Working Through Problems

Working Through Problems

One sentence controls every problem under Rule 8.4(f): a lawyer commits misconduct by knowingly assisting a judge or judicial officer in conduct that violates the applicable rules of judicial conduct or other law.¹ The earlier sections took that sentence apart and showed where it most often bites. A bar-exam stem or a disciplinary file delivers its facts all at once, with the ones that matter buried among the ones that do not. Three questions, asked in a fixed order, sort them. The order tracks how liability is built under this paragraph: the lawyer's exposure rests on the judge's violation, then on what the lawyer knew, then on an act of help.

Each step is a gate, and a no at any gate ends the charge under paragraph (f) for its own reason. If the judge did nothing wrong, the lawyer has no violation to assist. If the lawyer lacked knowledge of the facts, the lawyer did not knowingly join the judge's wrong. If the lawyer did nothing to help, the lawyer did none of the things the paragraph describes. A no at a gate does not clear the lawyer everywhere. The lawyer's own rule against ex parte communication and the duty to report serious judicial misconduct are separate inquiries with elements of their own, taught elsewhere. They matter here because a stem may tempt you to answer one of them when the question asks about another.

The contact bar examiners use most is the lawyer's own trip to chambers, and in that contact the first gate carries most of the weight.

The judge received and acted on a one-sided account of a pending case. The exceptions for scheduling, administrative, or emergency contacts, and for contacts authorized by law, do not reach a substantive report that bears on the outcome, so the first gate opens. The second opens because the lawyer knew the case was pending and knew he had left the prosecutor out. The third opens because the lawyer started the contact and supplied the very information the judge acted on. His motive, a worry about the fairness of the jury, answers none of the three questions, because no gate asks about purpose. The same worry raised in a motion served on the prosecutor, with both sides heard, would have changed the first gate: a communication made on notice to the other side gives the judge no violation to commit.

The second scenario turns on a question that students answer too quickly: does a ruling end the matter? A student who says yes will clear the lawyer in the next facts and will be wrong.

The matter is still impending. An appeal is coming, the ruling remains open to review, and the case may return to the same judge, so the judicial code's ban on one-sided communication about a pending or impending matter applies. A judge who coaches one side on how to attack the judge's own ruling gives that side something the other will never receive, which is the loss of neutrality the ban exists to prevent. The first gate decides the problem, and the facts invite a wrong answer there. The knowledge gate is met by the lawyer's awareness that the appeal is coming and the opponent is excluded. The help gate is met by the lawyer's participation. Suppose instead that the lawyer heard the judge begin, said the other side should be present, and ended the call. That lawyer was contacted and supplied nothing, so the third gate stays closed and the charge fails.

The last scenario starts from an instinct that costs points: a lawyer who knows about a judge's misconduct must somehow be implicated in it.

The first gate opens because a judge's acceptance of improper benefits from a party violates the code. The second opens because she knows the facts. The third stays closed, and it settles the problem: nothing she did furthered the violation, and learning of misconduct is different from helping it along. Her situation does raise a reporting question, because a lawyer who knows of serious judicial misconduct must consider what she is obliged to tell the appropriate authority. A failure to report would breach that separate duty and would not make her an assistant in the judge's violation. Had she carried a further payment from the same party to the judge, knowing what it was, the third gate would open at once, because delivering the benefit is the help.

The three scenarios are settled at three different gates, which is how stems are built. In the first, the only escape from paragraph (f) runs through an exception, and none applies. In the second, the trap is the assumption that the matter is over. In the third, knowledge is complete and the problem lies in the absence of help. Naming the gate that decides a stem is the quickest way to tell which fact carries the answer and which facts are distractions.