2.1 PPT Ethics

1/5/23

New Superior Court Judges:

Judicial Ethics Orientation

Tuesday, January 24, 2023

UNC School of Government

Judge Chris Dillon, Chair

Brittany Pinkham, Executive Director

North Carolina Judicial Standards Commission

About the Judicial Standards Commission

THE JSC TODAY

Ø Article IV of the NC Constitution was amended in 1971 to allow the General

Assembly to adopt an alternative to impeachment

Ø The Judicial Standards Commission was created in 1973 and today maintains

the central features recommended by the Courts Commission:

q Mixed composition of judges, lawyers and citizens appointed by the

three branches of government

q Confidentiality of proceedings until the Supreme Court concludes that

discipline is warranted

q Investigation of complaints alleging violations of the Code of Judicial

Conduct

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THE JSC AND HOW IT WORKS

Ø Who we are – Commission Members and Staff

Ø Review of Complaints

Ø Investigations & Confidentiality

Ø Letters of Caution, Disciplinary Proceedings &

Recommendations

Ø Formal & Informal Advisory Opinions

What Happens if a Statement of Charges

is Filed?

! If a complaint is not dismissed after a formal investigation, a disciplinary

recommendation proceeding is commenced by the filing of a statement of

charges

! It is a confidential proceeding, and remains so unless the Supreme Court imposes

discipline

! You are entitled to a nswer, engage in discove ry, and defend you rself (with o r

without counsel) at a hearing before a DIFFERENT PANEL than the investigative

panel

! At the conclusion of the hearing, the hearing Panel will either dismiss the charges

or issue a RECOMMENDATION OF PUBLIC DISCIPLINE to the Supreme Court, and

you may request a hearing and file briefs before the Court during its review

What Ethics Assistance Can I Receive from the

Commission?

! Formal Advisory Opinions

• Issued by the Commission as a whole and posted on our website and

published in the Appellate Reporter

• Lengthy process of research, review and approval (6-8 months)

• Recent FAOs include tardiness in convening court, questioning pro se

litigants, conflicts of interest

! Informal Advisory Opinions

• Commission staff receives calls and emails from judges around the state

seeking confidential advice on how to proceed in a particular matter

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Judicial Ethics – 3 Core Values

vIndependence

vIntegrity

vImpartiality

CODE OF JUDICIAL CONDUCT: OVERVIEW

u Preamble

u Canons 1-7

u Canons 1 & 2: Ethical duties of judges both on and off the bench

u Canon 3: Ethical duties of judges while undertaking official duties

u Canons 4 & 5: Ethical duties of judges in personal and civic activities

u Canon 6: Gift and income reporting

u Canon 7: Ethical duties of judges when engaged in political conduct

u Statute of Limitations

u Scope Note (Judicial Candidates, New Judges)

PREAMBLE: GOALS OF THE CODE

“An independent and honorable judiciary is

indispensable to justice in our society, and

to this end and in furtherance thereof, this

Code of Judicial Conduct is hereby

established.”

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Canon 1:

A judge should uphold the integrity and independence of

the judiciary.

A judge should participate in

establishing, maintaining,

and enforcing, and should

personally observe,

appropriate standards of

conduct to ensure that the

integrity and independence

of the judiciary shall be

preserved.

Key Points:

• General provisions that apply to a judge’s

conduct on AND off the bench

• Yo ur personal co nd uct must at all times and in

all places, including on social media, be

professional, civil and appropriate

• Yo ur actions refle ct o n the judiciary and can

threaten public confidence in the courts

Canon 2:

A judge should avoid impropriety in all the judge's activities.

Canon 2A

! Ensures conduct of

the judge is lawful at

all times and

promotes public

confidence in the

integrity and

impartiality of the

courts

Canon 2B

! Limits outside

influence on the

judge and abuse of

the prestige of the

office for personal

gain or to help

others

Canon 2C

! Restricts

membership in

discriminatory

organizations

Canon 2A:

“A judge should respect and comply with the law and conduct

himself/herself at all times in a manner that promotes public

confidence in the integrity and impartiality of the courts”

! Key Points: Violations of Canon 2A generally involve:

" Unlawful conduct – examples:

¡ criminal activity (e.g., DWI or more serious crimes)

¡ violation of civil laws and regulations (e.g., sexual harassment and anti-

discrimination laws, other civil regulations and laws; duty to file SEI)

" Conduct that shows a lack of integrity or undermines public confidence in

the impartiality of the courts – examples:

¡ inappropriate commentary on social media

¡ any conduct that involves dishonesty or moral turpitude, including lack

of candor with the Commission during an investigation

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Canon 2B: improper influence & Abuse of

the prestige of the office

! Key Points: Violations of Canon 2B generally involve:

" Outside influence on the judge’s official conduct or judgment – examples:

¡ Family or friends asking for favors, either with criminal or civil cases or in order

to gain any other benefit (e.g., jobs, access)

¡ Making poor decisions in order to please or protect friends and family

" Abuse of the prestige of the office – examples:

¡ Writing recommendations on official letterhead for purposes unrelated to the

judge’s official duties

¡ Improperly invoking the judicial title (“Do you know who I am?”)

