Concept
Duty of Impartiality
Impartiality, fairness, and freedom from bias
Judicial Impartiality and Bias
Duty of Impartiality
Rule 2.2 of the Model Code of Judicial Conduct states a judge’s baseline obligation on the bench in one sentence: a judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.1 The sentence holds two commands. The first fixes what the judge decides by, which is the law, whether or not the judge approves of it. The second fixes how the judge does the work, which is fairly and with an unbiased mind. Both reach every duty of the office, and the neighboring rule says so for bias by covering administrative duties as well.2
This treatise sorts a judge’s duties on the bench into five clusters: maintaining fitness for service, using judicial independence and power, preserving impartiality, avoiding ex parte communications, and disqualifying when required.3 Rule 2.2 touches two of them. Its command to uphold the law belongs with independence and power,4 and its command of impartiality belongs with the preservation of impartiality. The two commands share a sentence because each supports the other, as the next subsection explains.
The subsections below take the rule apart in order: the duty to follow the law despite disagreement, the limit of that duty for honest mistakes, the definition of impartiality, impartiality in procedure, and the case of a litigant who appears without a lawyer.
Upholding and Applying the Law
The first clause of Rule 2.2 settles what controls a case: the law, and not the judge’s agreement with it.5 A comment to the rule makes the point directly. Each judge comes to the bench with a unique background and personal philosophy, yet “a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”6 A judge may think a statute unwise, and may even be right, and still owes it the same faithful application as a statute the judge admires.
The duty must be express because of what judicial independence assumes. Independence shields judges from external threats and blandishments that could contort their judgment, on the premise that protected judges will impartially uphold the law. The premise holds only if judges do not abuse the shield by substituting personal preferences for the law, and the Model Code answers that risk with the duty to “uphold and apply the law.”7 The room independence creates is room to apply the law as the judge understands it. It is not room to replace the law with preference.
The rule is aimed at a choice, and it does not reach the outlook every judge brings. Bringing a background and a philosophy to the bench is not itself the problem. Ethical problems arise when a judge makes a conscious choice to disregard the law and impose personal preferences.8 A judge whose outlook tips a genuinely close case, with no decision to set the law aside, has not made that choice. How much proof must be shown before a mistaken ruling becomes misconduct is a separate question, and the next subsection takes it up.
On an exam, a judge’s visible dislike of a statute, or a lean toward one reading of it, does not by itself establish a violation. Ask whether the judge applied the law or knowingly set it aside.
Both judges dislike a statute, so the dislike cannot be what separates them. The first applied the law, and her outlook mattered only where the law left room. The second knew what the law required and chose not to follow it.
Good-Faith Errors
Rule 2.2 does not turn every wrong ruling into misconduct. A comment explains that “[w]hen applying and interpreting the law, judges sometimes make good-faith errors of fact or law,” and that “[e]rrors of this kind do not violate this rule.”10 The duty attaches to the judge’s commitment to the law and not to the outcome, so a sincere but mistaken attempt to follow the law leaves that commitment intact.
The protection follows from what independence is for. Independence gives a judge latitude to uphold the law as the judge understands it to be written, without fear of reprisal for a mistake.11 A rule that sanctioned honest error would withdraw that latitude.
The commentary sorts errors into three categories, and the boundaries between them matter more than the labels.12
- A good-faith error by a conscientious judge is not subject to sanction.
- A nominally good-faith error by an incompetent judge violates the duty of competence under Rule 2.5, which is covered separately and mentioned here only to mark the boundary.
- A bad-faith “error,” meaning a conscious choice to disregard the law, violates the duty to uphold the law under Rule 2.2.
In practice, the line between gross incompetence and bad faith matters less than the line between either of them and honest error, because both are subject to sanction.13 Only the conscientious judge’s good-faith mistake escapes discipline entirely.
An exam stem that reports a reversal on appeal invites you to conclude that the judge violated Rule 2.2. Reversal shows that a higher court read the law differently, and nothing more. It does not show that the law was clear or that the judge acted in bad faith.
Discipline for error demands a high bar of proof. In In re Dileo, the New Jersey Supreme Court followed what it characterized as the practice of most jurisdictions and concluded that discipline for failure to uphold the law requires first “clear and convincing proof of objective legal error” committed “‘contrary to the clear and determined law about which there is no confusion or question as to its interpretation.’”14 Each part of that standard screens out a different kind of case, so it is best applied in sequence.
The judge in the reversal scenario above fails the second and third steps. A different judge, who acts with knowledge, clears all of them.
Impartiality Defined
The second clause of Rule 2.2 requires a judge to “perform all duties of judicial office fairly and impartially.”17 The Code defines impartiality, and the definition has two limbs. The first is the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties.” The second is “maintenance of an open mind in considering issues that may come before the judge.”18 The limbs guard against different failures.
The first limb looks outward, at the judge’s attitude toward the people before the court. Favoritism toward one litigant, or hostility toward another, tilts the hearing, and it does the same damage when aimed at a whole category of litigants. The second limb looks inward, at the judge’s readiness to be persuaded. A judge who has settled an issue before hearing argument has no use for the evidence, and the hearing becomes a formality. Both limbs serve one end: a proceeding in which the evidence and the argument can still change the outcome.
