More on Use of Titles by Former Judges

My fellow Lounge Lizard Steve Lubet recently offered two very thoughtful posts (here and here) on the circumstances under which it ought to be considered inappropriate for retired judges to use their former titles.  Steve’s comments were prompted by “Judge” Andrew Napolitano’s allegations on Fox News that British intelligence services had colluded with the Obama Administration in wire surveillance of the Trump Campaign.  As Steve pointed out, Napolitano’s own website (JudgeNap.com) and bio are stuffed with references to his former job, Fox News refers to him as a “senior judicial analyst,” and Napolitano reportedly insisted that Fox make his television set resemble a judge’s chambers.  “Judge” Napolitano once sat on a trial court bench in New Jersey, but hasn’t been a judge for over twenty years; even Fox News could not stand by his bizarre and unsubstantiated pronouncements concerning the alleged wire “tapp.”  In case you’ve forgotten, President Trump initially justified his wire-tapping allegations by saying “All we did was quote a certain very talented legal mind who was the one responsible for saying that on television.”

I offered a Comment to Prof. Lubet’s second piece, which he asked me to post “above the line” so the discussion could continue.  Of course, I couldn’t manage to do that without messing with my Comment, so here you have a somewhat (all right, considerably) elaborated version, with thanks to Steve for getting the conversation started on what is, to my mind at least, a surprisingly nuanced and difficult question.

I’d like to suggest that there are at least two related but distinct questions worth thinking about:  (1) when it’s OK (or not OK) to use the title of a former office, and particularly a former judicial office; and (2) when the norm should be a positive proscription enforced by process and remedies, and when its violation should be condemned merely (and I use that word advisedly) as a breach of convention or decorum.  In order to address both, we might start by considering why we care.  I can think of two or three reasons, depending on how you break them down, and I’ll work my way through them and their possible implications after the jump.

Historical practice?  One way we can figure out why we care is by looking at historical practice and seeing if we can discern any common motivations.  So we have to start by acknowledging that we do regularly allow holders of certain public offices, including state and federal judges, to use their titles after leaving office in many different circumstances.  We do that, I think, because we share the view that public service is honorable, and that some public service is particularly honorable.  Allowing or approving (whether by convention or rule) continued use of certain titles after service thus amounts to a recognition of the public benefit and personal sacrifice conferred by the individual’s service and also, I would suggest, of the characteristics that often prompt elevation to public office and often are refined and strengthened in its exercise.  In other words, we think of judges ideally as wise, honorable, fair, and temperate; many are.  Calling a retired judge “Judge” not only says “your past service to the administration of justice entitles you to our appreciation and respect,” but also says “you possess (or at least we presume you possess) special and admirable characteristics that justified your appointment or election to and service in public office, and you also deserve respect for that.”

Let’s take a quick look at some examples of continuing use of past titles to get a sense of what’s been done.  Certainly holders of high political office regularly use their titles after moving on, and use them for a variety of purposes beyond the merely honorific.  Governor Romney and Secretary Clinton, like many before them, used their former titles while running for higher office (interestingly, Secretary Clinton generally used her most recent title rather than the Senatorial one to which she also was entitled).  High military officers also frequently hold onto their titles after leaving the military, again in a variety of contexts.  Colonel Tom Parker was an honorary colonel in the Louisiana Militia (so designated by Gov. Jimmie Davis for his service in the governor’s election campaign; ironically, Louisiana had no organized militia at the time).  As Elvis Presley’s manager, he was universally known as “The Colonel” or “Colonel Parker.”  Harland Sanders used his military title (also an honorary rank in a state militia, here of course Kentucky) to sell fried chicken. 

When military officers go on to civilian appointments in government, things get more complicated.  How widely was David Petraeus known as “General” when he ran the CIA?  Did Michael Flynn call himself “General” during the period he served as head of the Defense Intelligence Agency in the Obama Administration (he was fired), during the time he campaigned for Donald Trump, or during the brief period he served as President Trump’s National Security Adviser?  What about Flynn’s successor, former Gen. H.R. McMaster?  And do those who serve in the Pentagon still call Defense Secretary James Mattis “General”?  (These are not rhetorical questions; I don’t know.)

