The Ethics of Judicial Support


Ethical question: if you think that a judge might be corrupt, but that the corruption can never be detected or prosecuted, do you join in his corruption for the good of your clients? Or do you avoid it for the good of everyone else?

I am, you will not be surprised to learn, on judicial political campaign mailing lists. The 2014 political season is begining, and I have started receiving invitations to judges’ fundraisers. I’ve noticed something curious: the worst judges—narcissistic, ignorant, biased, and cruel—have the longest lists of “supporters” in the criminal-defense bar.

Now, why would that be?

It couldn’t be that all of the “supporters” think that a bad judge is fit for the bench. A few of them might, but most of the people listed are as critical as I am.

So if you don’t think a judge is fit for the bench, why lend your name—your most prized possession—to his campaign?

The alternative could be worse, but we’re early on in the political year, there are no declared alternatives yet, and if a judge is not fit for the bench then odds are that whatever alternative emerges will be better.

Could it be in the hope of getting an advantage in that judge’s court? Of the judge treating you a little better, listening to you a little more, making your clients’ lives a little easier?

I think it could. More than that, I think it is. Lawyers, respected in their community, allow judges to call them “supporters” for nothing more than the chance that their clients will somehow benefit.

There’s no explicit quid pro quo; there may be no quid pro quo at all. I don’t know that the judges in question in fact treat their “supporters” any better than their nonsupporters. But I think that we can agree that a judge should treat everyone equally well, and that trading support for better treatment would be corrupt, even if the corruption is unprosecutable.
So a slight variation on my original question: if you think that a judge might treat you (and by extension your clients) better if you lend your name to his campaign, is the correct action to lend your name to his campaign, or not to?I don’t think the answer is obvious. On the one hand, we have a duty to our clients, and that duty sometimes includes eliminating some personal reservations we might otherwise have to the course of action that is best for the client: you probably laugh at the judge’s jokes even when they aren’t funny. How is “supporting” the bad judge different from this?
On the other hand, that duty does not include eliminating all our personal reservations: you’re probably not going to perform oral sex on him in chambers to get a ruling favoring your client (unless that is otherwise your thing). How is “supporting” the bad judge different from that?Like laughing at bad jokes and pleasuring judges, “supporting” bad judges is not illegal. Every lawyer has to decide how much he can stomach. Is allowing the judge to use your name in his campaign materials more like laughing at his jokes, or fellating him?


5 responses to “The Ethics of Judicial Support”

  1. Reminds me of certain attorneys who emphasize they are former prosecutors with the implication being they can get their clients a better deal because of contacts they made while working in the district attorney’s office. Of course if this is true then it means he/ she is corrupt along with the current prosecutors in the DA’s office. I’m sure once the former prosecutor’s services have been retained the first question out of the defendant’s mouth must be about the friendship said former prosecutor has with the current prosecutor working his case. Then the next question would probably be why former prosecutor left the DA’s office to which the former hardass prosecutor, now speaking from a business perspective, must lie to the client by telling him that the current DA wanted the assistants to be too hard on the defendants and that he couldn’t sacrifice his ethics by being too hard on criminals. The client, most likely guilty or he wouldn’t be in need of the services of a corrupt former prosecutor, will probably nod his head in agreeance and ask what kind of deal he can expect from these unholy connections. Of course all the client need do in the first place was a quick google search and he would have been directed to a certain blog that would provide insight into the fact that former prosecutor was former prosecutor in name only and that he still was of the belief that he was doing God’s Work and that he would feed client to the wolves if he perceived him to be guilty.

    So, to answer your question; if the client is guilty he would want a well-connected defense attorney who doesn’t mind kissing a little ass. He’ll likely be old enough to understand it’s not what you know, but who you supported for judge.

  2. Former prosecutors advertising that makes sense. If everything is perfectly above board and arms-length and all else is equal, you would expect that someone with experience advocating for [whatever] would also know how to counter advocacy for [whatever].

    To the original question, I don’t know how your conscience pulls you. But it may be helpful to ask yourself what you would do if you knew as a given that those judges are trading leniency for support, and your clients’ outcomes depend on your action.

