Duty to Promote Public Confidence

Rule 1.2 is the broadest of the three baseline duties. It provides that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.¹ The sentence joins two obligations that call for different analysis. The first is affirmative, because a judge must behave in ways that build confidence in the courts. The second is a prohibition that covers impropriety, meaning conduct that is itself wrong, and also its appearance, meaning conduct that may be entirely proper yet looks improper to an observer. Exam facts usually press on one clause at a time, so the first task is to decide which clause the facts engage.

Rule 1.2 sits at the center of the Code because of the question it asks. Rule 1.1 asks whether the judge broke the law, and it has nothing to say about a judge whose conduct was lawful but unseemly. Rule 1.2 asks what the conduct does to public confidence, and lawful conduct can damage that confidence as easily as unlawful conduct can. Many of the Code's specific rules also protect one of the three values Rule 1.2 names. Recusal, for example, protects impartiality, since a judge whose impartiality can reasonably be questioned should not try the case.² A judge who breaks such a rule has therefore often failed to promote confidence as well, which is why a charge under a specific rule frequently arrives with a Rule 1.2 charge attached.³

This section moves from the general to the particular. It begins with the affirmative clause and how far it follows a judge, turns to the appearance clause and the test that decides when conduct crosses the line, and ends with a modern setting, the judge's online life.

Acting at All Times

The affirmative clause ties the duty to no place and no role. The phrase at all times carries it with a judge from the bench to the grocery store, and the clause measures conduct by its effect on confidence in the courts, not by whether any law was broken. Rule 1.2 therefore looks at a judge through two lenses, how the judge actually behaves and how that behavior appears to the public, and a disciplinary authority may find that a judge appeared to act improperly without finding that the judge actually did.⁴ State versions of the clause vary in wording. A canon quoted in Williams-Yulee v. Florida Bar directs a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and so names two of the model rule's three values.⁵

The duty has no off switch because of what courts have to work with. Unlike the executive and the legislature, the judiciary has no influence over the sword or the purse and exercises “neither force nor will but merely judgment.” Its authority therefore depends in large measure on the public's willingness to respect and follow its decisions.⁶ The public forms its view of judges from what judges say and do, in court and out of it, so a duty confined to the courtroom would leave most of what the public sees outside the rule. The Supreme Court has accordingly called public perception of judicial integrity “a state interest of the highest order.”⁷ An opinion in Caperton v. A. T. Massey Coal Co. adds that codes of judicial conduct serve to maintain the integrity of the judiciary and the rule of law.⁸ Williams-Yulee and Caperton arose in other settings, judicial campaign fundraising and recusal, and this chapter draws from them only the premise that public confidence in judicial integrity is an interest of the highest order.

The duty reaches first into the courtroom, where it appears as demeanor. The Model Code directs a judge to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, and others encountered in an official capacity.⁹ That directive is no cosmetic duty to be nice, because research shows that litigants judge the legitimacy of a proceeding less by its outcome than by whether they felt fairly treated and given a meaningful chance to be heard.¹⁰ Inattention can send the same signal without a single harsh word. The Nevada Commission on Judicial Discipline removed a judge for sleeping through parts of three trials, observing that “a judge cannot hear matters when a judge is asleep.” The Commission added that one isolated episode of nodding off is bad, but a recurring one is worse, because it conveys indifference to the proceedings, and perceived indifference undermines the duty to act at all times in a manner that promotes public confidence.¹¹

The standard is one of degree, and a judge who shows feeling has not for that reason failed it. Judges are human beings who react to what they witness, and an effort to purge emotion from the bench would be fruitless and counterproductive to the art of adjudication.¹²

The line falls where a display of feeling stops reacting to a case and starts disparaging a participant in it. The Arizona Commission on Judicial Conduct reprimanded a judge who berated the victim as an “idiot” because the victim had recommended against incarcerating the defendant, to whom she was emotionally attached.¹³ The victim had offered a recommendation, and the judge answered it with abuse. Discipline for demeanor most often rests on repeated displays of extreme impatience, verbal abuse, sarcasm, or aberrational conduct, and lawyers who appear before the judge are common targets.¹⁴

Away from the courtroom, the same duty governs what a judge tells the public about cases. When judges share their views on pending cases outside the courtroom, the prevailing concern is that they can appear to take sides prematurely, or to be overly invested in the proceeding, to the detriment of their real and perceived impartiality.¹⁵ Judges have been disciplined for giving reporters criticism of a party's discovery request and for holding “off the record” conversations with a reporter in the midst of a murder trial.¹⁶ Calling a conversation off the record protects nothing, since a judge who confers privately with a reporter midway through a murder trial already looks invested in the outcome. The same remarks can support a charge under a more specific rule, a charge under Rule 1.2, or both.¹⁷

