Duty to Comply With Law

Rule 1.1 states its whole command in one sentence: a judge shall comply with the law, including the Code of Judicial Conduct.¹ The closing phrase does the structural work. It folds the Code into the law a judge must obey, so a violation of Rule 1.2, or of any other rule in the Code, is also a failure to comply with the law under Rule 1.1.

The duty sits at the base of the Code because a judge's authority rests on holding others to the law. A judge who ignores that law invites the public to doubt that it binds the people who administer it, and that doubt is the loss of confidence Rule 1.2 directs every judge to guard against.²

Rule 1.1 asks whether the judge obeyed the law, not whether the judge decided a case correctly. The duty to uphold and apply the substantive and procedural laws in the cases a judge decides is governed separately, by Rule 2.2,³ and keeping the two apart prevents the common error of treating a mistaken ruling as a Rule 1.1 violation. Two questions about Rule 1.1 itself remain: how far its command reaches, and whether discipline must wait for a conviction.

Reach On and Off the Bench

Nothing in the single sentence of Rule 1.1 confines its command to the courtroom.⁴ The duty follows the judge into two settings, and the reason for it differs in each.

On the bench, the rule reaches the laws that regulate a judge's official conduct, such as statutes prohibiting bribery and other malfeasance, meaning wrongdoing by a public official in office.⁵ A bribe works only because the judge holds the power to decide. The judge who takes the money commits a crime and also puts the office itself up for sale, and that misuse of office undermines public confidence in the courts.⁶

Off the bench, the rule requires a judge to obey the same laws that bind the general population.⁷ The reason is consistency. Judges spend their working lives holding parties to the law, and the rule admonishes them not to flout the very laws that they hold parties accountable for disobeying.⁸ The person who breaks the law on Saturday presides on Monday, and the public does not divide a judge into an official self and a private self.

Discipline has reached offenses at every level of seriousness. At the minor end are violations of game and wildlife laws, the mutilation of trees on public land, and shoplifting; at the serious end are breaking and entering, child endangerment, and mail fraud.⁹ A minor off-duty offense is therefore within the rule's coverage. Dishonesty about money has drawn the same response: in Mississippi Commission on Judicial Performance v. Teel, a judge who sought reimbursement for payments never made was sanctioned for embezzlement.¹⁰

The cleanest illustration is re Weber, where the Indiana Supreme Court reprimanded a judge who pleaded guilty to criminal mischief and driving under the influence.¹¹ Both are everyday offenses that any citizen can commit, and neither required judicial office, so the case isolates the off-bench reach. The opinion's footnotes set out Rules 1.1 and 1.2 side by side,¹² a pairing that returns below. Because Weber pleaded guilty, a criminal case had already run its course. Whether discipline can proceed when none has is the question of the next subsection.

Rule 1.1 does not stretch to every legal mistake a judge makes. It measures the judge's own obedience to law, and the separate duty to uphold the laws a judge applies in decided cases belongs to Rule 2.2.¹³

Rule 1.1 also requires that a law have been broken, so conduct that is lawful but unseemly falls outside it.

Rule 1.1 has nothing to apply to that scene, because the outburst broke no law. The question shifts to Rule 1.2, which requires a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.¹⁴ That rule does not punish a judge for “looking bad” in arbitrary or undefined ways. An actionable appearance of impropriety arises when reasonable people would conclude that the judge acted in ways that cast doubt on the judge's allegiance to the Code and its core values, to the detriment of public confidence in the courts.¹⁵

No Conviction Required

Rule 1.1 says nothing about arrest, charge, or conviction,¹⁹ so a disciplinary body must decide whether a judge has to be convicted before being disciplined for failing to comply with the law. The question is open, or more accurately, it has proved unnecessary to answer.²⁰ When an investigation shows that a judge engaged in illegal conduct, the simpler course has been to discipline the judge under Rule 1.2, even though no arrest or conviction occurred.²¹

Rule 1.2 makes that shortcut possible because of what it asks. It requires a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and to avoid impropriety and its appearance.²² The inquiry turns on whether reasonable people would conclude that the judge's conduct cast doubt on the judge's allegiance to the Code and its core values, to the detriment of public confidence in the courts.²³ A disciplinary body that has found the facts can therefore sanction the judge without deciding whether the conduct satisfies every element of a crime, or whether Rule 1.1 demands a conviction.

The design makes sense because criminal and disciplinary proceedings ask different questions. A criminal case asks whether the state may punish an offense. A disciplinary case asks what the judge's conduct does to confidence in the courts. A charging decision or a verdict answers the first question and leaves the second untouched.

Two decisions mark the ends of the line. In Washington, In re Turco sanctioned a judge for an act of domestic violence even though the criminal charges had been dismissed, reasoning that the conduct reflected adversely on the judge's integrity and impartiality.²⁵ In Indiana, Weber had pleaded guilty before discipline began, so a criminal case had run its course. Turco shows that discipline can proceed without a conviction; Weber shows that it also follows one.

A pending criminal investigation raises a related problem of its own. The investigation may call the judge's impartiality into question and require disqualification from pending criminal cases.²⁶ Some courts reason that a person who knew all the facts would doubt that a judge facing prosecution can stay impartial while presiding over someone else's criminal case, as in United States v. Jaramillo.²⁷ The reasoning is sharpest where the judge and the defendant face similar charges: in In re Frese, a judge was reprimanded for failing to disqualify himself from a drunk driving case while drunk driving proceedings against him were impending.²⁸ The rule is not uniform. The Nevada Supreme Court held in Rippo v. State that a federal criminal investigation of a state judge does not by itself create an appearance of impropriety sufficient to warrant disqualification.²⁹

Rule 1.2 has other disciplinary roles, developed later in this chapter as an add-on to a specific rule, as a lesser offense, and as a catchall. One of them bears on this subsection. When a judge is charged under both a specific rule and Rule 1.2 for the same conduct, and the underlying facts remain disputed or unclear, the authority can find that the judge appeared to act improperly without finding that the judge actually did. That flexibility can ease settlement or soften the sanction.³⁰ For now, when a stem establishes illegal conduct but no charge or conviction followed, Rule 1.2 is the ground on which the judge can be sanctioned.