CJEO Formal Opinion No. 2021-018 — Providing Feedback on Attorney Courtroom Performance

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion 2021-018
[Issued December 15, 2021]
PROVIDING FEEDBACK ON ATTORNEY COURTROOM
PERFORMANCE
I. 	Question
The Committee on Judicial Ethics Opinions (CJEO) has been asked whether it is
ethically permissible for a judicial officer to provide feedback on an attorney’s courtroom
performance when requested by the attorney or the attorney’s supervisor.
II. 	Summary of Conclusions
While the Code of Judicial Ethics 1 does not specifically prohibit judicial officers
from providing feedback on courtroom performance to appearing attorneys or their
1 	All further references to the code, canons, terminology, and advisory committee
commentary are to the California Code of Judicial Ethics unless otherwise indicated.

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supervisors, there are several canon restrictions and ethical risks that must be taken into
account. When providing feedback on courtroom performance, a judicial officer may
not: (1) engage in prohibited ex parte communications (canon 3B(7)); (2) make a public
comment on a pending proceeding or nonpublic comment that may interfere with a fair
trial or hearing (canon 3B(9)); (3) create an appearance of favor or bias (canons 1, 2, and
2A); (4) suggest that anyone is in a special position to influence the judicial officer
(canon 2B(1)); or (5) engage in coaching by advising on tactics or strategies that give one
side an advantage in litigation or by providing legal advice (canon 4G).
Judicial officers who elect to provide such feedback must avoid discussing their
own assigned matters until final resolution; refrain from discussing matters pending
before other judges or courts; ensure that the substantive nature and tone of any feedback
is neutral; and be equally available to provide feedback to attorneys representing various
interests or viewpoints. Judicial officers must also ensure that their conduct does not
suggest a special relationship with any attorney or law office and should avoid acting as
evaluators of attorney job performance in the context of employment evaluations for
promotion or discipline. Finally, judicial officers must ensure that feedback does not
provide any attorney or party with an inside advantage.
III. 	Authorities
A. 	Applicable Canons
Terminology: “ ‘Pending proceeding’ is a proceeding or matter that has
commenced. A proceeding continues to be pending through any period during which an
appeal may be filed and any appellate process until final disposition. The words
‘proceeding’ and ‘matter’ are used interchangeably, and are intended to have the same
meaning.”
Canon 1: “A judge shall uphold the integrity and independence of the judiciary.”
Canon 2: “A judge shall avoid impropriety and the appearance of impropriety in
all of the judge’s activities.

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Canon 2A: “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. A judge shall not make statements, whether public or nonpublic, that commit
the judge with respect to cases, controversies, or issues that are likely to come before the
courts or that are inconsistent with the impartial performance of the adjudicative duties of
judicial office.”
Advisory Committee commentary following canon 2 and 2A: “The test for the
appearance of impropriety is whether a person aware of the facts might reasonably
entertain a doubt that the judge would be able to act with integrity, impartiality, and
competence.”
Canon 2B(1): “A judge shall not allow family, social, political, or other
relationships to influence the judge’s judicial conduct or judgment, nor shall a judge
convey or permit others to convey the impression that any individual is in a special
position to influence the judge.”
Canon 2B(2)(d): “A judge may respond to judicial selection inquiries, provide
recommendations (including a general character reference relating to the evaluation of
persons being considered for a judgeship), and otherwise participate in the process of
judicial selection.”
Canon 2B(2)(e): “A judge may serve as a reference or provide a letter of
recommendation only if based on the judge’s personal knowledge of the individual.
These written communications may include the judge’s title and may be written on
stationery that uses the judicial title.”
Canon 3B(7): “A judge shall not initiate, permit, or consider ex parte
communications, that is, any communications to or from the judge outside the presence
of the parties concerning a pending or impending proceeding, and shall make reasonable
efforts to avoid such communications, except as follows . . . .”
Canon 3B(9): “A judge shall not make any public comment about a pending or
impending proceeding in any court, and shall not make any nonpublic comment that
might substantially interfere with a fair trial or hearing.”
Canon 4B: “A judge may speak, write, lecture, teach, and participate in activities
concerning legal and nonlegal subject matters, subject to the requirements of this code.”
Advisory Committee commentary following canon 4B: “As a judicial officer and
person specially learned in the law, a judge is in a unique position to contribute to the
improvement of the law, the legal system, and the administration of justice, including
revision of substantive and procedural law and improvement of criminal and juvenile