The first limb overlaps with Rule 2.3, which directs a judge to “perform the duties of judicial office without bias or prejudice.” Because impartiality includes the absence of bias for or against parties and classes of parties, the two rules cover the same turf as to that limb.19 Rule 2.3 is the more specific rule, and the treatment of bias below follows it.
The second limb reaches beyond the absence of bias, and Rule 2.2 is less often the rule that enforces it. The “act at all times” clause of Rule 1.2 more commonly regulates it.20 A closed mind about issues is therefore a failure of impartiality, but you should expect to see it charged under the general conduct canon.
An exam stem may invite you to treat any sign of a judge’s views as partiality. The better question is whether the judge is still open to being persuaded.
Both judges bring views to the bench, so having views cannot be what separates them. The first fixed the outcome before hearing the case. The second kept the question open until the evidence and argument were in.
Fair Procedure
Rule 2.2 requires all judicial duties to be performed fairly and impartially, and running the proceeding is one of those duties.22 Impartiality therefore has a procedural dimension. A judge who is biased for or against a party, or closed-minded about the issues, can show that partiality by dispensing with or contorting the procedural protections to which parties are entitled.23 The judge need not announce a preference. Control over who is heard and how the hearing runs can tilt a case while every ruling stays neutral on its face.
The central protection is the right to be heard. The Model Code provides that “[a] judge shall accord to every person who has a legal interest in a proceeding . . . the right to be heard according to law,” and it calls that right “an essential component of a fair and impartial system of justice.”24 A judge can deny the right in more than one way, among them by willfully denying a party access to counsel, which breaches the duty to uphold and apply the law under Rule 2.2.25 The word willfully marks the line drawn earlier between a conscious choice to override what the law gives the party and an honest mistake.
The right belongs to a party who wants to be heard, and it carries no guarantee of winning. It runs “according to law,” so a judge who sustains a proper objection and directs a witness to answer within the rules of evidence has denied nothing.26 The line falls between enforcing the rules of a hearing and abandoning them.
Procedure matters even when the judge is impartial in fact. A judge who fails to respect procedural rights can still undermine the litigants’ perception of the judge’s impartiality, to the detriment of the court’s legitimacy.27 Litigants cannot see into a judge’s mind, so the process is the only evidence of neutrality they receive.
Settlement is the setting where encouragement can slide into coercion. Rule 2.6(b) draws the limit: a judge “may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.”28 Encouragement is allowed because settlement spares everyone a trial. Coercion is forbidden because a party pushed into a deal has surrendered the hearing the party was entitled to receive.
Where does encouragement end and coercion begin? The answer turns on whether the judge uses the power of the office as leverage.
The first judge converted control over the ruling into leverage for a deal. The second offered a chance to talk and left each side free to refuse.
Even permitted settlement work carries a second risk, which concerns the judge’s later role as decision-maker. One response would be to assign settlement talks and trial to different judges. The Model Code does not insist on that separation, but it warns that “[d]espite a judge’s best efforts, there may be instances when information obtained during settlement discussions could influence a judge’s decision-making during trial,” and that in such instances “the judge should consider whether disqualification may be appropriate.”29 The grounds for disqualification are covered separately. For present purposes, even an uncoerced settlement conference leaves the judge a continuing duty to ask whether the judge can still decide the case neutrally.
Pro Se Litigants
Rule 2.2 requires a judge to perform all duties of judicial office fairly and impartially, and that command applies at a hearing where a party appears pro se, without a lawyer.32 The party must still meet the procedural rules, but without the training a lawyer brings to framing questions, making objections, and offering exhibits. If the judge applied procedure with identical rigidity regardless of that gap, the outcome would turn on skill at technique, and the hearing would be fair in form only.
Fairness for an unrepresented party can therefore call for adjusting how the party is heard. Impartiality forbids a judge from taking a side on the merits, whether through bias or through a mind already made up. An adjustment of process takes no side, because the opposing party still faces the same law, the same burden of proof, and the same rules of evidence. The judge’s duty to uphold and apply the law also continues unchanged, so lacking a lawyer excuses no one from the substantive law.33
An exam stem that describes a judge helping an unrepresented party invites the question whether the help shows partiality. The answer depends on what the help does.
The accommodation has a boundary, and it falls between helping a party be heard and helping a party win. An accommodation stays reasonable while it enables the unrepresented party to present the party’s own case. Once the judge starts presenting that case on the party’s behalf, the judge has stopped adjusting the process and has taken up the role of an advocate. The opposing party then faces two adversaries, one of whom also decides the outcome.
Both judges are assisting the same kind of party, so the fact of assistance cannot separate them. The first judge worked on the process by explaining the sequence and relaxing the form of the testimony, and the tenant still supplied the substance. The second judge supplied the substance herself, in the form of defenses, objections, and strategy aimed at the opponent.