In a post on the Legal Ethics Forum, not as active as it once was but still one of the best legal ethics sites around, Legal ethicist and law professor Steve Lubet clarifies something I have always wondered about, and like a lazy slug, never investigated.
Fox News contributor Andrew Napolitano, most recently in the news for claiming that the British intelligence service GCHQ colluded with President Obama to conduct surveillance on the Trump staff during the 2016 campaign, is always called “Judge Napolitano” during his appearances. Lubet points out that he’s not a judge any more. Napolitano once served on the New Jersey Superior Court, but resigned in 1995 and has not held judicial office for more than two decades. It is apparently at Napolotano’s insistence that he is always addressed as “Judge” in Fox. His website, JudgeNap.com, refers to him as “Judge Napolitano” throughout, as does his bio on the Fox News site.
Lubet notes that The American Bar Association has held that the use of judicial titles by former judges practicing law is misleading and unethicalin connection with law practice. ABA Formal Opinion 95-391 says that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.” Of course, Napolitano isn’t practicing law when he bloviates on Fox News, so it isn’t a Rules violation, but the Judge label is still misleading
The Ohio Rules of Professional Conduct, Lubet found, goes further by decreeing that it is only ethical for a former judge to use the titles “Judge” or “The Honorable” if they are preceded by the word “retired” or “former,” and the rule does not limit this caveat to ex-judges actively practicing law. Again, Napolitano is not out of compliance, because he is not subject to the Ohio Rules. That doesn’t make what he calls himself strictly accurate, or sufficiently accurate. (I confess, I have had a bias against such things ever since I suffered through a year with an insufferable high school history teacher who called himself (and insisted that we call him) “Dr. Arthur” because he had a PhD in history.)
This apparently really bugs Prof. Lubet, because he actually totaled up the news sources that, like Fox, call the ex-judge “Judge” and those that don’t. The Do’s: InfoWars, the Daily Caller, Breitbart, Business Insider, Real Clear Politics, the Huffington Post, the New York Daily News, CNN and the Washington Post. Oh—and Sean Spicer. The Don’ts: The New York Times, Politico, The Hill, and others. Steve’s dislike for Napolitano and the conservative news sources ooze from his post, but I wonder: do the Do’s know that he’s not supposed to keep calling himself “Judge”? Do the Don’t’s know better, or are they just expressing their partisan contempt?
Concludes Lubet: “Like everyone else, Napolitano is entitled to his opinion, even when trafficking in absurd conspiracy theories, but we do not need to afford him the respect of an office that he no longer holds.”
Stipulated: calling Andrew Napolitano “Judge” is like calling Phil McGraw “Dr. Phil,” except that the medical profession doesn’t seem to care about fake titles for show biz purposes (Dr. Laura and Dr. Joyce Brothers weren’t much less deceptive than Dr. Phil, just a little.) I always assumed that Judge Napolitano was an ex-judge, like Judge Wapner. Didn’t you? Do you consider yourself deceived?
I also wonder if Prof. Lubet would have bothered with his exposé if he didn’t find Napolitano’s conservative politics annoying. I have not heard similar complaints about John Paul Stevens frequently being referred to as “Justice Stevens” rather than “Retired Justice Stevens,” for example. No question about it, Lubet is correct. I just think his indignation is magnified considerably by partisan bias.
[Full disclosure: I have always been impressed by Napolitano’s hair.]
Ethics Alarms 
I’ve always found Napolitano humorous….
On Obamacare:
“Medicare: broke.
Medicaid: broke.
Social Security: broke.
Amtrak: broke.
The Post Office: broke.
You’ll know this one. It didn’t happen too far from here. When the Mustang Ranch was taken over by the Federal Government for failure to pay its taxes, they drove it into the ground. So… the government can’t supply hookers and booze to truckers in the desert and they want to run health care.”
I have to admit confusion, At the time, I would have been… oh… 2…3…ish? And I heard “Judge” and assumed he was a presiding judge, although Judge Judy had already blown a lot of credibility that anyone who carried the label automatically had previously. That said… I don’t see the issue… If Andrew Napolitano uses his title as evidense of legal expertise… Is he actually less of an expert as of the moment he retires? Am I missing something?
I’d always assumed he was a former judge. It’s kind of goofy. Like guys in the South being called Colonel (Elvis’s manager, among other things) or black pols being called “The Reverend” (Al Sharpton and Jesse Jackson, among a host of others).
