Fifth Cir. Judge Draws Ethics Complaint for Mask Removal Request

A federal judge who asked a government lawyer to remove his mask at an argument after the attorney said he would prefer to keep it on violated conduct rules, a court watchdog alleged in an ethics complaint.

Fix the Court said in its complaint with the U.S. Court of Appeals for the Fifth Circuit that appellate Judge Jerry Smith violated part of the Code of Conduct for U.S. Judges that says jurists “should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Smith asked Justice Department lawyer Joshua Koppel to remove his mask at an oral argument Jan. 6 in New Orleans, according to a recording of the argument that was cited in the complaint. When Koppel said he would “prefer to leave it on,” Smith replied: “We would prefer that you remove it, thank you.”

That argument came amid the surge in Covid-19 cases due to the spread of the more transmissible omicron variant. It also followed Koppel’s request to argue remotely because his two young children weren’t old enough yet to be vaccinated against coronavirus.

The court denied that motion, compelling the lawyer to travel for the argument.

The Fifth Circuit encompasses Louisiana, Mississippi, and Texas. The circuit’s Covid-19 protocols, which each federal court makes for itself, require counsel to wear masks within the courthouse and courtrooms, “except when presenting argument.”

“Judges will determine mask requirements for their respective chambers and conference rooms,” a Jan. 3 order said.

The Fifth Circuit declined to comment, saying the complaint process is confidential. The Justice Department also declined to comment.