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CALIFORNIA

JUDICIAL
CONDUCT
HANDBOOK
Third Edition

DAVID M. ROTHMAN
Retired Judge of the Superior Court

California Judges Foundation


California Judges Association

THOMSON

\NEST

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

CHAPTER 1

Purpose of the Handbook


Applicability of the Code of Judicial Ethics
I.

[1.00]

Introduction: Purpose, Contents and Organization of


the Handbook

Purpose of this book. This Handbook is intended to assist judicial offic


ers in the performance of their duties by providing, in one place, all of the
information on California's standards of judicial ethics and conduct. The
purpose of this book is not to draw attention to the ethical blunders that judges
have made, nor embarrass them. Although judges have been disciplined, and
some severely, most judges in California have never been disciplined. Overall,
the California judiciary has a widespread appreciation of the importance of
compliance with the California Code of Judicial Ethics and of their obligation
to avoid even the appearance of impropriety. This is, in part, due to increased
emphasis on ethics in California judicial education, greater use by the judiciary
of the services of the Ethics Committee of the California Judges Association,
the important presence of the Commission on Judicial Performance, and the
quality of the people who make up the California judiciary. Judicial ethics
education has become standard in practically every judicial education program,
and practically every judge in California participates in a biennial one day
course on judicial ethics.
Most judges who have received advisory letters or other forms of
discipline from the California Commission on Judicial Performance take the
correction seriously and rarely experience a recurrence. Over the 46 years
since the creation of the Commission on Judicial Performance, only a small
number of judges, relative to the size of the California judiciary, have been
removed from office for misconduct or received serious discipline. Over that
same period of time, thousands of judges have served with honor and
distinction.
The purpose of the Handbook is to attempt to integrate all available
materials on judicial ethics in California, including the 46 years of incidents of
public and private discipline by the Commission on Judicial Performance and
the Supreme Court,1 and examples of ethical issues which I believe are worth
1 The word "discipline" as used in this Handbook refers to any form of disciplinary action by
the Supreme Court or the Commission on Judicial Performance (advisory letters, private and
public admonishments or reprovals, censures, and removals from office) .

1.00

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

Pt.

thinking about gathered from the above, along with formal and informal ethics
opinions given by the Ethics Committee of the California Judges Association
over many years,2 as well as issues that have come up in discussions with
judges over the years. It is hoped that by examination of the real issues judges
have encountered, both in questions they have raised and discipline that has
been imposed, the Handbook will foster understanding of the Code of Judicial
Ethics and help judges to meet the high expectations placed on them to render
fair and impartial justice, and avoid judicial conduct problems.

Section numbers of Third Edition. The Third Edition generally follows


the section number system adopted in the Second Edition. It has, however,
been necessary to add a number of new sections and restructure a number of
existing sections. As a result, some section numbers have different content
than in the Second Edition.
Corrections in the Second Edition. After the Second Edition of the
Handbook came out in 1999, I have received notes from friends and col
leagues gently (usually) suggesting that there were a few errors here and there.
I know that errors in a book with so much material are inevitable, but they are
still distressing and embarrassing. Errors in the Second Edition have, hope
fully, all been corrected, and some are noted where I felt it necessary to make
such a notation. Since it is inevitable that there will be errors, please let me
know if you find any.3

Appendices. In this Third Edition there are some changes in the


Appendices. First, the annual Judicial Ethics Updates of the Ethics Committee
of the California Judges Association (CJA) have been removed, but the formal
Ethics Opinions of the Ethics Committee have remained. I felt that, although
the content of the Ethics Updates are valuable, the space needed (about 130
pages) weighed against including them. I have, however, included in the text
what I believe to be the most important matters from the Updates. CJA
provides the full text of the annual Ethics Update to all judges, and will
provide them on request.

Checklists and Guides. A major addition to the Third Edition is the


inclusion of a number of new checklists and guides. In the last few years

These informal opinions are given by the committee in response to telephone calls to the Eth
ics Committee. The committee gives hundreds of these informal opinions every year, and the
most important of these informal opinions are published annually and distributed to all the
judges in the state in the Judicial Ethics Update.
2

3 rothmand@aol.com.

PURPOSE AND APPLICABILITY

Ch. 1

1.11

I have been taken with the idea o f providing judges with some kind of
systematic means to work through particularly complex or confusing ethics
problems: Disqualification and disclosure; gift-related issues; questions of
community activities and outreach; and ethics issues related to weddings.
These guides resulted from discussions, review, and a number of tryouts of
the guides in the New Judge Orientation program of the Center for Judicial
Education and Research (CJER). Judge La Doris Cordell co-authored the first
version of the Disqualification and Disclosure Guide, and Judge Ronni
MacLaren co-authored the gift-related guides. Rod Cathcart of the CJER has
also collaborated on the preparation of these guides. As with all the material in
the

Handbook,

I am anxious to receive any comments and input regarding

these new materials.

In the use of the word "judge" I generally mean all judicial officers.
In this book I will be using the word "judge" to mean any form of judicial of
ficial who is bound by the Code of Judicial Ethics.4 There will be occasions
where the rules may be different for various judicial officers; in those cases, I
will note the differences.

Use of the word "code" and "canon." Unless


Handbook will use the words "code'.' and

of the

otherwise noted, the text


"canon" to refer to the

California Code of Judicial Ethics and canons therein.

The Judicial Conduct Reporter. Judges are fortunate to have the benefit
The Judicial Conduct Reporter, a quarterly

of another important resource:

publication of the American Judicature Society, The Opperman Center at

2700 University Avenue, Des Moines, IA 5031 1 , telephone


5 1 5 -271 -228 1 . This publication is the product of the extraordinary work of

Drake University,

Cynthia Gray, Director of the Center for Judicial Ethics of the American
Judicature Society. Every judge in California receives a copy of the
Although the

Reporter

Reporter.

examines issues on a national level, the information is

important for California judges because judicial ethics codes around the United
States are very similar.

II.

History and Principles: California Code of Judicial Ethics

A.

[1.11]

Proposition

History and Evolution of the Code


1 90, a legislative referendum, was enacted by vote of the
8, 1 994. The proposition amended the Constitution of

people on November

California to provide as follows: "The Supreme Court shall make rules for the
conduct of judges, both on and off the bench, and for judicial candidates in the
4

Cal. Code Jud. Ethics, canon 6A.

