Lawyers and all judges (except those on the Supreme Court) are not only governed by a Code of Professional Ethics but are also required to take a course in ethics in law school and must earn a certain number of credits taking ethics continuing education courses every year. I thought it would be worthwhile to share some of that knowledge, so that you can have some understanding of what you, as a party to a litigated case, should expect from the judge who decides it.
New Hampshire’s Judicial Code of Ethics is a Rule of the New Hampshire Supreme Court, and it is administered by a Committee on Judicial Conduct, most of whose members are not even lawyers, and who are appointed by the court, the governor, the senate, and the legislature.
As stated in the preamble, the underlying principle is that “Judges should maintain the dignity of judicial office at all times and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.”
From that basic principle, the more particular rules include Rule 2.4, “(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment” and “(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”
It is important to understand that these rules do not only prohibit judges from making decisions based on influences or influencers outside the courtroom, but also from appearing to be involved in activities or relationships that could affect their decisions.
Some of the specific rules which are aimed at preventing this concern gifts or awards that judges are permitted to accept. Rather than stating dollar amounts, Rule 3.13 of the Code directs that “A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”
It then lists items which a judge may accept including “items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards” and “ordinary social hospitality.”
As with most laws, there may be questions about whether a particular item falls within the definition, but it is generally agreed that if there is any question, the wisest course is to refuse a gift, and in New Hampshire during the years that I have practiced, there has never been a reported instance of judges accepting gifts approaching the value of those received by Supreme Court Justice Clarence Thomas which, according to an investigation by the United States Senate Judiciary Committee, totaled nearly $4.2 million over two decades. Neither has there ever been a report of a gift such as the luxury fishing trip to Alaska on a billionaire’s private plane which Supreme Court Justice Samuel Alito accepted.
While complaints about judges are common, including in New Hampshire, these are usually based on rulings by a judge, or the way they manage cases. While most of the time the only basis for the complaint is that the person complaining disagrees with the ruling (and in our adversarial system this of course will be the case for half of all rulings, so the odds of such a complaint are high), there have been instances where the complaint was based on a judge’s conduct. There are rules aimed at ensuring that a judge’s conduct be beyond reproach, including Rule 2.4, quoted above.
In recent decisions applying these rules, a judge was accused of sleeping during court proceedings, and another was accused of making sexist comments; both complaints were found to be justified and the judges in question disciplined. The highest profile cases in recent years were based on accusations that two New Hampshire Supreme Court judges improperly interfered in cases affecting them or their friends.
In the first, Judge Steven Thayer, whose ex-wife appealed a decision in their divorce proceeding, attempted to influence the choice of the judges who would decide the appeal. When this was discovered, he resigned to avoid prosecution.
In the second, Chief Justice David Brock was accused of calling a lower court judge on behalf of a state senator who was influential in passing a law that would increase the salary of state court judges, and who had a case pending before the lower court judge. Although the New Hampshire House of Representatives voted to impeach Judge Brock, the New Hampshire Senate acquitted him.
These cases illustrate the importance of a judicial code of ethics. There is strong support for the enactment of one which will apply to the United States Supreme Court. Anyone who appears before any court should have confidence that the judges of that court are acting ethically and fairly, and it is unfortunate that many question whether that is the case with the highest court in the land.
