Impression of Influence

Impression of Influence

Rule 2.4(C) of the Model Code of Judicial Conduct completes the set of three prohibitions, and it measures something different from the other two: “A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”¹ Rules 2.4(A) and 2.4(B) ask whether public clamor, fear of criticism, or a personal interest or relationship actually swayed the judge’s conduct or judgment, so each needs a link between the outside force and the outcome.² Rule 2.4(C) asks only what the judge communicated. A judge whom no one has ever influenced can still violate it.

Two verbs divide the rule. To convey the impression is to send it oneself, through words, conduct, or associations. To permit others to convey it is to let someone else send it, so that the judge answers for a message the judge never spoke. Both verbs take the same object: the belief that some person or organization (a lawyer, a donor, a political ally, a family friend) has the judge’s ear.

An impression is enough to violate the rule because the belief does its damage whether or not it is true. A litigant who thinks the other side has access to the judge loses confidence in a fair hearing, and others who share the belief have reason to seek the same access. No outsider can look into a judge’s mind to test the belief. A rule aimed at the observable message protects public confidence where a rule requiring causation cannot.

This unit takes the rule in the order its pieces arise: the judge’s own words, conduct, and associations; the judge’s responsibility for what others say; and online connections with lawyers, where a single link can be seen by a whole audience of litigants and counsel.

Conveying the Impression

A judge conveys the impression of influence through words, conduct, or associations. Words are the plainest channel: the judge tells one lawyer to call directly whenever a matter is pending, or boasts of a close tie to a donor. Conduct carries a message too, because using the stationery or title of the office on behalf of someone close to the judge tells every reader that the office stands behind that person. Associations send the quietest message, and the ABA’s social media guidance flags the concern in these terms: relationships with persons or groups that may suggest they are in a position to influence the judge.³ In each case the question is what the judge’s words, conduct, or association tell the people who observe them.

Why punish a message when no ruling has been touched? The judiciary’s authority rests on the public’s willingness to follow its decisions, a point developed earlier in this chapter. Justice Frankfurter’s phrase, which the Court repeated in Williams-Yulee, states the consequence: “justice must satisfy the appearance of justice,” and public perception of judicial integrity is “a state interest of the highest order.”⁴ Williams-Yulee is a First Amendment decision, and this chapter uses it only for that point. The Court there upheld Florida’s ban on personal solicitation of campaign funds by judicial candidates because of the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity.⁵ The same reasoning reaches every signal of access. The opposing litigant cannot see inside the judge’s mind, so a visible channel between the judge and one side looks like an advantage whether or not the judge ever uses it.

In re Sharlow shows a message sent through conduct. A New York judge was censured for acting as his son’s advocate in a trespass case and for writing to the presiding justice in that case on court stationery, thereby implicitly requesting favoritism.⁶ The letterhead told its reader who the writer was, and that was the reason to use it. Under the text of Rule 2.4(C), what counts is the impression conveyed, so the wrong in such a letter does not depend on proof that the recipient was influenced.

What separates a judge who simply mingles from a judge who signals access? Exam stems test exactly that line, and the answer lies in what the judge communicates to the people watching.

The two scenes share a setting and differ in message. Social contact with lawyers and community members is an ordinary part of a judge’s life, and the rule does not ask a judge to avoid it. It asks that nothing the judge says or does single out a person or organization as having the judge’s ear. A stem that asks whether the judge was actually influenced has framed the wrong question under this rule, which, unlike Rules 2.4(A) and 2.4(B), requires no causal link between the outside force and any ruling.⁷ Online connections put the same question in a new setting, and the last subsection takes them up.

Permitting Others to Convey It

The second verb of Rule 2.4(C) reaches a judge who has said nothing at all. The first verb makes the judge answerable for messages the judge sends; the second makes the judge answerable for messages that someone else sends and the judge allows to continue.⁹ The senders are usually people who gain by seeming well connected: a friend who brags about access, a relative who offers to put in a word, a donor who tells prospective clients that he has the judge’s ear, a lawyer who cultivates a reputation for reaching chambers.

The second verb exists because a judge controls the judge’s own words but not the words of friends, relatives, staff, or lawyers, and any of them may profit from claiming access. If the rule reached only the judge’s statements, a third party could trade on the judge’s name for as long as the judge stayed quiet. The claim may even be more believable coming from an outsider, since a judge would never make it directly. So the rule puts the duty on the one person who can correct the impression, because the judge is the only one whose denial listeners will credit.

The word permit is the hinge. To permit something is to allow what one is able to prevent, so responsibility under this verb attaches to knowledge combined with inaction. A judge who has no idea that a boast is circulating has allowed nothing, because no one can stop a message that never reached them. Once the judge learns of it, the position changes: silence leaves the claim standing, and public appearances with the person making it tend to confirm what listeners were told. The rule does not list the steps a judge must take, and what suffices depends on how far the claim has traveled. A prompt instruction to stop, joined with a clear disavowal of any special access to those who heard the claim, is the kind of response that corrects the impression. As with the first verb, the violation does not depend on whether the person actually has influence or whether any ruling was affected, because the harm lies in what listeners come to believe.