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

1.11

Pt. 1

conduct of their campaigns. These rules shall be referred to as the Code of


Judicial Ethics."5
For some 50 years preceding Proposition 190, California judges imposed
a code of judicial ethics on themselves: the Code of Judicial Conduct. It had
not been deemed necessary for the legislature or other government entities to
impose rules of conduct on California's judiciary. One historian commented as
follows:
In virtually all other states, judicial conduct codes are established
and interpreted by public agencies and explicitly carry the force of law.
This has not been necessary in California because of the credibility ac
corded the voluntary code. In this sense, the judges of California truly are
'self regulated.' "6
California judges have long recognized that their pos1t10n is one of
enormous power and responsibility, requiring behavior that warranted the
utmost trust of the public that they serve. The commentary to canon 2A of the
Code of Judicial Ethics, taken essentially from prior codes, sets out how
judges must view themselves in terms of ethical obligations:
". . . A judge must expect to be the subject of constant public scrutiny. A
judge must therefore accept restrictions on the judge's conduct that might
be viewed as burdensome by other members of the community and should
do so freely and willingly."
The judicial institution is one of such significance to the social order that
the Supreme Court has set a very high standard of conduct for California's
judges: "The ultimate standard for judicial conduct must be conduct which
constantly reaffirms fitness for the high responsibilities of judicial office."7
A code of ethics for judges was first adopted in 1949 by the Conference
of California Judges, now the California Judges Association, and was based on
the model code of ethics created by the American Bar Association (ABA).8
Over the years, the California Judges Association, at its annual meetings,
revised the code, especially following major revisions of the ABA Model
Code of Judicial Conduct in order to more closely conform to those revisions.

Cal. Const., art. VI, 1 8, subd. (m).

Anderson, A History of the California Judges Association ( 1989), p. 99.

Geiler

The first ABA canons were adopted i n 1924.

v.

Commission

( 1 973) 10 Cal.3d 270, 28 1 .

PURPOSE AND APPLICABILITY

Ch. I

1.20

California's versions, however, have always differed from the ABA model in
some respects.
In adopting the current Code of Judicial Ethics, the Supreme Court
considered recommendations from the Supreme Court Advisory Committee on
the Code of Judicial Ethics9 and public comments on the proposed code.
No other officials of government are bound by such rigorous standards of
conduct and none are so scrupulously policed. Judges in California face not
only appellate court review and the periodic scrutiny of the electorate whom
they serve, but are also subject to the disciplinary jurisdiction of the Commis
sion on Judicial Performance.10 Moreover, judges face the jurisdiction and
scrutiny of the Fair Political Practices Commission.

B.

The Central Principle o f Judicial Ethics


1.

[1.20]

The Essence of Judging, The Rule of Law and


Judicial Independence

Judicial ethics as the essence of judging.

A code of ethics is a "group

of moral principles or set of values," including "principles of conduct govern


ing an individual or a profession."11 The Code of Judicial Ethics is not just a
set of rules. Like similar codes existing in every jurisdiction in the United
States it embodies those principles which our system of justice articulates as
essential ingredients to preserve the rule of law. In essence, the Code of
Judicial Ethics is the core of what being a judge is about.

Rule of law.

Public confidence in the judicial institution is one of the es

sential elements of the preservation of the rule of law. We need not be


reminded of the fragility of the rule of law when public confidence is shaken,
nor of the degree to which public confidence in public institutions has
deteriorated in recent times. Articulation of the moral principles and values to
which the judicial institution binds itself should serve to encourage the people
whom the institution serves to have confidence in that institution, and to
respect the decisions made by it. Canon 2A of this code, accordingly, provides

The Supreme Court Advisory Committee on the Code of Judicial Ethics has continued to
review matters concerning the Code of Judicial Ethics since the code was adopted in 1 996. The
first chair of the committee was Justice Charles S. Vogel, of the Second District Court of Ap
peal, now retired, and the current chair is Justice Richard D. Fybel, of the Fourth District Court
of Appeal.
9

1 Cal. Const., art. VI, 8, 1 8 .


11

Webster's 3d New Internal. Diet. ( 1986).


7

CALIFORNV\ JUDICIAL CONDUCT HANDBOOK

1.22

Pt. 1

that, "[a] judge shall respect and comply with the law and shall act at all times
in a manner that promotes public confidence in the integrity and impartiality
of the judiciary." Therefore, "[a] judge must avoid all impropriety and appear
ance of impropriety."12
The Code of Judicial Ethics further develops these concepts in a number
of provisions. Canon 1 begins with the statements that "[a] judge shall uphold
the integrity and independence of the judiciary," and that "[a]n independent
and honorable judiciary is indispensable to justice in our society."13 This canon
goes on to instruct that "[a] judge should participate in establishing, maintain
ing, and enforcing high standards of conduct, and shall personally observe
those standards so that the integrity and independence of the judiciary will be
preserved...."14

Judicial Independence. The rule of law is the foundation of modern


social order, replacing rule by force and despotic whim with law.15 In
administering justice, the fundamental duty is to be "faithful to the law regard
less of partisan interests, public clamor, or fear of criticism. "16 Judicial
independence does not mean freedom from constraints of the law, but is a
basis for our confidence that judicial decisions are not influenced by political
considerations, public opinion, the need to be popular, or the desire to curry
favor with the powerful. Judicial independence requires that judges have the
courage to do what is right regardless of these pressures, as well as the cour
age to stand between abuse of power by the state and the individual before the
court.
Judicial Accountability. A necessary corollary to a code of ethics for
judges is judicial accountability for breach of those ethical obligations. The
maintenance of institutional accountability through the Commission on Judicial
Performance is also essential to the bolstering of public confidence.
2.

[1.22]

Doing the Right Thing and Judicial Courage

In remarks at a new judges' orientation program given by the Center for


Judicial Education and Research, Judge LaDoris H. Cordell put it this way:
"When Judge Learned Hand was asked the meaning of judging, he
answered simply, 'Do what you think is right.' Judging, doing the right
12
Adv. Com. Commentary to Cal. Code Jud. Ethics, canon 2A. International standards of
judicial conduct embrace the concept of judicial independence. See U.N. Gen. Assem., Basic
Principles on the Independence of the Judiciary (Nov. and Dec. 1 985) Res. Nos. 40/32 and
40/ 1 46, The B angalore Principles of Judicial Conduct (2002), Value I.

13 Cal. Code Jud. Ethics, canon I.


14 lbid.
15 See Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council
Law No. 10 (Wash, D.C.: Government Printing Office, 1 95 1 ), vol. 3, case no. 3 (the "Justice
Case").
16

Cal. Code Jud. Ethics, canon 3B(2).