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justice. To the extent that time permits, a judge may do so, either independently or
through a bar or judicial association or other group dedicated to the improvement of the
law. It may be necessary to promote legal education programs and materials by
identifying authors and speakers by judicial title. This is permissible, provided such use
of the judicial title does not contravene Canons 2A and 2B.”
Canon 4G: “A judge shall not practice law.”
B. 	Constitutional Provisions, Statutes, and Other Authorities
Code of Civil Procedure, section 170.1, subdivision (a)(2)(B) and (a)(2)(C)
Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866
Inquiry Concerning Mills (2018) 6 Cal.5th CJP Supp. 1
Inquiry Concerning Van Voorhis (2003) 48 Cal.4th CJP Supp. 257
Commission on Judicial Performance, Public Admonishment of Judge Ronald
Maciel (1997)
Commission on Judicial Performance, Public Admonishment of Judge Stuart Scott
(2016)
CJEO Formal Opinion 2018-012 (2018), Providing Educational Presentations at
Specialty Bar Events, California Supreme Court Committee on Judicial Ethics
Opinions
CJEO Oral Advice Summary 2018-024 (2018), Reporting Misconduct by a
Superior Court Research Attorney in a Pending Matter, California Supreme Court
Committee on Judicial Ethics Opinions
Rothman et al., California Judicial Conduct Handbook (4th ed. 2017) sections
2:24, 5:8, 10:16
California Judges Association, Judicial Ethics Updates (April 2000), (February
2002), (March 2004), (June 2007), and (January 2017)
Geyh et al., Judicial Conduct and Ethics (6th ed. 2020) section 8.02

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IV. 	Discussion
Judicial officers are permitted and, in some cases, encouraged to comment on
attorney performance in certain contexts. For example, judges may provide letters of
recommendation or references in the context of a judicial application or application for
another position or honor. (Canon 2B(2)(d) and (e).) Judicial officers may also provide
feedback on attorney performance in educational settings, such as moot court programs,
Inns of Court, or bar association events. (Canon 4B [judges may speak, write, lecture,
teach, and participate in other activities concerning legal and nonlegal subject matters,
subject to other requirements of the code]; Advisory Com. com. foll. canon 2B [as a
person specially learned in the law, a judge is in a unique position to contribute to the
law, the legal system, and the administration of justice, and may do so to the extent time
permits, either independently or through a bar or judicial association or other group
dedicated to the improvement of the law].)2
By contrast, there are other circumstances where providing feedback implicates
canon restrictions that must be considered before a judicial officer provides input. These
range from individual attorneys requesting feedback to supervisors asking for input about
an attorney or class of attorneys who regularly appear in the judge’s courtroom. The
purpose of this opinion is to identify the canons and ethical considerations that judicial
officers are required to bear in mind before responding to a request to comment on an
attorney’s courtroom performance.
2 	There may be specific instances where judges are permitted to ensure that
attorneys who appear in court have sufficient training to perform their jobs competently.
(Cal. Stds. Jud. Admin., std. 5.40(d)(1) and (4) [presiding judges of juvenile courts
should establish relevant prerequisites and ensure sufficient training for court-appointed
attorneys and advocates].) Involvement in these training programs, however, is a
guideline rather than mandatory and subject to other requirements in the code. (Cal.
Rules of Court, rule 1.5(c) [standards are guidelines rather than mandatory].)

