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?
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