Judicial Ethics [Out of Court perspective] - Paper 2
JUDICIAL ETHICS [PAPER 2]*
The Honourable Justice Clifford Einstein**
[Judges are held to higher standards of integrity and ethical conduct than attorneys or other persons not invested with the public trust.[1] This heightened standard of conduct extends beyond the limits of the judges court, for "[a judge's] duty does not stop at the robing room door"][2].
Judges and the people
1 There are a number of possible approaches to an examination of the necessary inter-relationship of the judges and the people. These include the high level truism that the administration of justice in accordance with the rule of law is an essential bastion underpinning democratic rights. Having a strong and independent judiciary accepted by the community as of the highest integrity is the only way in which to ensure that the judicial institution will endure. A code of ethics for Judges is of immense significance in pointing the way towards correct judicial behaviour. But the critical and indispensable need is to ensure that the people accept the Judges as persons to be entrusted with the proper administration of justice.
2 There is an ongoing need to keep steadfastly in mind that the law, in its content and in its everyday application, is firmly founded on the ethical values which lie at the heart of the traditions of civilized societies.
3 Retaining community acceptance requires an understanding of how the judge should behave both in the courtroom as well as in a private capacity. What is regarded as proper or improper behaviour in each of these capacities is often a matter of great sensitivity. An earlier paper sought to place a particular focus upon what occurs in the courtroom. This paper seeks more particularly:
* to examine the parameters of concern when viewing the conduct of the Judge in his or her private capacity;
* to treat with some of the areas of sensitivity;
* to place the whole issue into proper perspective.
The judge does not lose his/her identity as a person
4 When one is appointed as a judge one does not lose one's identity as a person. It is still necessary to remain a part of one's community. It is still necessary to think about the major and some of the very minor topical issues of the day. It is still necessary to regard yourself as nothing particularly special. You are not particularly special[3]. You are privileged because you have been given the signal honour of being able to exercise judicial power without fear or favour. But being a judge is only part of what you are. Above all else you are an individual and a citizen and you have the same legal rights as any other individual and citizen, Your rights extend both to judicial as well as personal independence
The balancing exercise
5 But there are areas in respect of which the judicial office requires that the judge exercise extreme caution and sensitivity lest he or she may compromise their judicial position. Any such compromise will threaten the integrity not only of the particular judge but also of the judiciary regarded as an institution. Maintaining the community's trust is therefore integral to the exercise of one's judicial obligations.
6 In short there is a balancing exercise necessary.
7 What then maybe observed in relation to the balancing exercise?
Speaking out
8 There is considerable room for differences of opinion in relation to this matter. One finds observations such as:
"Judicial reticence has much to commend it; it preserves the neutrality of the judge, it shields him or her from controversy, and it deters the more loquacious members of the judiciary from exposing their colleagues to controversy. Judges are not renowned for their sense of public relations."[4]
9 Perhaps the attraction of silence is derived from the attempt to make oneself as small a target as possible:
"Even a fool, if he holdeth his peace, is deemed a man of understanding."[5]
10 The more robust approach has been expressed as follows:
"....I believe that [judges] should be allowed to decide for themselves what they should do.... Judges should be free to speak to the press, or television, subject to being able to do so without in any way prejudicing their performing of their judicial work. ...It is not the business of the Government to tell the judges what to do."[6]
11 Mason P [7] has made the point that:
"Significant contributions to the marketplace of ideas have been made in recent years by serving judges speaking or writing in their private capacities on a range of topics of current political controversy, including an Australian republic, a Bill of Rights, sentencing, drug control and aspects of environmental law. Other judges have done controversial things within broad subsets of society, involving for example churches, environmental matters and the national trust."