¡ Express prohibition on voluntarily testimony as a character witness

Canon 3:

A judge should perform the duties of the judge's office

impartially and diligently.

The judicial duties of a

judge take precedence over

all the judge’s other

activities. The judge’s

judicial duties include all

the duties of the judge’s

office prescribed by law . . .

Canon 3:

A judge should perform the duties of the judge's office

impartially and diligently. impartially and diligently.

Key Points: Canon 3 pertains to how you exercise your official duties:

• Canon 3A –adjudicative duties

• Canon 3B – administrative duties

• Canon 3C & D –disqualification

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Canon 3A: Adjudicative Duties

Key Points: Judges must always strive to:

Ø Be “faithful to the law” and “maintain professional competence in it”

Ø Accord everyone, even pro se litigants, a “full right to be heard”

Ø Decide cases “unswayed by partisan interests, public clamor, or fear of

criticism”

Ø Ensure “order and decorum” in the courtroom and ensure that you, everyone

who appears before you, and everyone you supervise is “patient, dignified and

courteous” at all times, even towards pro se litigants and sovereign citizens

Ø No ex parte communications, unreasonable delays, public comments on

pending cases

COMMON PROBLEMS

! Decisional delay and tardiness to court or adjourning early

! Excessive continuances

! Professionalism on the bench – demeanor and cell phones

! Abuse of the contempt power

! Abuse of other authority in the courtroom

! Failing to give each party a FULL AND FAIR opportunity

to be heard – including pro se parties and sovereign citizens

! Ex parte communications and “telephone justice”

Decisional Delay

•In re Chapman, 371 N.C. 486, 819 S.E.2d

346 (2018)

•In re Henderson, 371 N.C. 45, 812 S.E.2d

826 (2018)

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Habitual tardiness to court

" North Carolina Formal Advisory

Opinion 2017-02: Under what

circumstances can delay in

convening court sessions rise to

the level of a violation of the

Code of Judicial Conduct?

Common Canon 3A(3) problems

Demeanor & Inappropriate Comments

! Patience with pro se parties and

sovereign citizens

! Sarcastic comments

! Abusive comments

! Profanity

! Jokes that no one finds funny except the

judge

Conduct on the bench

! Cell phone use

! Appearing to be asleep

! Wearing unprofessional attire

! Eating lunch

! Animals in the courtroom

! Chewing gum

Why the Restrictions on Ex parte

communications in Canon 3A(4)?

Problems with Ex Parte Communications:

" Undermines Fundamental Fairness

Ø denies the absent party the right to respond and be heard

" Undermines Confidence in the Impartiality of the Judge

Ø creates perception of ability to influence the judge

" Undermines the Adversarial System

Ø Adversarial testing is necessary to vet facts and information

presented to the finder of fact and judge

Ø In ex parte communications, misleading or false information

can be given to the judge without the benefit of adversarial

testing

Ø Jeopardizes search for the truth and justice

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Common scenarios involving ex parte

communications

! Communicating with other judges

! Communicating with attorneys or prosecutors

! Communicating with parties or witnesses

! Communicating with pro se parties

! Communicating with law enforcement

! Communicating on social media

! Conducting independent research

Canon 3B: Administrative Duties

! Key Points:

• Be professional, courteous and collegial with your judicial

colleagues and court staff!

• Pay attention to best practices in judicial administration, including

case management

• Make sure court staff are also professional, courteous and collegial

to each other and members of the public – they should “observe

the standards of fidelity and diligence” that you do

• No favoritism or nepotism in making appointments

• Inherent authority to discipline attorneys

Common Problems: Canon 3B

! Failure to address rude and abusive behavior by employees/court staff

! How to address attorney misconduct

! How to address misconduct of other judges

! Failure to cooperate with the chief judge and other court personnel with

responsibility for fair and efficient court administration

! Lack of collegiality/pettiness

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Canons 3C & 3D:

Disqualification & Remittal

Key Points:

