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LLM Law Outlines Professional Responsibility Outlines

Judges Outline

Updated Judges Notes

Professional Responsibility Outlines

Professional Responsibility

Approximately 95 pages

Professional Responsibility with Gillers Autumn 2018
Based on the textbook: Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics (11th Ed. 2018)...

The following is a more accessible plain text extract of the PDF sample above, taken from our Professional Responsibility Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

08. Judges

P. 461-494

ABA Rule of Judicial Conduct

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.

  • *“Impartiality . . . mean[s] absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

2.11(A): Disqualification

  • (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned . . . .

  • *“Impartiality . . . mean[s] absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

28 U.S.C.

§ 455

  • (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

    • [not judge’s perception, but the public’s]

  • (b)(1) “[A judge] shall also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding;

  • (b)(4) “[A judge] shall also disqualify himself . . . [if] [h]e knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding…”

  • (c) “A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

  • (e) “No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b).

    • Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.”

  • See also (f) if any judge would be disqualified due to financial interest, after substantial judicial time has been devoted to the matter, disqualification is not required if the judge… divests himself or herself of the interest that provides the grounds for the disqualification

A. Conflicts and Disqualification

Supreme Court Justices are not governed by any ethics code

  • When the committee of the US Judicial Conference adopted the Code of Conduct for US Judges, is composed of lower court judges who lack authority to adopt ethical rules that bind the Justices

  • The Justices of Supreme Court did not impose ethical rules on themselves either

  • Hence, the Supreme Court Justices decide whether to recuse themselves

Caperton v. A.T. Massey Coal Co. (466)

  • Landmark case for civil cases

  • Facts: In 2002, Massey was found to be liable for $50M compensation. Blankenship is Massey’s chairman, CEO and president. After verdict and before appeal, Blankenship financially contributed to support Benjamin to run for the Justice election. Benjamin won and denied recusal to the case. Due process requires recusal in this case.

  • What is the legal basis for Kennedy’s decision that Justice Benjamin could not sit?

    • Due process clause = biases for disqualification protects the litigants

    • 14th amendment requires recusal when ‘the probability of actual bias on the part of the judge is too high to be constitutionally tolerable” due process clause

    • c.f. ethic rules “appearance of impartiality, protects the public

  • What is the legal basis for Kennedy’s decision that Justice Benjamin could not sit?

    • B did not honestly think that he is bias himself/ court cannot say that B is actually bias

    • But doesn’t matter, it is the probability of being actually bias

  • Aetna Life Ins Co. v Lavoie

    • the justice who casted the deciding vote was, at the same time, P in a nearly identical lawsuit pending in lower court his deciding vote undoubtedly raised the stakes for the insurance D in the justice’s suit.

    • Court need not decide whether the justice was influenced, but to objectively consider whether it would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear and true

  • Test for Serious Risk of Actual Bias (p. 470)

    • When a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent

    • Based on objective and reasonable perceptions

  • How Do We Identify Serious Risk of Actual Bias (p. 470) difficult to know

    • The inquiry centers on the contributions’ relative size in comparison to:

      1. the total amount of money contributed to the campaign, and

      2. the total amount spent in the election, and

      3. the apparent effect such contribution had on the outcome of the election (closeness of the vote matters)

    • Contributions by Blankenship

      • $1,000 (statutory max) directly to Benjamin’s campaign committee

      • $2.5M to “And For The Sake Of The Kids”

      • Over $500,000 on direct mailings letters soliciting donations and TV and newspaper ads

    • Relative Contributions - Blankenship’s total contributions were:

      • more than the total amount spent by all other Benjamin supporters, and

      • 3X the amount spent by Benjamin’s own Committee

    • Caperton also claimed that Benjamin spent $1M more than the total amount spent by the campaign committees of both candidates combined

  • Maxim “no man is allowed to be a judge in his own cause, his interest would certainly bias his judgment and corrupt his integrity

  • Reasonably foreseeable when the contributions were made, that the pending case would be before the newly elected justice F

  • Not to inquire whether...

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