Bankruptcy Judges Aren’t ‘Clubby'—Ethical Networking Is Key

The resignation of former US Bankruptcy Judge David Jones and scrutiny of a popular two-judge panel in Houston has prompted questions over whether bankruptcy judges should attend social events with bankruptcy practitioners.

There is an unwritten rule about attendance by judges at social events. Small talk such as the weather, a recent Supreme Court decision, your golf game, or your favorite sports team are permissible. My experience as a bankruptcy practitioner is that if you try to discuss a pending case, judges quickly exit stage left, and the judge likely will avoid you at future events. Any attorney worth their salt knows this rule and doesn’t want to alienate a judge by breaking it.

It would be damaging for there to be a public impression that something inappropriate happens whenever judges are seen interacting with practitioners at worthy social events. When judges step up to show their support for a good cause, they shouldn’t be criticized.

Because bankruptcy law is highly specialized, the bankruptcy bar is a relatively small group. Practitioners tend to deal with the same people on a regular basis. If you have been practicing long enough, you probably know everyone in the bankruptcy bar. Bankruptcy judges often are former bankruptcy practitioners.

All this can contribute to a public impression of “clubbiness.”

Attendance by bankruptcy judges at social events may be viewed as supporting a mission of the host organization. Their attendance also may be a “draw” for practitioners to attend such events.

This creates a potential dilemma for members of the judiciary about which events to attend, especially since socializing with practitioners at events is impossible to avoid. But does it—or should it—create an appearance to the public of impropriety or a lack of impartiality?

The Code of Judicial Conduct for United States Judges (which applies to many types of judges, including bankruptcy judges), states that:

• Judges must maintain and enforce high standards of conduct to ensure the public that judges are impartial
• Judges shouldn’t allow relationships to affect their conduct or judgment
• Appearances of impropriety happen when “reasonable minds” conclude that a judge’s fitness to serve is impaired
• Judges can’t “initiate, permit, or consider” communications on pending matters made outside the presence of parties or their lawyers
• Judges may engage in extrajudicial activities, including those related to charities, education, and social events

The commentary to Canon 4 acknowledges that “a complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives.”

This means a judge needs to deduce whether their pursuits and activities are appropriate for their attendance—something that should be relatively easy.

For example, continuing legal education programs, moot court competitions, events to honor retiring bankruptcy judges, and fundraisers for the most underprivileged people going through bankruptcy are easy calls. The same with other types of organizations widely supported by the bankruptcy bar, such as those that combat domestic violence or those that fund ovarian cancer research.

The code of conduct specifically says judges may attend fundraising events of law-related and other organizations. The problem is with judges’ behavior at such events—socializing with practitioners—and the public’s perception of that behavior. Judges and practitioners know the rules, and social interaction shouldn’t be interpreted as anything other than that.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Kenneth Rosen practices debtor and creditors’ rights law and advises companies on practical strategies for resolution of financial distress.

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