“I hate to hear people say this Judge will vote so and so, because he is a Democrat—and this one so and so because he is a Republican. It is shameful. The Judges have the Constitution for their guidance; they have no right to any politics save the politics of rigid right and justice when they are sitting in judgment upon the great matters that come before them.”
In light of recent controversial blockbuster rulings by the United States Supreme Court and in anticipation of upcoming Texas judicial elections, now seems a good time to re‑examine certain rules which apply to lawyers who seek judicial office.
The relevant rules are:
Texas Disciplinary Rules of Professional Conduct Rule 8.02
- A lawyer shall not make a statement that the lawyer knows to be false or with reckless dis‑ regard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.
- A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Texas Code of Judicial Conduct.
- A lawyer who is a candidate for an elective public office shall comply with the applicable provisions of the Texas Election Code.
- Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney 113 general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
- When a lawyer seeks judicial or other elective public office, the lawyer should be bound by applicable limitations on political activity.
- To maintain the fair and independent ad‑ ministration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.
Texas Code of Judicial Conduct Canon 5:
Refraining from Inappropriate Political Activity
- A judge or judicial candidate shall not:
- make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;
- knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or
- make a statement that would violate Canon 3B(10).
- A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).
- A judge shall resign from judicial office upon becoming a candidate in a contested election for a non‑judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a dele‑ gate in a state constitutional convention or while being a candidate for election to any judicial office.
- A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.
- A judge or judicial candidate shall not:
A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge’s impartiality to be reasonably questioned in the context of a particular case and may result in recusal. Consistent with section 253.1612 of the Texas Election Code, the Code of Judicial Conduct does not prohibit a joint campaign activity conducted by two or more judicial candidates.
Other than the rules stated, there is relatively little interpretive guidance on the subject, as precedent construing the ethics rules is scant.
A judge who violates Canon 5 or other pro‑ visions of the Code of Judicial Conduct is subject to discipline by the State Commission on Judicial Conduct. A lawyer running for judicial office who violates Canon 5 or other relevant provisions of the judicial code is subject to discipline by the State Bar of Texas.
Other “relevant provisions” include portions of Canon 2, which state:
- A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
- A judge shall not lend the prestige of ju‑ dicial office to advance the private interests of the judge or others.
A judge or judicial candidate must also comply with statutory provisions regulating fund raising and other matters contained in the Texas Judicial Campaign Fairness Act.
Candidates Shall Be Honest
Judges and lawyers running for judicial office “shall not . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation”. Texas Disciplinary Rules of
Professional Conduct 8.04(a)(3).
And, as noted above, Canon 5(1)(ii) of the Code of Judicial Conduct prohibits a judge or judicial candidate from knowingly or recklessly misrepresenting “the identity, qualifications, present position, or other fact con‑ cerning the candidate or an opponent.”
Thus, for example, a former judge cannot imply in political ads that he is a current judge. And, a judge who seeks reelection and is defeated cannot produce campaign materials to “reelect” or “keep” the candidate in a subsequent race against an incumbent on another court.
Judicial Candidates are Prohibited from Campaigning for Others
A judge or judicial candidate is prohibited from lending support for other campaigns. Canon 5(2) prohibits a judge from authorizing “the public use of his or her name endorsing another candidate,” and Canon 2(B) prohibits a judge from lending the prestige of judicial office to the advancement of private interests.
Thus, verbally recommending another candidate or otherwise supporting another candidate is unethical. Political contributions are risky as well. A contribution is appropriate only “when the judge is satisfied that neither the contribution nor the public record thereof will receive public attention before the election.” 166. Comm. on Jud. Ethics, State Bar of Tex., Op. 145 (1992), reprinted in 65 TEX. JUD. COUNCIL & OFF. CT. ADMIN. TEX.
JUD. SYS. ANN. REP. 126 (1993). Yard signs and bumper stickers are prohibited by the Rules and Canons.
My trophy wife Paula Lanehart served on the bench for more than 20 years. She reminded me constantly that I, as the spouse of an elected judge, should never publicly support or oppose a political candidate for office. The ethical rules are not clear on this issue. (The lawyer spouse of a current United States Supreme Court Justice is in the spotlight for her political activism.) Nevertheless, I held my tongue and avoided political donations for more than two decades, but I have publicly and loudly made up for my silence since Paula’s retirement.
Most of us will never seek judicial office, and when we do, we usually lose. After all, voters and politicians with the power of appointment view criminal defense lawyers as only a bit higher on the political food chain than our clients.
However, we as criminal defense lawyers are often confronted with unethical judicial candidates who promise to tow a particular law‑and‑order‑themed party line or platform. We stand by our clients as they face bad judges who skirt ethical rules and make decisions based solely on their perception of political expediency. The resulting unethical political abyss poisons our justice system locally, regionally and nationally.
We must all remember Texas Disciplinary Rules of Professional Conduct Rule 8.03(a)‑(b). When we are made aware of a breach of ethics by a lawyer or a judge, we are required to report the breach to the appropriate agency, the State Bar of Texas and/or the State Commission on Judicial Conduct.
Unethical conduct on behalf of another attorney must be reported to the State Bar. If you suspect a judge or candidate for judicial office of violating ethical rules, you must mail a completed, signed, and sworn complaint form to the State Commission on Judicial Conduct. The complaint form is available on the Commission’s website and can also be requested by email or phone.
I am reminded of one such breach of ethics many years ago in Lubbock County. A prosecutor known by criminal defense lawyers as unethical ran for a County Court‑at‑Law bench. Her opponent was a Lubbock County Associate Judge. The prosecutor claimed her opponent was not a judge but “only a mediator.” Her opponent filed a grievance, and the prosecutor was given a public reprimand by the 72nd District Court of Lubbock and required to pay $5,000 in attorney’s fees. Comm’n for Law. Discipline v. Susan J. Scolaro, Cause No. 99‑505,705.
Nevertheless, before her opponent’s grievance was adjudicated, the prosecutor won the election, but she was soon removed from office. The court found she failed to satisfy the statutory qualifications to be a judge and lied about it. Scolaro v. State ex. rel Jones, 1 S.W.3d 749 (Tex. App.—Amarillo 1999, no pet.). Her removal came primarily through the efforts of members of the Lubbock Criminal Defense Lawyers Association. Those who spearheaded the effort to remove the unethical judge were publicly skewered by the clueless Lubbock media and ultra‑conservative local citizenry. The judicial post she held is now occupied by a former member of the Lubbock Criminal Defense Lawyers Association. Karma is a thing.
“Always do right; this will gratify some people and amaze the rest.”