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Loose talk

Judges confront unwanted comments

Peter Vieth//July 25, 2016

Loose talk

Judges confront unwanted comments

Peter Vieth//July 25, 2016

LooseTalk - MAINNo matter how insightful your views, that judge you just met at a cocktail party really does not want to hear your observations about the big case you’ve been reading about.

Your unsolicited wisdom could compel the judge to explain the awkward encoun­ter to the lawyers involved in the case and – in extreme cases – force the judge to step aside.

It doesn’t happen often, but judges and those who study judicial ethics say it’s a part of judicial life that jurists need to be prepared for. Citizens sometimes believe a judge needs to hear some nugget of infor­mation that will “help” resolve a case. Less often, a lawyer might forget to leave the legal issues at the office when socializing with a judge.


Talk on the street

The bench-and-bar cocktail party looms as a danger zone, but judges say unsought ex parte comments seem to happen more often on the street.

Alexandria General District Judge Becky J. Moore was running for exercise when a man pulled his truck near her path and tried to converse, she recalled.

“Are you the judge?” the driver asked.

She just smiled, pointed to her ear buds and kept on running.

“Later I saw that my pace during that mile was almost a personal best,” Moore said.

Retired Richmond General District Judge Robert A. Pustilnik was involved with a hard-fought custody case when a lawyer who knew the parties stopped thejudge on Richmond’s Main Street.

“You know the father is an absolute, total nut,” the lawyer said, before Pustil­nik could object.

The judge had to explain the encoun­ter to the parties and their lawyers, in detail. Neither side objected to Pustilnik staying on the case, but there was a lot at stake, the judge said.

If he were disqualified, “15 hours of testimony and thousands and thousands of dollars in attorney time would have been down the drain,” Pustilnik said.

Retired Roanoke Circuit Judge Clif­ford R. Weckstein said the “social set­ting” where he was most likely to hear improper ex parte comments was “the field or gym when one of my children was playing a recreational sport.”


Rules for judges

Virginia judges are governed by the state’s Canons of Judicial Conduct. They are admonished to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

“A judge shall not allow family, social, political or other relationships to influ­ence the judge’s judicial conduct or judg­ment,” the canons say.

“A judge shall not initiate, permit or consider ex parte communications,” the rules continue. A judge generally should not “consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.”

“A judge should disclose information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification,” reads a comment to Canon 3E(1).

Considered together, judges and ex­perts say the rules require full disclo­sure when an outsider blurts unwanted opinions.

“These things happen,” Pustilnik said. “The first thing you do is you tell the parties and see if they think it’s disqual­ifying, and you go from there.”

There are even tighter restrictions on what judges can talk about. Another ju­dicial canon cautions judges from com­menting publicly about any pending or impending case “in any court.”


Not hermits CocktailParty - MAIN

With such restrictions on legal talk, judges might be forgiven if they simply skipped the social scene and community activities. The canons advise otherwise.

“Complete separation of a judge from extra judicial activities is neither possi­ble nor wise; a judge should not become isolated from the community in which the judge lives,” reads a comment to Canon 4A.

Still, some judges may dial it back a bit at parties.

“While it is important for us to be a part of our legal communities, many of us are not as social as we were pre-bench. That helps reduce the chance that someone might mention something ex parte,” Moore said.

Retired Amherst County Judge Mi­chael J. Gamble said he might stay home when a big case is on the docket.

“I would normally avoid going to week­ly social organizations (breakfast group, etc.) right before or right after a high profile case in order to avoid questions,” Gamble said.

Patrick County Circuit Judge Martin F. Clark said lawyers have never tried to open a forbidden topic with him.

“I have never avoided a cocktail party or social event because of the fear an at­torney might have a beer or two and try to slip in ex parte information about a pending case. Our bar is simply way, way better than that,” Clark said.

Weckstein said he might try to get the lay of the land before going.

“I can recall at least once responding to an invitation by asking the host or hostess whether certain persons would be present, because of a case pending be­fore me and my knowledge of the host or hostess’s social relationship with … those persons,” Weckstein said.

Campbell County Circuit Judge John Cook said he doesn’t shy away from the social scene. He said if someone broach­es a forbidden subject, he quickly says, “I can’t talk about that” and moves away. The tactic works, he said.

Cook said he tries to keep the conver­sation away from courthouse matters, preferring to talk about subjects like “Hokies and Wahoos.”

Williamsburg General District Judge Colleen K. Killilea acknowledged that “being a judge is an isolating profession for a number of reasons, and I am not able to attend certain functions that I would have attended as a lawyer.”

Judges “constantly have to watch who we speak to, and what is said, as almost anything can be misconstrued,” she add­ed.

“I’m very cautious about what I say,” said retired Henrico County Circuit Judge Catherine C. Hammond. The re­sult is that judges are cut off from some discussions about the law, she said.

“The only other people you can talk to about the law are other judges,” Ham­mond said.


Diversion tactics

When attending an event, Moore said she tries to keep the focus away from the courthouse.

“At bar meetings that I do attend, I try to catch up with the lawyers’ lives outside the law,” she said. “Doing that allows me to steer clear of potential ex parte issues while hopefully showing that I’m interested in the lawyers as in­dividuals.”

While most lawyers will be circum­spect about judicial conversation, judges say they sometimes have to draw a line with ordinary citizens.

Clark said even that indiscretion doesn’t happen much in Patrick County.

“Interestingly enough, litigants in this part of the world also seem to have an innate sense that cornering a judge at a Christmas party isn’t a good or produc­tive idea, and I suspect that this is based on some combination of routine courtesy, common sense and warnings from coun­sel.”

Even so, judges say they have to stay alert for the direction of the talk. Killilea said she is quick to put a lid on if legal business comes up.

“At that point, I tell them that they cannot discuss the case or the issue with me or in my presence, as I may be hear­ing the case. It does not happen often,” Killilea said.

Clark said he tells loose-lipped citi­zens “that they wouldn’t think it’s fair if folks from the other side of the issue could tell me things outside of court.”

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