8

PURPOSE AND APPLICABILITY

Ch. 1

1.22

thing, is not always easy. Indeed, when I reflect upon the work that we
judges do, the word 'heroic' comes to mind. We have been taught that
heroes are those people who submit themselves to the most treacherous of
situations, entirely oblivious to fear. But, if one is oblivious to fear, then
that person's actions are really of little moment. It is precisely in
acknowledging fear, in facing danger with enormous amounts of trepida
tion, in forging ahead even while quivering, that heroes are born. So, our
stereotypical hero, by definition, cannot perform heroic acts. It is only
ordinary people, like you and me, who have this heroic potential. Heroes
do not need to shed blood. They do not need loud confrontations. Some
of the most heroic acts are quiet demonstrations of what is right in the
face of groups whose actions are definitely wrong.
"We must wear our judicial robes with courage and compassion, even in
the face of challenge and controversy; for, in our noble profession, this is
what being heroic is all about."
We judges are ordinary people asked to do the extraordinary. We're
given enormous power, and yet required to eschew the temptation to abuse
power. We are guardians of the rule of law and entrusted with the protection
of the liberty of the people, while constantly tempted to compromise our honor
and abandon our trust by succumbing to biases and prejudices, by the natural
desire for acceptance and advancement, or by fear of political pressures or
public disapproval. And these are only some of the forces and influences that
can get in the way of judicial integrity. There are many things that one can do
to counter these influences, and that is, of course, the point of this Handbook.
Consider the "central principle of judicial ethics,"11 focus on who you are and
what you have been entrusted to do,18 and picture those whom you consider as
the great judges of our history.19
17

See

Handbook

section 1 .23.

18

See

Handbook

section 1 .25.

19 In an article about Justice John Marshall Harlan's dissent in Plessy v. Ferguson ( 1 896) 1 63
U.S. 537, 552, entitled Harlan's Great Dissent ( 1 996), No. I, Kentucky Humanities, published
by the Kentucky Humanities Council, Charles Thompson relates this story: "At a 1993 ceremony
in memory of [Justice Thurgood] Marshall, a colleague, [U.S. District Judge] Constance B aker
Motley, recalled that when Marshall was the lead attorney in the NAACP's fight to end segrega
tion, he picked himself up in low moments by reading aloud from Harlan's dissent . . . . As
quoted in Judicial Enigma, a new biography of Harlan, Judge Motley said: 'Marshall admired
the courage of Harlan more than any justice who has ever sat on the Supreme Court. Even Chief
Justice Earl Warren's forthright and moving decision for the court in Brown [v. Board of Educa
tion ( 1954) 347 U.S. 483] did not affect Marshall in the same way. Earl Warren was writing for
a unanimous Supreme Court. Harlan was a solitary and lonely figure writing for posterity.' "
<http://www.law.louisville.edu/library/co!lections/harlan/?pageid=dissent.htm> (as of Apr. 5,
2007).

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

1.23

Pt. 1

20

3.

[1.23]

The Central Principle: Integrity and Honesty of


Decisions

Before 1 992, the code did not contain a statement of its central guiding
purpose. The general concept set out in canon 1 of "[a]n independent and
honorable judiciary" being "indispensable to justice in our society," did not re
ally express a central inherent judicial ethic behind the concept of "justice."
This was an important omission in the ABA Model Code as well as in the
California code, although apparently not an unusual one.21 The Code of Judicial
Ethics adopted by the Supreme Court in 1 992 added the following paragraph
to the Advisory Committee Commentary to canon 1 :
20
Justice John M arshall Harlan, Brady-Handy Photograph Collection, Library of Congress,
Prints and Photographs Division, Washington, D.C., LC-DIG-cwpbh-0461 5.
21

See Kass, Toward a More Natural Science ( 1985), pp. 224-246, where the author discusses
the "inherent ethic" in the medical arts: the precepts that define the medical profession. He notes
the differences between the Hippocratic Oath and the Principles of Medical Ethics of the
American Medical Association and, in particular, the extent to which the concept of acting to
heal the sick is expressed in the former, but not in the latter.

10

Ch. I

PURPOSE AND APPLICABILITY

1.23

"The basic function of an independent and honorable judiciary is to


maintain the utmost integrity in decision making, and this Code should be
read and interpreted with that function in mind."22
This central principle is consistent with the Biblical definition of the
judicial function:
"Judges and officers shalt thou make thee in all thy gates, which the Lord
thy God giveth thee, tribe by tribe; and they shall judge the people with
righteous judgment. Thou shalt not wrest judgment; thou shalt not respect
persons; neither shalt thou take a gift; for a gift doth blind the eyes of the
wise, and pervert the words of the righteous. Justice, justice shalt thou
follow, that thou mayest live, and inherit the land which the Lord thy
God giveth thee."23
The honesty and integrity of decision making itself is the most significant
element of justice, yet the most difficult and subtle. It is an activity that takes
place in the privacy of a judge's mind. Unless the judge says something
revealing or provides a nonverbal clue, no one else can know whether the
judgment was guided by fear of public opinion, desire for advancement,
favoritism, or personal bias. Moreover, wrested judgment may also be
influenced by unconscious factors. 24
The fact that distortion in judgment may not be conscious makes it no
less a breach of the ultimate principle of judicial ethics because part of the
judicial responsibility is to know what is influencing one's decision. In spite of
the importance of this issue, instances are rare where disciplinary action has
resulted from the decision-making process. To serve justice, the central
principle of honesty and integrity needs to move to the top of one's
consciousness. Has the judge, consciously or unconsciously, allowed the intru
sion of insidious bias to command, or allowed caseload and time pressures to
transcend justice? Has the judge given the pretense of a hearing when, in fact,
no listening has taken place? Has he or she failed to throw off the role of
advocate on assuming the bench, bowed to popular opinion in reaching deci
sions for public favor, career advancement or electoral victory, or favored the
influential litigant or lawyer?
On examining the provisions of the Code of Judicial Ethics, although a
few of the canons could be seen as more narrowly directed, one finds that es
sentially all the provisions of the code are directed to ensure the integrity and
honesty of decisions - i.e., justice.
22 Handbook sections 1 .23 (honesty and integrity in judicial decisions as the central principle of
judicial ethics), 2.29 (honesty in judicial activities and as a minimum qualification of every
judge), 8.39 (honesty in private life), 1 1 .50 (honesty in representations in appointment and elec
tions), and 12.28 (honesty before the Commission on Judicial Performance).
23

Deuteronomy 1 6: 18-20.

24

Handbook

section 2.15.

11

1 .24

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

4.

[1.24)

Pt. 1

Nexus Between Public and Private Conduct and the


Integrity of the Decision-Making Process

With the central principle of judicial ethics in mind, it becomes clear why
judges must be concerned with their conduct in practically every aspect of
their lives - both public and private. A judge "must expect to be the subject of
constant public scrutiny," and "accept restrictions on the judge's conduct that
might be viewed as burdensome by other members of the community and
should do so freely and willingly."25 Restraints on the conduct of a judge are
justifiable where there is a rational nexus between the conduct, either in the
courthouse or in private life, and the integrity of the decision-making process.
Otherwise, the conduct is permissible. Even if a connection exists, some
conduct should not be restrained by the code because of significant overriding
constitutional or other policy considerations.

Integrity of the

Public
and Private

NEXUS

Process

Conduct

5.