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A. 	Ex Parte Communications
Judicial officers may not provide feedback about attorney courtroom performance
if doing so would result in an ex parte communication. The code defines ex parte
communications as “any communications to or from a judge outside the presence of the
parties concerning a pending or impending proceeding.” (Canon 3B(7), italics added
[prohibiting ex parte communications with few exceptions, none of which are directly
relevant here].) A “pending proceeding” is a proceeding or matter that has commenced
through any period during which an appeal may be filed and any appellate process until
final disposition. (Terminology, Pending proceeding; CJEO Oral Advice Summary
2018-024 (2018), Reporting Misconduct by a Superior Court Research Attorney in a
Pending Matter, Cal. Supreme Ct. Com. Jud. Ethics Opns., pp. 3–4 [a matter remains
pending if there is still sufficient time for a party to petition for review].)
However well-intentioned, commenting on an appearing attorney’s courtroom
performance runs the risk of discussing the facts, merits, or status of a particular case or
matter. Even a seemingly innocuous comment may interfere, intentionally or
unintentionally, with one party’s decisionmaking process or strategy on appeal. For this
reason, judicial officers should exercise extreme caution when asked to provide feedback
at the close of a trial or hearing and may not comment on attorney performance relating
to that trial or hearing prior to final resolution of all possible appeals. (Canon 3B(7);
Rothman et al., California Judicial Conduct Handbook (4th ed. 2017) § 2:24, p. 92
(Rothman) [unless a case is absolutely final on appeal, providing attorney feedback
creates the potential for an improper ex parte communication]; Cal. Judges Assn.,
Judicial Ethics Update (CJA Update) (April 2000) p. 2 [when asked by a trial attorney to
critique the attorney’s performance after trial, a judge may do so only after the matter is
finally resolved so as to avoid any appearance of impropriety].) This prohibition extends
to providing feedback to an appearing attorney’s supervisor.
The California Commission on Judicial Performance (CJP) has disciplined judges
for commenting on attorney performance prior to the close of all pending proceedings.

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(Com. on Jud. Performance, Public Admonishment of Judge Stuart Scott (2016) pp. 2–5
[judge disciplined for pulling aside a deputy district attorney at the end of trial but prior
to sentencing, despite her protestations, to comment on her trial performance and that of
the public defender, which violated the prohibition against ex parte communications and
undermined public confidence in the impartiality of the judiciary in violation of canon
2A]); Inquiry Concerning Mills (2018) 6 Cal.5th CJP Supp. 1, 19 [judge disciplined for,
at the close of trial and while the jury was deliberating, advising a prosecutor how the
judge would have countered the defense’s expert based on techniques used in the past;
while the judge attempted to defend his conduct by characterizing it as “sharing a war
story,” CJP found that “[t]here is no ‘war story’ exception to the prohibition against ex
parte communications”]; Inquiry Concerning Van Voorhis (2003) 48 Cal.4th CJP Supp.
257, 317 [judge removed for multiple instances of misconduct, which included critiquing
attorneys during trial and in the jury’s presence].)
B. 	Public and Nonpublic Comment on Pending Proceedings
In addition to refraining from engaging in ex parte communications, judicial
officers may not provide feedback on attorney performance that violates canon 3B(9).
Canon 3B(9) prohibits judges from making public comments about a pending or
impending proceeding and from making nonpublic comments that may substantially
interfere with a fair trial or hearing, including those pending before other judges or
courts, with limited exceptions. For instance, a judicial officer may discuss a case
pending on appeal “in legal education programs and materials,” but not if the judge had
any personal involvement in the case at any stage or if the discussion would interfere
with the fair hearing of a case. (Canon 3B(9).)
Even when a judicial officer comments on a pending proceeding in a nonpublic
setting, such as a private conversation in chambers or by electronic means, there is a risk
that any discussion of case specifics may interfere with a fair trial or hearing. (Advisory
Com. com. foll canon 3B(9) [explaining the risk of nonpublic comments being misheard,

