Supreme Court Committee Seeks Comments on Ethics of Judges Providing Feedback to Attorneys

The Supreme Court Committee on Judicial Ethics Opinions seeks comments by November 17, 2021 on draft formal opinion advising judges on ethical considerations when providing feedback to attorneys on their courtroom performance.

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California Supreme Court Committee on Judicial Ethics Opinions
350 McAllister Street, San Francisco, California 94102-3688
www.JudicialEthicsOpinions.ca.gov

INVITATION TO COMMENT
[CJEO Draft Formal Opinion 2021-018]

Title Committee on Judicial Ethics Opinions Draft Formal Opinion 2021-018; Providing Feedback on Attorney Courtroom Performance	Action Requested Review and submit comments by November 17, 2021 Proposed Date of Adoption or Other Action To be determined
Prepared by California Supreme Court Committee on Judicial Ethics Opinions Hon. Ronald B. Robie, Chair	Contact Sanna Singer Committee Staff Attorney Phone: 415-865-7169 Email: Judicial.Ethics@jud.ca.gov

Summary

The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) has adopted a draft formal opinion and approved it for posting and public comment pursuant to California Rules of Court, rule 9.80(j) and CJEO Internal Operating Rules and Procedures, rule 7(d). (Rule 9.80; CJEO Rules.) The public is invited to comment on the draft opinion before the committee considers adoption of an opinion in final form, or other action.

CJEO Draft Formal Opinion 2021-018 provides guidance on whether a judicial officer may provide feedback about an attorney’s courtroom performance when requested by the attorney or the attorney’s supervisor.

After receiving and reviewing comments, the committee will decide whether the draft opinion should be published in its original form, modified, or formally withdrawn. (Rule 9.80(j)(2); CJEO rule 7(d)). Comments are due by November 17, 2021, and may be submitted as described below.

All comments submitted to the committee are deemed not to be confidential communications and may be posted on the CJEO website for public review at the committee’s discretion. (Rule 9.80(h)(1) & (4).) All comments the committee receives will be carefully considered by the CJEO members when taking final action on an opinion, which may include approving the opinion as drafted, approving a revised opinion for publication, or formally withdrawing the draft opinion. (Rule 9.80(l).)

CJEO Background

The Committee on Judicial Ethics Opinions was established by the California Supreme Court to provide judicial ethics advisory opinions on topics of interest to the judiciary, judicial officers, candidates for judicial office, and members of the public. (Rule 9.80(a); CJEO rule 1(a).) In providing its opinions and advice, the committee acts independently of the Supreme Court, the Commission on Judicial Performance, the Judicial Council, and all other entities. (Rule 9.80(b); CJEO rule 1(a).) The committee is authorized to issue formal written opinions, informal written opinions, and expedited advice on proper judicial conduct under the California Code of Judicial Ethics, the California Constitution, statutes, rules, the decisions of the Supreme Court and the Commission on Judicial Performance, and other relevant sources. (Rule 9.80(e)(1); CJEO rule 1(b)(1).)

The Draft Opinion

The committee has been asked to provide an opinion about whether it is ethically permissible for a judicial officer to provide feedback on an attorney’s courtroom performance when requested by the attorney or the attorney’s supervisor.

In the attached draft opinion, the committee concludes that the Code of Judicial Ethics does not prohibit judicial officers from providing feedback on courtroom performance to appearing attorneys or their supervisors; however, judicial officers must carefully consider several canon restrictions and exercise caution before doing so. When providing feedback on courtroom performance, a judicial officer may not:

• engage in prohibited ex parte communications (canon 3B(7));
• make a public comment on a pending proceeding or nonpublic comment that may interfere with a fair trial or hearing (canon 3B(9));
• create an appearance of favor or bias (canons 1, 2, and 2A);
• suggest that anyone is in a special position to influence the judicial officer (canon 2B(1)); or
• engage in coaching by advising on tactics or strategies that give one side an advantage in litigation or by providing legal advice.

The opinion advises that judicial officers who choose to provide feedback on courtroom performance must avoid discussing their own assigned matters until final resolution and must also refrain from discussing matters pending before other judges or courts. In addition, judicial officers who choose to provide feedback must ensure that the substantive nature and tone of any feedback is neutral and must be equally available to attorneys representing various interests or viewpoints. When choosing to provide feedback, judicial officers must also ensure that their conduct does not suggest a special relationship with any attorney or law office and should avoid acting as evaluators of attorney job performance. Finally, judicial officers must ensure that any feedback does not provide any attorney or party with an inside advantage.

Invitation to Comment

The committee invites comment on the attached draft opinion by November 17, 2021. Comments may be submitted:

• through CJEO’s online comment form;
• by email to Judicial.Ethics@jud.ca.gov; or
• by mail to:
  CJEO
  The Supreme Court of California Committee on Judicial Ethics Opinions
  350 McAllister Street
  San Francisco, California 94102

The committee will post on the CJEO website, at the close of the comment period, or after November 17, 2021, those comments submitted during the comment period. Comments submitted that are intended for review by the committee members only must be clearly identified as confidential and will not be posted for public review following the close of the comment period.

Attachment: CJEO Draft Formal Opinion 2021-018 >>