[1.25]

Decisionmaking

Mindfulness of Who You Are

As one who holds such high office, a judge must be acutely and constantly
aware that everything he or she does or says must be managed through the
filter of identity with this high office. Whether you are CEO of a major
company, senator, admiral, general, judge or justice, your identity is entwined
with your title and position. What you do and say must always be in the
service of (or, at the very least, be neutral to) the goals and objectives of your
office. A judge needs to develop the mental process that allows for this kind
of mindfulness to take place. The key question, of course, is whether the
conduct undermines those legitimate goals and objectives of high office. This
idea will be discussed more fully in Handbook section 2.46 in the context of
inappropriate judicial demeanor in court. Here, I simply want to introduce the
idea to underscore the importance of this frame of mind. As you review vari
ous aspects of public and private life, come back to consider your identity
with your office.
25

Adv. Com. Commentary to Cal. Code Jud. Ethics, canon 2A.

12

Ch. 1

PURPOSE AND APPLICABILITY

1.30

Consider just one example. A lawyer (who is not a close personal friend)
picks up the tab for your lunch. Does receipt of such a benefit from a lawyer
advance the legitimate goals and objectives of your office? Does it help you,
as a judge, make honest decisions and advance the public perception of your
integrity?
III.

Scope and Application of the Code

A.

[1.30]

Compliance With the Code is Mandatory

The Constitution requires the Supreme Court to "make rules for the
conduct of judges," and, therefore, compliance with such a code is obviously
mandatory.26 Moreover, use of the word "shall" in the Code of Judicial Ethics
mandates compliance.27

Uniform application of the code throughout California. The provisions


of the code are applied uniformly throughout the state, regardless of the size
of the community in which the judge presides. It is not a mitigating factor that
misconduct took place in a small community where contacts between judges
and lawyers are closer than in a large cornrnunity.28
In the case of Inquiry Concerning Judge Wasilenko, the Commission on
Judicial Performance reiterated this concept with absolute clarity:
" By their terms, the canons impose uniform statewide standards.
Whenever an assigned case involves a party the judge 'knows,' the judge
must be particularly vigilant to ensure the appearance and reality of
independence and impartiality. The situation may arise more frequently in
a small town than a major metropolitan area, but the judge's ethical du
ties are the same irrespective of population statistics. In any case, the
demographics of Marysville and Yuba County are irrelevant to the
misconduct engaged in by Judge Wasilenko.. .. "29
See Handbook section 7.65 for discussion of small communities in rela
tion to issues of disqualification and disclosure.
26
Cal. Const. , art. VI, 1 8, subd. (m), and see Preamble, Cal. Code Jud. Ethics ("All members
of the judiciary must comply with the Code. Compliance is required to preserve the integrity of
the bench and to ensure the confidence of the public."). See also Adv. Com. Commentary to
Cal. Code Jud. Ethics, canon 1 .
27 Although the canons have long been regarded by the Supreme Court as applicable in judicial
conduct cases (see Spruance v. Commission, ( 1 975) 13 Cal. 3d 778, 796, Cannon v. Commis
sion ( 1 975) 14 Cal.3d 678, 707, fn. 22, and Kloepfer v. Commission ( 1989) 49 Cal.3d 826, 838,
fn. 6, the Constitution and the language of the code adopted by the Supreme Court in 1 996 have
put to rest the issue of whether or not the code is mandatory.
28

Fletcher

issue.

Id.

v.

Commission

at p. 922.

(1998) 1 9 Cal.4th 865 , 9 1 8, fn. 24. See dissent which raised this

29 Com. on Jud. Performance, Ann. Rep. (2005), Public Censure and Bar, p. 1 8 . The material
noted in the text is in the full decision of the commission issued on March 2, 2005, p. 1 8.

13

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

1.31

B.

[1.31]

Pt. 1

Interpreting the Canons

The preamble to the Code of Judicial Ethics provides guidance for


interpretation of the canons. 'The Canons should be read together as a whole,
and each provision should be construed in context and consistent with every
other provision. They are to be applied in conformance with constitutional
requirements, statutes, other court rules, and decisional law."30

Advisory Committee Commentary.

The preamble also explains that the

commentary that follows each canon, "by explanation and example, provides
guidance as to the purpose and meaning of the Canons," but the commentary
"does not constitute additional rules and should not be so construed."31 In ad
dition, as already noted, the commentary to canon

1 provides that, "[t]he basic

function of an independent and honorable judiciary is to maintain the utmost


integrity in decision making, and this Code should be read and interpreted
with that function in mind."32

C.

Persons Bound by the Code of Judicial Ethics


1.

[1.32]

Judges

"Anyone who is an officer of the state judicial system and who performs
judicial functions" is a "judge" for the purposes of the application of the Code
of Judicial Ethics.33 All provisions of the code apply to the following categories
of those performing judicial functions:
Constitutionally defined judges and appellate justices;
Subordinate judicial officers;34
Magistrates;
Judges of the State Bar Court.35
30

Preamble, Cal. Code Jud. Ethics.

31

Preamble, Cal. Code Jud. Ethics.

32

See

Handbook

section 1.23.

33 Cal. Code Jud. Ethics, canon 6A.

Cal. Code Jud. Ethics, canon 6A was amended, effective January 1, 2005, to replace "court
commissioner, referee," with the term "subordinate judicial officer," which is defined in the
Terminology section as "a person appointed pursuant to article VI, section 22 of the California
Constitution, including, but not limited to, a commissioner, referee, and hearing officer."
34

35 Bus. and Prof. Code, 6079. 1, subd. (a). The 1 999 Edition of the Handbook erroneously
cited this section as 86079. Business and Professions Code 60 79. 1, subd. (a) provides: " .. .
Any judge appointed under this section shall be subject to admonition, censure, removal, or
retirement by the Supreme Court upon the same grounds as provided for judges of courts of
record of this state." California Rules of Court, rule 9. ll(d) sets out the process for discipline
for misconduct or disability of State Bar Court Judges. This Rule requires complaints against
State Bar Court Judges to be addressed to the Executive Director - Chief Counsel of the Com-

14

Ch. 1

PURPOSE AND APPLICABJLITY

1.32

Special masters.36

Others performing judicial or quasi-judicial functions. Certain provi


sions of the Code of Judicial Ethics apply to others who perform judicial and
quasi-judicial functions. The canons applicable to each of the following
categories, and circumstances when certain canons apply to each, are detailed
in canon 6 .
Retired judges serving in the Assigned Judges Program;37
Temporary judges;38
Referees serving under Code of Civil Procedure sections 6 3 8 or 639;39
Court-appointed arbitrators;40
Judicial candidates;41
Administrative Law Judges.42
Workers' Compensation Administrative Law Judges.43
mission on Judicial Performance for investigation, and sets out in detail the procedure for the
handling of the complaint, with the Supreme Court making the determination.
36 The Code of Judicial Ethics does not define what is meant by a "special master." Based on
canon 6, however, special masters serving in disciplinary proceedings would clearly be bound
by the Code of Judicial Ethics. See Handbook section 12. 1 5 .

3 7 Cal. Code Jud. Ethics, canons 6 B and 6C.