12 My own view is that as a judge one has to be circumspect in speaking out but should not regard one's position as encroaching upon the fundamental democratic right to comment. Ipp J who had extensive experience in South Africa during the apartheid era has commented:
"The informed view in South Africa today is that experience has taught that judges are the guardians and custodians of the administration of justice and of human rights generally. They are duty bound to protect and warn society against laws which are fundamentally inimical to a democratic society. In this task, mild inroads into those laws are as important as frontal assaults. It is usually through the mild inroads that an executive conditions the people and gains sufficient strength to make the frontal assaults."[8]
13 There are of course particular so-called obvious "no go areas" which require to be kept carefully in mind:
"The judge may find himself or herself unable to sit in judgment in a matter touching that cause. But it does not follow that the judge who feels passionately about some cause and keeps his or her opinions to himself will avoid the duty of recusal. A secretly biased judge is still a biased judge, if one defines bias as a mind that is or appears incapable of alteration. "[9]
The significance of understanding community behaviour and standards
14 It is of course clear that judges need to have a realistic understanding of community behaviour and standards. Judges "are human beings with individual values and mental processes which have a bearing on judgments."[10] There are some who consider that judges should become more involved in the public arena and who counsel a high-profile so that judges may be seen by the public to be active, able people[11]. No one would argue against the proposition that "a judge is likely to be a better dispenser of justice if he is aware of the currency and passions of the time, the development of technology and the sweep of events"[12]. The matter has been put as follows:
"It is not enough to say that a judge is enriched by knowledge of the real world; rather, the nature of modern law absolutely requires that judges 'live, breathe, think and partake of opinions in that world". It is probable that a majority of legal tests and rules which a judge is called upon to apply call for judgments which involve common experience."[13]
The need for dialogue
15 Because there are so many situations where particular questions arise it seems to me very important that there be dialogue between judges as to what is perceived to be appropriate judicial behaviour in relation to a specific concern.
The six factors
16 The following six factors have been put forward as assisting the identification of possible or marginal areas of impropriety[14]
(1) the public or private nature of the act when done;
(2) the extent to which the conduct is protected as an individual right;
(3) the degree of discretion exercised by the judge;
(4) whether the conduct was harmful or offensive to others;
(5) the degree of respect or lack of respect for the public or individual members of the public that the conduct demonstrates; and
(6) the degree to which the conduct is indicative of bias, prejudice, or improper influence.
17 It would appear that:
* Under the first factor conduct occurring entirely in the home will be judged differently from public conduct[15];
* Under the second factor there is recognition that although there is a general right to free speech, offensive remarks may be improper conduct for a judge especially if they reveal unhealthy attitudes[16];
* The third factor asks whether the judge's activity has been as discrete as possible under the circumstances;
* The fourth factor "conjures up images of judges who engage in vulgar abuse, physical violence or sexual harassment"[17]:
"In a democracy, the judicial office exists to protect the citizenry both from government over-reaching and individual self-help. When a person who holds this office is found to be violent or abusive, the very concept of judging sufferers. Even where the conduct involved falls short of being criminal, it may diminish not only the particular judge's dignity, but also the public's respect for the judiciary. There is also the fear that private abusiveness may be indicative of a potential for abuse from the bench. Can we trust to judge the fate of another who has shown, in his or her private life, a lack of self-control or any inclination to inflict harm on individuals?"[18]
* The fifth factor is self-explanatory:
"Frequent use of racial... or ethnic or gender stereotypes demonstrates disrespect for the public in its starkest form. Although not directly harmful to any specified person, such comments exemplify, at least, an ungenerous attitude toward the targeted group."[19]
* The sixth factor "could be relevant in considering comments made by a judge upon pending litigation, or a new association with criminals or other unsavoury characters."[20]
Litigants who do not wish a particular judge to hear their case
18 There are some litigants who for whatever reason decide that for a particular judge to hear their case is undesirable. That may be for example because that judge is known to have already dealt with the very same question of legal principle in one or more other cases so that the judges "form" is believed to be known. Or it may simply by a perception that the judge before whom the case has been fixed is a difficult judge or has a reputation for handing down decisions which may not favour the litigant in question. But whatever the reason it is critical to the administration of justice that judges exercise extreme care not to stand aside from hearing particular case unless there is proper reason to do so. Unless this extreme care is taken there would be a risk that the litigant can dictate which judge is to hear his or her case.
