OCBA ZOOM Meeting On August 5, 2021 Provides Some Nice Guidance.
On August 5, 2021, Justice Richard Fybel provided a symposium for lawyers and judges on how California judges (and lawyers, for the matter) should ethically guide themselves, both in court and out of court, under the California Code/Canon of Ethics. Here are the highlights:
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- The Code of Ethics are disciplinary, not aspirational, so they are mandatory in nature for judges, with the Commission on Judicial Performance having ultimate authority on most issues with respect to judges.
- California has not adopted the ABA Model Code on ethics, so it is not dispositive but might be persuasive in some areas.
- Justice Fybel held up the “California Judicial Conduct Handbook,” which should be consulted by all judges as far as conduct and performance are concerned.
- He indicated what he considered mandatory and ancillary rules on judicial decision-making—honesty and integrity in decision-making; follow the rule of law; explain an opinion with detailed reasoning (not saying “we disagree” without specifying why); and judges/justices having accountability for their decisions.
- Here are tips for both trial and appellate attorneys: do not engage in ex parte communications, because cases should be decided on the record; avoid social media interactions; do not accept gifts by a party or a counsel to a party with very limited exceptions; judges can endorse or oppose judicial races, but not non-judicial races; if a judge’s decision is contested, that judge can respond in a way so as to not affect the ultimate outcome (“fair administration of the case”), but a defense is now allowed—judges can prudently respond; and judges have discretion to report attorneys to the State Bar or criticize them, less than reporting to the Bar.
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