I have an oped on CNN.com explaining why SCOTUS should adopt a Code of Judicial Conduct. Here is the gist:
While Supreme Court justices obviously face the same quandaries and dilemmas as all other judges, they alone have no set rules for resolving, or even addressing, ethics issues.
Members of Congress have repeatedly called on the justices to adopt an ethics code. Most recently, Sen. Chris Murphy, D-Connecticut, and Rep. Louise Slaughter, D-New York, introduced the Supreme Court Ethics Act of 2017, which would give the court six months to "promulgate a code of ethics" based on the Code of Conduct for US Judges already in effect for the lower federal courts, along with any modifications that "the Supreme Court deems appropriate."
[T]he objective of a code would be to set discernible standards for the justices' conduct so that the public could know the norms to which the justices are holding themselves.
The AALS Section on Professional Responsibility invites papers for its program “Professional Responsibility 2018 Works in Progress Workshop” at the AALS Annual Meeting in San Diego. Two papers will be selected from those submitted.
This workshop will be an opportunity to test ideas, work out issues in drafts and interrogate a paper prior to submission. It will pair each work in progress scholar with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. Successful papers should engage with scholarly literature and make a meaningful original contribution to the field or professional responsibility or legal ethics.
Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars focusing their work in the area of professional responsibility and legal ethics. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.
PAPER SUBMISSION PROCEDURE:
Two papers will be selected by the Section’s Executive Committee for presentation at the AALS annual meeting.
There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper MUST be a work in progress and cannot be published at the time of presentation. It may, however have been accepted for publication and be forthcoming.
Please email submissions to Ben Edwards, Associate Professor, University of Nevada, Las Vegas, William S. Boyd School of Law, at firstname.lastname@example.org on or before September 30, 2017. The title of the email submission should read: “Submission – 2018 AALS Section on Professional Responsibility.”
The Virginia Judicial Inquiry and Review Commission (JIRC) has filed a complaint against two retired judges alleging that they violated the state’s judicial ethics code by campaigning against a referendum to relocate the Augusta County courts.
According to news reports, the judges criticized the proposed move in speeches to citizen groups and in newspaper commentaries. They also contributed $5,800 to an anti-courthouse relocation organization. Apparently, the JIRC concluded that opposing relocation of a courthouse violates Canon 5A(3) of the Virginia Code of Judicial Conduct which prohibits judges from engaging in political activity “except in behalf of measures to improve the law, the legal system, or the administration of justice.”
Contrary to the JIRC’s position, judicial ethics advisory committees have concluded that matters of courthouse construction, renovation, and relocation concern the administration of justice and therefore constitute a proper subject of comment by judges. That is why the Washington State Ethics Advisory Committee informed judges that they could speak before Rotary Clubs and issue press releases in support of a bond campaign for a new juvenile court facility. The Arkansas Judicial Ethics Advisory Committee agreed that a judge may take a public position “in favor of, opposed to, or indifferent to” a proposed tax increase to fund a new courthouse and jail. Common sense dictates that judges possess relevant information concerning the need to revamp or abandon court facilities.
Claims of unethical conduct have not been lodged against Chief Judge Thomas, Judge Bea, and Judge Kozinski for their testimony opposing the restructuring of the Ninth Circuit Court of Appeals before a subcommittee of the House Judiciary Committee. There seems to be little difference between federal judges trying to defeat a congressional proposal by presenting their arguments to Congress and C-SPAN, and state judges trying to defeat a referendum by presenting their arguments to the voters.
U.S. District Court for the Southern District of Texas
Diane Ralston, '94
Vice President and General Counsel at FMC Technologies
Doris Rodriguez, '80
Partner, Andrews Kurth Kenyon
YALE L. ROSENBERG MEMORIAL LECTURE
An alumnus of Rice University, Yale L. Rosenberg graduated in 1964 from New York University Law School, where he was a Root-Tilden Scholar. Rosenberg joined the University of Houston Law Center in 1972 to pursue his true calling of teaching after a distinguished career in government. His inspired instruction in Civil Procedure, Federal Jurisdiction, Professional Responsibility, and Jewish Law at the UH Law Center earned him the UH Teaching Excellence Award in 2000. An award-winning scholar, Rosenberg has been called “America’s prophet” for his analysis of the decline of federal habeas corpus. Rosenberg’s successful academic career was matched only by his marriage to Irene Merker Rosenberg. Those who knew Yale and Irene marveled at the great love between them for more than 30 years, as marriage partners, collaborators, and colleagues.
