By Charles V. Berwanger
Much has been written about the California Rules of Professional Conduct in this column. There is another set of rules of professional conduct regarding the ethical requirements of judges. A competent lawyer who complies with California Rule of Professional Conduct 1.1 will necessarily understand that the judge before whom appearances are made will also have ethical imperatives and constraints which the judge must follow and which affect the practice of law.
This article is intended to provide an overview of the judicial ethical imperatives and constraints followed by the judicial officers before whom we appear and from whom we seek relief. Our judges, as is true with us as attorneys, are required to know and incorporate ethics rules into their judicial conduct and mindset to guide them in the administration of the justice system and their decision-making.
Fundamental to the Code of Judicial Ethics is Canon 1 entitled “A Judge Shall Uphold The Integrity And Independence Of The Judiciary.” The canon instructs that “an independent, impartial, and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this code are to be construed and applied to further that objective. A judicial decision or administrative act later determined to be incorrect legally is not itself a violation of this code.”
The Advisory Committee Commentary to Canon 1 declares that “deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law and the provisions of this code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violations of this code diminish public confidence in the judiciary and thereby cause injury to the system of government under law.”
Canon 3 B (8)’s Advisory Committee Commentary directs that “the obligation of the judge to dispose of matters promptly and efficiently must not take precedence over the judge’s obligation to dispose of the matters fairly and with patience. For example, when a litigant is self – represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, unavoidable delays, and unnecessary cost.”
Particularly apt, a judge by Canon 3 is directed where he or she “has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting this violation to the appropriate authority.”
Such “misconduct” which requires “appropriate corrective action” may include the violation of Rule of Professional Conduct 1.1 where a lawyer has “intentionally, recklessly, with gross negligence, repeatedly failed to perform legal services with competence”; the violation of Rule 3.3 by “knowingly… [making] a false statement of fact or law to a tribunal or… [failing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or offering “evidence the lawyer knows to be false”; or the violation of Rule 8.4 by engaging “in conduct involving dishonesty, fraud, deceit, reckless or intentional misrepresentation.”
A judge “in enforcing high standards of conduct” may also report to the State Bar where there has been a violation of a Rule of Professional Conduct an attorney’s failure to abide by California Attorney Guidelines of Civility and Professionalism. The Guidelines emphasize treating parties, counsel and courts with civility, professional integrity, candor and cooperation, all of which are “essential to the fair administration of justice and conflict resolution.” Although the Guidelines are not intended to be an independent basis for discipline arguably they may be considered in aggravation of a rule violation.
Knowing your audience will enable you to understand better the imperatives that a judge lives by; and the necessity to abide by the Rules of Professional Conduct.