The Honorable A. Raymond Randolph*

Judges affect -- or to use our topic's heading, "drive" -- legal ethics in a number of well known ways. Judges adjudicate disbarment cases and other disciplinary proceedings and thus interpret the codes governing attorney conduct. Confronted with a misbehaving lawyer, a judge may refer the matter to bar counsel, issue a contempt citation, or admonish counsel. Judges hand down decisions in attorney malpractice cases. In the federal system, Rule 11 and the rules governing discovery, and the judicial code (28 u.s.c. § 1927) authorize judges to issue sanctions for certain kinds of attorney misconduct. And, most obvious of all, the highest court in each state adopts and, from time to time, revises the rules of conduct for lawyers admitted to practice in that state.

In each of these particulars, judges deal with the ethics of the profession. My thesis is that judges -- federal judges — also influence legal ethics in other, less conspicuous ways. Many are positive influences. Some are not. It is more interesting to criticize and so I will devote my talk to the negative side.

In speaking of "ethics" I do not mean simply the ABA Model Rules of Professional Conduct now in force in most jurisdictions, including the District of Columbia. Strictly speaking, the model rules are not an ethical code. Ethics is concerned with right and wrong, with good and evil, with truth and its opposite. Ethical codes deal with moral choices — with what persons ought to do. The model rules are not of that sort. They do not give lawyers choices. They are enforceable commands. They tell lawyers what they must do and what they must not do.

The model rules say, for instance, that "a lawyer shall not . . . reveal a confidence or secret of the lawyer’s client" [rule 1.6(a)]. "a lawyer shall not obstruct another party’s access to evidence . . ." [rule 3.4(a)] and my personal favorite, model rule 8.2: a lawyer shall not falsely or recklessly accuse a judge of incompetence. ( For some reason, this rule was eliminated in D.C.) All of these mandates are backed up by the threat of disciplinary sanctions. The code of conduct for federal judges reads differently. The judicial code is framed as a book of virtues, and, with one exception, speaks of what judges ought to do.

Thus, federal judges should act "without fear or favor," should not be "swayed by partisan influences" or "public clamor," should avoid impropriety or the appearance thereof in all activities. And so forth.

Federal judges take these canons seriously, very seriously. I have it on good authority that no other group of public officials is more conscientious about maintaining their written ethical standards or more deserving of the description "honorable."

But before my colleagues and I greet this news with cheering and backslapping, we ought to pause and consider the comparative advantages federal judges enjoy.

Judges, it is said, are held to higher ethical standards than are lawyers. A similar statement is sometimes made about elected officials, often at sentencing.

The truth is that the ethical standards for judges are not exactly "higher." They are simply different -- different because a judge performs functions different than a lawyer. And to say that judges are being held to higher standards neglects to mention that the holding is being done by the judges themselves.

Thanks to the founders, federal judges -- unlike some of our state court counterparts -- do not have to run for office, with all the glad-handing, and speech-making and fund-raising that entails. Unlike the practicing lawyers, we do not have to attract clients or fill out timesheets or collect fees. Lawyers bring business to us. We reciprocate by giving them decisions. Our salaries may be paltry, relatively speaking, but they are secure. Our take home pay has no relation to the number of hours we work. And we have the luxury, sometimes the burden, of expressing our own opinions, not someone else's.

A common complaint is that judges are isolated. Perhaps so, but this is not necessarily bad. The best guarantee of ethical conduct is the absence of temptation. That’s why monks have monasteries.

The charge is wrong anyway. Each year, usually as spring approaches, sometimes earlier, federal judges across the country remove their robes and re-enter the rough and tumble of the marketplace. It is, I am sorry to report, not always a pretty sight.

I am referring the yearly rites of law clerk recruitment. For 99.9 % of the annual crop of second year law students -- students who have spent their days and nights reading and analyzing judges’ opinions -- this will be their first encounter with a real, live federal judge. These students, these future leaders of the bar, will have been told by their deans and professors that the judicial conference of the United States, headed by the Chief Justice, has decided that federal judges should not -- I emphasize the "should" -- hold clerkship interviews before March 1. Then the students learn that some judges, some very prominent among our ranks, have made it a practice to disregard the date.

This must be deeply troubling to students who -- with some cause -- may tend to view the March 1 date as reflecting an ethical standard. They realize that judges intent on ignoring the date are gaining an advantage over those who faithfully adhere to it. By granting interviews and making offers early, these judges capture some portion of the pool of candidates who are then unavailable to the judges who follow the deadline. It is a matter of ethics, these students may suppose, because the advantage to these judges arises from their exploitation of the trust of their colleagues. They are like runners in a race who "jump" the starter’s gun, and get away with it.

