Va. R. Sup. Ct. 2

As amended through September 24, 2020
Canon 2 - A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Commentary:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Canons. Actual improprieties under this standard include violations of law, court rules or other specific provisions of these Canons. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity and impartiality is impaired.

See also Commentary under Section 2C.

A judge may vote in a primary election conducted by the State Board of Elections that is open to all registered voters qualified to vote pursuant to Code § 24.2-530.V oting in such a primary election does not constitute an act of partiality by a judge as prohibited by subdivision A. The act of a judge voting in a primary election is the discharge of an honorable civic duty, an obligation of responsible citizenship, and does not give the "appearance of impropriety."

The statutory requirements for voting in a primary election reflect voting in a primary election by a judge as an act of "impartiality" as used in subdivision A(1) (c) because there is no registration by political affiliation, no loyalty or political party oath required to vote, and no pledge of support for any person or political group. It is the impartial nature of such a primary election that enables judges to avoid an "appearance of impropriety."

See also Commentary under Canon 5A.

B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify as a character witness.

Commentary:

Maintaining the prestige ofjudicial office is essential to a system ofgovernment in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct oflegitimate judicial functions. Judges should distinguish between proper and improper use ofthe prestige of office in all of their activities. For example, 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 letterhead must not be used for conducting a judge's personal business.

A judge must avoid lending the prestige ofjudicial office for the advancement ofthe private interests ofothers. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member ofthe judge's family. As to the acceptance of awards, see Section 4E(5)(a) and Commentary.

In a criminal case, a judge may not approve a plea agreement or disposition that requires or permits the defendant to make a charitable contribution or donation, or any other monetary payment other than a statutorily authorized fine or restitution or payment in satisfaction ofan injury pursuant to Code § 19.2-151, as a condition of a suspended sentence or the reduction or dismissal ofcharges.

Although a judge should be sensitive to possible abuse ofthe prestige ofoffice, 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 ofreference an indication should be made that the opinion expressed is personal and not an opinion ofthe court. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such person information for the record in response to a formal request.

Judges may participate in the process ofjudicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship.

C. A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin.

Commentary:

Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired. Section 2C refers to the current practices of the organization. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex or national origin persons who would otherwise be admitted to membership.

Although Section 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge's membership in an organization that engages in any discriminatory membership practices prohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and gives the appearance of impropriety. In addition, it would be a violation of Canon 2 and Section 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion or national origin in its membership or other policies, or for the judge to regularly use such a club. Moreover, public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Section 2A.

Va. Sup. Ct. 2

Amended by Order dated February 6, 2004, effective immediately; amended by order dated November 2, 2004, effective immediately; amended by order dated December 15, 2016, effective immediately.