My Dad had a hilarious buddy, Walt, who always called himself “The Reverend.” He had a book case inside his front door filled to the brim with Gideon’s Bibles. “Take one,” Walt urged me when I was a wide eyed ten year old visiting hi house just off the Wheaton College campus, “they’re FREE!” I think Walt was also inspired by The Reverend Billy Graham, a Wheaton College alum.
Colonel Tom Parker’s title was awarded to him by the Governor of Louisiana. Let’s not confuse those second rate Colonels with real Kentucky Colonels like Colonel Harland Sanders. Prior to coming up with his Kentucky Fried Chicken he at one point studied law by correspondence (to get back to the legal angle) and practiced in justice of the peace courts in Arkansas until he had a brawl with a client. He has also played a role in professional baseball. In 1985 he cursed the Hanshin Tigers after they won the Japan Championship Series because their fans threw a statue of him in a river (if you want truly rabid baseball fans go to Japan). They haven’t won a title since. “Judge” Napolitano (sounds too much like a kind of ice cream) is a piker compared to the Colonel.
To be perfectly accurate, it was his spirit who cursed the Tigers, since he died in 1980. But being a real Kentucky Colonel he could do stuff like that.
The South. Can’t beat it with a stick. I wonder what The Colonel would think of the current KFC campaign that has him covered in gold (like a statue or a Bond girl) and speaking in a very un-Kentucky-like squeal.
If they met, I wouldn’t give two cents for that new guy’s chances. Back before the chicken business, Sanders once shot and wounded a rival although to be fair the other guy had shot first and killed his business associate. I actually met the Colonel once in Shelbyville, Ky at the Claudia Sanders Dinner House a restaurant named after his wife he started after he got out of the chicken business. He looked and sounded just like the original ads.
I met Sanders in a Kennedy Center mens room. We were at adjoining urinals. True story.
And did he have a wide stance?
Billy Gibbons of ZZ Top is properly and rightly referred to as “The Reverend Billy Gibbons”. His main guitar, a divinely inspired cherry sunburst 1959 Gibson Les Paul Standard is “Pearly Gates”, so the moniker fits. All knees should at the sound of “La Grange”.
And there’s The Reverend Horton Heat who is a great psychobilly guitar player but I don’t think he went to any theological seminary.
The Reverend Gary Davis aka Blind Gary Davis great blues guitarist.
I always thought he looked like a Lowland Gorilla.
Can you give yourself a Comment of Something? Is that permitted?
When you said you’ve always admired his hair, I was thinking you should photo shop his coif onto your photo.
I have found it humorous when ‘The Honorable’ is used when everybody in shouting distance knows the fellow is a scoundrel and a crook.
There a numerous titles that people routinely use long after they leave a prestigious job: President, Governor, Senator, Secretary, Ambassador, Justice, General, Professor, Doctor…. The list goes on and on. Nobody thinks a former President is still THE president. (Well, almost nobody). Cutting the line somewhere between Colonel and Judge seems completely arbitrary.
I haven’t watched Napolitano in a few years but I’ve always known he was retired and was never confused that he was currently serving as a judge.
Great point, Fred.
Nevertheless, the legal profession is extremely strict about misleading self-promotion.
There’s a difference between the office and the title. So, for example, former Senators are out of office, but they still use the honorific “Senator”. Retired Generals are no longer Generals, but they still get called “General.” This is a longstanding tradition, and it applies to judges as well. “Judge Napolitano” is a traditionally acceptable form of address, as long is it does not cause confusion.
One exception, dating back to Jefferson, I think, is that people who hold offices that are not held by more than one person at a time — President, Vice President, Speaker of the House, Chairman of the Joint Chiefs — do not retain the use of the title. So the proper address for former President Bill Clinton is “Governor Clinton.” The first George Bush is “Ambassador Bush” and his son is “Governor Bush.” Obama is “Senator Obama.”
But…At some point recently, we started keeping the honorific “President” for former Presidents. All living former presidents, from Clinton to Obama, are now referred to that way. I suspect Bill Clinton is responsible for this.
That same hold true for Judge Jeanine Pirro, also a Fox news analyst, who was a judge on the Westchester County Court bench before being elected the first female district attorney of Westchester County, serving for 12 years. She is much more abrasive in her attacks on liberals than Napolitano, though. Her show is called “Justice with Judge Jeanine”. I bet that makes the good law professor Steve Lubet’s head explode.
jvb
Former judges are referred to as Judge. If they are in any courtroom,
after retirement..they may not be addressed as Judge.
At a formal dinner, they are referred to as The Honorable Judge.
(I get you hate the man, but titles stay when one retires.)
He most certainly can have a site calling himself, Judge Napolitano.