19 To give some actual examples may be of assistance.
20 Take the litigant who in an attempt to cause the judge to stand aside [recuse] from hearing the case, embarks upon a conscious and concerted campaign to swear at the judge in the courtroom or to make outrageous and totally unfounded allegations against the judge in the courtroom. On the one hand, if the judge was to over-react as by immediately charging the litigant with contempt of court and proceeding to deal with that charge [by in effect swallowing the bait], the litigant may win. On the other hand, the dignity of the court is at stake and the judge requires to be careful in taking appropriate steps to avoid the courtroom becoming a laughing spectacle.
21 The judge must take a reasonably robust attitude where a challenge to his or her sitting on the case comes forward. There are very obvious circumstances in which is appropriate for the judge to recuse. This would be necessary where one of the witnesses was a friend of the judges or where the judge had a personal interest in the outcome of the case. This would also be necessary if in an earlier case decided by the judge, he or she had had occasion to deal with the credit of a person who had been a witness in the earlier case and who's credit would again fall for determination in the later case.
22 But there are also circumstances in which it is tolerably clear that the judge should reject any application that he or she not sit. Caution is always the touchstone.[21]
No comments after judgment
23 The Canadian Judicial Council, Commentaries on Judicial Conduct (1991) at 86 has put the matter as follows:
"A judge speaks but once on a given case and that is in the reasons for judgment. Thereafter the judge is not free to explain, or defend, or comment upon the judgment or even to clarify that which critics have perceived to be ambiguous."
24 This is the approach advocated in the common law world. And for very good reason. The judge has exercised his or her jurisdiction. The litigant's are left to their rights on appeal. The newspapers and academics are left to their commentaries.
Where to begin?
25 The list of topics covered by some of the literature on judicial conduct and ethics is somewhat daunting. Outside altogether of bias and prejudice and particular in-courtroom practices it includes:
* Social conduct
[clubs and societies; hotel bars and public places; behaviour of a Judge's spouse; contact with the legal profession and business persons]
* Family relationships - a relative as a party; Judge or relative as a witness; Judge as a party
* Finance
[fundraising; gifts and benefits; business and financial activity; interest in a party; interest in the subject matter in controversy,]
* Morality associated matters
[sexual misconduct; driving offences; alcohol related conduct; crime; prejudice; epithets and slurs]
* Political activity and participation in commissions of inquiry or government agencies and executive bodies
* Misuse of the prestige of office
[character references; giving evidence; use of official letterheads; collateral misuse of office; obtaining personal benefits; misuse of office to benefit friends]
* Misuse of court staff and facilities
Judge Anonymous
26 The major United States text covers 600 closely typed pages. Opening that text at almost any page will give the reader suggestions as to what is and what is not appropriate and a plethora of authorities. One will find little that is hidden from the public gaze. In numerous instances the Judge who has come under attention is named as "In re Judge Anonymous, 590 P.2d 1181 (Okla.1978)". As I understand the purpose of the general examination of judicial ethics taking place during this Conference it is to give the judges present the optimal chance of never having to be 'Judge Anonymous' in any legal textbook and of avoiding disciplinary censure or worse.
27 In New South Wales the procedure for reporting judicial misconduct is fairly streamlined. By statute a Judicial Commission of New South Wales has been established consisting of ten members of whom six are official members being the judicial heads of the six different courts in New South Wales. The Chief Justice of New South Wales is the President of the Commission. The statute requires the Commission to dismiss complaints in a number of specified circumstances: including where there is a right of appeal, where the complaint is frivolous or trivial, or where further consideration is unnecessary or unjustifiable Matters that are classed as serious, in the sense that they could justify the removal of the judicial officer, must be referred to a Conduct Division which is a panel of three persons, all being judicial officers (one of which may be a retired judicial officer). A Conduct Division does not have the power to punish. Its power is directed to the presentation of a report as to whether or not the matter complained of could justify parliamentary consideration of removal of the judicial officer. Where a report making such a finding is presented, the head of jurisdiction has a statutory power to suspend an officer from duty.
28 The only method by which the holder of a judicial office can be removed from the office by the Governor is following an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity[22].
29 How then may one encapsulate the manifold matters which may confront a Judge anxious to still be able to live a fullsome life but cognisant of the need for very great caution in what he or she may sometimes be called upon to do?
30 Here again my own answer is a simple one: "Step back. Think twice. Perhaps consult a senior colleague. Above all else be aware."
