New Authority
Maryland Judicial Ethics Committee Opinion 2021-10
As we approach the beginning of the third year of the COVID-19 pandemic, it becomes increasingly clear that many of the ethical problems that lawyers and judges face today were nearly unthinkable in the “Before Times.” Rarely before the pandemic would anyone have needed to ask whether a judge may ethically perform a “simulated public marriage ceremony” in the interest of public health. But that is the issue addressed by Maryland Judicial Ethics Committee Opinion 2021-10 (issued June 7, 2021).
One of the most pleasant tasks many judges undertake is officiating marriage ceremonies. In the case of Opinion 2021-10, a former law clerk asked a judge whether the judge would be willing to perform two ceremonies because of the desire not to endanger anyone by having a large gathering amidst the pandemic. The judge was asked to first perform a private marriage ceremony for the former clerk and soon-to-be spouse and then later, when the pandemic was over, perform a public ceremony attended by friends and family. The sticking point for the Ethics Committee was that the second ceremony was to be a “sham” since the couple had asked the judge to keep the first, legally effective ceremony secret so that friends and family would believe that the second, public ceremony was the “real” marriage ceremony.
When asked whether this situation would be unethical, the Maryland Judicial Ethics Committee decided that it was, in fact, a violation of the Maryland Code of Judicial Ethics. The Committee based its decision on several provisions of the Maryland Code (which have been adopted in many states):
Rule 18-100.4(b) provides:
(b) Dignity of Judicial Office. Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.
Rule 18-101.2 provides:
(a) Promoting Public Confidence. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.
(b) Avoiding Perception of Impropriety. A judge shall avoid conduct that would create in reasonable minds a perception of impropriety.
The Committee went on to cite Comment 1 to Rule 18-100.4(b):
Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge.
The Committee also cited Comment (3) to Rule 18-101.2:
Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms.
The Committee also cited a Nebraska Judicial Ethics Advisory Opinion 89-6, which found that a judge could not ethically perform a simulated marriage ceremony. Following the Nebraska committee’s reasoning, the Maryland Ethics Committee concluded that by performing a “sham” ceremony the judge officiating would be perpetuating a fraud on the attendees and, thereby, cause the public to question the integrity of the judiciary:
However, here we conclude, as did the Nebraska Judicial Ethics Advisory Committee, that a judge presiding over a simulated marriage ceremony would violate the Maryland Code of Judicial Conduct. The judge’s presence as the officiant ultimately would give credence to the ceremony and would certainly give the attendees a false impression that the ceremony was official. A judge officiating a sham ceremony could undermine the public’s confidence in the judiciary as an independent and impartial body and would call into question the judge’s integrity. The public must be confident that judges are acting with the highest integrity in all settings.
But there is a significant difference between the factual scenarios presented by the Nebraska and Maryland opinions. The 1989 Nebraska opinion involved a couple that wanted a judge to perform a second, secret, “sham” ceremony for out-of-town friends and family. The 2021 Maryland facts arose from the couple’s concern for the welfare of their friends and family and desire not to expose them to the virus. Certainly, one might argue that the Maryland Judicial Ethics Committee might have considered the context of the request as well as whether any of those who would have attended the second ceremony would have actually questioned the integrity of the judicial system had the judge been permitted to carry out the former clerk’s request in the circumstances. Of course, the Opinion does not disclose what the clerk decided to do. But we may hope the clerk eventually had a joyous wedding.
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