The pull to speak is strongest when a judge believes a ruling has been misunderstood or the press has treated the court unfairly. Courts have declined to sanction judges for answering their critics in pending cases, but those decisions remain exceptional, and a judge should not plan around them.¹⁸

Appearance of Impropriety

Rule 1.2 closes with a command that reaches past wrongdoing: a judge shall avoid impropriety and the appearance of impropriety.²¹ A rule built on how things look invites the worry that a judge could be disciplined for looking bad and nothing more. The comment to Rule 1.2 answers that worry with a test: whether the conduct would create in reasonable minds a perception that the judge violated the Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.²²

Two features of that test do the work. The observer is a reasonable one, so the question is what reasonable minds would perceive, and the judge's private view of the situation does not set the answer. The perception must also concern one of four named qualities: honesty, impartiality, temperament, or fitness to serve. That second feature tethers the appearance clause to the “act at all times” clause, which has drawn considerably less controversy, and it keeps Rule 1.2 from reaching a judge who merely “looks bad” in arbitrary or undefined ways. An actionable appearance arises when reasonable people would conclude that the judge acted in ways that cast doubt on the judge's allegiance to the Code and the core values it embodies, to the detriment of public confidence in the courts.²³

The objective standard is not peculiar to the Model Code. The same Caperton opinion observed that almost every State had adopted the American Bar Association's objective standard that a judge shall avoid impropriety and the appearance of impropriety. It also described the 2004 Model Code's version of the test as asking whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.²⁴ The wording differs from the current comment, but both versions measure conduct by what reasonable minds would perceive.

The standard is objective because of what Rule 1.2 protects. Public confidence forms in the minds of observers who can see what a judge does and cannot see what the judge intends. A test that asked whether the judge sincerely believed in his own fairness would let an honest denial answer every complaint, and the biases that impartiality guards against are the ones a judge may fail to notice in himself. A West Virginia canon discussed in the same opinion makes the point for disqualification: the question “focuses on whether an objective assessment of the judge's conduct produces a reasonable question about impartiality, not on the judge's subjective perception of the ability to act fairly.”²⁵

Justice Frankfurter, writing for the Court, stated the underlying principle in one sentence: “justice must satisfy the appearance of justice.”²⁶ The recusal responsibility puts that principle to work. A judge must step aside whenever the judge believes his impartiality can reasonably be questioned, and because the concern is the objective appearance, the obligation reaches beyond actual bias. Where the jurisdiction also lets a party assert the point, the basis for questioning whether a particular judge may try a particular case is broader still.²⁷ In Liljeberg v. Health Services Acquisition Corp., a judge who sat as a university trustee presided over a case involving a hospital with which the university was dealing, and the decision is the standard illustration that a judge's own lack of awareness of such a connection does not by itself cure the appearance problem.

Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority shows the gap between appearance and effect. An agency decisionmaker named Applewhaite had a private dinner during deliberations with Shanker, a prominent labor official who had been vocal in his partisanship of PATCO's cause and who sat on the Executive Board of a powerful labor organization that was amicus curiae in the case.²⁸ Judge Vittone determined, and the parties substantially agreed, that the dinner had no impact on Applewhaite's ultimate vote, and the concurring judge agreed that a remand was therefore unnecessary.²⁹ That judge still refused to accept that the dinner was, by itself, not improper. The concurring opinion asked whether the public could really be expected to believe in the fairness and neutrality of the agency's adjudicatory processes when a decisionmaker lets an outspoken, highly visible official of a participating union wine and dine him during deliberations.³⁰ The opinion is a concurrence in an administrative case, so it is persuasive commentary and not a holding on judicial discipline. Its point still carries over: the appearance clause does not wait for proof that a vote changed, because an observer who cannot believe in the neutrality of decisionmakers has less reason to accept their decisions.

The disciplinary cases show conduct that fails the test. In re Blackman, a judge attended a party of about 200 guests hosted by a long-standing acquaintance who had recently been convicted of racketeering, and the judge was disciplined for failing to avoid the appearance of impropriety. The occasion was a public one, and reasonable observers could read a sitting judge's presence at it as comfort with a person just convicted of a serious crime. That reading bears on how the judge will treat similar people in court, which is a perception about impartiality.