More to our current preoccupation, what about judges?  The retired judges and magistrate judges who serve as arbitrators and mediators for the private Judicial Arbitration and Mediation Service are referred to on JAMS’ website as “Hon.” (and “Ret.”), and in my experience in practice are addressed as “Judge” or “Justice.”  The American Arbitration Association website touts its retired judicial officers for private ADR services by asserting that “A former judge brings the distinction of the courts to the time and cost savings of arbitration and mediation,” and helpfully explains in smaller print at the bottom of the page that “*Judges will refer to “former judges” for the purpose of this panel” of personnel (italics original; see here). 

Turning to more unusual postjudicial service, 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.  Louis Freeh, who left the federal bench to run the FBI during the Clinton Administration, was (if memory serves) often referred to as “Judge Freeh” during his tenure there, and as Steve points out in his second post, has kept and used the title after returning to a law practice focused on security consulting and internal investigations at a small firm he started with former CIA General Counsel and retired federal district judge Stanley Sporkin.  Was former D.C. Circuit Judge Kenneth Starr referred to as “Judge” while acting as the Special Prosecutor investigating President Clinton?  Was Shirley Hufstedler still called “Judge” after she stepped down from the Ninth Circuit to serve as the first Secretary of Education?  What would we have called Antonin Scalia if he had resigned his seat on the Supreme Court to run for Vice President with Bob Dole in 1996, as he was reportedly urged to do?  (Again questions to which I don’t know the answers.)

I'm sure readers can come up with plenty of 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.

Reasons for a rule.  Given our established acceptance of judges’ use of their titles after service as an honorific, when is such use (or when should it be) not OK?  Obviously the principles of recognition and appreciation that appear to justify the use only go so far.  The answer is that we seem to worry about people being misled, and we seem to worry about their being misled about a number of things.  ABA Formal Ethics Opinion No. 95-391, to which Steve Lubet refers in his posts, focuses on what a former judge may do upon return to the practice of law.  A recent ethics opinion from Ohio that Steve also discusses, No. 2013-3, addresses not only postjudicial law practice but “engaging in law-related or other business activities, working in government or other public sector positions, or providing charity or community services.”  The basic conclusion is that use of a former judicial title in these contexts is not OK.  Why?  The opinions see this (not incorrectly, in my view) as a specific instance of the broader prohibitions against lawyers’ making false or misleading statements generally (see Model Rules 4.1, 8.4(c)), about themselves, their qualifications, or their services (Model Rule 7.1), or about their “ability to influence improperly a government agency or official or to achieve results” (see Model Rule 8.4(e)).  In short, we’re concerned that forums, jurors, clients or potential clients, or members of the public might believe that people who call themselves “Judge” are more fair, honest, disinterested, knowledgeable, credible, or influential in ways that are misleading to the public or unfair to other lawyers or other individuals in public life.  As Steve pointed out, the ABA opinion observes that “there appears to be no reason for such use of the title other than to create such an expectation.”

Nature and jurisdiction of a rule.  One thing this touches on is my second question—which, since I’ve been carrying on for a while, I’ll remind you is when a norm against use of judicial titles after leaving office should be a positive proscription enforced by process and remedies, and when its violation should be condemned merely as a breach of convention or decorum.  Alert readers have noticed that all of the rules and opinions marshalled to this point (and neither Prof. Lubet nor I suggests it is a complete list) rely on rules of attorney discipline.

The limitation of those rules is that they are, by their jurisdictional nature, limited to defining things that licensed lawyers can't do, so they can't touch someone who no longer is a member of the Bar. The ABA ethics opinion is limited by its terms to what former judges can do in any law practice they resume after leaving the bench (leaving open the question of whether “the practice of law” is defined for these purposes as things only licensed lawyers may do, or also includes things that some or many licensed lawyers do even though others also may do them without engaging in the Unauthorized Practice of Law—e.g., business negotiations, business advice, tax advice, and accounting among countless other things).  There are, of course, ethical rules that govern what licensed lawyers do even when they're not acting as lawyers or practicing law, as the Ohio opinion does, but even then such rules govern only those licensed to practice law, and in the case of norms such as the Ohio opinion, licensed in a particular state.  This suggests that, while disciplinary or other norms may be appropriate in guiding conduct and limiting misconduct, they are unlikely to be sufficient.  The examples gathered above include a number that require no law license, and there are undoubtedly lots more. The specific example that prompted Steve Lubet’s posts—“Judge” Napolitano’s commentary on Fox News—provides a good example:  Whatever that was, it wasn’t practicing law.

