Search the Lounge

Categories

« Exclusive Submission at Penn State Law Review Until May 12 | Main | Was Originalism Born in Sin? »

May 08, 2017

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

[M][a][c][K]

There has been litigation in both the UK and Ireland over an old rule that prohibits a judge from appearing in any court at the level he/she was at when they retired. I think the Irish case involved a judge of the Central Criminal Court, which is a branch of the High Court that takes serious criminal cases - and thus, though a court of first instance, at a higher level than the District Court or Circuit Court. The apparent reason was that it was perceived that someone's status as a former judge could influence more junior judges and courts.

My understanding in the England, Wales, Scotland and Ireland is that a former judge who returns to legal practice should not use the title of 'judge' but a retired judge who does not practice law can continue to use the title. The concern is that again it may give the judge too much credibility and unduly sway clients and the court (though one could then ask about the whole system of juniors (junior counsel) and Queens Counsel/Senior Counsel.)

anymouse

Get rid of all titles for former judges and political office holders.

Ian Holloway

This will sound archaic, but in the Commonwealth (or, rather, in the Queen's Commonwealth Realms where they still have Queen's Counsel), a retired judge who returns to practice has his or her QC title automatically restored. Whilst on the Bench, the appointment as a QC is suspended, for the obvious reason that one can't be both one of the Queen's judges and one of her counsel. Socially, the convention is that judges won't even hang their QC Letters patent (which tend to look pretty snazzy) in their office.

In our corner of the common law world, a judge who returned to active practice would never in a million years presume to call him or herself "judge" - for the reasons you posit, Steve. As a dean, I might in a social setting call them "Judge", but that's only socially.

Deep State Special Legal Counsel

Here is the problem or the root of all evil here. Somebody paid big money to "Judge" Freeh/Napolitano for "legal" consulting and they wanted to get a huge bank for their buck. It's the same scenario when a corporate wrong doer retains a former high profile AUSA or the man himself to "investigate" or come up with findings "so it will never happen again..." Read: So we can get back to making and selling plastic shit at Walmart. It's all about money.

twbb

DSSLC, I don't think Napolitano is driven solely by money, I think he's also driven by getting his face in front of the TV, and being a total conspiracy-believing wingnut.

Deep State Special Legal Counsel

twbb,

Bozo the Clown "got his face in front of the TV" a lot too! It's money. Trust me. Why does Uber need AG Holder to "investigate" claims of sexual harassment? You and I could do the same for a few hundred dollars and come up with a two page memo to file. They are using him as a salve to say to the Liberal Yuppie Hipsters "we are soooooooooooooooooooo sorry..." Now, get back in the OUR car with your Lattes. Everything is Okay now. We got a good guy to investigate this. Same thing with these former "famous" Judges and whoever they "investigate."

Bernie Burk

Steve, thanks for continuing to explore this surprisingly nuanced and difficult question.

Consider: Kenesaw Mountain Landis, the first Commissioner of Baseball, was universally referred to as "The Judge" or "Judge Landis" long after he left the bench to serve as Commissioner (though I believe he was appointed and served as Commissioner for a year or two while still a sitting federal judge). I'm sure other readers can come up with plenty of other examples of judges who left the bench and assumed other prominent roles in public life while continuing to use (or allow others to apply) the title of their former office. Suffice for the moment to say that historical practice on closer examination will probably turn out to be both varied and inconsistent.

So when SHOULD continued use of a judicial title after leaving the bench be OK? Steve, you rely on an ABA Ethics Opinion to suggest that it might be OK "for purposes other than in the practice of law," but that doesn't really cover the whole canvas. (The ethics opinion is, by its nature, limited to defining things that licensed lawyers can't do, so it can't touch someone who goes inactive or resigns from the Bar. And this particular ethics opinion is limited by its terms to what former judges can do in any law practice they resume after leaving the bench. There are, of course, ethical rules that govern what lawyers do even when they're not acting as lawyers or practicing law, but this opinion doesn't articulate anything that broad.) For example, your post was prompted by what Andrew Napolitano was doing on Fox News, and whatever that was, it wasn't practicing law.

Steve, you also suggest that a touchstone might be found in the observation that "judges are supposed to be objective and politically neutral." I think you've focused on something important here. Perhaps this can be productively generalized into a rule proscribing use of a judicial title after leaving the bench for activities that are inconsistent with the judicial role--that is, partisan activities (or inversely, permitting use of the title for activities consistent with the judicial role). So it's easy to say that a former judge acting as an advocate in a courtroom or a negotiation should not use the title.

The problem, of course, is that the "partisanship" line is not at all easily drawn in lots of cases. Was Judge Landis non-partisan in imposing a more rigorous ethical regime on the National Pastime? Wasn't Judge Freeh non-partisan in conducting an independent investigation of the Penn State administration's handling of Jerry Sandusky? Presumably both Freeh and his "client" (Penn State) viewed his role as that of an objective factfinder. Ironically, Judge Napolitano would likely argue that he was no partisan, but rather offered only objective analysis for a famously "fair and balanced" news service.

Without trying to solve the problem I just posed--or even suggest that the more generalized test I suggested is a complete or a good one--there is at least one other perspective that may help define when use of a former title of office is not OK. That's when it potentially misleads others into believing that the person using the title still currently occupies the office. That, it seems to me, would be the problem if Louis Freeh had called himself "FBI Director Freeh" in commenting on his conclusions regarding Penn State, as opposed to "Former FBI Director Freeh." One thing this illustrates is that, by common usage and understanding, use of some titles after leaving office does not necessarily imply current occupancy of the office. Hence Colonel Sanders, Governor Romney, Secretary Clinton.

I suggest this whole thing is a good deal harder than it looks at first.

--Bernie

The comments to this entry are closed.

Bloggers Emereti

StatCounter

  • StatCounter
Blog powered by Typepad