Va. Canons Jud. Conduct Canon 1

The standards that follow this Canon are binding and authoritative in interpreting the

Canon. Some standards will include illustrations. Such illustrations are intended to be

applied to achieve the purposes of the Canon.

A. Relationships with parties or counsel (including family relationships)

A judge must not allow family, social, political, economic, or other relationships to

influence the judge’s judicial conduct or judgment. A judge must use discretion in

maintaining social, personal, or business relationships with people, entities, or counsel who

may appear before the judge in judicial proceedings in order to reduce the possibility that

the judge will be disqualified.

B. Social media

The same provisions of these Canons that govern a judge’s ability to socialize and

communicate in person, in writing, or over the telephone also apply to the Internet and

social networking sites. While a judge is not prohibited from participating in online social

media sites or networks, a judge should exercise restraint and discretion in doing so. A

judge must avoid any online activity that would cause a reasonable person to question a

judge’s ability to be impartial.

C. Using the prestige of office to advance private interests

1. Maintaining the prestige of judicial office is essential to a system of government in

which the judiciary functions independently of the executive and legislative branches.

Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions.

Judges should distinguish between proper and improper use of the prestige of office in all of

their activities.

2. Except as provided in standard 1(F), a judge must avoid lending the prestige of

judicial office for the advancement of the private interests of the judge or others.

3. In a criminal case, a judge may not approve a plea agreement or disposition that

requires or permits the defendant to make a charitable monetary contribution or donation, or

any other monetary payment other than a statutorily authorized fine, cost, or restitution or

payment in satisfaction of an injury pursuant to Code § 19.2-151, as a condition of a

suspended sentence or the reduction or dismissal of charges.

4. The following illustrations are examples of activities that are not permitted:

(a) It would be improper for a judge to allude to his or her judgeship to gain a

personal advantage such as deferential treatment when stopped by a police officer for a

traffic offense. Similarly, judicial email or letterhead must not be used for conducting a

judge’s personal business.

(b) A judge must not use the judge’s judicial position to gain advantage for anyone or

any entity in a civil, criminal, or administrative proceeding.

D. Recusal or Disqualification

1. A judge must recuse himself or herself in a proceeding in which the judge’s

impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge is cognizant of a personal bias or prejudice concerning an issue, a party or

a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the

proceeding;

(b) the judge served as a lawyer in the matter in controversy;

(c) a lawyer with whom the judge previously practiced law personally and substantially

participated in the matter as a lawyer while associated with the judge;

(d) the judge is a material witness in the matter;

(e) the judge previously presided over the matter in another court;

(f) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse,

parent, or child wherever residing, or any other member of the judge’s family residing in the

judge’s household, has an economic interest in the subject matter in controversy or in a

party to the proceeding, or has more than a de minimis interest that could be substantially

affected by the proceeding; or

(g) the judge, a member of the judge’s family, or a person within the third degree of

relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis interest that could be

substantially affected by the proceeding; or

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

2. Unless particular circumstances create a reasonable concern about impartiality, a

judge is not disqualified from presiding over a matter merely because the judge is personally

involved in a matter of the same general type.

3. A judge must keep informed about the judge’s personal and fiduciary economic

interests and make a reasonable effort to keep informed about the personal economic

interests of the judge’s spouse and minor children residing in the judge’s household.

4. A judge should disclose information that the judge believes the parties or their lawyers

might reasonably consider relevant to the question of disqualification, even if the judge

believes there is no real basis for disqualification. Although a judge may disclose any

information the judge deems appropriate, a judge’s decision not to disclose past professional

associations with lawyers or agencies that terminated more than one year prior is

presumptively reasonable. Similarly, a judge’s decision not to disclose the identity of past

clients that the judge represented, or participated in representing, as a lawyer, when such

representation terminated more than three years prior is presumptively reasonable.

5. If a judge, in exercising the judge’s discretion, determines that the judge should not

preside over a matter, the judge may recuse himself or herself by so stating, but without

stating the basis of the recusal on the record.

6. By decisional law, the rule of necessity may override the rule of disqualification.

7. A lawyer in a government agency does not ordinarily have an association with other

lawyers employed by that agency; a judge formerly employed by a government agency,

however, should recuse himself or herself in a proceeding if the judge’s impartiality might

reasonably be questioned because of such association. After one year of separation from the

agency, a presumption arises that recusal is not required. See illustration 1(D)(10)(c).

