Archive for the tpoic: ‘ABA Model Rules’

Texas Judges Still Have Online Lawyer "Friends" — But For How Long?

Friday, January 8th, 2010

Blue McCaws photo by Bruce A Campbell Unlike Florida, New York, and South Carolina, Texas does not appear to have an opinion addressing the question of whether Texas Judges can participate in online social networking.

Texas judges are currently allowed to choose who they will “friend” in social networking media. Judge Susan Criss of Galveston’s 212th District Court says she follows her ethical canons and is careful about what she says and who she friends. She “friends” all lawyers in order to avoid an appearance that she favors one side over another. (Judge Criss was a panelist in the ABA program, “Courts and Media in the 21st Century,” presented on July 31, 2009.)

The Ethical Canons that Criss referred to are Canon 2B and Canon 4A:

Texas Canon 2B: A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Texas Canon 4A: Extra-judicial duties in general.
A judge shall conduct all of the judge’s extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; or
(2) interfere with the proper performance of judicial duties.

While the Canons do not, on their face, prohibit Texas judges from social networking, some, like Judge Orlinda Naranjo of Travis County’s 419th District Court, have chosen not to participate. (“Social Networks Help Judges Do Their Duty,” Miriam Rozen. Law Technology News, August 25, 2009.)

Comparison Between The Model Rules And The States’ Rules

Chart of Judical Canons
(Click on image to open larger chart in new window.)

Even though the canons are essentially the same, the opinions range from prohibiting judges from “friending” lawyers (See Online Social Networking For Judges: Florida Prohibits Judges To “Friend” Lawyers), to allowing judges to “friend” lawyers (New York Permits Judges To “Friend” Lawyers), to encouraging judges to “friend” people in the community (South Carolina Permits Judges To Participate in Social Networks).

Many Texas judges enjoy a collegiate relationship with lawyers. For example, the Galveston County Young Lawyers host a judicial reception as:

an informal atmosphere outside the courtroom where young lawyers could network with the area judges…. Attendance by the judiciary is always strong and truly affords the attorneys a chance to mingle with the judges in front of whom they practice.

It is important to note that the lawyers socialize with the judges “in front of whom they practice.” It is this type of relationship that formed the basis for prohibiting online social networking for Florida judges.

Stay Tuned . . .

Monday, December 10th, 2007

Bruce Campbell photo

Stay tuned for a discussion of the efforts by the ABA to create a uniform set of ethics rules governing lawyers throughout all American jurisdictions that will be published in the Texas Lawyer in late January 2008.

Legal Ethics Discussions

Wednesday, August 8th, 2007
What does the terminology “Legal Ethics” mean? Some would say the combination of those two words is an oxymoron. Nevertheless, in order to understand what legal ethics entails, it is helpful to understand what is meant by the terminology.

Ethics can be defined as the set of standards that allow us to evaluate human motive and conduct, and help us distinguish right from wrong. Some professions, law being one of them, have a separate set of professional rules that govern the actions of their members.

Almost a century ago the American Bar Association (“ABA”) reacted to claims that almost anyone could become a lawyer, and that the profession was losing its status. The fruit of the ABA’s efforts was the first code of professional ethics for U.S. lawyers, the Canons of Ethics, which was introduced in 1908. The Canons of Ethics set out rules governing the client-lawyer relationship, duties of a lawyer to the client, rules for interaction with non-clients, advertising, and other rules intended to maintain the integrity of the legal profession. The Canons of Ethics were adopted in various forms by the Bar Associates of the various states. Curiously, over the years there has been relatively little written about what is intended in general about legal ethics. Instead, the focus has been on particular conduct of specific lawyers and judging whether the conduct satisfied the ethical rules or not.

Nevertheless, about 60 years ago a New York court did discuss the definition of “legal ethics”. The context in which the court’s discussion occurred arose when a property owner accused the lawyer who had worked for the other side of being “unethical” without describing how. The lawyer filed a slander claim asserting that being called “unethical” besmirched his professional representation. In discussing the terminology legal ethics the court pointed out:

‘Legal ethics’ is defined in Ballentine’s Law Dictionary (1930) as ‘the usages and customs among members of the legal profession involving their moral and professional duties toward one another, toward the clients and toward the courts’. . .

The court further pointed out that Black’s dictionary defined “Legal Ethics” as:

‘that branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client.’ Kraushaar v. Lavin, 42 N.Y. Sup. 857, 859 (NY. 1943).

The court in Kraushaar further observed that:

A person licensed to practice law must conform not only to the standards of ethical conduct generally but also to the professional standards of conduct which from time immemorial have characterized the legal profession. The latter are, in part, embodied in the Canons of Professional Ethics adopted in this state by the . . . Bar Association but, as stated in the introductory paragraph of the Canons, ‘the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned. . . . (citations omitted).

As the court observed:

Membership in the bar is a privilege burdened with conditions. . . . There are four phases of qualifications for admission to the Bar: (1) Academic training; (2) legal training; (3) moral character; (4) belief in the form of and loyalty to the government of the United States.’ Upon admission the lawyer becomes ‘an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.’ In short, ‘the practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study. Because of the nature of the duties performed by the lawyer moral character and general fitness are as essential after admission as ‘at the moment of admission’ and in disciplinary proceedings ‘the examination into character is renewed.’

In the upcoming editions we will explore many of the ethical issues with which lawyers must grapple or potentially risk the loss of their license.