ask a particular question, to move or a document into evidence. Strategy is the lawyer or parties' right and obligation. Judges must respect that and let them try their case their way.
Judge Cole "was given a public censure, the harshest punishment allowed short of removal from the bench." The investigation into her texting concluded she expressed "inconsistencies in her self-report" of the texting. There is the suggestion that she "downplayed her misconduct" and testified falsely that "both parties had rested their cases" when she sent the text, "when the prosecution hadn't rested its case."
The judge's punishment may be perceived differently depending on perspective. Some will see too little and others perhaps too much. After all, some will mollify, the prosecutor did not follow the judge's recommendation. But, the communication was wrong, followed or not. There will also perhaps be those who see the wrong of the text overshadowed in a Nixonian sense by the testimony that she "downplayed" what had occurred, or misstated the facts. The 1970s yielded the oft-cited "the cover-up is worse than the crime," though the exact source of that quote is unknown.
In the end, the judge has suffered a public discussion of poor judgment, violation of the prohibition on ex parte communication, and newspaper coverage of her infraction (not to mention the expense and distraction of the investigation and defense). The news coverage will persist on the world wide web, likely forever. Anyone googling this judge will perhaps readily come across the reporting of this misstep. For those who see too little in the "censure" punishment, such a public exposition cannot be discounted.
The fact remains, however, that humans are fallible. When such communication occurs, inadvertent or not, the best judicial course is full disclosure. All parties should be immediately informed of the ex parte communication and afforded every chance to ameliorate or cure any resulting prejudice or disadvantage. Such disclosure empowers the parties to evaluate and address her/his/their perceptions of harm or prejudice. It provides foundation for the party to make decisions as to how to best proceed (back to the strategy discussion above).
A judge who has allowed or initiated such communication should give immediate and serious consideration to removing her or himself from the case ("recusal") in order to both contribute to the cure and to encourage public faith and confidence in the judicial process overall. The appearance of impropriety alone is itself troubling, and public perception franlky matters.
The simpler course, obviously, is to neither instigate nor tolerate such ex parte communication. The best course is to follow the Code and simply avoid such communication(s). In a perfect world, the best course is easier to find than in our world. Strive for the simpler course, and then react appropriately when inadvertence or error occurs.
