Outline of the Judicial Ethics Canons

Outline of the Judicial Ethics Canons

John Steele

John Steele, Attorney at Law

2225 E. Bayshore Road; Suite 200

Palo Alto, CA 94303


Judicial Ethics

  1. Canon 1: Independence, Integrity, Impartiality; Avoiding Impropriety and Appearance of Impropriety
  1. A Judge shall uphold and promote the Independence, Integrity, and Impartiality of the judiciary, and shall avoid Impropriety and the Appearance of Impropriety.

a. This is the fundamental ethical norm for judges. Everything they do must be compatible with the independence, integrity, and impartiality of the judicial office.

2. Rule 1.1: Compliance with Law.

3. Rule 1.2: Promoting Confidence in the Judiciary:

a. Judges must expect to be subjected to public scrutiny that would be burdensome if applied to non-judges.

Rule 1.3: Avoiding Abuse of the Prestige of Judicial Office:

a.A judge shall not mention or allude to her office to gain favorable treatment from others.

b.A judge may give a reference or recommendation and may use judicial letterhead to do so, if there is no likelihood that that would be perceived as an attempt to exert pressure.

c.Judges may cooperate with authorities responsible for appointing new judges.

d.If judges write for-profit books, the advertising may not seek to exploit the judge’s office.

  1. Canon 2: Impartiality, Competence, Diligence
  1. A Judge shall perform the duties of the Judicial office Impartially, Competently, and Diligently.
  1. Rule 2.1: Giving Precedence to the Duties of Judicial Office:

a. Judges should promote public understanding and confidence in the judicial system.

  1. Rule 2.2: Impartiality and Fairness:

a.Judge must be objective and open-minded.

b.Must apply the law regardless of whether the judge likes or dislikes the law.

c.Reasonable accommodation for pro se litigants is not an ethics violation.

  1. Rule 2.3: Bias, Prejudice and Harassment:

a.Judge shall not manifest bias or prejudice, including but not limited to bias on the basis of race, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status or political affiliation.

b.Even facial expressions and body language can manifest bias and prejudice.

c.Judge shall not permit court staff to engage in bias or prejudice.

d.Judge shall require lawyers to refrain from bias or prejudice.

e.When legally relevant, the judge may make reference to the factors listed above (e.g., race, gender, etc.).

f.Must not engage in sexual harassment (which includes unwelcome sexual advances, etc.

  1. Rule 2.4: External Influences on Judicial Conduct:

a.Judge shouldnot be swayed by clamor or fear of criticism.

b.Judge shall not permit family, social, political, media, financial, or other interests to influence the judge.

  1. Rule 2.5: Competence, Diligence, and Cooperation:

a.Requires knowledge, skill, thoroughness, and preparation.

b.Must be punctual in presiding and ruling, and must ensure lawyers and court personnel are likewise diligent.

  1. Rule 2.6: Ensuring the Right to be Heard:

a.The right to be heard is an essential component of justice.

b.Encouraging settlement is permitted; coercing settlement is not.

  1. Rule 2.7: Responsibility to Decide:

a. Unless disqualification is required, the judge must hear and decide all assigned matters.

  1. Rule 2.8: Decorum, Demeanor, and Communications with Jurors:

a.Judge shall be patient, dignified, and courteous to everyone involved.

b.Shall not commend or criticize jurors for their verdict except in a court order or opinion.

  1. Rule 2.9: Ex Parte Communications:

a.Ex parte communications are improper, except as for scheduling and other non-substantive matters.

b.Judge may obtain the written advice of a disinterested expert in the law if the judge gives advance notice to the parties and gives them opportunityto object.

c.May discuss matters with other judges or court personnel, but shall not receive factual information or abrogate the judge’s duty to decide the matter.

d.With the consent of the parties, the judge may meet ex parte with parties and their counsel in order to settle matters.

e.Judge may participate in any legally permitted form of ex parte proceeding (e.g., proceedings for temporary restraining orders or preliminary injunctions).

f.If the judge inadvertently receives an ex parte communication, the Judge shall notify the parties and give them an opportunity to respond.

g.A judge shall not make independent investigations of the facts.

h.A judge shall take reasonable steps to ensure that court personnel abide by these principles.

  1. Rule 2.10: Judicial Statements on Pending and Impending Cases:

a.A judge shall not make public statements that affect the outcome or impair the fairness of the proceeding; nor shall the judge make non-public statements that substantially interfere with a fair proceeding.

b.A judge shall not make pledges, promises, or commitments that are inconsistent with the impartial performance of the judicial office.

c.A judge shall reasonably ensure that court personnel abide by these principles.

d.Judges may make public statements in the course of a proceeding, may explain court procedures, and may comment on litigation where the judge is a personal participant.

e.Subject to the above principles, a judge may respond directly or through third parties, to allegations in the media or elsewhere about a judge’s conduct in a matter.

  1. Rule 2.11: Disqualification:

a.A judge shall disqualify himself when the judge’s impartiality might reasonably be questioned.

b.Disqualification events include:

1.Having a personal bias or prejudice concerning a party or lawyer, or having personal knowledge of disputed facts.

