A WTF Moment

Every year I do Continuing Legal Education for lawyers on ethics. Ethical rules for lawyers are strict, and in some jurisdictions (Florida, Ohio, Maryland) are strictly enforced. In others (California, Oregon, Missouri) they are much less rigidly enforced. And then, in some jurisdictions (Oregon, Iowa), the disciplinary rules for judges are enforced barely, if at all.

Take the case of the judge in Iowa who was part time. He violated conflict of interest rules twice in almost the same kind of case. He earned a “reprimand” (Bad dog, no Milkbones for you!). Then there’s the Arkansas judge who left the bench and took up the defense of a client who had been arraigned in front of him. Oops! No discipline.

But, as bad as those judges are, they did not contribute directly to a criminal evading capture by federal agents. Judge Monica Herranz did. And it is looking more and more like she will not face any sanction for this. And here’s the problem with that. The Code of Judicial Conduct forbids any activity which calls into question the integrity of the judge, and requires that they avoid even the appearance of impropriety. The First Judicial Canon states:

 

Canon 1 – A Judge Shall Uphold and Promote the Independence, Integrity and Impartiality of the Judiciary and Avoid Impropriety and Appearance of Impropriety

 

Beneath this canon are certain ethical rules. Rule 1.1 states:

 

1.1 Compliance with the Law

A judge shall comply with the law, including the Code of Judicial Conduct.

 

You know, complying with the law, like honoring retainers. Like allowing federal agents to take wanted fugitives into custody. These are the kinds of acts that a good judge engages in. She does not, as this one did, aid and abet flight from prosecution or deportation. She should lose her judicial robe for this alone. Rule 1.2 requires:

 

1.2 Promoting Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Beneath this rule there are comments which are designed to give judges additional guidance on how to act.   The first comment applies to the escape issue.

[1] Public confidence in the judiciary is eroded by improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.

Comment 3 also applies:

[3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the rule is necessarily cast in general terms.

 

If the judge was still confused after reading the first three comments, Comment 5 provides her with a good test for her conduct:

[5] Actual improprieties under this standard include violations of law, court rules or provisions of this code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and appropriate temperament is impaired.

 

Actual improprieties: Okay, so there’s aiding and abetting the escape of a fugitive. There is material assistance to a fugitive. Those seem like pretty significant violations of law. Criminal defense lawyers have an ethical obligation to disclose false testimony, even if it rats out their client. They are held to account for that. Yet, a judge can get by with aiding and abetting an escape? So, if your conduct would raise a perception in the minds of reasonable people (that’s you and me they’re talking about) that the judge could not carry out her responsibilities with integrity (and how could she after assisting an escape), then the proper thing for her to do is to resign.

And in this case, the proper thing for Oregon’s Supreme Court to do is discipline her law license and remove her from her judicial role. The failure to do so undermines the confidence in justice in Oregon.