• Yo u have a duty to hear and decide cases assigned to you

– it is what the taxpayers pay you to do

• But, you MUST disqualify yourself from hearing cases

where you have a conflict of interest, or where your

“impartiality may reasonably be questioned”

• Yo u CAN and SHO ULD disqu alify on yo ur own initiative if

you know of potential conflicts

• Yo u can, in lim ited c ircu msta nces, se ek RE MIT TAL

(waiver) of the conflict

Canons 3C & 3D:

Disqualification & Remittal

Common Disqualification Issues:

• Family members who are parties or witnesses

• Family members who are attorneys in the case

• Yo ur prio r involvement in th e case (as an attorn ey)

• Yo ur personal know ledge of fa cts of the case

• Yo u o r your family’s financial interest in the outcom e

• Yo ur personal atto rney is appearin g before you

• Statements you made publicly or on social media that suggest a bias

Common Problems: CANON 3C and 3D

! When to disqualify:

" Former colleagues?

" Family members? Employers of family members?

" Campaign opponents and staff?

" Campaign contributors/endorsers?

" Lawyers helping you with a personal matter?

" Facebook friends?

! How to disqualify:

" On your own motion - when and how much to disclose?

" On motion of a party – when to refer to another judge?

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CONNECTIONS ON SOCIAL MEDIA

Potential issues:

" Disqualification – Canon 3C – can your connections create reasonable

questions as to your impartiality in the case?

" Ex parte communications – Canon 3A(4) – are you communicating online

with the parties about a case?

" Inappropriate personal communications – Canon 1 & 2A - are you

personally observing appropriate standards of conduct so as to ensure

public confidence in the integrity and independence of the courts?

Social media & Disqualification

! Core principles judicial ethics: Impartiality * Integrity * Independence

! Common threats to these values from use of social media:

¡ Judges viewed as biased based on connections or content on

social media

¡ Judges viewed as lacking integrity and honor by undignified or

inappropriate posts

¡ Judges viewed as partisan or mere politicians in robes through

political comments and campaign conduct

CONNECTIONS & DISQUALIFICATION

Canon 3C provides that disqualification is required where your

impartiality could “reasonably” be questioned. Is it

“reasonable” to question impartiality based on:

" Mere social media connection?

" Posting messages on a friend’s wall or page?

" Trying to connect while the party is appearing before you?

" Connection plus contacts outside of social media?

" Attorney or person frequently appears before you?

" Friends or liking organizations that have Facebook pages?

" Lawyer or party is one of only a few “friends” on social media?

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CONNECTIONS & EX PARTE COMMUNICATIONS

! NC Judicial Standards Commission - Public Reprimand by Commission (on consent of the judge):

" Judge was Facebook friends with one of the attorneys appearing before him in a child custody

and child support hearing

" Within days after the hearing, and with the decision pending, Judge read comments that his

attorney “Friend” posted on Facebook about the case and then responded to those

comments about the difficulty in deciding the case; and the attorney then posted that he had

a “wise judge”

" Judge also engaged in independent research about the parties on “Google” in rendering his

decision and read a poem he found on one of the parties’ website in court before announcing

the decision

Canons 4, 5A, 5B:

Regulating Your Extra-Curricular and

Professional Activities

Key points:

• The Code distinguishes between activities as a judge (Canon 4) and those undertaken in your

personal capacity (Canon 5). Most judges are active in their communities and in non-profit

organizations, and this is a good thing!

• Things to avoid in all of these activities:

• Belonging to groups that may cast doubt on your impartiality

• Helping organizations in fundraising activities

• Being involved with groups that often appear before you

• Too m uch t im e s pent o n ou ts id e ac tivit ie s, neglecting your judicial duties

outside Professional Activities – Canon 4

Canon 4 governs a judge’s outside activities in their PROFESSIONAL CAPACITIES: a judge may

engage in “activities concerning the legal, economic, educational, or governmental system, or

the administration of justice.”

" Outside activities limited to those that “do not cast substantial doubt on the judge’s

capacity to decide impartially any issue that may come before the judge”

" Permitted outside activities: speaking, writing, lecturing, appearing at public hearings,

consulting with legislative/executive bodies and officials; serving in leadership roles in

governmental agencies; making recommendations to grant-funding agencies

" Prohibited outside activities: active assistance in fundraising; abusing the prestige of

the office to benefit an organization; anything that undermines public confidence in the

impartiality of the courts

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Expressing your Personal Opinions

on current events or hot issues

Other provisions of the Code of Judicial Conduct also inform how judges can engage

in issues that may be deemed “controversial” or “sensitive”:

• Canon 1: judges must “personally observe” standards of conduct that reflect the integrity and

independence of the judiciary

• Canon 2: judges must “avoid impropriety” in ALL of your activities and conduct yourself “at all

times” in a way that promotes public confidence in the integrity and impartiality of the judiciary

• Canon 3C: disqualification is appropriate where the judge’s impartiality could reasonably be

questioned

Common Issues

GENERALLY RESTRICTED:

! Participation in Marches and Vigils

! Leadership in Advocacy Organizations that Promote the Interests of a Specific Class of Persons

! Showing Public Support for a Particular Class of Persons Likely to Appear in Your Court (think social media,

gofundme, etc.)

