Sales and Krauss Comment on Ethics of Judges' Roundtable

Professors Nathan Sales and Michael Krauss weighed in on a question of judicial ethics involving a roundtable of federal and state judges sponsored by Mass Torts Made Perfect. The event was open to plaintiff and defense lawyers but not to the media, generating concern in some quarters about the suitability of judges attending an event at which public issues are discussed without benefit of the presence of the public.

The professors voiced their respective opinions in that attendance or participation in such events on the judges' parts did not in and of itself constitute anything illegal or unethical.

Sales said he had viewed the agenda without its generating any alarm. "Based solely on the list of speakers, it looks like the sponsors are making an effort to present a balanced approach to the issue," commented Sales, adding, "Of course, the devil is always in the details."

For Krauss, a key issue was the understanding that judges had the right to accept speaking invitations from groups whose members litigate on one side of an issue, provided the judges do not express support for the litigants in their talks.

"The judges can discuss legal issues, of course, and their discussions might bring succor to their hosts, but that is not prohibited, otherwise Justice Ginsburg would not be invited to speak to the ACLU and Justice Scalia to the Federalist Society," stated Krauss.

Judges' roundtable on mass torts closed to public; Should it be?, February 8, 2012. By Michael P. Tremoglie.

"The Judicial Code of Conduct advises federal judges, 'Yet, not withstanding the general principle that judges may attend independent seminars and accept the provision of or reimbursement for expenses, there are instances in which attendance at such seminars would be inconsistent with the Code of Conduct for United States Judges. It is consequently essential for judges to assess each invitation on a case-by-case basis.'

"An advisory opinion in the federal judicial code of conduct summarizes: '[I]t is permissible for judges to engage in teaching and writing, including participating in CLE seminars, and to accept compensation for doing so, unless the subject matter primarily relates to practice before the judge's own particular court. When the subject matter is thus focused, a judge may participate only if no compensation is accepted, and only if the sponsoring organization is a non-profit entity.'"