Can Judges Compliment Lawyers? The Practical Application of Professional Ethics
The Bencher—March/April 2023
By Wendy L. Patrick, Esquire, PhD
Judges and lawyers often become well-acquainted over the years. In many cases, they are former law school classmates, colleagues, and friends. Therefore, the manner and content of their interactions is subject to professional parameters regarding both optics and topics. Sometimes questions arise as to the boundaries of permissible contact. A recent ethics opinion considers these issues in a bit more detail.
‘Judge, How Did I Do?’ Feedback from the Bench
The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) was asked about the ethics of a judge providing feedback on an attorney’s courtroom performance upon request. The opinion noted that although the California Code of Judicial Ethics does not specifically prohibit judges from providing attorneys with this type of feedback, such discussion should be consistent with applicable judicial canon restrictions. For example, the opinion notes that judges cannot engage in prohibited ex parte communications (canon 3B(7)), create an appearance of favor or bias (canons 1, 2, and 2A), suggest that anyone is in a special position to influence the judge (canon 2B(1)), or engage in “coaching” by giving advice about tactics or strategies (canon 4G).
The opinion also notes that judges who decide to provide feedback to lawyers who appeared before them must wait until final resolution of the case at issue, decline to discuss matters pending before other judges, ensure the nature and tone of their feedback is neutral, and be available to provide feedback to other attorneys representing different interests or viewpoints as well.
Appearances Influence Reality
Opinion 2021-018 cites Advisory Committee commentary following canon 2 and 2A: “The test for the appearance of impropriety is 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.” (italics in original). Accordingly, providing attorney feedback must be done in a fashion that does not create an appearance of impropriety.
The opinion notes that judges are allowed, and sometimes even encouraged, to comment on attorney performance. They give the example of providing letters of recommendation or references in connection with a judicial or other type of application. (Canon 2B(2)(d) and (e).) The opinion also notes that judges may offer attorney feedback in educational settings, including bar association events, Inns of Court meetings, or moot court programs. (Canon 4B.)
The opinion also notes, however, that commenting on an attorney’s courtroom performance in a case before the judges creates the danger of discussing the merits, facts, or status of a particular case. It notes that “[e]ven a seemingly innocuous comment may interfere, intentionally or unintentionally, with one party’s decision-making process or strategy on appeal.” Consequently, the opinion advises judges to “exercise extreme caution” when asked for feedback after a trial or hearing and states that a judge may not comment on attorney performance before final resolution of all possible appeals. (Canon 3B(7).)
A Judge Is Not a Coach
The opinion also addresses coaching from the bench. It notes that the judicial code does not define what constitutes “coaching” but notes that in a previous opinion, the committee advised that judges were permitted to discuss topics such as black letter law, procedures, trial techniques, best practices, and courtroom protocol. (CJEO Formal Opinion 2018-012, supra, at pp. 8–9.) But the committee recognized that it would be impermissible for a judge to offer advice on strategies or topics that benefit a particular side in litigation. (CJEO Formal Opinion 2018-012, supra, at p. 9; Rothman, supra, § 10:16, p. 685.) The opinion also reminds judges that coaching might resemble legal advice in violation of canon 4G, which prohibits judges from practicing law.
The bottom line is that we live in a day and age in which appearances might influence the perception of reality, especially at a time when courts are tasked with deciding a host of divisive issues, including those that are relevant legally, socially, and politically. Both judges and the lawyers who practice before them should strive to preserve both the integrity and optics of our justice system to promote the perception of competence, as well as public confidence.
Wendy L. Patrick, Esquire, PhD, is a San Diego based career trial attorney, behavioral expert, and jury consultant. She is a member of the Louis M. Welsh American Inn of Court. The views and information in this article are written in her personal capacity and do not reflect the views of her employer.