"Pro Tem" Attorneys Who Advertise Their Service
As Temporary Judges Violate the California Code of Judicial Ethics!
If everybody does it, it cannot be wrong. Right? Wrong.
Many lawyers who serve as temporary judges are very likely innocently violating
the California Code of Judicial Ethics by stating that fact in their firm
websites or on Avvo or Superlawyers, for instance, potentially subjecting
themselves to censure or discipline.
Specifically, such conduct violates Canons 1, 2, and 6D(9)(a) (in California).
6D(9)(a) states "A temporary judge appointed under rule 2.810 of
the California Rules of Court, from the time of the appointment and continuing
indefinitely after the termination of the appointment, shall not use his
or her title or service as a temporary judge ... (2) in an advertisement
about the lawyer's law firm or business, or (3) on a letterhead, business
card, or other document distributed to the public identifying the lawyer
or the lawyer's law firm." This was specifically confirmed as
applying to websites by the California Judges Association in a
Judicial Ethics Update more than two years ago.
Yet, the word doesn't seem to have gotten out.
One reason for this may be that attorneys who do serve as "pro-tems"
must retake 3 hours of judicial ethics training every three years, and
those that have ceased acting as temporary judges may never again undertake
such review. The on-line courses that are made available for those that
do now explicitly make reference to the website prohibition, and possibly
only those who've taken the course since the November, 2012, update
are made aware of this fact.
Which places upon them an obligation to go back through their website pages
and delete the offending references, a potentially tedious and even impossible
process, particularly given the proliferation of duplicate internet content
and "scrapers" that lift biographical information that gets
published and republished
ad naseum. Once something hits today's internet, the proverbial cat is out of
the bag and may never be stuffed back in.
What's the perceived problem with this? After all, many counties (Riverside
included) give "Certificates of Appreciation" to their temporary
judges each year, which are suitable for framing. But isn't that plaque
on the wall, viewed by clients and potential clients, also an "advertisement?"
Certainly it seems that the judiciary is looking the other way on this;
after all, attorneys who volunteer their time in the all-important task
that is so essential in these budgetary times are greatly appreciated
by the Courts for their service. Actually penalizing such attorneys could
wipe the rolls clean of available participants, which would create a crisis
for the administration of justice.
Some view this is a tacit conspiracy of one hand shaking the other.
Yet, the concern that promoting oneself as a Judge Pro Tem implies one
is an insider within their local Court is inarguably a fair one, particularly
in family law and divorce court. Advertising is intended for financial
gain. But then, you ask, "am I supposed to keep this public service
a big secret, even when my acquaintances or clients bump into me at the
courthouse and learn that I am the bench officer that day?" Seems
that whispering "you know, he sits as a temporary judge" creates
an even greater conspiracy - and clients or potential clients who hear
those whispers about one attorney but never happen to hear the whispers
about another attorney who serves may assume one is more of an "insider"
than another. And, boy, clients like to talk about their attorneys, and
even more they need to feel confident in them. Everybody wants an insider
on their payroll! Certainly, there are lawyers (and I know a few locally)
who crow about sitting pro tem to anyone who will listen.
Another unpleasant thought: There may be attorneys who use their time as
Pro Tems to meet and greet the regular judges in the corridors behind
the courtrooms, and even drop by the CCRC mediation department, in effect
to "remind" court employees of their presence in that role for
the very purpose of making themselves feel to be and look like Court Insiders.
Maybe this is just human nature.
We have to trust in the integrity of our regular judicial officers who
spend a lot more time and receive much more training on maintaining the
integrity of their offices than is required of the itinerant temp judges.
(After all, how much can you ask of attorneys who are already volunteering
sometimes many hours on a given day, beyond updated ethics and demeanor
training every three years?).
Possibly the practice of using private lawyers as temporary judges is a
bad idea that should be abolished - but there is no way that is about
to happen. There is not enough money to run the Courts as it is.
Cronyism is in our blood. However, I believe most professional judges are
not as prey to be influenced by these circumstances as the public or some
pro tem attorneys may suppose. But the essence of our judicial system
lies in the appearance of judicial impartiality and its integrity, and
not just its reality.
For these reasons, it is up to attorneys who serve as Pro Tems to police
themselves on this, neh?
Starting now? I "dunno" - what do you think? "
WHAT...EVER!"? I hate being a pest (NOT - it's in my genes; and if you
are a lawyer, your's too)!
One thing is for sure - Google is watching and recording all of us. Where
do you want to lie, at the end of the day?
Author: Thurman W. Arnold III, CFLS