Posted 10-06-06

 
How do judicial ethics rules in New York compare to those in other states or other countries?  Besides the impartiality and independence that the judiciary is supposed to aspire to, what about judicial temperament?  I’ve heard horror stories of judges who treat those in their court room like dirt.  Isn’t that unethical?

Judicial ethics rules in New York are similar to most. The basis of these rules is the American Bar Association’s Model Code of Judicial Ethics, first drafted in 1972. This code establishes five canons, which form the basis of the Code of Judicial Ethics for almost every state, the District of Columbia, and the Federal Judicial Conference. These canons require that judges (1) maintain integrity and independence, (2) avoid impropriety and the appearance of impropriety, (3) remain impartial and diligent in carrying out their judicial duties, (4) avoid extra-judicial duties that conflict in any way with their judicial duties, and (5) avoid inappropriate political activity.

These five pillars seek to ensure that the justice system functions properly, insulated from any outside influences, while promoting public confidence in the system.  One requirement that the code fails to mention explicitly, however, is judicial temperament, a criterion almost universally regarded as an important consideration in judicial selection. 

Interestingly, recent international law includes judicial temperament as a requirement for the ethical conduct of judges. The Bangalore Principles, which were adopted by the United Nations in 2001, have been integrated into many recently-drafted ethics codes, such as those of emerging democracies. These principles specifically provide that a judge “shall . . . be patient, dignified, and courteous in relation to litigants, jurors, witnesses, lawyers,” and others who appear before them in an official capacity. 

As important as this ideal is, it is perhaps not mentioned in the code of ethics because of its subjectivity. While judicial temperament encompasses a variety of qualities — including fair-mindedness, patience, and avoidance of pomposity, arrogance, and tyranny — requiring such a temperament as a matter of judicial ethics might prove difficult; while demeanor on the bench is easy to observe, it is much harder to define, and what one person considers fair and patient, another might find cruel and brusque.

Unfortunately, many judges do indeed suffer from reputations for utter intemperance. While Judge Judy is the first judge who comes to mind at the mention of “tyranny on the bench,” many of the judges in our own state court system are known for behavior that is not much better. New York state judges have been known to scream at attorneys from the bench, call them names, and generally throw tantrums in the courtroom. (One recent example even included a judge who had offered a physical altercation to one defendant and a police officer thrashing to another.)

Thankfully, while judicial temperament ming not be explicitly included in our code of judicial ethics, this type of behavior, in its most extreme form, is considered a violation of judicial ethics.

The New York State Commission on Judicial Conduct has disciplined judges for calling the counsel before them dogs, for calling mentally incapacitated litigants “more than a little nuts,” and for generally breaching the requirements of judicial temperament in such a way as to impair the public image of the “dignity and impartiality” of the courts. 

While the state’s code of ethics doesn’t explicitly mention temperament, its general purpose and general language provide an instrument that can nonetheless enforce the qualities of temperament that are essential requirements for judicial fitness. Perhaps if the requirement for judicial temperament were more explicitly included in the code, however, judges would treat litigants and attorneys with even greater respect, patience and courtesy. Such egregious cases of judicial misbehavior would be much less likely to occur in the first place were we to expect, and to require, general politeness and courtesy from our judges.

The state legislature might consider that as it begins the process of building a new judicial selection process in time for next year’s elections.