2.The judge, judge’s spouse or domestic partner, or any person within the third degree of relationship is:

a.A party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party.

b.A lawyer in the matter.

c.A person with more than a de minimus interest that could be substantially affected by the proceeding.

d.A material witness in the proceeding.

3.The judge, judge’s spouse or domestic partner, child or parent of judge, or member of judge’s immediate household is a party in the proceeding or has an economic interest in the subject matter of the proceeding.

4.The judge knows, or learns through a timely motion, that a party or lawyer or law firm of a party’s lawyer has [within the previous time period of X] made a campaign contribution to the judge in an amount of [$x].

5.The judge made a public statement, other than one made appropriate as part of the judicial proceeding, that appears to commit the judge to a particular ruling.

6.The judge served as a lawyer in the proceeding, or was associated with a lawyer who participated substantially as a lawyer in the matter during that association.

7.Served personally and substantially as a government lawyer concerning the proceeding, or has publicly express in such capacity an opinion concerning the merits of the particular matter in controversy.

8.Was a material witness in the matter.

9.Previously presided as a judge over the matter in another court.

c.A judge shall keep informed about the interests of the judge, spouse or domestic partner, and minor children living in the same household.

d.Except in the cases of disqualifying bias or prejudice and personal knowledge of the disputed facts, a judge may ask the parties and their lawyers if they wish to waive the judge’s disqualification; and if the decision to waiver is made outside the presence of the judge and court personnel; and if the decision is made without coercion by the court; and if the waiver is incorporated into the record of the proceeding; then the court may participate in that matter.

  1. Rule 2.12: Supervisory Duties:

a. Judges must take reasonable steps to supervise subordinates to ensure ethical performance by court personnel.

  1. Rule 2.13: Administrative Appointments:

a. A judge shall make administrative appointments fairly, according to the merits, and without nepotism or favoritism.

  1. Rule 2.14: Disability and Impairment:

a. A judge who believes that the performance of a lawyer or another judge is impaired by drugs, alcohol, or mental or physical illness, shall take appropriate action which may include a confidential referral to an assistance program.

  1. Rule 2.15: Responding to Judicial and Lawyer Misconduct:

a.When a judge learns of facts that call into question the fitness or trustworthiness of another judge or of a lawyer, the judge shall inform the appropriate authority.

b.A judge who learns that another judge or a lawyer has violated the applicable ethical rules shall take appropriate action.

  1. Rule 2.16: Cooperation with Disciplinary Authorities:

a.A judge shall cooperate and be candid with judicial and lawyer disciplinary agencies.

b.A judge shall not retaliate against a person known or suspected to have cooperated with an investigation of a judge or lawyer.

  1. Canon 3: Personal and Extrajudicial Activities

A Judge shall conduct the judge’s personal and extrajudicial activities in a way as to minimize the risk of conflict with the obligations of judicial office.

Rule 3.1: Extrajudicial Activities in General:

  • A judge shall do nothing that interferes with the judicial function, or leads to frequent disqualifications, or undermines the judge’s integrity, independence and impartiality.
  • The judge shall not make use of any of the court’s resources, except for incidental use for activities that concern the legal system or are permitted by law.

Rule 3.2: Appearances before Governmental Bodies and Consultation with Government Officials:

  • Judges may appear voluntarily at public hearings and consultations with executive branch or legislative branch personnel if the matter concerns the law, legal system, or administration of courts, or when the judge is acting pro se for herself/himself, or in a fiduciary capacity.

Rule 3.3: Testifying as Character Witness:

  • A judge may not volunteer to act as a character witness, but if subpoenaed for that purpose the judge may testify.

Rule 3.4: Appointments to Governmental Positions:

  • A judge shall not accept appointment to a governmental position (e.g., board, committee, etc.), unless it pertains to law, the legal system, or the administration of justice.

Rule 3.5: Use of Non-public Information:

  • A judge shall not use non-public information learned through the judicial role, except as permitted within the judicial function.

Rule 3.6: Affiliation with Discriminatory Organizations:

  • A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.
  • Organizations that are not for the purposes of commerce but rather are for preservation of cultural heritage may not be engaging in “invidious” discrimination. (For example, a judge might be able to belong to the “Daughters of Puerto Rico,” a purely cultural club for women of Puerto Rican descent, or to the alumni association of an HBUC (historically black university or college). But membership in an organization like the “Puerto Rican Women’s Business Association” or “African American Realtors Association” is probably improper.)
  • A judge may remain in such a discriminatory organization for a brief period for the purpose of attempting to induce the organization to cease discrimination.
  • A small, purely personal gathering is permitted. For example, a judge may belong to a book club, poker or bridge circle, or similar group that discriminates. But a judge may not belong to a 2,000 member men’s only club that has dining rooms, fitness centers, golf courses, etc.
  • A judge shall not use the benefits or facilities of such an organization. However, a judge’s appearance at an event at such an organization is not an ethical violation when the attendance at such an isolated event cannot reasonably be perceived as an endorsement of the organization’s practices.