    • I don’t think your slightly changed fact—if you knew, rather than just hoped, that the judge was trading leniency for support—changes the equation much. Substitute “blowjob” for “endorsement”; does it matter that it will get your client off? It does make the judge’s conduct even more corrupt.

      I guess if the judge was definitely going to get reelected forever regardless of your action, your endorsement might not be such an issue, but otherwise by endorsing him you’re not just gratifying him but actively making the world a worse place.

  3. Mark, I will never own a Rolex, wear Prada, or drive a Porsche, Lambo or any other “success” car. Frankly all that crap will get old and I prefer the priceless item I possess…the joy of knowing that we are all really nothing in the big picture and all the X’s in the win box, $$’s in the bank and appearances on Dateline, will not allow us to escape the Big Inevitable. There is true beauty in not giving in to the BS. 🙂

  4. Mark- a good & provocative blog. Perhaps it’s good because it is provocative.

    In a perfect world men would only lend their names in support of the noblest of causes. That would be great, but we do not live in a perfect world. We live in Texas.

    In the Coen Brother’s ” Blood Simple” , M. Emmet Walsh plays a seedy detective. In the opening narration he says,

    “…what I know about is Texas, an’ down here… you’re on your own.”

    As defense lawyers we are basically lone operators. We work on our cases and go to Court on our own. That is a truism.

    As we are lone operators we are far more subject to being victimized by an abusive system. As such we are far more likely to support a candidate not because he’s good but because we fear retaliation if we don’t support him or her.

    Some judges have no moral qualms about asking lawyers who appear in front of them for money or their name. It is the world we live in.

    In some courts judges & staff virtually demand money from lawyers who are appointed.

    In some courts judges award those who give them more money.

    In some courts judges demonstrate their gratitude for larger donations by declaring the contributing lawyer to be a ” platinum friend” or some similar appellation.

    There is a long history of this odious practice in the state & county courts. Only the rarest judge refuses to engage in such inherently wrong activities.

    These judicial fundraisers are essentially legalized bribery of the judge or extortion from the lawyers.
    Imagine for one moment what would occur if a Federal judge asked for money from a lawyer in his court. Imagine what would happen to a lawyer who offered money to a Federal Judge.

    In this light, the offensive and immoral nature of
    The judicial Requests for money are seen for what they are: nothing more than extortion.

    Some Lawyers give judges money and the use of their name because they truly believe that judge is
    A great jurist. But, we should not be so naive to believe that such is the usual motivation for the giving of money or one’s name. Some of the judges may fancy themselves brilliant jurists worthy of tribute. But all things being equal most lawyers would probably be quite content to never
    Give another judge another ” voluntary” contribution.

    In truth lawyers give money and their name more often for one of two reasons. Either they are attempting to curry favor or they are attempting to buy some fairness. In either case its wrong, but its not really the lawyers fault. No, the fault lies with the judiciary for making these demands on the lawyers.

    The ethics here are quite simple. A judge is supposed to be neutral and detached and base his or her rulings on the law and facts.

    When a judge asks for money or name from a lawyer who practices before him, that judge is
    Engaging in conduct that makes every lawyer
    Feel he must pay to play. When a judge publicly lauds those lawyers who give him the most money, as most do, that judge has tainted his court & rulings. One is forced to ponder, if I give enough dough will he grant my motion? If I dont pay up will he deny my motion? That line of thinking is quite natural given the Courts’ unapologetic shake down of the lawyers.

    This is all wrong. Spin doesn’t make it right.

    As Defense Attorneys we owe it to ourselves and our clients and our system of justice to stop this
    Long calamity. The judges won’t stop, so we must stop it.

    Notwithstanding what the character in ” Blood Simple” said, We are Not on our own.

    I would hope that in the last 10 years we have learned that we are not alone. HCCLA now has over 700 members and TCDLA has over 3000. We have strength and we need never feel bullied by any judge or judicial candidate. But old habits are hard to break.

    The Defense should unite and say ” No More”.
    We should not participate in any fashion with a system that uses fear to coerce defense lawyers
    to lend any kind of support to any member of the judiciary. Whether we admit or not, that is precisely the system that exists.

    We are better than this. The more defense lawyers who refuse to give in, the sooner this wretched extortion will stop.

    Robb Fickman

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