PROCEED WITH CAUTION:

! Social Media Use – beware posts that suggest bias in favor of parties or an inability to be fair and impartial

PERMITTED:

! Serving on Task Forces and Community Initiatives

! Consulting with government officials or community stakeholders

! Speaking, writing or lecturing on the impact of a problem on the administration of justice

Canon 5C-5G:

Regulating Financial Activities, Gifts and Outside Income

Things You Can Do:

Ø Manage your own personal

investments and those for

immediate family members

Ø Be a fiduciary for family members

Ø Earn outside income in certain

circumstances, but it may need to

be disclosed annually (disclosure

required over $2000)

Ø Accept most gifts from people not

appearing before you (disclosure

required in some cases)

Things You Can’t Do:

• Be an officer or manager in a for-profit entity business

• Practice law or provide legal advice to ANYONE– even

on a pro bono basis or for family members

• Serve as a fiduciary, executor or trustee for non-family

members – Judge recently SUSPENDED for serving as

executor, collecting fees, and failing to report income

• Accept gifts from parties appearing before you

• Be a mediator or arbitrator, UNLESS you are a retired

emergency judge

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Canon 6:

Outside Income & Annual Reporting

Key Points:

Ø Each year by May 15, you MUST FILE with the appropriate Clerk of Court your Annual Gift and

Income (Canon 6) Report

Ø Describe sources of income in excess of $2000 (e.g., compensation for teaching, rental

income)

Ø Gifts in excess of $500 (unless from family members or for personal occasions)

Ø This is NOT THE SAME as the required SEI form to be filed with the State Ethics

Commission each year

Ø Canon 6 also addresses expense reimbursement – if you receive reimbursement for attending

an event that is MORE THAN THE ACTUAL COST, it can be considered compensation and is

reportable if more than $2000 in excess of costs

Common Problems: Canon 5 and 6

! Failing to disclose outside income on your SEI or Canon 6 Form

! Promoting for-profit business enterprises or service on for-profit boards

! Serving as an executor or fiduciary for a non-family member

! Providing legal advice to family/friends (including advice on how to handle court matters)

! Managing real estate investments (landlord/tenant issues) and disclosing rental income

CANON 7:

PERMISSIBLE POLITICAL CONDUCT

" You MAY:

" Identify yourself as a member of a political party

" Contribute to political PARTIES (not candidates)

" Serve as a political party delegate or political party leader or

officer

" Attend, preside over and speak at political party meetings &

conventions, campaign events including fundraisers for

individual candidates

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CANON 7:

PROHIBITED POLITICAL CONDUCT

" You m ay NOT:

" Endorse other candidates UNLESS you are also a candidate

" Contribute to individual campaigns

" Solicit Donations or Engage in Fundraising for other candidates,

politicians or political organizations, either directly or indirectly

" Misrepresent your own qualifications, and as a general rule consistent

with Canons 1 and 2, the qualifications of other candidates

NOTE: Your spouse a nd other fam ily m embers are permitted to engage in

political activity, but be careful that their conduct is not attributed to you – e.g.,

beware the joint checking account problem in contributions.

CONSTITUTIONAL LIMITS ON REGULATING

POLITICAL CONDUCT

! Protection of First Amendment rights of judges:

" Republican Party of Minnesota v. White (2002): judicial codes of conduct can

violate the First Amendment when regulating campaign speech; applying

strict scrutiny and striking down the restriction on “announcing” views on

disputed legal issues in judicial elections

" Williams-Yulee v. Florida State Bar (2015): even applying strict scrutiny, there

is a compelling state interest embodied in judicial codes of conduct that

restrict judicial candidates from personally soliciting campaign contributions

Common Problems: Political Conduct

! Contributing to campaigns – it is PROHIBITED

! Unprofessional and hyper-partisan attacks on opponents or

elected/public officials

! Unprofessional campaign conduct that undermines confidence in the

judiciary

! Assisting other candidates for elected office

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Thank You

Brittany Pinkham, bpm@coa.nccourts.org

(919) 831-3633