38 Cal. Code Jud. Ethics, canon 6D. California Rules of Court, rule 2.8 14, requires that the oath
of temporary judges include a certification that the temporary judge "is aware of and will
comply with applicable provisions of canon 6 of the Code of Judicial Ethics . . . . "
39 Cal. Code Jud. Ethics, canon 6D. See also Cal. Rules of Court, rules 3 .900-3.910 and 3.9203.927. Rules 3 .904(a) ( l ) and 3 .924(a)( l ) also contain a requirement of certification that the
referee "is aware of and will comply with" the provisions of canon 6 that apply to referees.

4 Cal. Code Jud. Ethics, canon 6D. Court-appointed arbitrators mentioned in this canon relate to
arbitrators serving in judicial arbitration. Cal. Rules of Court, rule 3 .814(d)(2) requires members
of arbitration panels to certify that the member is aware of and will comply with canon 6 of the
Code of Judicial Ethics.
41

Cal. Code Jud. Ethics, canon 6E.

Gov. Code, 11475.20 et seq. Gov. Code 1 1475 .40 excludes certain provisions of the Code
of Judicial Ethics from application to Administrative Law Judges. Gov. Code 1 1 475 .50
provides for discipline for violations of the code or failure to comply with certain gift rules.
42

Workers' Compensation Administrative Law Judges are required to comply with "the Code of
Judicial Ethics adopted by the Supreme Court pursuant to subdivision (m) of Section 18 of
Article VI of the California Constitution for the conduct of judges and shall not otherwise,
directly or indirectly, engage in conduct contrary to that code or to the commentary to the Code
of Judicial Ethics. Labor Code 1 23.6, subd. (a). The administrative director of the Workers'
Compensation system is required to adopt regulations to enforce this section. Labor Code
1 23 .6, subd. (a).

43

15

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

1.33

Pt. I

The applicability of the code does not disappear while a judge is on sab
batical or taking a leave of absence. See Handbook section 1.34.

2.

[ 1.33)

Judicial Accountability

The California judiciary is subject to an array of means to assure public


accountability. These means include appellate review of the conduct of all
judicial officers, employment review of the conduct of subordinate judicial of
ficers, and periodic review of judges in elections. On top of this system all
judicial officers are subject to the Code of Judicial Ethics. Ethical misconduct
of judicial officers has been the basis for appellate review, has been raised in
judicial elections and has been the subject of employment decisions in the case
of subordinate judicial officers.
Undoubtedly the most important and effective instrument of judicial ac
countability is the California Commission on Judicial Performance, which has
jurisdiction over judicial misconduct of "judges" and "subordinate judicial
officers."

Subordinate judicial officers. Subordinate judicial officers, as employees


of the superior court, are accountable primarily to the court in which they
serve and are subject to discipline by the court. The presiding judge of a court
is subject to disciplinary proceedings by the Commission on Judicial
Performance for failure to fulfill the obligation to monitor and discipline such
subordinate judicial officers. Handbook section 6.01 contains a discussion of
the disciplinary responsibilities of the presiding judge.
In addition to accountability to the superior court, subordinate judicial of
ficers are also subject to disciplinary proceedings by the Commission on
Judicial Performance under article VI, section 1 8 . 1 of the California Constitu
tion, adopted by the voters in June 1998, via Proposition 221 . This section
provides:
"The Commission on Judicial Performance shall exercise discretionary
jurisdiction with regard to the oversight and discipline of subordinate
judicial officers, according to the same standards, and subject to review
upon petition to the Supreme Court, as specified in Section 1 8 .
"No person who has been found unfit to serve as a subordinate judicial
officer after a hearing before the Commission on Judicial Performance
shall have the requisite status to serve as a subordinate judicial officer.
"This section does not diminish or eliminate the responsibility of a court
to exercise initial jurisdiction to discipline or dismiss a subordinate
judicial officer as its employee."

Handbook section 1 2.61 contains a discussion of the disciplinary activi


ties of the commission since the adoption of Proposition 221 .
Who are "subordinate judicial officers?" The terminology section of the
Code of Judicial Ethics defines "subordinate judicial officer" as "a person ap-

16

Ch. 1

PURPOSE AND APPLICABILITY

1.33

pointed pursuant to article VI, section 22 of the California Constitution,


including, but not limited to, a commissioner, referee, and hearing officer."44

Distinction between traffic referees and juvenile court referees who


are subordinate judicial officers and other "referees" who are not
subordinate judicial officers. Although there is no reference to "referees" in
article VI, section 18.1 of the California Constitution, the Terminology section
of the Code of Judicial Ethics uses the broad term "referee" in the definition
of "subordinate judicial officer." This broad language, however, cannot reason
ably be interpreted to mean that every "referee" mentioned in California
statutes is subject to the jurisdiction of the commission. The word "referee" is
frequently used in California statutes in many different contexts, with the fol
lowing being only a few of them: Court-appointed referees pursuant to Code
of Civil Procedure sections 638 and 639 (often referred to as special masters),
probate referees,45 referees serving in fish and game matters,46 traffic referees,47
referees in boxing matches and other sporting events,48 and so on. The word is
used so indiscriminately that it could not have been the intent of the framers
of Proposition 221 nor of the voters, in the use of the words "subordinate
judicial officer," to place every sort of referee under the jurisdiction of the
Commission on Judicial Performance.
If the use of the term "subordinate judicial officer" were within the
context of trial court funding, then inclusion of "referee" must mean persons
employed in judicial capacities by courts, such as juvenile court referees and
traffic referees, i.e., persons similar in status to court commissioners. Moreover,
in the context of dealing with complaints against subordinate judicial officers,
the California Rules of Court define "subordinate judicial officer" as "an at
torney employed by a court to serve as a commissioner or referee, whether the
attorney is acting as a commissioner, referee, or temporary judge. The term
does not include any other attorney acting as a temporary judge." (Italics
added.)49 Based on this understanding, the disciplinary responsibility of the
Commission on Judicial Performance would not extend to "referees" ap
pointed pursuant to Code of Civil Procedure sections 638 and 639 as these
persons are not employees of courts or funded by them, and are occasionally
lay persons (accountants and other experts).
44 Article VI, 22, provides: "The Legislature may provide for the appointment by trial courts

of record of officers such as commissioners to perform subordinate judicial duties." The term
"subordinate judicial officer" apparently comes from language in the Brown-Presley Trial Court
Funding Act of 1988 where the term is defined as a "court commissioner or referee authorized
by statute." Gov. Code, 77006.

45 Prob. Code, 400 et seq.


46

Fish & G. Code, 2584.

47 Gov. Code, 72401 et seq.


48

Bus. & Prof. Code, 1 8730; Pen. Code, 243 .8.

49

Cal. Rules of Court, rule 10.703(b)( l ) .