A private relationship that stays private sits nearer the other side of the line. Matter of Dalessandro, an older decision, involved a judge's private extramarital relationship that did not exploit the judicial position and was not open or inappropriate. The decision treats conduct outside a judge's official capacity as sanctionable only when it exploits the position or is open and inappropriate. The facts that moved the answer were visibility and connection to the office: Blackman put the judge in public view beside a convicted racketeer, while Dalessandro gave observers nothing to see and nothing that tied the judgeship to the conduct. Because Dalessandro is old, it marks the outer edge of the test and offers no safe harbor for private conduct. The current test asks what reasonable minds would perceive about honesty, impartiality, temperament, or fitness.

Media interviews during a pending case show the test operating on a judge's own words. In United States v. Microsoft Corp., a trial judge gave private interviews to selected reporters before entering final judgment, and the D.C. Circuit ordered his disqualification. In Ligon v. City of New York, a challenge to the New York Police Department's stop-and-frisk policy, Judge Shira A. Scheindlin gave media interviews and public statements while the case was pending, and the Second Circuit reassigned the case to a different judge. The court explained that “interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge's impartiality.”³¹

The two cases differ in secrecy and in motive. The Microsoft judge spoke privately with chosen reporters, while the Ligon judge spoke publicly and meant to answer critics. The results converge because the test never asks why the judge spoke or whether the judge thought the remarks harmless. It asks what a reasonable observer would conclude about impartiality from the remarks themselves, so a defensive motive earns no protection when the words suggest a leaning.

Rule 1.2 exempts nothing that happens on a screen. The phrase at all times carries the duty into a judge's online life, and the appearance test asks the same question there as anywhere else: what would reasonable minds perceive?³⁴

The Texas State Commission on Judicial Conduct applied that test to a judge's Facebook posts about a trial she was hearing. Confronted about them, the judge said she had posted to promote “transparency” and to “encourage individuals to come watch the proceedings.” The Commission was unconvinced. It found the posts inconsistent with the proper performance of her duties, because they cast reasonable doubt on her impartiality and violated her own admonition to jurors.³⁵ Her social media activity had already led to her recusal from the case, and the Commission publicly admonished her and required additional instruction on the proper and ethical use of social media.³⁶

Her purpose did not save the posts, because the Commission measured them by what they conveyed about her impartiality. A judge who admonishes jurors and then disregards the admonition in her own posts looks like someone who has exempted herself from the rule she imposed on them.

The episode did not end there. She appealed to a Special Court of Review, which exonerated her after a two-day trial, yet she had borne the cost of defending herself and had seen her reputation, at least temporarily, impugned for her use of Facebook.³⁷ The Commission's analysis shows how the appearance test applies to online posts, and the exoneration is a reminder that it is one tribunal's analysis and not a settled rule.

A post about a pending case carries the same risk as a remark to a reporter. Judges who share their views on pending cases outside the courtroom can appear to take sides prematurely, and a public post reaches an audience as surely as a conversation with the press.³⁸

A judge's online connection with a lawyer raises a different question, because the judge has said nothing about any matter and the issue is what the link itself suggests. Most jurisdictions permit judges to interact with attorneys through social media, and the sharp split concerns attorneys who have a case before the judge or will appear there.³⁹ Jurisdictions take four approaches:

Massachusetts and Oklahoma ban judges from interacting on social media with attorneys who appear before them, out of fear that a judge may favor one attorney or that people may perceive a potential for favoritism. The Massachusetts Committee on Judicial Ethics reasons that “friending” attorneys on social networking sites creates the impression that those attorneys are in a special position to influence the judge.⁴⁰
Kentucky, Maryland, New York, and Ohio permit the interaction but instruct judges that such relationships may become problematic, and New York, for one, warns judges of the risks.⁴¹
California permits a judge to friend an attorney who appears before the judge only if that attorney has no active case before that judge.⁴²
South Carolina and Tennessee permit judges to use social media but have neither prohibited nor allowed friending the attorneys who appear before them.⁴³

In a 2013 advisory opinion, the ABA's Standing Committee on Ethics and Professional Responsibility took the permissive view: it is ethical for judges to use social media and to friend attorneys, so long as they adhere to the judicial conduct rules.⁴⁴ The Florida Supreme Court has also taken a permissive course, holding in Herssein v. United Automobile Insurance Co. that a Facebook friendship with an attorney who appears before the judge does not, without more, require disqualification.

The bans, the warnings, and the permissive rulings answer one question in different ways: what would a reasonable observer conclude about the judge's impartiality from a visible online link to a lawyer? That is the appearance test from the previous subsection applied to a new medium.⁴⁵ The Massachusetts view treats the link itself as suggesting special influence, and the permissive jurisdictions leave room for the link to be harmless. An exam answer should identify what the judge did online, name the concern it raises, apply the reasonable-observer test, and take the jurisdiction's own position on friending as the starting point.