Concept
Supervising Staff and Lawyers
Impartiality, fairness, and freedom from bias
Supervising Staff and Lawyers
A judge's duty to avoid bias does not end with the judge's own words. Rule 2.3(B) forbids a judge, in performing judicial duties, to manifest bias or prejudice or to engage in harassment, and it adds that the judge "shall not permit court staff, court officials, or others subject to the judge's direction and control to do so."1 Rule 2.3(C) reaches a second group, the lawyers in the proceeding, and directs the judge to require them to refrain from the same conduct against parties, witnesses, lawyers, or others.2
Both duties follow from the judge's authority over the courtroom. From counsel table, bias voiced by a clerk, a bailiff, or opposing counsel can look like bias the court tolerates, and a judge who hears it and says nothing strengthens that impression. The rule responds by making the judge's tolerance a failure of the judge's own duty.
The two paragraphs use different verbs. Paragraph (B) says the judge shall not permit staff bias, which is a duty of supervision over people the judge already directs. Paragraph (C) says the judge shall require lawyers to refrain, which is a duty to act affirmatively toward people who are not court staff but who appear in the judge's proceeding. The first duty is taken up under court staff and officials, the second under lawyers before the court.
Court Staff and Officials
Rule 2.3(B) first bars the judge from manifesting bias or prejudice, or engaging in harassment, including on grounds such as race, sex, religion, national origin, and ethnicity. Its last clause then extends the ban: the judge "shall not permit court staff, court officials, or others subject to the judge's direction and control to do so."3 The words "to do so" pick up everything the paragraph prohibits. A bailiff, clerk, or other covered person who manifests bias or harasses on a listed ground, or on a similar one, therefore puts the judge's own duty in play.
The clause creates a supervisory duty, and its verb carries the weight. To permit conduct is to be in a position to stop it and to let it continue. The judge answers for tolerating the conduct, not for the employee's words as though the judge had spoken them. The phrase "direction and control" sets the outer limit of the duty.4 A judge cannot end the conduct of someone over whom the judge has no authority, so the rule measures responsibility by the reach of the judge's control and no further.
The rule ties responsibility to control because a litigant does not sort the people in a courtroom by employer. The clerk, the bailiff, the court reporter, and the judge all appear to speak for the court, so a demeaning remark from any of them colors the litigant's view of the whole proceeding. Only the judge can end the remark, and a judge who hears it and lets it stand has permitted it. A judge cannot avoid the duty by pointing out that someone else did the speaking.
State codes echo the supervisory language. In Tipton v. Aaron, a concurring opinion reviewing Arkansas's judicial canons noted that the canon barring a judge from manifesting bias or prejudice by words or conduct also provides that a judge shall not permit court officials or others subject to the judge's direction to do so.5 The concurrence was addressing testimony reflecting racial bias in a custody case, so it shows the supervisory language in a parallel state canon without applying it to the conduct of any bailiff or clerk.
The bailiff's conduct and the judge's knowledge are identical in the two scenes, so the judge's response alone separates them. The first judge's silence let the mockery become part of how the court treated the defendant. The second judge's order, staff instruction, and readiness to escalate show the control the clause expects. If a staff member ignores the first instruction and repeats the remark, a judge who stops at that first rebuke stands where the first judge stood. Both scenes are constructed, since the materials here include no decided case applying the staff clause.
Exam stems on this clause invite two opposite mistakes. One finds a violation merely because someone in the courtroom behaved badly, even though the stem says the judge intervened at once. The other excuses a silent judge because the judge never said anything biased, which overlooks that the clause exists to reach exactly that silence. Ask what the judge did after learning of the conduct. Most stems supply the judge's knowledge by placing the conduct in the judge's hearing. When a stem describes conduct the judge could not have known about, ask whether the judge was in a position to stop it, since the verb "permit" points toward a judge who was.
Lawyers Before the Court
Paragraph (C) of Rule 2.3 moves from the people who work under the judge to the lawyers who appear before the judge. It directs that a judge "shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment" based on attributes that include, but are not limited to, race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, and political affiliation. The protection extends to "parties, witnesses, lawyers, or others."7 Two features of that sentence do the work. The verb is require, which obligates the judge to act toward counsel. The list of protected people is wide, because a lawyer's biased question or remark can land on the opposing party, a witness, opposing counsel, or anyone else in the proceeding. A judge who sits through a lawyer's biased conduct in silence has required nothing.
The duty rests on the judge because of what a lawyer who appeals to prejudice is trying to do. Whether by a question, an insinuation, or an offered piece of evidence, that lawyer is trying to move the factfinder with something other than the merits, and the judge is the one person in the room with authority to stop it. The duty also does not wait for an objection. The person on the receiving end may be a witness with no lawyer, an opposing lawyer reluctant to antagonize the court, or counsel who missed the point. A rule that waited for an objection would leave bias unchecked exactly where its targets were least able to speak.
A concurring opinion in Tipton v. Aaron shows this reasoning at work. In a custody case, the appellee's counsel elicited, without limitation or objection, testimony regarding racial bias, and the concurrence said that testimony would have compelled reversal had a proper objection been raised.8 The concurrence agreed with the majority that the trial court's reliance on what amounted to animosity toward the appellant's interracial marriage and household directly violated Palmore. It located the error in basing the custody decision on that bias, and not merely in allowing the testimony.9
The concurrence then asked what a trial court may do when no one objects. Reasoning that federal law prohibits consideration of private biases in making custody determinations, it concluded that a trial court "is empowered, if not required, to raise the issue on its own." Otherwise, it asked, how could a judge fulfill the judicial canons' duty to be "faithful to the law" and to avoid manifesting bias or prejudice?10 It added that a court proceeding is where one would expect racial bias to be met "immediately and firmly," by objection from counsel and rebuke from the bench.11
The concurrence needs careful handling. It was joined by two other judges, and it applies the Arkansas Code of Judicial Conduct, whose canons require a judge to be faithful to the law, to perform judicial duties without bias or prejudice, and not to manifest bias or prejudice by words or conduct.12 None of the quoted canons is Rule 2.3(C), and the excerpts do not show how the majority treated counsel's conduct. The case therefore illustrates the reasoning behind the Model Code rule: a judge must confront bias that counsel introduces even when no one objects. Its hedged wording, "empowered, if not required," leaves open whether the duty is one of power or of obligation, and the firm rule comes from the mandatory "shall require" of Rule 2.3(C).13
The concurrence also kept the judge's duty apart from the lawyer's. It allowed that counsel may have been obliged to elicit the appellee's own testimony about why the client objected to the appellant receiving custody. It saw no reason to elicit such testimony from each of the other witnesses except to appeal to what counsel or the client hoped would be a similarly prejudiced attitude in the trial judge, and it called that conduct a direct violation of Palmore and arguably unethical under Rule 3.4.14 Rule 2.3(C) governs what the judge must do in the proceeding. Whether a lawyer separately violated the professional-conduct rules is a different question, and the judge's compliance does not depend on whether the lawyer is ever disciplined. The concurrence's line between the appellee's own testimony and the repeated testimony from other witnesses anticipates Rule 2.3(D), which preserves legitimate reference to the listed factors when they are relevant to an issue in the proceeding and is taken up in the next section.15
Two trials in which opposing counsel stays silent show where the answer to a stem on this duty lies.
In both trials the other side stays silent, so the judge's response is the only fact that moves the answer. A stem that stresses the absence of an objection does not describe a judge excused from acting, because the duty attaches to the judge and does not wait for a party to invoke it. The duty is also to bring about restraint, so an instruction that counsel ignores has not yet produced it, and the judge's obligation continues.