8. The fact that a lawyer in a proceeding is affiliated with a law firm or government

agency with which a member of the judge’s family is affiliated does not of itself disqualify

the judge. Under appropriate circumstances, the fact that the judge’s impartiality might

reasonably be questioned or that the relative is known by the judge to have an interest in the

law firm or governmental agency that could be substantially affected by the outcome of the

proceeding may require the judge’s recusal.

9. A judge who may be disqualified may ask, or have the clerk of court ask, the parties

and their lawyers to consider, out of the presence of the judge, whether to waive

disqualification. If following disclosure of any basis for disqualification other than personal

bias or prejudice concerning a party, the parties and lawyers, without participation by the

judge, all agree that the judge should not be disqualified, and the judge is then willing to

participate, the judge may participate in the proceeding. Written evidence of the agreement

is to be incorporated in the record of the proceeding. Should any party or lawyer choose not

to waive disqualification, the identity of that party or lawyer is not to be communicated to

the judge.

10. The following illustrations are examples of appropriate application of recusal or

disqualification standards:

(a) A judge may preside over traffic cases while the judge has a pending traffic

infraction. In addition, a judge may preside over domestic relations matters during the

pendency of the judge’s divorce.

(b) As an example of application of the rule of necessity, a judge might be required

to participate in judicial review of a judicial salary statute, or might be the only judge

available in a matter requiring immediate judicial action, such as a hearing on probable

cause or a temporary restraining order. In the latter case, the judge must disclose the basis

for possible disqualification and use reasonable efforts to transfer the matter to another

judge as soon as practicable.

(c) As an example of disclosure and possible recusal required for a judge who

recently has left the employ of a government agency, including, e.g., a Commonwealth’s

Attorney office: during the first year immediately following departure from the agency, a

judge should disclose his or her prior association with the agency whenever the agency or its

attorney is appearing before the judge. After one year of separation from the agency,

disclosure of the prior employment would no longer be required although the judge, in his or

her discretion, could make such disclosure if the judge deemed it appropriate.

E. Serving as a character witness

A judge may not testify as a character witness.

F. Providing a letter of recommendation

Although a judge should be sensitive to possible abuse of the prestige of office, a judge

may, based on the judge’s personal knowledge, serve as a reference or provide a letter of

recommendation. When using court stationery for letters of recommendation, a judge

should indicate that it is his or her personal opinion.

G. Providing information for the record

A judge may provide information for the record to a sentencing judge or a probation or

corrections officer only in response to a formal request. This communication may not be

initiated by the providing judge.

H. Bias or prejudice

A judge must perform judicial duties without bias or prejudice. A judge must not, in the

performance of judicial duties, by words or conduct manifest bias or prejudice, including but

not limited to bias or prejudice toward any member of a protected class, and must not permit

staff, court officials, and others subject to the judge’s direction and control to do so in the

performance of their official duties. This does not preclude proper judicial consideration

when characteristics related to membership in a protected class are at issue in the

proceeding.

Providing information to unrepresented litigants

In performing the duties of his or her judicial office, a judge may explain the judicial process,

while maintaining impartiality. A judge may also inform unrepresented persons of free legal

aid and similar assistance that is available.

J. Ex parte communications

A judge is required to accord to every person who has a legal interest in a proceeding, or

that person’s lawyer, the right to be heard according to law.

1. A judge may not initiate, permit, or consider ex parte communications, or consider

other communications made to the judge outside the presence of the parties concerning a

pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling or

administrative purposes that do not deal with substantive matters or issues on the merits are

authorized; provided:

(i) The judge reasonably believes that no party will gain a procedural or tactical

advantage as a result of the ex parte communication, and

(ii) The judge makes provision promptly to notify all other parties of the substance

of the ex parte communication and allows an opportunity to respond.

(b) Where circumstances require, ex parte communications for emergencies that

involve substantive matters or issues on the merits are authorized, provided the judge makes

provision promptly to notify all other parties of the substance of the ex parte communication

and allows an opportunity to respond.