Rule 3.7: Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities:

  • A judge may participate in non-discriminatory civic organizations, including planning for fund-raising; soliciting funds, but only from the judge’s family or from judges over whom the soliciting judge has no supervisory power; soliciting membership, but only if the organization is related to law.
  • Judge may accept an award or speak for such an organization, but if the event is for fund-raising the award must be related to law or the administration of justice.
  • Judge may serve as officer or director unless the organization is engaged in proceedings that would ordinarily come before the judge, or is frequently engaged in adversary proceedings in the court of which the judge is a member.

Rule 3.8: Appointments to Fiduciary Positions:

  • A judge shall not accept appointment as a fiduciary unless it is for a family member and provided the appointment will not interfere with the proper exercise of the judicial function.

Rule 3.9: Service as Arbitrator or Mediator:

  • A judge shall not act as mediator or arbitrator except as part of the judge’s official duties.

Rule 3.10: Practice of Law:

  • A judge shall not practice law; provided, however, that a judge may represent herself pro se and may give legal advice or draft documents for family members (without appearing for them in any forum).

Rule 3.11: Financial, Business, or Remunerative Activities:

  • A judge may hold and manage investments of the judge and members of the judge’s family.
  • A judge shall not service as anofficer, director, general partner, or manager of any business. However, a judge may manage and participate in a business closely held by the judge or members of the judge’s family or in a business entity primarily engaged in investments of the financial resources of the judge or members of the judge’s family.

Rule 3.12: Compensation for Extrajudicial Activities:

  • A judge may accept honoraria, stipends, fees, wages, salaries, royalties, etc., provided that the acceptance does not interfere with the judge’s integrity, impartiality, or independence.

Rule 3.13: Acceptance and Reporting of Gifts, Loans, Bequests, Benefits or Other Things of Value:

  • A judge shall not accept any gifts, loans, bequests, benefits or other things of value if acceptance would interfere with the duties of integrity, impartiality, and independence.
  • Many kinds of traditional, minor gifts are permitted, so long as independence, integrity, and impartiality are not affected. Such gifts include plaques; gifts from friends; ordinary social hospitality; prizes, discounts, and rewards that are equally available to the public; scholarships equally available to the public; travel (including spouse or partner) incident to a law related event (e.g., a conference) or to an event by a permitted organization devoted to cultural or education functions.

Rule 3.14: Reimbursement of Expenses and Waivers of Fees or Charges:

  • Judges may accept reasonable costs of travel and waivers of fees for events that are permitted under the judicial canons.
  • In deciding whether attendance is appropriate the judge shall consider whether the sponsor is an accredited educational institution or a bar association (generally OK) or is associated with private parties, or even a single party, who appear in litigation that may come before the judge.
  • Example:A judge may accept travel expenses to attend or speak at a state bar conference on developments in complex litigation, but presumably cannot do the same for a conference sponsored by Acme Chemicals, Inc., regarding the need to deregulate the chemical industry.

Rule 3.15: Reporting Requirements:

  • Judges shall report, as part of a public record, receipt of extra-judicial compensation, fees, etc.
  1. Canon 4: Political or Campaign Activity

1. A Judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Rule 4.1: Political and Campaign Activities of Judges and Judicial Candidates in General:

  • Rule 4.1 is a default rule against most forms of public political participation by judges. Rules 4.2 – 4.5 permit certain kinds of participation, especially in the context of judges who must stand for election.
  • The default rule forbids judges from acting as a leader or officer of a political organization; making speeches on behalf of a political organization; publicly endorsing/opposing candidates for public office; soliciting or contributing funds for a political organization; attending or purchasing tickets for events sponsored by political organizations or candidates for public office; or identifying herself/himself as a candidate of a political organization.
  • This rule applies to court resources and using court staff for the same purposes.

Rule 4.2: Political and Campaign Activities of Candidates for Elective Judicial Office:

  • Candidates for judicial office must preserve the independence, integrity, and impartiality of the judicial function.
  • They shall review advertising and campaign content and shall reasonably ensure that campaign staff act ethically.
  • They may create campaign committees; may announce themselves as candidates; may speak on behalf of their candidacy; may support and oppose candidates for the same office for which they are running; seek and accept endorsements from people and organizations other than a partisan political organization; and may contribute to political organizations and candidates for public office.
  • If the judicial candidate is involved in a “partisan public election,” the candidate may identify himself/herself as a candidate of a political organization, and may seek and accept endorsements of a political organization.

Rule 4.3: Political and Campaign Activities of Candidates for Appointive Judicial Office:

  • May communicate with the appointing authority.
  • May seek endorsement from any person or organization except a partisan political organization.

Rule 4.4: Campaign Committees:

  • The judicial candidate may form and manage a campaign committee.
  • The campaign committee may seek funds and shall comply with all rules of disclosure of finances.

Rule 4.5: Activities of Judges who become Candidates for Non-judicial Office:

  • Upon becoming a candidate for non-judicial elective office, a judge shall resign unless otherwise permitted by law to hold judicial office.
  • Upon becoming a candidate for appointive office, a judge is not required to resign but must comply with the other ethics rules for judges.


© John Steele (2014) No claim is made as to the judicial ethics canons.