Can Judges Complement Prosecutors? The Practical Application of Professional Ethics

Contributing Author: Wendy L. Patrick, Deputy District Attorney, San Diego County (CA)

Photo by Conny Schneider on Unsplash

Judges and lawyers often become very well acquainted over the years. In many cases, especially in the case of prosecutors who become judges, they are both former colleagues and friends. So professionally, legally, and ethically, their interaction, both manner and content, is subject to professional parameters regarding both optics and topics. Because both impropriety and it’s appearance are important, questions sometimes arise as to the boundaries of permissible contact, especially when it is arguably related to a case an attorney has before the judge in question. A recent ethics opinion considers these issues in a bit more detail.

“Judge, How Did I Do?” Feedback From the Bench

The 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 Code of Judicial Ethics does not specifically prohibit judges from providing attorneys with feedback on their courtroom performance, any such discussion should be consistent with applicable judicial canon restrictions. For example, the opinion notes that a judge who elects to provide feedback on courtroom performance must remember, among other things, that they 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 to gain an advantage, or by providing legal advice (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. Regarding appearances, the opinion notes that judges must make sure their conduct does not imply they have a special relationship with any attorney or law firm, and they must ensure that any feedback they choose to provide does not provide any attorney with an “inside” advantage.

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, or moot court programs. (Canon 4B.)

Photo by Andreas Kind on Unsplash

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, they 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 they recognize 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 where 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 prosecutors 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 Patrick

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The National District Attorneys Association (NDAA) is the oldest and largest national organization representing state and local prosecutors in the country.

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National District Attorneys Association

The National District Attorneys Association (NDAA) is the oldest and largest national organization representing state and local prosecutors in the country.