Setting a standard (really hard).  Which doesn’t yet address whether it was nevertheless bad conduct.  So, returning at last to my first question (for those still keeping score, when continued use of a judicial title after leaving the bench should not be OK), we are still in search of a standard. 

The reasons for the rule are informative—it’s not OK when that use may mislead or confer unfair advantage.  Thus it’s easy to conclude that former judges returning to trial work should not introduce themselves to a jury during voir dire or opening statement (or in any other litigation context) as “Judge.”  Beyond conventional advocates’ roles in litigation, however, boundaries quickly get harder to discern.  In attorney advertising, it would seem proper to state truthfully that you had previously served as a judge, while at the same time in your practice, according to the ABA, you may not “continue to use the titles Judge or The Honorable,” “may not have [your] telephone answered Judge X's office,” “sign [your] correspondence and pleadings Judge X,” “have [your] name appear on [your] nameplate or the firm letterhead as Judge X or The Honorable,” or “encourage others to refer to [you] as Judge X or Your Honor in the courtroom or otherwise in connection with legal proceedings.”  The latter are distinguishable from the former, but not by much, illustrating if nothing else the difficulty of line-drawing in this context.

Our alert readers have also noticed that these proscriptions may not be consistent with the practices of highly respected private Alternative Dispute Resolution Providers such as JAMS and AAA, which tout the special skill and expertise of their former judges as a selling point in offering their services.  Quite a few of you are probably unbothered by this practice, if for no reason more coherent than that it doesn’t seem troubling, or in the same ballpark as “Good morning, ladies and gentlemen, I’m Judge X.”  You could dismiss this comparison out of hand by arguing that what former judges do as mediators and arbitrators for JAMS and AAA is not “the practice of law,” but certainly lots of licensed lawyers do this work (look at JAMS’ and AAA’s rosters), and quite probably lots of those former judges have retained their law licenses.  And if this is OK for former judges because it does not require a law license and is thus not deemed “the practice of law” for these purposes, that seems to suggest that former judges acting as corporate or nonprofit managers, or as business, tax, or accounting advisors, can advertise themselves as “Judge” with impunity.

So if the delimiter of “the practice of law” is both over- and underinclusive, how can we distinguish a JAMS mediator from a trial lawyer?  Steve provides an important insight in his second post with the observation that “judges are supposed to be objective and politically neutral.”  If we were going to try and improve on our “tendency to mislead or create unfair advantage” standard, we might refine it by suggesting that use of a former judicial title is not OK for activities that are inconsistent with the judicial role—which we might describe, consistent with Steve's observation, as adversarial or partisan activities.

Trying to apply the standard (even harder).  The problem with either the original standard or the slightly more elaborated one is that their boundaries are not at all easily drawn in many cases.  Consider:

