In July 2023, the New Mexico Supreme Court (NMSC) disbarred a respected New Mexico attorney, Mr. Victor Marshall, for raising a judicial ethics conflict in one of his cases. (“The Matter of Victor R. Marshall,” NM Docket No. S-1-SC-37698).
The disbarment of Mr. Marshall by the NMSC was dishonest and dishonorable. Also, it will likely have a chilling effect on judicial accountability in the state. Moreover, it shows the increasing political corruption of the NMSC.
This part, part one, explores judical ethics basics. Skip to part two, to explore the specifics of Mr. Marshall’s disbarment.
1. Due Process requires neutral decision makers.
Our due process protections stem from the 14th Amendment of the U.S. Constitution. The 14th Amendment, Section 1, reads in relevant part: “No State shall … deprive any person of life, liberty, or property, without due process of law …” (emphasis added).
This language is known as the “due process clause” and has been interpreted by the US Supreme Court as requiring a impartial judge in both civil and criminal cases. (https://constitution.congress.gov/browse/essay/amdt14-S1-5-4-5/ALDE_00013754/)
These due process concerns, and the importance of an neutral judge, form the backdrop to the Victor Marshall disciplinary case because his disbarment was a direct consequence of Mr. Marshall raising judicial ethics concerns in one of his cases. In particular, Mr. Marshall claimed that a judge overseeing one of his cases was biased against his client.
2. In the United States, judicial ethics are poorly enforced.
In the United States, most state and federal judges have judicial codes of conduct, or ethical rules, they are expected to follow. These codes of conduct cover proper conduct in judicial proceedings, attire, professionalism, as well as how to address potential or actual judicial conflicts.
However, these ethical standards are mostly self-enforced and there is no enforcement mechanism. (https://www.npr.org/2024/05/02/1248790613/federal-judges-have-a-code-of-ethics-but-often-arent-held-accountable-npr-finds)
Even where there is an enforcement mechanism for judicial ethics, such as a regulatory body, judicial ethics are rarely enforced. For example, in California, an audit of the California Commission on Judicial Performance (CCJP), which oversees California state judges found that the CCJP:
- “does not consistently take all reasonable steps when it investigates alleged misconduct.”
- “Its structure and disciplinary processes do not align with best practices.”
- “It has not worked sufficiently to increase its transparency and accessibility.”
(https://information.auditor.ca.gov/pdfs/reports/2016-137.pdf)
3. Attorneys retain their first amendment rights to criticize judges.
