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The Judicial Canons: Living Under the Code of Ethics

By Hon. David Gersten, Chief Judge, Florida Third District Court of Appeal, Miami, Florida

5/13/2008

Judges are different, and it is not just because we wear black robes. Often, we do not have the same rights and privileges as other United States citizens. We must avoid certain activities which others may do without hesitation. For example, we must generally be circumspect in expressing our political views in public. Something as harmless as contributing to a candidate’s political campaign, or attaching a bumper sticker in favor of a cause to a family car, can cause problems for a judge.

Judges also must consider their social relationships. As with most professions, attorneys frequently fraternize or socialize with their colleagues. As judges, however, we are often forced to isolate ourselves, especially from those attorneys practicing before our court. Therefore, inevitably, our once large circle of friends shrinks.

Judges must take to heart the proverb “Think before you speak.” A non-judge’s totally inoffensive joke may be offensive coming from a judge. Again, this may be problematic. Instead, we have to be ever so careful about how we are perceived by the public.
Yet, we chose to be judges. For some, it was a result of the election process. We pressed the flesh, raised money, preached justice on the stump, and in general groveled for votes. Others became judges through the appointment process. The appointment process dealt with a different type of politics. This type of politics involved more of the backroom, deal making, non-responsive to the public’s needs, and the good ole’ boys “wink of an eye,” kind of politics.

Regardless of how we became judges, we became second-class citizens. Upon attaining our judgeship, we became subject to a higher level of ethics: the Judicial Canons. The Judicial Canons often foreclose us from saying what we want to say and doing what we want to do. Sometimes, the Judicial Canons make us feel like we are constrained and removed from the rest of society—living in a glass house.

Because the Judicial Canons are intended to establish standards for judges’ ethical conduct, we must follow them. The Judicial Canons are considered rules of reason that guide judges and candidates for judicial office, while at the same time providing a structure for regulating conduct through disciplinary agencies. Judges should apply these Canons consistently with constitutional requirements, statutory or regulatory provisions, and case law.

Although extremely important, the Judicial Canons are not intended as an exhaustive guide for judicial conduct. As an adjunct, judges should also use general ethical standards to guide their actions. By incorporating the Judicial Canons and general ethics, judges can devise a system to self-test whether an action is ethical. A simple, yet effective self-test is the “smell test.”

Simply put, the smell test involves questions which a judge should ask himself or herself when faced with any ethical situation. For example, consider this ethical scenario: you have been invited to be the keynote speaker at your state’s annual Ku Klux Klan banquet. To determine whether your decision to speak at this dinner is ethical, ask yourself these questions: If I speak at this dinner, will I be able to look at myself in the mirror? Will I mind if my speaking engagement gets printed in the newspaper, broadcasted on television, the radio, or all over the internet? Would I tell my mother that I was speaking at this event? If the answer is no, to any of these simple questions, then you know, no matter how much you try to rationalize it, the conduct is not ethical for a judge. Hence, it just does not smell right.

Without doubt, judicial ethics can be tricky. Judges must always be on their guard to avoid misconduct which may jeopardize their judicial careers. Do you remember the Kansas judge accused of viewing internet pornography from his office computer or the Florida judge caught smoking marijuana in a public park? Clearly, these judges have forgotten to abide by the Judicial Canons, general ethical standards, and the simple “smell test.” Misconduct can result in sanctions. Sanctions may include having the judges removed from the bench, forcing them to take a leave of absence, or even disbarment for their unethical conduct.
Do not get caught in a difficult ethical situation without having the tools to make the ethical decision. By taking our online Ethics course, you will learn by example how to avoid many of the problems that our colleagues may have faced at some time in their judicial careers.

Remember, if one judge strays from the Judicial Canons and engages in inappropriate and unethical conduct, it negatively impacts the public’s perception of the entire judicial system. It is our responsibility, each and everyone one of us, to uphold the integrity of the judicial system. If you agree, sign up for the National Judicial College’s online course called Ethics, Bias, and Judging: Reaching Higher Ground, a Web-Based course, being held July 7 through August 22, 2008. Another online course for ALJ's is Ethics, Bias, and the Administrative law Judge: A Web-Based Course being held September 22-November 6, 2008.