17

CALIFORNIA J UDICIAL CONDUCT HANDBOOK

1.34

Pt. 1

Section 638 and 639 referees are, however, subject to canon 6D of the
Code of Judicial Ethics and, if such referee is an active or inactive lawyer , the
person is subj ect to the discipline of the State Bar. See Handbook sections
1 .36 et seq. Referees who are, however, subordinate judicial officers (such as
traffic and juvenile referees) are subject to discipline by the Commission on
Judicial Performance.
3.

[1.34]

Application of Ethics Principles and Judicial


Discipline During All Leaves of Absence

Judges are subject to both voluntary and involuntary absences from


performance of judicial duties. These include voluntary leaves of absence to
run for non-judicial office, sabbatical leaves, and involuntary leaves due to
non-permanent suspension or disqualification by the Commission on Judicial
Performance. During such leaves the judge continues to be bound by ethical
constraints and is subject to judicial disciplinary proceedings.
The language of canon 6A of the Code of Judicial Ethics indicates that
"[a]nyone who is an officer of the state judicial system and who performs
judicial functions" is bound by the Code.

Leave of absence to run for office.50 A judicial officer who is on leave


to run for other public office under article VI, section 1 7 of the California
Constitution must comply with all provisions of the Code of Judicial Ethics
except the following: canons 2B(2) and (4), use of prestige of office or title to
advance the judge's personal interest; canon 4C(l), appearing at public hear
ings; and canon 5 , engaging in political activity.51 The commentary to canon
6H indicates that the exceptions apply "only during the time the judge is on
leave while running for other public office. All of the provisions of this Code
will become applicable at the time a judge resumes his or her position as a
judge."
Sabbatical leave.52 California Rules of Court, rule 1 0.502(g), expressly
requires a judge on sabbatical leave to comply with the Code of Judicial Eth
ics during such leave.
In the above two situations, even though the judge may not perform
judicial functions during such leaves of absence, the provisions of the Code of
Judicial Ethics, other than those expressly excluded, remain fully applicable.

Other leaves of absence, suspension or disqualification. Although there


is no express provision of law on the subject, there is no rationale to conclude
so

Cal . Const., art. VI, 17.

5 1 Cal. Code Jud. Ethics, canon 6H.


52 Cal. Rules of Court, rule 1 0.502 (pilot program of unpaid sabbatical leaves of absence under
Gov. Code, 772 1 3) .

18

Ch. 1

PURPOSE AND APPLICABILITY

1 .34

that, absent a specific rule, a judge on a leave of absence (other than to run for
non-j udicial office or sabbatical) is relieved of the duty to comply with the
Code of Judicial Ethics.
In the case of voluntary leaves (other than running for non-judicial office
or sabbatical),53 it should be noted the Code of Judicial Ethics has wide ap
plication in a variety of circumstances that have no relationship to performance
of "judicial functions" (see, for example, canons 1 , 2, 4 and 5). Misconduct by
a j udge, whether or not the j udge was authorized at that time to perform a
j udicial function, brings the j udiciary into disrepute and damages public
confidence in the integrity of the judiciary.s4
Moreover, article VI, section 1 8 , subdivision (d) of the California
Constitution, authorizes the commission to discipline a judge or former judge
"for action[s] occurring not more than 6 years prior to the commencement of
the j udge' s current term or of the former judge' s last term." On a number of
occasions, the commission has disciplined a judge for conduct that occurred
before that person became a judge.ss There is no substantive reason why this
same understanding would not apply during any sort of absence from j udicial
duties, whether voluntary or involuntary.
In circumstances of involuntary leave (disqualification or suspension),56 it
might be argued that because the j udge is prohibited from performance of
j udicial duties, he or she is excluded from compliance with the Code of
Judicial Ethics by the language of canon 6A. For reasons noted already, such a
53 Leaves of absence other than those expressly noted in the text (to run for other non-judicial

office or for sabbatical) can include "personal leave," vacation, illness (see Cal. Rules of Court,
rule 1 0.603(c)(2)(D), (E), (H)), and education (see Cal. Stds. Jud. Admin., standard 1 0 . 1 l (d) and
(h)). Other forms of leave, not expressly directed to judges, include leave to attend to military
obligations and jury duty. Apparently, judges and subordinate judicial officers have taken
informal unpaid leaves of absence, although it is not clear what provisions of law authorize such
leaves.
See Inquiry Concerning Judge Couwenberg, Com. on Jud. Performance, Ann. Rep. (2001),
Removal from Office, pp. 1 6- 17. See full decision of the commission issued on August 1 5,
200 1 , pp. 1 1 - 1 2, where "general ethical standards" were applied to a judge for misrepresenta
tions made in the Personal Data Questionnaire he submitted to the Governor before appointment.

54

55

See

Handbook

sections 8.90, 1 1 .66, and 1 2.66.

56 The Constitution requires that a judge be "disqualified from acting as a judge, without loss of
salary" pending certain criminal proceedings or pending a petition to the Supreme Court for
review of a decision by the commission for removal or retirement of a judge. Cal. Const., art.
VI, 1 8 , subd. (a). The commission has the authority to "disqualify a judge from acting as a
judge, without loss of salary, upon notice of formal proceedings by the commission charging the
judge with judicial misconduct or disability." Cal. Const. , art. VI, 8, subd. (b). Finally, the
commission is required to suspend a judge with loss of salary where a judge is found guilty or
pleads guilty or no contest to certain criminal charges. Cal. Const., art. VI, 1 8, subd. (c).
57

See

Inquiry Concerning Judge Couwenberg, supra,

19

full decision of the commission, p. 1 1 .

1 .35

CALJFORNIA JUDICIAL CONDUCT HANDBOOK

Pt. I

position would be unsound. In addition, the judge, at a minimum, would be


bound by "general ethical standards."57

4.

Application of the Code to Persons Other Than Full-Time


Judicial Officers58
a.

[1.35]

Retired Judges Serving in the Assigned Judges


Program

A retired judge who applies to the Chief Justice to serve in the Assigned
Judges Program59 and meets eligibility requirements for such service, is
required to comply with all of the provisions of the Code of Judicial Ethics
with the exception of the following :
Appointment to government positions - canon 4C(2); and
Fiduciary activities - canon 4E.
Even while he or she is not actually serving on assignment, an assigned
judge is bound by all of the provisions of the Code of Judicial Ethics (with

only the two noted exceptions) to the same extent as an active sitting judge,
including all of the provisions of the canons that apply to the private life of a
judge.

