Judges And Legal Practice: Exploring The Boundaries

A judge's personal and extrajudicial activities must be conducted in a way that minimises the risk of conflict with the obligations of their judicial office. While a judge may engage in extrajudicial activities, there are certain limitations. For example, a judge must not participate in activities that interfere with their judicial duties or undermine their independence, integrity, or impartiality. In the United States, a judge is prohibited from practising law, except in the case of military service.

Judges can practice law as part of military service

In the United States, the general consensus is that the roles of jurist and advocate are incompatible, and the fairness and legitimacy of the court system require maintaining clear boundaries between the two roles. As such, an essential feature of every state's judicial conduct code is a prohibition on the practice of law by judges.

However, there are exceptions to this prohibition, as many states have carved out exceptions to allow part-time judges to practice law. Additionally, some states have different stances on whether a sitting judge can practice law and serve as an advocate in the Judge Advocate General's Corps (JAG Corps). The JAG Corps is a government law organization that acts as a military lawyer, providing legal advice and services to the Army and its soldiers in all military matters.

For example, Illinois has taken the position that the supremacy clause of the US Constitution does not allow the state to restrict the scope of military assignments by its ethics rules. In contrast, West Virginia has advised that a lawyer seeking to serve as a judge cannot serve as a JAG officer. Alaska has a similar stance to Illinois, allowing judges to serve as National Guard judge advocates as long as their role does not resemble that of civilian attorneys for military members.

Furthermore, some states have explicitly exempted military service as an exception to the prohibition on judges practicing law. This allows judges to fulfill their military obligations and serve as advocates as part of the JAG Corps. These judges can leverage their law degrees and provide legal expertise to the Army's overseas missions, including intelligence activities, security assistance, and contract disputes.

Therefore, while there is no uniform answer, it is evident that judges can practice law as part of their military service in certain states within the United States, depending on the specific circumstances and the state's governing Codes of Judicial Conduct.

Judges can give unpaid legal advice to family members

While judges are prohibited from practising law under the California Constitution and Code of Judicial Ethics, they may give unpaid legal advice to family members. This is also the case in Missouri, where the Supreme Court Rule 2-3.10 Practice of Law states that a "judge may [...] without compensation, give legal advice to and draft or review documents for a member of the judge's family".

In California, the Ethics Committee advises that judges may not provide advice that would cause a reasonable person to question the judge's independence or integrity. They may, however, give general legal information, provide statements of law, explain court procedures and court rules, and give guidance about legal requirements. Judges are also able to serve as an executor, administrator, trustee, guardian, attorney-in-fact, or other fiduciary or personal representative of a family member, so long as this does not interfere with their judicial duties or come before them or their court or appellate district.

In the United States, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of their family. They may also participate in civic and charitable activities, serving as an officer, director, trustee, or non-legal advisor of a nonprofit civic, charitable, educational, religious, or social organisation. However, they should not serve if the organisation will be engaged in proceedings that would ordinarily come before the judge or be regularly engaged in adversary proceedings in any court.

Judges must be careful not to use their judicial position or title to gain advantage in litigation involving a friend or family member. They should also be sensitive to the possible abuse of the prestige of office and not use it to advance their personal or family interests.

Judges must not advance their personal interests

The Code of Conduct for United States Judges includes ethical canons that apply to federal judges and provides guidance on their performance of official duties and engagement in a variety of outside activities. An independent and honorable judiciary is indispensable to justice in our society. Judges should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

The Code of Conduct for United States Judges states that a judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use their judicial position or title to gain advantage in litigation involving a friend or a member of their family. In contracts for the publication of a judge's writings, a judge should retain control over the advertising to avoid exploitation of their office. A judge should be sensitive to possible abuse of the prestige of office.

A judge should not initiate communications with a sentencing judge, a probation officer, or a corrections officer but may provide information to such persons in response to a formal request. Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration and by responding to official inquiries concerning a person being considered for a judgeship.

A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behavior. A judge must avoid all impropriety and the appearance of impropriety.

Judges can participate in fundraising for legal organisations

While judges are prohibited from practising law, they can participate in fundraising for legal organisations. However, there are strict limitations on their participation in fundraising activities. Judges are prohibited from personally soliciting funds or participating in other fundraising activities. They are also not allowed to use their judicial position to advance their personal or economic interests or those of others. Judges may assist organisations in planning fundraising events and participate in the management and investment of the organisation's funds. They may also attend fundraising events, but they cannot be a speaker or the guest of honour, except at events held by bar associations, law schools or court employee organisations.

In the context of legal practice, judges must uphold the highest standards of ethics and integrity. Practising law while serving as a judge could create conflicts of interest and compromise the impartiality expected of the judiciary. However, fundraising for legal organisations can be permissible within the boundaries set by judicial conduct guidelines.

It is important to note that the rules regarding judicial conduct may vary across different jurisdictions. While the provided information offers a general overview, specific regulations can differ based on the region or country in question. Therefore, it is always advisable to refer to the specific guidelines governing the conduct of judges in a particular area.

In summary, while judges are restricted from practising law and have limitations on their fundraising activities, they can ethically support legal organisations within the defined ethical boundaries. These boundaries ensure that judges maintain their impartiality and integrity while also contributing to the advancement of the legal profession and the administration of justice.

Judges must not demean individuals based on identity characteristics

While a judge may practice law as part of their military service, they must not demean individuals based on identity characteristics. This includes characteristics such as gender, race, and nationality. Research has shown that a judge's personal characteristics and social identity can influence the choices they make, and it is important for judges to maintain a calm and impartial demeanor. Self-regulation is key, as judges must refrain from expressing emotions that may be deemed inappropriate, such as impatience or amusement. Judges should also be mindful of their extrajudicial activities and ensure that they do not interfere with their judicial duties or undermine their independence, integrity, or impartiality.

The Indiana Code of Judicial Conduct states that judges should conduct their personal and extrajudicial activities to minimize the risk of conflict with their judicial obligations. This means that judges must be cautious and aware of how their personal characteristics and social identities may impact their decisions. By understanding the potential influence of these factors, judges can strive to make fair and impartial rulings.

Additionally, the concept of judicial temperament comes into play. Judicial temperament refers to the psychological construct of a judge's emotional habits and how they react to and cope with different situations. While a judge's temperament may evolve slightly throughout their career, it is generally stable and influenced by their life experiences. Understanding their temperament can help judges manage their emotions and behaviors effectively, ensuring they uphold the dignity of individuals appearing before them.

In conclusion, judges must be vigilant in ensuring that they do not demean individuals based on identity characteristics. By being mindful of their personal characteristics, social identities, and emotional habits, judges can strive to maintain impartiality and treat all individuals with respect and fairness, adhering to the ethical standards of the judicial office.

Frequently asked questions