(c) Defendants convicted of criminal or traffic offenses often have all or part of their

sentences suspended upon conditions that include probation. If a defendant is alleged to

have violated the terms of his or her suspended sentence or probation, the Commonwealth’s

Attorney or probation officer may file a request or motion seeking the issuance of a capias,

show cause order, or other process against the defendant, and a hearing to revoke the

defendant’s probation and suspended sentence. For purposes of this Canon, the filing is not

deemed to be a prohibited ex parte communication with the court. It is not a violation of this

Canon 1J(1) for a judge to consider what has been filed in order to decide whether to issue

process against the defendant, notwithstanding the fact that notice of the motion or request

has not been provided to the defendant. The defendant must be given the opportunity to

respond to the allegations at a hearing on the merits. If process is issued, it is recommended

that copies of the documents requesting the issuance of process should be attached. This

example is limited to the interpretation and application of Canon 1J(1) and is not intended to

be in derogation of statutory or Constitutional requirements governing the revocation of a

defendant’s probation or suspended sentence.

(d) A judge may obtain the advice of a disinterested expert on the law applicable to a

proceeding before the judge if the judge gives notice to the parties of the person consulted

and the substance of the advice, and affords the parties a reasonable opportunity to respond.

An appropriate and often desirable procedure for a court to obtain the advice of a

disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.

(e) A judge may, with the consent of the parties, confer separately with the parties and

their lawyers in an effort to settle matters pending before the judge.

(f) A judge may initiate or consider any ex parte communications when expressly

authorized to do so by law or by these Canons.

(g) A judge has the discretion to open and review written communications addressed to

the judge or the court to determine if such communications are ex parte, and for the purpose

of determining an appropriate action.

(h) A judge may consider an ex parte communication when the excluded party has

waived, expressly or implicitly, its right to review the communication or to be heard.

(i) The following illustration is an example of waiver allowing consideration of an ex

parte communication: When the Commonwealth has waived its right to review inmate

correspondence addressed to the judge, the judge may review and act on those

communications.

2. The proscription against communications concerning a proceeding includes

communications from lawyers, law teachers, and other persons who are not participants in

the proceeding, except to the limited extent permitted.

3. To the extent reasonably possible, all parties or their lawyers are to be included in

communications with a judge. A judge should always be cautious with regard to the

possibility of prejudice or the appearance of such when communicating with a probation

officer or a similarly situated person without the involvement of all parties.

4. Whenever presence of a party or notice to a party is required, the notice is to be given

to the party’s lawyer, or to the party if unrepresented.

5. A judge may request a party to submit proposed findings of fact and conclusions of

law, so long as the other parties are given the same opportunity to submit proposed findings

of fact and conclusions of law, or are apprised of the request and are given an opportunity to

respond to the proposed findings and conclusions.

6. A judge must make reasonable efforts, including the provision of appropriate

supervision, to ensure that these standards are not violated through law clerks or other

personnel on the judge’s staff.

7. If communication between the trial judge and the appellate court with respect to a

proceeding is permitted, a copy of any written communication or the substance of any oral

communication should be provided to all parties. However, routine communications

between clerks of the trial courts and of the appellate courts or between clerks of the two

appellate courts are permitted to confirm the contents of the record, the entry of orders, and

other procedural issues. In such instances, the clerks need not notify the parties of these

communications.

8. Judges have historically played an important role in providing instruction, advice, and

mentoring to lawyers as they begin and continue to develop their practice skills. Judges

should ensure that the instruction and advice they provide will not result in unfair advantage

to the recipient or harm to other parties in a pending proceeding.

K. Consultation with law clerks and administrative personnel

1. A judge may consult with law clerks whose function is to aid the judge in carrying out

the judge’s adjudicative responsibilities or with other judges or with staff members or with

the Reporter of Decisions for his or her court.

2. A judge may consult with the Legal Research Department of the Office of the

Executive Secretary of the Supreme Court of Virginia for aid in carrying out the judge’s

adjudicative responsibilities. A judge may request an advisory opinion from the Judicial

Ethics Advisory Committee or advice from the Judicial Inquiry and Review Commission

when the judge requires assistance or guidance regarding the judge’s responsibilities under

these Canons.

3. Consultations described in standards K(1) and (2) are not deemed to be ex parte

communications and notice to the parties under standard J(1)(d) is not required.

L. Avoidance of independent investigations beyond evidence presented

A judge must not independently investigate facts in a case. A judge is entitled to consider

only the evidence presented and matters of judicial notice as permitted by law.