• Was Judge Landis “non-partisan” in imposing a more rigorous ethical regime on the National Pastime? Was his use of his title in that role misleading or unfair?  He aggressively advocated in the press and elsewhere for the enforcement and efficacy of his heightened standards of conduct.  The club owners at the time felt the urgent need to show the public that the game was cleansed of the taint of the “Black Sox” World Series-fixing scandal (some might say so that the public would continue to follow baseball with their customary avidity in the comfort that the games they were still betting on were fair, but for broader purposes of public morale as well, as the celebrated  and probably apocryphal “say it ain’t so, Joe” vignette demonstrates).  They chose someone who by both office and personal reputation was considered beyond reproach.  In fact, Judge Landis acted as Commissioner of Baseball for a year or two while remaining a sitting federal judge.  In other words, the public's perception of his judicial disinterestedness and incorruptibility were a critical part of the strategy to rescue the prestige of the game.  Was this bad conduct in the service of good ends?  The Ohio ethics opinion (had it been in effect at the time) would have considered Judge Landis in clear violation of the state’s disciplinary rules.
• Was Judge Freeh “non-partisan” when he ran the FBI? Was use of his title in that role misleading or unfair?  To support public confidence in the Bureau, President Clinton wanted someone squeaky-clean to replace William Sessions, who had just been discharged for highly publicized ethical violations involving alleged misuse of public funds (and perhaps, less explicitly, for the Bureau’s controversial handling during his tenure of the confrontations at Ruby Ridge and the Branch Davidian compound at Waco).  Like the appointment of Judge Landis as Commissioner of Baseball, Judge Freeh’s use of his former title served an arguable public interest that was also allied to a particular point of view--that the FBI is honest and objective and can be trusted to do the right thing.  Was this misconduct?  The much-discussed independence of the FBI notwithstanding, in the larger context of the administration of our adversary system of criminal justice we have never considered law-enforcement neutral or nonpartisan.  See, e.g., the Fourth Amendment.
• By the same reasoning, surely Judge Starr was an advocate when he served as Special Prosecutor. Model Rule 3.6 and the prosecutor’s duty to do justice do not prevent prosecutors from being quintessential advocates in our model.  (But then, not everyone called him “Judge Starr” at the time, and maybe relatively few people did.  Historians are invited to enlighten us.)
• On the other hand, wasn't Judge Freeh non-partisan in conducting his 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. And quite probably he was in that instance, though this hardly means that every “independent” investigation begins, or ends, innocent of any agenda imposed by the commissioning organization.  Moreover, Judge Freeh was and is a partner in a law firm that does the kind of work that lots of lawyers do every day.  You could say that during the Penn State investigation he was not engaged in the “practice of law” as the ABA opinion defines it because you don’t need a law license to conduct an independent investigation (retired FBI agents and others do them all the time), but we’ve already discussed how useless that distinction proves to be for current purposes.

So what about Andrew Napolitano’s “alternative fact”ory?  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.  You may find that obvious or you may find it ridiculous, but it really isn’t as easily resolved as many of us would like to think.  If we set aside our own partisan feelings—and that’s especially difficult here because in this instance Napolitano appears to have conjured his facts out of thin air on a subject of great public import and abused the offices of a national news service to disseminate and legitimate them, which is contemptible by any measure—the guy’s just a political commentator, and as a political commentator on Fox News it's unlikely that any viewer will ever be misled about his point of view or purposes.  You either take the commentary on Fox News as serious analysis or you don’t.  Unlike other contexts where the tendency to mislead or confer unfair advantage is much stronger, the fact that someone calls himself “Judge” while doing what Andrew Napolitano does doesn’t add much to the argument. (Though if that were altogether true, no one would care that he and Fox insist on calling him “Judge”; we’d probably treat the title more like Emperor Norton’s.  Still, on the standards we’re discussing, it may be a lot less salient than the heat it’s generating might indicate.)

One other reason for a rule?  But that raises one other interest we haven’t really explored—judicial legitimacy.  It seems fair to say that the legitimacy of our judicial system depends on a public perception of fair and orderly impartiality.  (Pace the Crits and everything they have to say about the subject, I submit that the preceding statement is largely unexceptionable—legitimacy depends in significant part on perception.  And in the real world of government and governed, legitimacy matters.)  The perception of judicial legitimacy is necessarily centered on our judicial officers, who after all run the machine.  We get uncomfortable when our judicial officers demonstrate personal characteristics—even after leaving office—that they likely held previously while serving, and that are inconsistent with that desired judicial image of sobriety, honesty, neutrality, fairness. This, I would suggest, is the origin of the Ohio ethics opinion that views misuse of a former title of office to extend, perhaps overexpansively, to using the former title while “engaging in law-related or other business activities, working in government or other public sector positions, or providing charity or community services.”