Yet as Socrates taught us, ethical conduct is promoted by the example others set. No more need be said.

You may be asking yourself why federal judges go into such a feeding frenzy over law clerk applicants. One clue, a disturbing one, is supplied by Chief Judge Posner. He asserts that "today . . . the vast majority of judicial opinions at all appellate levels are drafted by law clerks," with the judge serving the role "of supervisor." And so if this sort of supervising judge yearns for acclaim, if he wants his name on admirable opinions or he wants to appear learned and wise, he thinks he must hire only the best of the best. If the theory is accurate, it is a dismal display of judicial insecurity. And it is something more.

Judge Posner makes this point: "open acknowledgment that neophytes can, after only three years of professional instruction and no professional experience, do much of the principal work of judges more or less satisfactorily, or at least not shockingly badly, still has the capacity to undermine professional self-esteem. It is a little as if brain surgeons delegated the entire performance of delicate operations to nurses, orderlies, and first-year medical students -- and patients were none the worse for it."

The practice also smacks of deception. The public feels duped when it learns that the eminent author of the latest bestseller did none of the writing. So too if law clerks are the judiciary’s ghost writers. Clerks performing that task must be disillusioned to learn that the opinions they so carefully analyzed and debated in law school were produced by some anonymous graduate not unlike themselves. Word of this is bound to spread, back to the law schools and through the profession.

We therefore should hardly be surprised at the growing cynicism among lawyers, the mounting disrespect and distrust, and the declining regard for candor and honesty. As Professor Shaffer stated to an audience of law students, "you don’t think the legal profession will make you a better person. When you pay attention to your recent moral drift you are probably afraid the profession will make you worse. You are on guard against its seductions and corruptions. You are suspicious of the legal profession." Are law students also becoming more suspicious of the federal judiciary?

Before I leave the subject of opinion writing I want to mention another judicial practice that, in my view, has severe ethical repercussions. Consider the following diatribe contained in a recent concurring opinion. The concurring judge accused his dissenting colleague of "callously ignor[ing] the interests of people." His colleague’s suggestions were "disingenuous[]," his examples "absurd." His views "would make the Statue of Liberty weep," he "does Abraham Lincoln no honor," he "betray[s] our nation's history," and if the dissenting judge had his way, "his would be an Orwellian world in which big brother could compel its minions to say war is peace and peace is war . . .." [69 f.3d 952-4]

When I first read this stuff I tried to picture what the author would say when he next encountered his colleague face-to-face. I was reminded of Senator Kennedy's remark to Judge Bork after the confirmation hearings -- "nothing personal."

Samuel Johnson referred to the sort of froth contained in this concurring opinion as "airy bursts of malevolence." [Vol. X, @ 443]. In a judicial opinion it is the ethical equivalent of a boxer biting off his opponent's ear. The reports, including some from the Supreme Court, are filled with similar examples.

Is it any wonder then that litigation has become such an exercise in brutality? Politeness is equated with weakness. Scorched-earth tactics are considered signs of strength. The bare-knuckled litigator is admired, sought by clients and emulated by other lawyers. Litigation may be only a small part of the practice of law but as Walter Olson pointed out, it casts a long shadow over the profession. So do the sort of judicial opinions I have described.

If the invectives are contained in a majority opinion, brief writers feel free to quote them back to the court in later cases. If judges attack their colleagues in this manner, what is wrong with lawyers using the same disgusting tactics to brutalize their opponents?

A final and related point. Today, appellate courts increasingly decide so-called routine cases by issuing a boiler-plate order without hearing argument. Does this have an effect on legal ethics? I think the answer is yes, although I cannot prove it. Oral argument is touted because it allows the court and the attorneys to explore the case fully. For judges, it focuses the mind. For lawyers it gives them a chance to sharpen their arguments. Persuasion using the written word is not the same as persuasion using the spoken word.

But I have long believed that there is another benefit, a benefit felt back in the law office. Late at night when the attorney is writing the brief in a case that surely will be argued, the attorney feels the cold stare of a judge looking over his or her shoulder. The attorney knows that the time will come when he or she has to stand up before the court and be called to account for what is written.

The prospect of oral argument, then, is a powerful force against misstatements of fact, omissions of contrary authority, and other distortions. This, I think, is true even when one lawyer in the firm writes the brief and another presents the oral argument. "Conscience," Mencken used to say, "is the inner voice that warns us someone may be looking." As we decrease the use of oral argument, that inner voice begins to fade away.

Our moderator is now looking over my shoulder so I will end.

*Judge Randolph is on the U.S. Court of Appeals, D.C. Circuit. These remarks are from the Federalist Society’s National Lawyers Convention on October 18, 1997.