Accountability of assigned judges. The Chief Justice establishes the


standards and guidelines for eligibility and service in the Assigned Judges
Program. These guidelines define the limitations on who may serve. A retired
judge who is serving in the assigned j udges program is deemed to "perform
judicial functions" for the purposes of the Code of Judicial Ethics.60 These
judges, however, are not subject to discipline by the Commission on Judicial
Performance since they are not active j udges, and thus could only be
disciplined by the Commission on Judicial Performance for acts committed

before retirement from judicial office.61 As a result, the Chief Justice maintains
disciplinary authority over retired judges serving in the program.
58 In November 2005, a special election was held to consider eight propositions. Proposition 77,
which was defeated, would have turned over to three retired judges the setting of legislative and
congressional district boundaries. Although the proposition contained provisions regarding gifts
and for the making of rules concerning improper communications, these retired judges, entrusted
with a matter of extraordinary importance to our system of government, would not have been
subject to the Code of Judicial Ethics or any form of judicial accountability were they to have
engaged in misconduct in performing this task.

See Cal. Const., art. VI, 6, subd. (e). Assignment under these circumstances is distinguished
from stipulation by the parties for a retired judge to serve as a temporary judge under Cal.
Const., art. VI, 2 1 . See Handbook section 1 .36 regarding ethics rules applicable to temporary
judges.
59

60

Adv. Com. Commentary to Cal. Code Jud. Ethics, canon 6A.

61

Cal. Const., art. VI, 1 8, subd. (d).

20

PURPOSE AND APPLICABILITY

Ch. 1

1 .36

Bar on privately compensated activities by assigned judges. The Chief


Justice' s Standards and Guidelines for Judicial Assignments require that, in
order to be eligible for participation in the program, a retired judge must
certify "that he or she will not participate in privately compensated dispute
resolution activities during tenure in the program."62 The standards go on to
prohibit "privately compensated dispute resolution activities during his or her
tenure in the Assigned Judges Program."63
b. [1.36]

Temporary Judges, Code of Civil Procedure


Sections 638 and 639 Referees, and
Court-Appointed Arbitrators

Temporary judges. A temporary judge64 is an "active or inactive member


of the bar who .. . serves or expects to serve as a judge once, sporadically, or
regularly on a part-time basis under a separate court appointment for each
period of service or for each case heard."65
Court-appointed referee. A court-appointed referee under Code of Civil
Procedure sections 6 3 8 and 639 may be any person that the court deems
necessary to perform the task required by the reference, including persons who
are not either lawyers or retired judges. Occasionally, the task calls for ac
counting, construction, engineering, or other expertise. The referees discussed
below in relation to canon 6D are those appointed under sections 638 and
63 9 .66
Court-appointed arbitrators. Court-appointed arbitrators fall into two
categories: those serving in judicial arbitrations pursuant to Code of Civil
Procedure section 1 141 . 1 0 et seq. and those appointed by the court in private
contractual arbitrations where the court is called upon to make an appointment
because the parties were not able to do so.67 It is not clear whether the term
"court-appointed arbitrator" as used in canon 6D is intended to include arbitra
tors appointed in judicial arbitrations (per Code of Civil Procedure section
1 1 41 . 1 1 ) and those appointed by a court where the parties are unable to agree
under the provisions of a contract containing an arbitration clause (per Code of
Standards and Guidelines for Judicial Assignments (effective as revised April 20, 2006)
ffi-B- 1 -e.

62

Standards and Guidelines for Judicial Assignments (effective as revised April 20, 2006)
IV-B - 1 .

63

Cal. Const., art. VI, 2 1 provides for the appointment of temporary judges pursuant t o the
stipulation of the parties. "On stipulation of the parties litigant the court may order a cause to be
tried by a temporary judge who is a member of the State B ar, sworn and empowered to act until
final determination of the cause." And see Cal. Rules of Court, rule 2.8 16.

64

65
66

67

Terminology, Cal. Code Jud. Ethics.


See discussion in

Handbook

section 1 .33 related to referees.

Code Civ. Proc., 1 2 8 1 .6.


21

1.3 6

CALIFORNIA JUDICIAL CONDUCT HANDBOOK

Pt. 1

Civil Procedure section 1 28 1 . 6). The Supreme Court did not clarify this issue
in the adoption of the revision of canon 6D in March of 1 999. The question,
however, was made moot by the adoption in 2002 of the Ethical Standards for
Neutral Arbitrators in Contractual Arbitration pursuant to Code of Civil

Procedure section 1 2 8 1 . 8 5 . 68

Canon 6D establishes ethical standards for temporary judges, Code


of Civil Procedure section 638 and 639 referees, and arbitrators in judicial
arbitrations. Canon 6D of the Code of Judicial Ethics was created for the
purpose of establishing the rules of ethics for the above-described groups who
function directly under the authority of the court or by appointment of the
court. The theory of this canon is that, at least while the persons covered by
the canon are serving in these capacities, they ought to be subj ect to the rules
applied to them by the canon. Again, this canon applies only to temporary
judges, referees under Code of Civil Procedure sections 638 and 639, and
arbitrators in j udicial arbitrations, and does not apply to others performing
private dispute resolutions services.

Concept of Canon 6D.

Canon 6D deals with the unique circumstance of

a person, such as a lawyer, who only serves in a j udicial or quasi-judicial


capacity under court appointment in regard to a particular case or group of
cases for a finite period of time. Following review and recommendations from
the State B ar, the Supreme Court adopted canon 6D and Rules of Professional
Conduct, rule 1 -7 1 0. 69

Temporary judges, referees and court-appointed arbitrators who are


members of the State Bar - accountability. As noted above, the principal
concept of canon 6D was to create a system through the State Bar disciplinary
structure to secure accountability for active or inactive members of the S tate

Bar who serve in the capacity of temporary j udges, referees under Code of
Civil Procedure sections 638 and 639, and arbitrators in judicial arbitrations.70

Special rules for temporary judges.

Effective July 1, 2006, the Supreme

Court adopted certain special rules in canon 6D relating to temporary judges.


Among the changes in canon 6D, these new rules include canons 6D(3) and
(4) which set out the grounds for disqualification and waiver of disqualifica68

Cal. Rules of Court, rule 1 .4(d).

Rule 1-7 1 0 of the Rules of Professional Conduct, adopted by the Supreme Court in March
1999. provides: "A member who is serving as a temporary judge, referee, or court-appointed
arbitrator, and is subject under the Code of Judicial Ethics to canon 6D, shall comply with the
terms of that canon." For documents concerning adoption of canon 6D see lener of January 3 ,
1996, from Chief Justice Malcolm M. Lucas t o S tate Bar, Report o f the Special A d Hoc Rules
Subcommittee of the State B ar ' s Committee on Professional Responsibility and Conduct
(chaired by Stanley W. Lamport, Esq.).
69

70 See Handbook section 1 .4 1 concerning the requirement of active Bar membership for members
engaged in private dispute resolution.