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misinterpreted, or repeated, which can negatively impact a pending case].) Therefore,
when providing solicited feedback about courtroom performance directly to attorneys or
their supervisors, judicial officers must ensure that their comments do not involve
pending proceedings in their own or any other court.
C. 	Appearance of Favor or Bias
Judicial officers are also prohibited from providing attorney feedback that exhibits
favoritism or otherwise undermines the judicial officer’s impartiality. (Canons 1, 2, and
2A [judges must preserve the integrity and impartiality of the judiciary in all activities].)
To minimize ethical risks, judicial officers choosing to provide feedback must ensure that
the substantive nature and tone of the feedback would not suggest to an objective
observer that the judicial officer has a particular affinity or dislike for certain attorneys or
parties. (Advisory Com. com. foll. canon 2 and 2A [the test for impropriety is whether a
person aware of the facts would reasonably doubt a judge’s impartiality].) For instance,
the content of feedback should be neutral and not disparage any other attorneys or parties.
As a precaution, the feedback should be equally applicable to and appropriate to say in
the presence of attorneys on opposing sides of the same case. (CJEO Formal Opinion
2018-012 (2012), Providing Educational Presentations at Specialty Bar Events, Cal.
Supreme Ct. Com. Jud. Ethics Opns., pp. 7–9 (CJEO Formal Opinion 2018-012)
[educational content is permissibly neutral if the identical presentation could be given to
bar associations representing competing interests].)
Judicial officers must also avoid the suggestion of favoritism or bias in terms of
who has access to the judicial officer’s feedback. For example, it would be improper for
a judicial officer to only provide feedback to a law office with which the judicial officer
was previously affiliated or to repeatedly provide feedback to one side of the criminal bar
to the exclusion of the other. In most cases, attorneys requesting feedback on courtroom
performance are doing so in a private setting, as opposed to an educational setting or
public environment. If a judge provides feedback at the request of one party, the
opposing party may not be aware that the judge is either providing or available to provide

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this feedback. For this reason, the committee recommends that judicial officers choosing
to provide feedback make it clear that they are equally available to provide such feedback
to all parties upon request.
In order to preserve the impartiality of the judiciary, judicial officers choosing to
provide feedback must do so in a manner that does not favor or exclude, or appear to
favor or exclude, any particular attorney or group of attorneys, and be equally available to
attorneys representing various interests or viewpoints. (CJEO Formal Opinion 2018-012,
supra, at pp. 2, 7–8 [judges may give educational presentations to specialty bar
associations, provided they are equally available to bar associations having opposing
interests or viewpoints, and must ensure neutrality when speaking to judges from a prior
practice area]; CJA Update (June 2007) p. 3 [a judge may speak with newly hired district
attorneys about trial practice provided the judge is available to give similar talks to the
public defender’s office].)
D. 	Appearance of Special Position of Influence
When providing individualized feedback to attorneys, judicial officers must also
ensure that their conduct does not suggest that the requesting attorneys have a special
relationship with the judicial officer in violation of canon 2B(1) (judges must not convey
or permit others to convey the impression that any individual is in a special position to
influence the judge). As discussed above, only providing feedback to a particular group
of attorneys may suggest bias or imply that those attorneys are in a special position to
influence the judicial officer. In addition, providing feedback regarding an appearing
attorney’s performance, particularly when it is requested by the attorney’s supervisor,
may put the judicial officer in a position of evaluating the attorney from the perspective
of a supervisor-supervisee relationship. Providing such feedback may suggest that the
judicial officer favors or has a special relationship with a particular law office or has a
special interest in the development of its employees.

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For this reason, providing feedback in the context of an employment evaluation
for purposes of promotion or discipline raises additional concerns. As Judge Rothman
suggests in his treatise: “there are far more reasons against engaging in this practice than
favoring it.” (Rothman, supra, § 5:8, p. 274, discussing CJA Update (March 2004) p. 2.)
In addition to identifying the ethical concerns discussed above, Judge Rothman notes that
there are other ways for supervisors to obtain information about how their employees are
performing and for new attorneys to learn, such as attending courtroom proceedings to
observe. (Rothman, supra, § 5:8, pp. 273–274.)
The committee agrees that judicial officers should avoid acting as evaluators of
attorney job performance in the employment evaluation context, as there are significant
pitfalls to doing so and more effective ways for supervisors to evaluate employees for
promotion or discipline. Once a judicial officer provides feedback to a supervisor, the
judicial officer loses control over both the content of the information and the manner in
which it may later be relayed to others. The committee also notes that, because judicial
officers are prohibited from commenting on an attorney’s performance in the judicial
officer’s assigned matters prior to the close of all proceedings, the time delay in
providing any feedback for employment evaluation purposes would likely diminish its
value. Finally, providing feedback in the context of an employment evaluation may put
the judicial officer in the position of becoming a percipient witness in the event of an
employment dispute.
E. 	Coaching
When providing feedback about attorney performance, judicial officers must also
be cautious to avoid coaching. Although judicial officers are permitted to teach attorneys
by providing neutral instruction on substance, procedure, or technique, they are
prohibited from suggesting strategies or tactics that would provide an advantage before a
particular judge or court. Coaching is impermissible because it suggests that a judicial
officer may be biased in favor of, or have a special relationship with, the attorneys being