The Yale L. Rosenberg Memorial Fund was established to recognize and foster excellence at the UH Law Center. The endowment is used to fund a student writing prize and to bring distinguished speakers to the UH Law Center.
Yale L. Rosenberg
Professor Renee Knake joined the Law Center faculty in 2016 after serving as the Foster Swift Professor of Legal Ethics and co-director of the Kelley Institute of Ethics and the Legal Profession at Michigan State University College of Law. In 2015, she served as scholar-in-residence at Stanford Law School’s Center on the Legal Profession and as a visiting scholar at the American Bar Foundation. Her expertise and research interests include the First Amendment and the regulation of attorney speech; legal ethics, especially conflicts of interest; access to justice; innovation in the delivery of legal services; and gender and the legal profession.
Knake is an author of the casebook “Professional Responsibility: A Contemporary Approach,” and numerous scholarly articles. Her work has been cited in briefs before the U.S. Supreme Court as well as a range of media including the Wall Street Journal, National Public Radio, Bloomberg Law, and the ABA Journal. From 2014-2016, she served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. Her work on entrepreneurship and innovation in legal services has been recognized by numerous national awards and private grant funding.
Before her academic career, Knake practiced law at Mayer, Brown in Chicago and Hunton & Williams in Richmond, Va., where she specialized in commercial litigation, telecommunications, and labor/employment law. She earned her J.D. from the University of Chicago Law School in 1999.
Prof. Renee Knake
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By now, everyone knows that Fox News contributor Andrew Napolitano was the source behind the recent White House claim that the British intelligence service, known as GCHQ, colluded with President Obama to conduct surveillance of Donald Trump in the midst of the 2016 campaign. The British government has rightly branded the assertion “nonsense,” saying it was “utterly ridiculous and should be ignored.” Napolitano’s scoop was also disavowed by the actual news branch of Fox News itself.
But even as the story is repeatedly debunked, some reporters and commentators continue to refer to its originator as “Judge Napolitano,” which only serves to lend some unwarranted credence to his false report.
It is true that Napolitano once served on the New Jersey Superior Court, but he resigned in 1995 and has not held judicial office since then. Nonetheless, he insists on being addressed as “Judge” and he is said to have demanded that his set on Fox News be designed to resemble a judge’s chambers. His website – which he calls JudgeNap.com – refers to him as “Judge Napolitano” in virtually every paragraph, as does his bio on the Fox News site.
The American Bar Association has cautioned against the exploitation of judicial titles by former judges, noting that it is wrong to use “Judge” or “The Honorable” in connection with law practice. In its Formal Opinion 95-391, the ABA Commission on Ethics and Professional Responsibility noted that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.”
Although the ABA opinion addressed only the use of the honorific in law practice, some states have gone further. The Ohio Rules of Professional Conduct, for example, provide that a former judge may only use the title or honorific if it is preceded by the word “retired” (or “former,” if the judge had been defeated for reelection), and the rule does not limit the restriction to law practice.
Sean Spicer, of course, cited “Judge Andrew Napolitano” when he first introduced the phony story at a press briefing. Fox News, InfoWars, the Daily Caller, and Breitbart, needless to say, always call him by the honorific. But CNN’s Wolf Blitzer also repeatedly refers to “Judge Napolitano” in his television reports, as do other stories on CNN.com. Mainstream news sources such as Business Insider, Real Clear Politics, the Huffington Post, the New York Daily News, and even the Washington Post have also referred to “Judge Napolitano,” and not in quotation marks. In fact, the British GCHQ called him “Judge Napolitano,” even as it called for his ridiculous remarks to be ignored.
Nothing can be done about Napolitano’s insistence on calling himself “judge,” but there is no reason for anyone else to go along with him. Fox News describes Napolitano as its “senior judicial analyst,” and the use of his former title is obviously for the purpose of enhancing his credibility.
To their credit, The New York Times, Politico, The Hill, and other outlets refer only to Mr. Napolitano or Andrew Napolitano. Like everyone else, Napolitano is entitled to his opinion, even when trafficking in absurd conspiracy theories, but we do not need to afford him the respect of an office that he no longer holds.