So what should we do?  Perhaps that indicates that the Ohio opinion goes too far, and that anything beyond a likelihood to mislead or confer unfair advantage (as difficult to determine consistently as that may be) should be left to public discourse on convention and decorum.  Or perhaps judicial decorum is sufficiently important to legitimacy that it should be enforced by whatever means are available.  This has proved to be a First-Amendment hornet’s nest when applied more generally to lawyers and their public statements about themselves (see Arizona v. Bates and its utterly unruly progeny if you’re yearning for headache), but maybe a focus on judges and former judges adequately reduces the degree if not the kind of concern.  (I don’t think so.  For an example of a well-meaning partisan using the attorney disciplinary system for what might appear to be the purpose of silencing commentary with which he strongly disagrees, see here.  And we aren't anywhere near done figuring out what emerges when judicial elections and the First Amendment collide; see Williams-Yulee v. Florida Bar.)  Or perhaps we should just trim back the honor and appreciation we confer for past judicial service, and take the simpler stance that you can say or do whatever you want (within the limits of generally applicable laws) once you leave the bench—just don’t call yourself “Judge” while doing it.

If you ask me (and if you’ve gotten this far, then I'm afraid you have), this whole thing is a good deal harder than it looks at first.

--Bernie

Comments

[Steve Lubet]

Great post, Bernie. You have really clarified the considerations.

But let me add one more, which was mostly the subject of my earlier posts. No matter what former judges may (or choose to) call themselves, how should the media refer to them?

In Napolitano's case, for example, there is no rule or restriction that prevents him from calling himself "Judge" on Fox News, but that does not require other platforms to use the honorific, and I think they should not. That is the policy of the New York Times, the Associate Press, and other media, and I think it is a good one. Louis Freeh's press release called him "Judge Freeh," but he was Mr. Freeh in the New York Times.

(Aside: Bernie writes: "[W]asn't Judge Freeh non-partisan in conducting his independent investigation of the Penn State administration's handling of Jerry Sandusky?" Well, the Sandusky family, Graham Spanier, Eric Barron, and other officials did not think he was non-partisan, although calling him "Judge" certainly created that appearance, which is precisely why I think it was wrong.)

[Bernie Burk]

Steve, Thanks for the kind words and characteristically insightful observations. You're absolutely right that I focused entirely on what legal institutions could or should do about the issue, when you were very appropriately concerned in your posts about nonlegal institutions as well. And I agree that, in addressing this kind of issue, nonlegal institutions that help frame public discourse, specifically the press, are terrifically important. It's a good reminder to avoid the tunnel vision on the law that lawyers and law professors can be prone to.

On your aside, however, I'm not sure I agree. Let's assume for sake of argument that Penn State genuinely wanted an objective investigation into how things went so terribly wrong with Jerry Sandusky, that that's what they hired Louis Freeh to do, and that that's what he actually did. In this particular instance, those are at least plausible propositions. In any independent investigation worth undertaking, some people are going to end up being considered more responsible than others for whatever bad event or outcome occasioned the investigation in the first place. That doesn't mean that the investigation wasn't objective or that the report apportioning responsibility is "partisan." Our system favors factfinding by adversary presentation with a neutral in the middle, but that's not the only way civilized societies investigate and determine wrongs. (See, e.g., most of Europe.) And the folks that end up getting blamed often claim the investigation was unfair to them or driven by a hidden agenda. Sometimes it was, and sometimes it wasn't.

I'm a little unsure about the context of the press release from Freeh that you criticized, so it may not fit the above model. If it was Freeh the investigator saying "I told you so" after Sandusky's and Spanier's criminal convictions, it strikes me as bad form and rather petty. Under those circumstances, it perhaps makes Freeh LOOK partisan after the fact. But at bottom, one way of looking at the statement (if I've correctly described its context) is as the independent investigator noting that another independent
inquiry reached the same conclusion. Freeh's investigation remained as objective and neutral as it ever was.

--Bernie

[Steve Lubet]

The Freeh press release was issued following Spanier's conviction, and long after the conclusion of the investigation. Spanier had criticized Freeh, so there was definitely an "I told you so" cast to it. Freeh also called for the firing of Pres. Barron (Spanier's successor), which was a straightforward instance of advocacy.

The main question regarding Freeh, I think, is whether the investigation constituted the practice of law. I think it did, in the same way that law firms often conduct internal investigations for corporations and other institutions. In any case, an investigator can be "objective" in the sense that he or she has not preferred outcome, but still be operating on behalf of an institutional client as opposed to the individuals under investigation, and thus not objective when it comes to the interests being served.