Wendy L. Patrick
Wendy is a California lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed here are her own, and do not reflect that of her employer. This article does not constitute legal advice.
Becoming a judge is an exciting new chapter in a legal practitioner’s career, but also one that involves significant change. It is both an honor and a privilege to serve on the bench, understanding the need to give up your clients. But do you also need to give up your friends?
From seasonal events, to annual celebrations, judges and lawyers mix and mingle. There is nothing per se that prohibits triers of fact from engaging with their community. But should you invite a black robed ex-colleague to attend an event celebrating your firm? A new judicial ethics opinion provides some guidance.
Judges in our midst
“How was the party?” asks a partner who wasn’t able to attend the merriment. “Great!” a co-worker reports, “Judge so-and-so was there.” Truth be told, judicial guests are often the first sightings to be reported, lending status and credibility to the event. No doubt judges enjoy catching up with old friends just as much as their ex-colleagues enjoy seeing them. Such commingling is definitely enjoyable. But is it ethical? A new ethics opinion helps define the ethical parameters of socializing with lawyers.
CJEO Formal Opinion 2023-024 examined the propriety of accepting invitations to law firm celebrations. Specifically, the Committee on Judicial Ethics Opinions weighed in on whether a judicial officer is ethically able to accept an invitation received from a for-profit law firm to attend its 50th anniversary celebration, which is fully hosted, and scheduled to take place at the law firm’s offices. The committee advised that the answer was no, as accepting such an invitation could likely violate several Judicial Canons. These include prohibitions against suggesting bias or that anyone holds a special position of influence (Canons 2, 2A, and 2B(1)), lending judicial prestige to advance someone’s personal or pecuniary or interests (Canon 2B(2)), and the prohibition against accepting gifts, absent certain exceptions (Canon 4D(6)).
The opinion notes there are exceptions to this general advice, such as a judicial officer attending the celebration of a law firm with which the judicial officer has a preexisting relationship that warrants disqualification, assuming his or her attendance is otherwise ethically permissible.
Appearances in and out of the Courtroom
Canon 2 mandates that a judge “shall avoid impropriety and the appearance of impropriety in all of the judge’s activities,” while Canon 2A states in pertinent part that a judge “shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Advisory Committee commentary following Canon 2 and 2A: explains the test for the appearance of impropriety as “whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act with integrity, impartiality, and competence.” As a practical matter, it is usually the appearance of impropriety that judges need to focus on, as most would not actually be compromised as a result of socializing with ex-colleagues. But appearances influence reality.
Canon 2B(1) states, “A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment, nor shall a judge convey or permit others to convey the impression that any individual is in a special position to influence the judge.” Here too, the language about “conveying the impression” reveals the reality of perception being one of the main issues. Concern over appearances is also implicit within the language of Canon 4A: “A judge shall conduct all of the judge’s extrajudicial activities so that they do not … (1) cast reasonable doubt on the judge’s capacity to act impartially … or (4) lead to frequent disqualification of the judge.”
Another issue is whether a hosted law firm anniversary party is a gift the judge is ethically able to accept. Canon 4D(5) states that: “Under no circumstance shall a judge accept a gift, bequest, or favor if the donor is a party whose interests have come or are reasonably likely to come before the judge. …” True, there are permissible gifts for judges, as listed in Canon 4D(6), one of which is “ordinary social hospitality,” a category for which the Opinion contained some helpful analysis. They note that the focus is whether an activity is primarily social or business-oriented, and law firm celebrations are typically “[e]vents which, at their essence, involve a business purpose” and thus do not fall within the common meaning of “social hospitality.”
From Bar to Bench: social safe space
Given the Canon’s proscriptions on activity or associations that may call impartiality into question, where can judges socialize within the legal community? One safe space is bar association functions. Opinion 2023-024 footnote 2 notes that a law firm celebration is distinct from a bar association function or a legal education event sponsored by a law firm, in that those activities “do not generally undermine judicial impartiality.” This is reflected in the abundance of “Bench-Bar” events within our legal community, as well as special interest legal events that routinely have an abundance of jurists in the audience.
Bottom line: becoming a judge doesn’t require trading in dear friends for a black robe. It just means understanding how ethics rules mandate a new approach to existing relationships. Familiarity with Judicial Canons and Opinions as well as the underlying rationale allow judges to make smart decisions on and off the bench, and socialize responsibly.