Judicial Ethics for Lawyers and their Clients: What State Ethics Panels Do (and Don't Do)

In the American legal system, more than 30,000 state court judges resolve disputes, after affording both sides an opportunity to be heard. Conduct commissions (also known as ethics panels or ethics committees) maintain formal avenues that address complaints but also supply informal means by which a judge can obtain guidance from commission staff that addresses the specific situations that the judge faces. Think social invitations, letters of recommendation, serving on community boards, and so forth. This is the equivalent of a motorist being able to call the nearest cop shop for permission to make a U-turn at a specific location. Both state commissions and the National Center for State Courts (via its Center for Judicial Ethics) publish a steady but not overwhelming volume of case reports. 

Typical grievances: (a) Your client is dissatisfied with the outcome of a case or rulings the judge makes during the trial. 'The trial judge must have been biased against me.' (b) The trial judge passes a note to the prosecutor: 'Cite  the holding in the X v. Y case to me'. The prosecutor shows the note to defense counsel. (c) A close friend or law partner, now on the bench, has received notice that they is under investigation for judicial misconduct. They reach out for advice. (d) A judge participates in a rally, organized by XYZ, a candidate for executive or legislative office. The judge broadcasts their support for XYZ on social media; their posts prominently feature their title 'Judge So-and-So.' 

The course by Peter Aschenbrenner, attorney, historian, and former United States Magistrate Judge, is designed to supply a basic familiarity with typical grievances that a conduct commission faces. With that in mind, the course seeks to impart an understanding of the resources and expertise that are available to conduct commission staff and commissioners. The course seeks to impart sufficient nuances of commission operations to give lawyers a better idea of how norms of judicial behavior are enforced in the US. 

Learning Objectives:

1. Identify typical grievances that are initially processed by commission staff

2. Avoid the road to disaster, including bar counsel and commission staff who can give (some measure of) advice to judges and their lawyers

3. Discuss how to navigate the ABA Model Code of Judicial Conduct  

4. Describe and understand the general parameters of the penalty phase

5. Identify opportunities for settlement of the case