M. Providing education, advice, and mentoring

A judge may participate in moot courts, speak, write, lecture, teach, and participate in other

extrajudicial activities concerning the law, the legal system, the administration of justice,

and non-legal subjects unless prohibited by one or more Canons or standards. A judge may

write, lecture, speak, or teach on legal subjects and may express and explain his or her

disagreement with existing precedent so long as he or she does so in a respectful manner and

acknowledges his or her duty to faithfully apply existing precedent notwithstanding the

judge’s disagreement with it.

N. Avoiding favoritism

A judge may not engage in financial and business dealings that involve the judge in frequent

transactions or continuing business relationships with those lawyers or other persons likely

to come before the judge personally or before the court on which the judge serves. In

addition, a judge should discourage members of the judge’s family from engaging in

dealings that would reasonably appear to exploit the judge’s judicial position.

O. Acceptance of gifts, recognitions, and invitations

1. A judge must not accept, and must urge members of the judge’s family residing in the

judge’s household not to accept, a gift, favor, or loan from anyone except for:

(a) a gift incident to a public testimonial, books, tapes and other resource materials

supplied by publishers, law schools, or bar organizations on a complimentary basis for

official use, or an invitation to the judge and the judge’s spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system, or

the administration of justice;

(b) a gift, award, or benefit incident to the business, profession, or other separate

activity of a spouse or other family member of a judge residing in the judge’s household,

including gifts, awards, and benefits for the use of both the spouse or other family member

and the judge (as spouse or family member), provided the gift, award, or benefit could not

reasonably be perceived as intended to influence the judge in the performance of judicial

duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion, such as a wedding,

anniversary, or birthday, if the gift is fairly commensurate with the occasion and the

relationship;

(e) a gift, favor, or loan from a relative or close personal friend whose appearance or

interest in a case would in any event require recusal;

(f) a loan from a lending institution in its regular course of business on the same terms

generally available to persons who are not judges; or

(g) a scholarship or fellowship awarded on the same terms and based on the same

criteria applied to other applicants.

2. Because a gift, favor, or loan to a member of the judge’s family residing in the judge’s

household might be viewed as intended to influence the judge, a judge must inform those

family members of the relevant ethical constraints upon the judge in this regard and

discourage those family members from violating them. A judge cannot, however,

reasonably be expected to know or control all of the financial or business activities of all

family members residing in the judge’s household. A gift to a judge, or to a member of the

judge’s family living in the judge’s household, that is excessive in value raises questions

about the judge’s impartiality and the integrity of the judicial office and might require

recusal of the judge where disqualification would not otherwise be required.

3. Acceptance of invitations to law-related functions and other social events are

governed by the following:

(a) Virginia judges have traditionally participated in numerous bar-related functions

and in a wide variety of educational, religious, charitable, fraternal, social, and civic

activities. The sponsors of such events frequently waive registration and other fees

associated with the events, and sometimes reimburse or provide necessary travel, food,

lodging, and incidental expenses, to allow and encourage judges to participate. Such

participation by judges in the legal community and the general community is encouraged.

(b) A judge’s acceptance of an invitation from an attorney or a law firm or an

association to a law-related function or social event does not automatically disqualify a

judge from cases in which the attorney or law firm are involved as parties or as counsel.

However, before accepting such an invitation or testimonial, a judge should consider all of

the circumstances that may make the acceptance, individually or when viewed in relation to

other accepted invitations and testimonials, appear to a reasonable person to undermine the

judge’s independence, integrity, or impartiality and thus to require recusal. These factors

may include: whether the costs of the event are reasonable and comparable to those

associated with similar events sponsored by the judiciary, bar associations, or similar

groups; whether the event is primarily educational rather than recreational; whether the

sponsor is an educational institution or bar association rather than a trade association or for-profit entity; whether the funding for the event comes largely from numerous contributors

rather than from a single entity; whether the sponsor or source of funding is generally

associated with particular parties or interests currently appearing or likely to appear before

the judge; whether differing viewpoints are presented; whether a broad range of judicial and,

if not a legal event, non-judicial participants are invited; whether a large number of

participants are invited, and whether the program is designed specifically for judges.

P. Influence by the public

A judge must not be swayed or influenced by partisan interests, public clamor, or fear of

criticism.