Contents
- FEATURE ARTICLE: The Business Interests of Judicial Spouses
- OLD AUTHORITY: A Reminder Re: Judicial Impartiality
- ETHICS & MALPRACTICE RESEARCH TIP: New Articles from The Current Index of Legal Periodicals
- BLAST FROM THE PAST: Charles Dickens’s Cynical View of Legal Ethics
EDITED BY: Professor Mike Hoeflich
PUBLISHED BY: Joseph, Hollander & Craft LLC
October 31, 2022
FEATURE ARTICLE
The Business Interests of Judicial Spouses
Over the past several years an increasing number of commentators have begun to question the propriety of Ginni Thomas’s political and business activities in situations where her husband, United States Supreme Court Justice Clarence Thomas, might be involved in hearing cases related to these interests. The press has begun to follow up on the broader question of whether federal judges should be required to disclose certain business interests of their spouses.1 It has been pointed out that four Supreme Court Justices—Justice Thomas, Justice Amy Coney-Barrett, Justice Ketanji Brown Jackson, and Chief Justice Roberts—have spouses who are lawyers or lobbyists. Most recently, on October 18, 2022, four progressive watchdog groups sent a letter to members of Congress asking them to consider passing legislation that would require all federal judges—not just members of the U.S. Supreme Court—to disclose more extensive information about their spouses’ business interests.
To be clear, the letter does not request changes to the federal rules on judicial recusal. These already exist in 28 U.S.C. §455…
- The journal Politico has reported on this and published several articles on this subject that we used in writing this column, the last of which is available online at https://www.politico.com/news/2022/10/20/judicial-activists-income-judges-spouses-00062670.
OLD AUTHORITY
A Reminder Re: Judicial Impartiality
The media has been full of stories during the past year about high-profile government officials who belong to groups that discriminate or otherwise adhere to doctrines that may lead people to question their impartiality in official activities. This month, rather than offering new authority, we offer a reminder of the rules governing judges’ participation in such groups and organizations.
Kansas Rule of Judicial Conduct 3.6 states:
(A) 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.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.
The Comments to Rule 3.6 state:
[1] A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.
[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.
[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.
[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.
[5] This Rule does not apply to national or state military service.
Missouri Rule 2-3.6 states:
[1] A judge shall not hold membership in any organization that practices invidious discriminatory conduct against any person who is protected by law from discrimination.
[2] A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination. A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule 2-3.6 when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.
The Comments to Rule 2-3.6 read:
[1] A reasonable person standard should be used to determine whether a judge’s membership in the organization creates the perception that the judge’s impartiality, integrity or independence is impaired.
[2] Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.
[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination against any person who is protected by law from discrimination, the judge must resign from the organization unless the organization corrects its practice within six months.
[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule 2-3.6.
[5] This Rule 2-3.6 does not apply to national or state military service.
We live in a time of growing partisanship, increasing political division, and increasing questions about the impartiality of our judicial system. One of the most fundamental concepts underlying our judicial system in this country is that judges are fair and impartial and that every litigant in court is entitled to a fair and impartial hearing and judgment. This places a great burden on judges because it means that they come under scrutiny not only for what they do on the bench, but also in their extra-judicial activities. When judges belong to organizations that inspire questions regarding their impartiality, this is problematic. Deciding what is proper and what is not proper is not always easy. The Comments to both Kansas Rule 3.6(A)(2) and Missouri Rule 2-3.6(A)(2) give some guidance on how to answer this complex question.
Judges are not the only ones who must know Rule 3.2 as adopted in their jurisdictions. Lawyers should also be aware of this rule to protect their clients. Further, lawyers and judges should be able to cite this rule in discussions with the public to reassure them that the judiciary and the legal profession are sensitive to this issue and have taken concrete steps to protect litigants.
ETHICS & MALPRACTICE RESEARCH TIP
New Articles Drawn from The Current Index of Legal Periodicals
1. Sande L. Buhai, Confidential Settlements for Professional Malpractice, 95 St. John’s L. Rev. 31 (2021).
Focusing primarily on legal malpractice, Buhai explores how confidentiality provisions in professional malpractice settlements interact with regulatory reporting requirements.
2. Sybil Dunlop, A Call for Action: How Clients and Judges Can Do More to Address the Legal Profession’s Diversity Problem, 18 U. St. Thomas L.J. 78 (2022).
Dunlops says firm action is not enough to increase diversity; the profession has a collective problem requiring a collective solution.
3. Augustus Calabresi, Machine Lawyering and Artificial Attorneys: Conflicts in Legal Ethics with Complex Computer Algorithms, 34 Geo. J. Legal Ethics 789 (2021).
Calabresi discusses the newest innovations assisting the legal profession and legal professionals’ responsible use of the same.
4. Melinda C. Church, The Ethics of Addiction and Legal Partnership Agreements: How Current Partnership Laws and the Rules of Professional Conduct Fail to Account for the Epidemic of Addiction in the Legal Profession, 34 Geo. J. Legal Ethics 843 (2021).
Church argues that the law—Model Rules, as well as statutory and common law pertaining to partnership—has not yet caught up to the contemporary understanding of addiction as a disease or medical condition, rather than a conscious choice.
5. Andrew Lee, Defense Attorneys at a Dead End: Representing Stateless Terrorist Clients Detained Indefinitely, 34 Geo. J. Legal Ethics 1113 (2021).
Lee considers whether additional limits should be imposed on attorneys representing stateless terrorists detained indefinitely.
6. Mark Lipnicky, The English Roots of American Legal Regulation: An Examination of Early Legal Regulation in Virginia, Massachusetts, and New York, 34 Geo. J. Legal Ethics 1131 (2021).
Lipnicky examines the distinct cultures of the English and American legal professions and how they were influenced by local conditions.
BLAST FROM THE PAST
Charles Dickens’s Cynical View of Legal Ethics
The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.
Charles Dickens, Bleak House 467 (1852), available online.
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