What must a stem show before a judge answers for someone else’s boast? It must show that the judge knew of the boast and left it uncorrected, and the next two scenes differ only on that point.

The donor’s words are identical in the two scenes, and they do not decide the outcome, because the rule regulates the judge and not the boaster. What moved the answer was the judge’s response after learning of the claim: the first judge’s prompt correction is the difference between compliance and acquiescence. In the second scene, the public dinner may also send a message of access through the judge’s own association with the donor, so both verbs can apply to one set of facts. A stem that says only that a third party made a boast has not yet described a violation. The analysis starts with what the judge knew and what the judge did about it.

Social Media Connections

A judge’s online connections with lawyers have become the most contested application of Rule 2.4(C), because a connection is an association that anyone can inspect. The question is the one the earlier subsections posed: does the judge’s conduct tell observers that someone has the judge’s ear? Jurisdictions agree that this is the question and disagree about the answer. Most permit judges to interact with attorneys through social media, but they split sharply over whether the interaction may continue when the attorney has a case or will appear before the judge, and at present they follow one of four approaches:¹¹

• An outright ban on connecting with attorneys who may appear before the judge, as in Massachusetts and Oklahoma.
• Permission to connect, with a warning to be careful, as in Kentucky, Maryland, New York, and Ohio.
• A hybrid that allows a connection only while the attorney has no active case before the judge, as in California.
• Silence, as in South Carolina and Tennessee, which allow judges to use social media but have neither permitted nor prohibited connecting with attorneys who appear before them.

The states are labels. What matters is the reasoning behind each approach, because all four answer the same question about what a connection conveys. The ban and permission approaches sit at opposite poles. Massachusetts concluded that a judge’s friending of attorneys on social networking sites “creates the impression that those attorneys are in a special position to influence the judge,” so a judge there may not friend any attorney who may appear in the courtroom.¹² That reasoning tracks the text of Rule 2.4(C), because it treats the visible link itself as the message. New York compares a connection in some ways to adding a person to an address book or speaking with that person in public, yet it warns that the public nature of the link (other users can normally see the judge’s friends or connections), together with the lawyer’s added access to the personal information the judge posts, establishes at least the appearance of a stronger bond. The judge must therefore ask whether the connection, alone or combined with other facts, amounts to a “close social relationship” requiring disclosure or recusal.¹³

The hybrid and silent approaches fill in the middle. California allows a judge to connect with an attorney only if the attorney has no active case before that judge, and it generally requires judges to disclose social media relationships.¹⁴ A California judges’ ethics committee explained that continuing online contact “could create the impression that the attorney is in a special position to influence the judge simply by virtue of the ready access afforded by the social networking site.”¹⁵ The logic of the hybrid is that ready access matters most while the lawyer is actively asking the judge for rulings, so the connection is barred during that period and tolerated otherwise. A silent jurisdiction gives no rule of thumb, so the judge applies Rule 2.4(C) and the related conduct rules directly. The ABA’s Standing Committee on Ethics and Professional Responsibility sits closest to the permission camp: judges may use social media and may friend attorneys, so long as they adhere to the judicial conduct rules.¹⁶

Because the answer varies with the approach, a stem that says only that a judge connected with a lawyer online has not yet described a violation. The analysis starts with which approach the jurisdiction follows and whether the lawyer has a matter pending before the judge, and it goes on to ask whether anything beyond the bare link conveys closeness. Disclosure and recusal are questions separate from the impression analysis, though a connection that rises to a “close social relationship” can raise them.

The Florida Supreme Court took the most permissive line on what a link communicates. In Herssein & Herssein, the court affirmed a decision holding that a trial judge’s being Facebook friends with an attorney who appears before the judge is not, on its own, enough for disqualification, and in doing so it overturned an earlier Florida decision on the question. It began with the dictionary meanings of friend and friendship and observed that a friendship is a broad category while being a friend is more intimate, so the mere existence of a friendship does not imply closeness. A Facebook friendship, it added, is broader still. It concluded that the mere existence of a Facebook friendship between a judge and an attorney appearing before the judge, without more, cannot reasonably convey the impression of a close relationship.¹⁷

The mechanism matches the reasoning of the permission camp. The label “friend” on a social network covers a far wider range of connections than traditional friendship does, so it tells an observer little about how close two people are, and a link that says little creates little impression. Because Rule 2.4(C) targets the impression, a message carrying so little information is a weak basis for concluding that the lawyer is in a position to influence the judge. Describe the decision narrowly, though. It arose on a question of disqualification, so it holds only that a bare Facebook friendship cannot reasonably convey a close relationship, and it leaves open what further social media conduct would.¹⁸

The first connection is the Florida holding applied, and the second set of facts is the territory it leaves open. If the lawyer’s advertising of the link reached the second judge and the judge did nothing, the second verb of Rule 2.4(C) would also be in play, exactly as in the preceding subsection, because the judge would be permitting others to convey an impression of influence.