He may not use that term, if he were dishonorably dismissed.
Senators are senators even after retirement,
So are presidents,
What do you think he was? A janitor!? A short order cook?
Hair…LOL…at least he has some. I am clear you think he has no
brains and worse…. That’s your opinion. We all have them.
No big deal.
I would call you Judge Marshall if you retired.. Why not?
Don’t think Napalitano is arrogant or takes selfies of himself as
some in power are doing..or did…before leaving office.
This is the Age of Hating Conservatives. They are.forever evil.
This position, while great fun, also creates a chasm of hate and
superiority. Just what America does not need.
Let me know what evil he has done. I know of none.
Thanks, Jack.
My wife and son used to refer to me as “Your Righteous Royal Highness, Exalted Above All Others”, but they have abbreviated it to “Your Royal Heinie”. Hmmm . . . . I think I should do something about that.
jvb
Patricia, I think it’s pretty clear Jack, unlike the other ethics guy whom he quotes, has no particular ax to grind with Napolitano, other than he thinks the Brit Intel doing Obama’s bidding is a bogus conspiracy theory.
“Let me know what evil he has done. I know of none.”
As a legal ethics specialist, I can tell you with absolute certainty that whether or not a lawyer is “evil” has nothing to do with violating the ethics Rules.
Something about that fact seems vaguely… wrong. Just in by bones, I feel (already a warning flag) that this should not be true in a perfect world
Well I guess you could call him Emeritus Judge or something but is this really a big deal? Professors who have taught at universities keep their title as doctor even if they have retired.
Reminded of a recent news blurb about the trend on college campuses (campii?) to allow students to pick the pronouns they wish to have others use when addressing them; one young wag chose “Your Majesty”.
I always assumed that Napolitano, and actually all TV judges, were retired or former judges, and not rushing from the courtroom to the studio during a recess. It’s possible that Napolitano self-identifies as a judge and if so, then why should the cislegal, juris-normative majority…umm,… judge him…
“…college campuses (campii?)…
I recommend that “-us” and “-uses” be discarded, and for now, the default and presumptively most accurate nouns to use be considered “camp” and (plural) “camps.”
Your last sentence is great for a sardonic chuckle: “It’s possible that Napolitano self-identifies as a judge and if so, then why should the cislegal, juris-normative majority…umm,… judge him…”
Is Napolitano even practicing law? I doubt it. No one’s even mentioned whether he’s even a member of any bar. Retired judges who go back into private practice don’t use “judge” any more and clearly shouldn’t. I think this guy’s not a lawyer anymore so he can do whatever he wants without regard to any bar association’s rules. I think that’s a significant fact left out of this discussion. He’s trading on his having been a judge to get attention on TV. He’s not looking to snag clients by giving them the impression he’s buddies with the judge the client will be appearing for for his DUI. Unlike, say, the august litigators in law firms in every state or county who are present or former bar association presidents who have out-placed their former associates and partners on the bench and subtly trade on that fact with their clients. That’s an ethics problem no bar association will touch with a ten foot pole.
I recently consulted an attorney about my last will and testament. He told me that he also practices as a judge, when he is not representing clients. (I don’t know if he is elected or appointed, but I do know that in Texas where I live, many judges are elected.) I guess he would have to recuse himself from any case involving me – and since Roy Bean, I do not know of any corpse that has been given a ruling by a judge…but seriously, my question: this attorney of mine can do that? (be both, or dually, counsel and judge?)
That’s a question Jack can answer. I’m only personally familiar with Arizona where judges are appointed by panels of lawyers and judges. So being put on the bench is an inside game. Judges aren’t elected in Arizona, although they are confirmed by ballot after they’ve been on the bench (Which is kind of a weird, pro forma procedure of little consequence. I don’t think any judge has ever been voted off the bench).
Magistrates in Texas have this ability, I believe. Same with JPs, but again I could be mistaken. Perhaps they cannot practice in the county where the are judges?
Being a lower court judge in Texas does not pay the bills, that is certain
Thanks, slickwilly and Other Bill. I am just curious – not alarmed. And, I am more than a little sad that Jack is not also a judge in a court. I try to imagine a whole state – or, a whole court of the federal circuit – where all, or almost all, of the judges are as literate about, and conscientious about, and impartial about, ethics as Jack. If only justice could be so well-served…
For the record, I’d LOVE LOVE LOVE being a judge. One of my law school classmates (Margaret McKeown) is a rather prominent one.
You’d make a good one, Jack. Me, I’d rather poke myself in the eye with a sharp stick than have to sit there and listen to people lie for eight hours a day.