April 22, 2026 – A judge must act like a judge even when the robe is off in chambers: judicial ethics continue to apply.

American Bar Association (ABA) Formal Opinion 521, released Feb. 18, reinforces that the ABA Model Code of Judicial Conduct requires “judges to administer chambers and court staff with the same fairness and neutrality that guide adjudication.”

The Code of Judicial Conduct in Supreme Court Rule (SCR) chapter 60 sets ethical rules for Wisconsin judges.

In these duties that extend beyond the courtroom, the opinion explains that the rules apply “to include merit-based appointments, the prevention of bias and harassment, and the avoidance of favoritism or the appearance of impropriety in all administrative decisions.”

ABA formal opinions don’t establish mandatory rules but offer persuasive guidance.

Saying the Obvious?

One could argue that the opinion says the obvious. Canon 2 establishes that “[a] judge shall perform the duties of judicial office impartially, competently, and diligently.”

The command is sweeping. Judicial duties include supervising clerks and assistants, and for a chief judge, overseeing other judges.

Any sense that a judge’s private life can be unmoored from judicial ethics gets quashed by Canon 3, which states, “[a] judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”

The opinion’s emphasis outside the courtroom may eliminate some gaps through explicit clarification. It also may say something about current challenges.

The opinion’s first illustration hints at the charged atmosphere judges work in.

In that example, for summer internships, a “judge consistently invites applications only from students who attended the judge’s alma mater.”

Even with the judge’s honest desire to help the school – no discriminatory motive – “the appearance that judicial opportunities are reserved for those from particular educational institutions may undermine the public confidence in the judiciary’s openness and impartiality.”

“This hypothetical illustrates how seemingly benign administrative choices – when viewed through the lens of public perception – can erode confidence in judicial fairness,” the illustration concludes.

One could modify the facts illustrated in the opinion to the tenor of our times.

If a judge were to choose only law clerks who are members of the Federalist Society or the American Constitution Society, expecting a certain quality of analysis, the judge could violate the ethics rules described in the ABA opinion.

Another illustration describes a trial court judge’s duty to appoint attorneys on an approved list to represent indigent defendants.

This hypothetical judge avoids appointing “qualified lawyers” who “are affiliated with advocacy organizations that engage in public policy work on criminal justice reform” because “their ‘political views’ might influence how they represent clients or interact with the court.”

Even with the judge’s virtuous goal of ensuring courtroom neutrality, the opinion explains this judge “violates the fundamental principle that judicial appointments must be made on the basis of merit, not ideology.”

As Rule 2.4(B) prohibits political relationships to affect judicial conduct, “[a] reasonable member of the public, observing such selective appointments, could conclude that the judiciary disfavors lawyers associated with particular causes or viewpoints.”

Good intent by the judge isn’t enough to avoid scrutiny under ABA’s model code.

Neutrality Behind the Scenes

“The duty to make judicial appointments impartially and on the basis of merit is part of a broader obligation to ensure that all aspects of judicial administration are conducted with fairness, independence, and integrity,” the opinion summarizes in a segue to supervisory duties.

Even behind the scenes, the courthouse must exude the judicial neutrality the public expects in the courtroom. The judge enforces these requirements that judicial staff must follow.

This requirement comes from longstanding Rule 2.12(A), under which the judge “shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.”

Those standards, the opinion emphasizes, are “impartiality, integrity, and fairness.”

The opinion notes that “the federal judiciary is exempt from many of the standard federal antidiscrimination statutes,” but those laws establish public expectations of behavior. They outline for judges “best practices.”

“If judges fail to do this,” the opinion explains, “the general public, which may not understand that federal antidiscrimination statutes are technically not applicable for courthouse and chambers’ staff, may conclude that judges are ‘above the law.’”

‘Without Bias or Prejudice’

Two illustrations specifically discuss supervision. In the first, a courtroom deputy requests a reasonable accommodation, such as one could get under the Americans with Disabilities Act (ADA), after a physical injury.

“The judge expresses frustration.” The deputy receives “an increased number of time-consuming or undesirable tasks.” It becomes a warning to others not to raise concerns in the workplace.

Retaliation violates Rule 2.12(A), the opinion explains, “because such conduct communicates that equal treatment depends on avoiding disfavor.”

In addition, the opinion summarizes Rule 2.3’s command that judges perform all duties “without bias or prejudice” and “prohibits harassment and discriminatory conduct by judges or others under their supervision.”

In another illustration, “a judicial assistant routinely refers to one of the courtroom clerks and several interns with gendered or racialized nicknames in front of the judge,” brushing off any complaint that the individual is “not tough enough for court.”

“This conduct directly violates Rule 2.3(B), which prohibits judges or by others under their supervision from engaging in harassment or manifesting bias or prejudice through words or conduct.”

If a judge lets these things pass, the judge “engages in conduct that erodes confidence in the judiciary’s impartiality and professionalism.”

‘Tipping Point’

“Over the past couple of years, there’s been increased public reporting about judicial misconduct,” said Aliza Shatzman, president and founder of The Legal Accountability Project (LAP), based in Ambler, Pennsylvania.

“LAP has been involved with all of those instances.”

LAP offers a “nationwide clerkship database, which is Glassdoor for the judiciary” containing more than “2,000 candid reviews about more than 1,200 federal and state court judges,” Shatzman said.

In addition to drawing public attention to the problem since 2022, LAP offers advice to law clerks who have been harassed or bullied in chambers.

Last year, LAP filed its first – but not its last – complaint about a judge on behalf of a law clerk, Shatzman said, allowing the clerk to remain a confidential witness and avoid possible retaliation.

“As many as 106 federal judges harassed their clerks in 2023,” according to a federal judiciary study released last year, Shatzman said.

“That year, just three law clerks filed complaints.”

“What’s important to understand, when you are a law clerk … even if you are legally empowered to sue, you’re not going to sue,” Shatzman said. “You’re not even going to complain in most cases about the judge who harassed you.

“The hurdles, the headwinds, are so enormous against that type of action.”

Although law clerks may be advised that the clerkship is only a year of their lives, “permanent employees face the same challenges.”

“They are perhaps more highly motivated to stay silent because they don’t want to destroy their whole career,” Shatzman explained.

‘Public Trust’

“Retaliation or bias within a judge’s staff is not merely an internal personnel issue; it is a breach of the judiciary’s public trust,” the ABA formal opinion explains.

Intent is not the measurement of compliance, the opinion reiterates. Perception is. Allowing such conduct “signal[s] tolerance of discriminatory attitudes.”

“Supervisory ethics therefore serve as a critical bridge between personal responsibility and institutional legitimacy.”

The opinion shows that the challenges a judge faces go beyond fast-paced evidentiary rulings and well-reasoned legal decisions.

“Judges occupy a unique public trust,” the opinion concludes, and “they must decide controversies impartially and must also administer the courts in a manner that sustains the public’s confidence in the independence, integrity, and impartiality of the judiciary.”

Ethics Watch is a monthly article that tracks ethics trends and developments nationwide. It is NOT reviewed or written by the State Bar of Wisconsin’s ethics counsel attorneys, who write Ethical Dilemmas.