31 This is all about having your antennae working. They should be programmed to pick up signals warning you of possible trouble ahead. Of course a drunken spree will mean that you will completely lose all possible communication with your antennae.
32 One golden rule sometimes put forward when one has a real question as to whether or not it is appropriate for you to be the judge in a circumstance where you may have had some type of past association with a witness or the litigant is: "If in doubt do not hear the case".
33 It is difficult to avoid reverting to some further examples of inappropriate behaviour in the courtroom.
34 As the Canadian Judicial Counsel has observed:
"It is difficult to define the lifestyle which is or is not suitable for a Judge. No one doubts that a flamboyant lifestyle is not suitable. Short of that, definition is not possible and probably not even desirable," (cited by Wood 'Judicial Ethics - Discussion Paper, 1966, published by the Australian Institute of Judicial Administration' incorporated [at 24])
Eccentricities
35 Thomas makes the point that eccentricity can rescue a whole era from dullness and conformity. The following is found in his book:
"Some eccentricities must be distracting to counsel and parties, and give concern as to whether the judge's mind is on the job. Lord Thankerton is reported to have been a knitter. That may have settled his nerves, but it seems that the habit did not catch on. Lord Thankerton has left us with a legacy of useful judgments."[23]
"In 19th century Scotland, it is reported that judges would sometimes consume biscuits and port on the Bench. In more modern times a judge in Kent saw fit to have a tea-tray brought to him in court, but on a later occasion was startled to see a juror getting out a thermos and sandwiches.
Moral: Take care! Little eyes are watching whatever you do.
I have seen some judges open their mail and even read newspapers in open court in the course of a trial. Usually this is an affectation intended to demonstrate that the judge is so far ahead of counsel that only half the judge's mind is needed to follow the case. Whatever the purpose it is insulting to counsel and the parties and evinces a lack of interest in the evidence and argument."[24]
Absence, inefficiency and incompetence
36 Thomas makes the following points:
"Competence is not an ethical issue, but it touches ethics in two ways. First, there is a duty to attempt to perform competently, and this probably includes a continuing duty to improve competence in areas where weakness is detected. That may raise some moral obligation to participate in suitable forms of judicial education. Secondly, once a judge realises that he or she is incurably incompetent, there is a duty to resign. The problem is that incompetent judges are nearly always the last to identify their failure.
Inefficiency is not misconduct; it is a human weakness from which all suffer in varying degrees from time to time. The same quality or quantity of judgments cannot be expected from all judges. The fast judge is not always the best judge. It is important to get it right than to do it quickly. Some of the slower, less brilliant judges have been regarded on the whole better judges than a virtuoso such as Lord Ellenborough who was described by a contemporary as "rushing through the cause list at the Guild Hall like a rhinoceros through a sugar plantation". He often spent 16 or 17 hours a day in court, and perhaps his exertions hastened his death.
But there are limits. Litigants do not want their fortunes to ride on the backs of judicial tortoises. It must be acknowledged that some judges reserve their decisions for a ridiculously long time. Reserving too long and too often can reach the level of a public disgrace."[25]
37
Thomas also refers to the problem of sleeping on the job:
"Avoidance of long lunches was perhaps implied by Sir Matthew Hale in his resolution: "to be short and sparing at meals that I may be fitter for business". Nodding off by persons who are expected to sit and listen to others for five hours in a day is at least understandable, though it is never excusable. Counsel have the duty to do whatever is necessary to bring such a judge back to the land of the living rather than stand by and store the point for appeal if the client loses. A propensity to fall asleep during cases is a serious weakness and should induce the judge seriously to question his or her capacity for the job.