22

Ch. 1

PURPOSE AND APPLICABILITY

1 .36

tion applicable to temporary judges, and canon 6D(9) which creates particular
rules applicable to temporary judges appointed under rule 2 . 8 1 0 of the
California Rules of Court related to use of title and service as a temporary
judge. At the same time, rule 2. 8 1 0 et seq. establish rules for selection, train
ing and other quality control matters for temporary judges appointed by the
court who usually serve in small claims, traffic, family law, and other areas in
courts around the state.71

Referees and court-appointed arbitrators who are not members of


the State Bar - disciplinary status. As noted already, temporary judges are
required to be members of the State Bar.72 Because arbitrators and referees
under Code of Civil Procedure sections 638 and 63 9 are not required to be
lawyers (members of the State Bar) does not mean that they are excluded from
compliance with canon 6D. Canon 6D is not limited in its application and thus
a referee or court-appointed arbitrator, whether or not he or she is a lawyer,
who violates the provisions of canon 6D is accountable in a variety of ways. A
referee's report must be approved by the court and one would assume that if
the referee engaged in misconduct, that fact could be brought to the attention
of the court and impact the court's determination concerning the report. As to
judicial arbitrators, their awards are not binding, and the court would certainly
have the authority to remove a person who violated canon 6D from future
appointments.

Organization of canon 6D. Canon 6D is organized in a time frame


matrix so that a person can determine what rules apply at any given point in
time. The matrix rests on the understanding that persons serving in these
capacities spend most of their time engaged in various occupations, usually as
lawyers representing clients, and are not full-time sitting judges.
The longest time frame set out in canon 6D is from the time of appoint
ment and indefinitely thereafter, with the shortest time frame being while the
person is actually presiding in a proceeding or communicating with the parties
- with, as it were, "gavel in hand." In these rules, when actually presiding or
communicating with the parties, the person is bound by all the rules applicable
to all of the time frames. The person who has finished with the assignment is
bound, forever thereafter, by the fewest number of rules.
The provisions of canon 6D and all provisions of the Code of Judicial
Ethics are set out in Handbook Appendix A.
7 1 The new rules and changes in the Code of Judicial Ethics were the result of the extensive
study and recommendations of the Temporary Judges Working Group of the California Judicial
Council from 2004 to 2006, co-chaired by Justice Douglas Miller and Judge Robert Freedman.
72

Cal. Const., art. VI, 2 1 .

23

--

1 .41

CALIFORNIA mDICIAL CONDUCT HANDBOOK

c.

[1.41]

Pt. 1

Retired Judges and State Bar Membership

Assigned judges - may not be active members of the Bar. In order to


participate in the Assigned Judges Program, a retired judge must certify that
he or she "does not intend to become an active member of the State Bar."73
State Bar members who engage in private dispute resolution may not
have inactive membership status. Rule 2.30(B) of the State Bar Membership
Rules related to inactive membership in the bar provides:
"No member practicing law, or occupying a position in the employ of or
rendering any legal service for an active member, or occupying a position
wherein he or she is called upon in any capacity to give legal advice or
counsel or examine the law or pass upon the legal effect of any act, docu
ment or law, shall be enrolled as an inactive member."74
The State Bar has taken the position that this rule requires that a member
seeking to maintain inactive status is precluding from "working as a private
arbitrator, mediator, referee or other dispute resolution provider, a law clerk,
paralegal, real estate broker or CPA." The rationale for this is "the presump
tion that these activities call upon a member to give legal advice or counsel or
examine the law or pass upon the legal effect on any act, document or law,"
and the member is, therefore, precluded from becoming an inactive member.75
As noted in Handbook section 1 .36, the State Bar has disciplinary author
ity over a member's breaches of the provisions of the Code of Judicial Ethics
related to temporary judges, referees under Code of Civil Procedure sections
638 and 63 9, and arbitrators in judicial arbitrations, whether the member is ac
tive or inactive.

d. [1.42]

Retired Judges Engaged in Private Dispute


Resolution

A former judge is accountable to the Commission on Judicial Performance


only for acts committed while he or she actually served as a judge. Retired
judges have been subjected to discipline following retirement for their conduct
while in office.76

Standards and Guidelines for Judicial Assignments (Effective as revised April 20, 2006) ill
(B) ( l )(c).

73

74

Rules and Regs. of State Bar, Membership Rules, tit. 2, rule 2.30(B).

See "Transfer to Inactive Status," State Bar of California website <http://calbar.ca.gov/state/


calbar/calbar_sections_generic.jsp?cid=l 3726&id=l 029> (as of Apr. 5 2007).

75

See e.g., Kennick v. Commission ( 1 990) 50 Cal.3d 297; Inquiry Concerning Judge James
Com. on Jud. Performance, Ann. Rep. ( 1998), Public Censure and Bar, p. 1 9; Inquiry
Concerning Judge Trammell, Com. on Jud. Performance, Ann. Rep. ( 1999), Public Censure and
B ar, p. 1 7 .

76

Ross,

24

1 .44

PURPOSE AND APPLICABILITY

Ch. 1
As noted in

Handbook

section 1 .36, canon 6D of the Code of Judicial

Ethics applies to anyone, including a retired j udge, who engages in work as a


temporary judge, referee or court-appointed arbitrator. In addition, a retired
j udge serving as an arbitrator is governed by the Ethics Standards for Neutral
Arbitrators in Contractual Arbitrations .77 Finally, California Rules of Court,
rule

3 .850 et seq. contain rules of conduct for mediators in "court-connected


mediation programs for general civil cases."78 Although these rules concerning

mediation do not apply to private mediation practice, i.e., mediation outside of


court-connected programs, they may come to represent the standard of good
practice in the field of mediation.
The Advisory Committee Commentary to canon 6A states: "Because
retired judges who are privately retained may perform judicial functions, their
conduct while performing those functions should be guided by this Code."

D.

Disciplinary Trends - A Ten-Year Analysis


1.

[1.44]

Most Misconduct Takes Place in the Courthouse

The courtroom setting is obviously the most important part of the work of
judges and is the aspect of being a judge that should draw the most attention.
Although judges are well aware of the Code of Judicial Ethics, the pressures
of the courtroom and other factors are not always conducive to reflection.
Events in court often take place without warning and do not easily lend
themselves to contemplation, especially when events in the courtroom tempt
angry responses or unconscious appearances of unfairness . More often than
not, courts are also under time pressures. Everyone is capable of being "set
off" by something, and acceptable levels of tolerance are often difficult to
maintain, especially when j udicial authority is challenged.79 Everyone has
blind spots and unconscious biases which sneak past even the most vigilant ef
fo rts at objectivity and impartiality .80
In November 2002, the Commission on Judicial Performance published a
study of disciplinary cases for the period 1 990 through 1 999. My own analysis
of the disciplinary cases for the period

1 999 through 2005 is consistent with

the study. The study involved development of a statistical analysis of all forms

77

Cal. Rules of Court, rule l .4(d).

These rules apply to a mediator included on a superior court list that is selected by the court
or parties to serve, or a mediator who is selected within a court mediation program. See Cal.
Rules of Court, rule 3.85 1 (a)( l ) and (2).
78

79

See

Handbook

section 2.43.

80

See

Handbook

section 2 . 1 0 et seq.

25

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