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coached in violation of canons 2, 2A and 2B(1). The suggestion of bias may be
heightened when a judge appears to coach attorneys that repeatedly appear before that
judge. (Rothman, supra, § 2:24, p. 92.)
Coaching is not defined in the code. In a previous opinion, this committee has
advised that judicial officers may discuss procedures, trial or appellate techniques, black
letter law, best practices, tips to avoid common errors, and proper courtroom protocol.
(CJEO Formal Opinion 2018-012, supra, at pp. 8–9.) For instance, a judge may speak at
a statewide conference of district attorneys or teach courses on evidence to a criminal
defense association, as long as the judge provides impartial instruction and refrains from
advocating for certain positions. (Rothman, supra, § 10:16, p. 685, citing CJA Update
(February 2002) p. 2; CJA Update (January 2017) p. 10.) However, it would be
impermissible for a judicial officer to advise on topics or strategies that favor a particular
side in litigation, such as how to select a pro-plaintiff or pro-defense jury or the ideal
demeanor for a police witness in a criminal case. (CJEO Formal Opinion 2018-012,
supra, at p. 9; Rothman, supra, § 10:16, p. 685.)
Depending on the factual scenario, coaching may also suggest that a judicial
officer is providing legal advice to an attorney in violation of canon 4G, which prohibits
judges from practicing law. For example, in Adams v. Commission on Judicial
Performance (1995) 10 Cal.4th 866, 906–908, a judge was disciplined for, among other
things, assisting attorneys in cases pending before other judges by suggesting particular
motions, commenting on rulings in related cases, and reviewing and proposing edits to
pleadings. The court found that the judge had provided legal advice to the attorneys and
found that the judge’s actions “amounted to egregious misconduct, demonstrating a
disregard for the integrity of the bench, and constituted prejudicial conduct.” (Id. at p.
907.) In addition, the court found that the judge’s conduct could be construed as sharing
information “known or peculiarly available to members of the [judge’s] bench” with
some attorneys to the exclusion of others, which cast doubt on the integrity and
impartiality of the judiciary. (Id. at p. 908.) In essence, this improperly gave the assisted

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attorneys an inside advantage. (See also Com. on Jud. Performance, Public
Admonishment of Judge Ronald Maciel (1997) pp. 1–2 [judge admonished for privately
advising a prosecutor on the time period for filing a peremptory challenge].)
V. 	Conclusion
While the code does not specifically prohibit providing feedback on courtroom
performance to appearing attorneys or their supervisors, judicial officers must take into
consideration the following canon restrictions and ethical risks. It is not permissible for
judicial officers to provide feedback in matters assigned to them until all proceedings are
finally resolved due to the restriction on ex parte communications. Judicial officers must
also refrain from making public comments on proceedings pending before any other
judge or court, or nonpublic comments that may interfere with a fair trial or hearing.
Judicial officers may only provide feedback in a manner that avoids the suggestion of
favoritism, bias, or a special relationship with the requesting attorneys and should avoid
acting as evaluators of attorney job performance in an employment context. Finally,
judicial officers must ensure that their feedback does not cross the line into coaching by
suggesting tactics or strategies that favor a particular side in litigation or by providing
legal advice.

This opinion is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions
expressed in this summary are those of the committee and do not necessarily reflect the
views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a)).)