Failure to turn up for duty does not seem to have been much of a problem in the United Kingdom or in this country. In 1706 it was held that non-attendance by a recorder (a public officer relating to justice) afforded good cause for forfeiture of the office. The tenure of recorders (and of judges) was "quamdiu se bene gesserint" (while they conduct matters well). That tenure, now transposed into the "during good behaviour" formula in the statutory successors to the Act of Settlement, still applies to our Supreme Court judges. In another case in 1767, the court held that the absence of a recorder from one session was not sufficient cause for forfeiture of office for non-feasance. These cases are examples of the ancient remedy of the writ of scire facias to remove certain officers upon proof of absence of good behaviour, upon which the office was automatically forfeited."[26]
The point in time when the judges conduct is most likely to be under attack
38 It is perhaps appropriate to conclude with an observation as to timing.
39 It is important to remember that after the case has been heard and after you have handed down a judgment the losing party is likely to be extremely unhappy with you to say the least. The effect of your judgment may be catastrophic in relation to his or her financial circumstances and may have a dramatic effect upon his or her standing in the community and/or upon his or her family relationships. The Judge can confidently expect that in some cases the losing party will cast about to find any possible way of challenging the judgment. This can include collateral attempts to challenge the judgment as by a suggestion of apparent bias arising from anything which even vaguely may be suggested as improper. This is another particular reason why a Judge requires to be so very very careful to avoid conduct which could be questionable in terms of suggesting a lack of impartiality or some other inappropriate behaviour.
* Paper delivered 11-13 October 2004 to the National Judicial College, Beijing
**Justice of the Supreme Court of New South Wales
1 In re Piper, 534 P 2d 159 (or.1975); Hayes v Alabama Ct of the Judiciary, 437 So.2d 1276,1278 (Ala.1983): cited by Shaman, Lubet and Alfini, Judicial Conduct and Ethics, The Michie Company, Virginia, 1990, at p1.
2 In re Lonschein, Unreported Order (NY Comm'n Dec.28, 1979) at 7: cited by Shaman ibid.
3 Justice Thomas of the Supreme Court of Queensland has expressed the difference between the judge in chambers/the Courtroom and the judge at home as follows:
"You lot, says my wife, are surrounded by people who jump when you say. You are used to people who bow and scrape and tell you how clever you are. You get so that you can't take it when you don't get your own way. You don't know how pampered you really are:" 'Get Up Off The Ground' (1997) 71 Australian Law Journal 785.
4 Sir Anthony Mason: cited by Justice Keith Mason, "Should Judges Speak Out?" Paper delivered to the Judicial Conference of Australia Colloquium, Uluru, 9 April 2001 at p6.
5 Book of Proverbs (17:28, KJV)
6 Lord Mackay of Clashfern: cited by Mason, above, n 4 at p5.
7Mason id, at p3.
8 Notes appended to Mason, id at p8.
9 Mason id, at pp4-5 citing Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352
10 Justice JB Thomas, "Guide to Judicial Conduct": A new handbook for judges", (2003) 77 Australian Law Journal 240
11 Cf Kirby, The Judges (1983), pp 29, 66, 78;Sopinka, "Must a Judge be a Monk-Revisited" (1996) 45 University of New Brunswick Law Journal 167: cited by Justice JB Thomas, Judicial Ethics in Australia, The Law Book Company Limited, 2nd ed 1996, at p95.
12 McKay, "The Judiciary and Non-judicial Activities" (1970) 35 Law and Contemporary Problems 9 at 12; Cf Lubet, "Judicial Ethics and Private Lives" (1984-1985) 79 Northwestern University Law Review 93 at 99: cited by Thomas ibid.
13 McKay ibid.
14 Shaman, above, n 1 at p303: cited by Justice JB Thomas, Judicial Officers Bulletin, November 1993,Vol. 5 No.10 at 79.
15 Shaman id, at p304.
16 Thomas above, n 14.
17 Ibid.
18 Shaman above, n 1 at p306.
19 Id, at p307.
20 Thomas above, n 14.
21 A common practice I adopt as soon as I may be invited to a small party or to a luncheon is to politely inquire as to who are to be the other guests. I would not wish to unwittingly find that I was attending a luncheon where there was present at the table one of the legal advisers for a party in a case due to commence on the following day or week before me. I would not want to unwittingly find that there was present at the table a person whom I had held to have lied on oath on some occasion.
22 Constitution Act 1902 (NSW), section 53(2); cf Hamilton, Judicial Independence and Impartiality: Old Principles, New Developments, 28 June 1999
23 Thomas above, n 11 at p25.
24 Id, at p26 (footnotes omitted).
25 Id, at p44 (footnotes omitted).
26 Id, at p46 (footnotes omitted).
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