Judges only hiring clerks from their alma maters is bad look, new ABA ethics opinion says
Judges should use merit-based selection for court hires and not use their positions to influence outside officials, according to an ethics opinion released Wednesday by the ABA.
Additionally, Formal Opinion 521, from the ABA’s Standing Committee on Ethics and Professional Responsibility, states that jurists have ethical obligations extending far beyond the bench.
Promoting and preserving public trust in the judicial system “requires attention to both substance and perception,” according to the opinion.
Numerous rules from the ABA’s Model Code of Judicial Conduct are referenced in the ethics opinion, which includes various scenarios that may cause concern.
The first cautions judges from only hiring student interns or law clerks from the judge’s alma mater and excluding applicants from other schools.
Even if there is no discriminatory intent, according to the opinion, the exclusion of qualified applicants from other schools “suggests a bias or institutional preference inconsistent with the judiciary’s obligation of neutrality.” It cites Rule 1.2 of the Model Code of Judicial Conduct, which holds that judges should behave in a way that promotes public confidence in the judiciary’s independence and integrity.
A second illustration involves a judge reaching out to senior officials on behalf of a neighbor because they think that the neighbor is the target of an unfair criminal investigation and urges the officials to shut it down.
“Even if motivated by loyalty, compassion or a belief that the investigation is unjust, the judge’s actions would violate the core ethical principles that preserve judicial independence,” according to the opinion.
A third illustration involves a judge who appoints their son, a new attorney, to represent indigent criminal defendants. Even if the son is competent, according to the opinion, this conduct has the “appearance of impropriety and favoritism” and should be avoided.
The example cites Rule 2.13 of the Model Code of Judicial Conduct, which holds that judges make administrative appointments “impartially and on the basis of merit.” It also directs judges to avoid “nepotism, favoritism and unnecessary appointments.”
A fourth illustration involves a judge who does not appoint certain attorneys to appointed cases because of their work with advocacy organizations. That also violates Rule 2.13, according to the opinion.
The supervisory role of judges is also addressed. They must not discriminate or retaliate against staff, and if they become aware of such conduct in their chambers, they should “take appropriate action to address them,” according to the opinion.
It cites Rule 2.12, which states that judges have an ethical duty to make sure that their staff’s behavior is in accordance with their own ethical duties, and Rule 2.3, which prohibits bias, prejudice and harassment by anyone under the judge’s supervision.
A fifth illustration involves a courtroom deputy who can no longer lift heavy boxes and seeks a reasonable accommodation. The judge must not retaliate by assigning this deputy an increased number of time-consuming tasks, according to the opinion.
An ABA press release is here.
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