Posted: January 28, 2021
Code of Judicial Conduct – Comment Period Closed March 14, 2021
Terminology. Adds the definition of abusive conduct and amends the definition of judicial candidate to those who are applying for judicial office.
CJC02.3. Bias, Prejudice, and Harassment. AMEND. The amendment applies abusive conduct restrictions to judges.
CJC02.11. Disqualification. AMEND. Clarifies that the restriction on hearing cases applies when the lawyer is a supervisor of the judge’s relative.
CJC02.12. Supervisory Duties. AMEND. The amendment applies abusive conduct restrictions to judge in their supervisory roles.
CJC04.1. Political and Campaign Activities of Judges and Judicial Candidates in General. AMEND. Clarifies that only certain restrictions apply to judicial candidates.
Proposed CJC04.1: I like the changes that have been made since the prior version was issued for comment. I am still concerned that (A)(4) or something like it wouldn’t apply to judicial candidates. I assume a “candidate for public office” includes someone who currently holds office who is standing for reelection. As defined, a “political organization” includes the public office candidate’s campaign organization. If judicial candidates do not have to comply with (A)(4), it seems to me that a judicial candidate would be free to make a substantial contribution to those public officials standing for reelection (or their campaigns) who would be deciding whether the judicial candidate is appointed to the bench (e.g., the governor, state senators, city council members). That scenario would at the very least have the appearance of impropriety. I therefore recommend adding (A)(4) on line 27, requiring a judicial candidate to comply with the prohibition. Another approach might be to require judicial candidates to comply with (A)(4) for public officials in positions to act on the judicial candidate’s appointment. I realize this situation might never arise, but I worry it could be very damaging to the judiciary’s reputation if it did.
Disqualification was denied in a case I handled where an associate at my firm fell within the definition of a “domestic partner” of a person within the third degree of relationship to Judge Shaughnessy, and was then living in the same household as Judge Shaughnessy.
In an October 16, 2020 ruling, Judge Laura S. Scott appeared swayed by opposing counsel’s reliance on Comment 4. It was addressed to the old version of Rule 2.11(A)(2)(c), which existed prior to the May 1, 2020 amendment to Rule 2.11. The redline changes of Rule 2.11 reveal the drafters of the May 1, 2020 amendment failed to update the reference to Rule 2.11(A)(2)(c) in Comment 4 to Rule 2.11(A)(2)(d). This should be done.
Judge Scott also read the 2020 amendment to narrowly address only the specific relationship at issue in State v. Van Huizen, 2019 UT 01, involving “a public law office, the command hierarchy itself is material to the appearance of partiality.” ¶46. Accordingly, she ruled: “Given this context, the precise and narrow meaning of ‘supervisor’ and ‘supervise’ appears to have been intended, i.e., ‘an administrative officer in charge of a business, government, or school unit or operation’ and ‘to be in charge of,’ because these meanings describe the role of the Chief Criminal Deputy in Van Huzien. Specifically, the Chief Criminal Deputy was responsible for a division and all of the lawyers within that division.” (Footnotes omitted.)
She went on to distinguish this from a private law firm setting: “In a law firm, a partner or shareholder may ‘supervise’ an associate in the broader sense of observing and directing the execution of a specific task or project. But simply being a partner or shareholder who gives work to associates (or to others who then give work to associates) does not generally imply being ‘in charge’ of the law firm or the litigation department. Nor does it imply being responsible for the associate’s hiring or firing or overall performance or advancement. Moreover, if merely giving work to another is enough to require disqualification, then rule 2.11(A)(2)(c) arguably applies to any relatives who are employed by a law firm, including paralegals or secretaries or runners because it is not limited to lawyers who are being supervised by a lawyer in the proceeding.” (Footnotes omitted.)
The evidence before her was to the contrary. A senior, supervising shareholder in a private law firm absolutely is implicitly, if not directly, “responsible for the associate’s hiring or firing or overall performance or advancement.” Also, presumably aware of the distinction between partners and associates in Reg’l Sales Agency, Inc. v. Reichert, 830 P.2d 252 (Utah 1992), the drafters of the May 1, 2020 amendment chose the “supervision” language for the amendment rather than language that would have limited the change to public law offices’ command hierarchy.
Judge Scott concluded: “Finally, in addition to being consistent with the supervisory relationship at issue in Van Huizen, this interpretation avoids automatically disqualifying a judge from any case involving a law firm that employs his or her relative within the requisite degree of relationship, regardless of that relative’s job, involvement in the proceeding, or potential to benefit directly or indirectly from the outcome of the proceeding. Such automatic disqualification is contrary to the holding in Reichert and would be an absurd result not called for by the court of appeals’ concerns or the supreme court’s footnote in Van Huizen.” (Footnotes omitted.) In a footnote at the end of this last quote, Judge Scott invited clarification: “It would be extremely helpful if the intent and scope of rule 2.11(A)(2)( c) was clarified because this issue is likely to arise again and the potential consequences of [Defendant’s] interpretation are far reaching.”
My client felt that there was an appearance of bias in the situation. The concern was that the Judge would not want to appear to be favorable to the law firm employing the person within the third degree of relationship, and rule more harshly.
Federal judges with persons within the third degree of relationship at our firm routinely recuse themselves from ALL cases involving our firm. This is the better practice. Regardless, the need for clarification is evident.
My case was Case No. 173900675 in the Third District. I suggest that the memoranda and rulings be reviewed by the Advisory Committee. (Dkt. Nos. 998, 999, 1004, 1008, 1012.)