In re Keenan

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE FEBRUARY 10, 2022
SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 10, 2022
ERIN L. LENNON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of NO. 201,996-0

The Honorable David S. Keenan EN BANC
Superior Court Judge for King County.
Filed :________________
February 10, 2022

GORDON McCLOUD, J.—The Commission on Judicial Conduct

(Commission) ruled that Judge David S. Keenan, a King County Superior Court

judge, violated the Code of Judicial Conduct (CJC or Code) when he approved a

bus advertisement for North Seattle College. The ad pictured him and stated, in

part, “A Superior Court Judge, David Keenan got into law in part to advocate for

marginalized communities.” North Seattle College is a nonprofit community

college where Judge Keenan received both his high school and his associate’s

degrees. The ad ran for three weeks as part of North Seattle College’s fall

enrollment campaign.

Judge Keenan’s conduct did not violate Rules 1.1, 1.2, or 1.3 of the Code.

He did not violate his duty to be, and to appear, impartial, and he did not abuse the

prestige of his office. We therefore reverse the Commission’s decision and dismiss

the charges.
No. 201,996-0

FACTS AND PROCEDURAL HISTORY

I. JUDGE KEENAN APPEARED IN A BUS AD FOR NORTH SEATTLE COLLEGE

Judge Keenan graduated from North Seattle College (previously North

Seattle Community College). Comm’n Ex. D-2-102, at 5 (Resp. to Statement of

Allegations (RSA)), Ex. A-14, at 2 (Commission Decision & Order (Order)). Judge

Keenan grew up in poverty, was a juvenile defendant in King County Superior

Court, and eventually dropped out of high school. RSA at 3. At the age of 17, he

was working at a fast food job when he decided to take the GED (general

education degree) exam through North Seattle College. Id. He did so well on the

exam that the dean of student development wrote to Judge Keenan and encouraged

him to continue his education. Id. at 3-4.

Judge Keenan went on to study for his high school diploma through the

college’s “Adult High School Completion Program.” RSA at 5; Order at 2. He then

began working toward his two-year degree at the college, attending classes during

the day and working full-time at night as a security guard. RSA at 5. After

graduating with his two-year degree from North Seattle College, he transferred to

the University of Washington and eventually earned his law degree from Seattle

University. RSA at 5; Comm’n Ex. A-9, at 30 (Joint Statement of Evidence (JSE)).

Judge Keenan was elected to his position as a judge on the King County Superior

Court in November 2016 and was reelected in 2020. JSE at 1; Comm’n Ex. C-1, at

2
No. 201,996-0

67 (Transcript of Proceedings (TP)). Judge Keenan has a long history of doing

free, or pro bono, legal work and he remains involved with North Seattle College.

JSE at 31-32; Order at 2; RSA at 6.

In July 2019, a staff member at North Seattle College asked Judge Keenan to

appear in a bus ad for the college as part of their student recruitment campaign

aimed at increasing enrollment. JSE at 2; Order at 2-3. The ad was scheduled to

run for roughly three weeks. TP at 66. Judge Keenan reviewed Canons 3 and 1 of

the Code and he reviewed the Ethics Advisory Opinions (EAOs), but he did not

contact the Ethics Advisory Committee (Committee) or the Commission to get an

opinion on whether the ad violated the rules. TP at 59, 79; Order at 3. Judge

Keenan approved the ad, and it ran in conjunction with an ad featuring a scientist,

who also graduated from the college:

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No. 201,996-0

Comm’n Ex. D-2-107, at 8, 7.

On August 30, 2019, the Commission received a complaint concerning this

ad. JSE at 2. The Commission then charged Judge Keenan with violating Canon 1

and Rules 1.1, 1.2, and 1.3 of the Code. JSE at 3; Comm’n Ex. A-1, at 1 (Statement

of Charges). Judge Keenan has no prior disciplinary history with the Commission

and has fully cooperated with the proceeding. JSE at 3.

II. THE COMMISSION FOUND THAT JUDGE KEENAN VIOLATED RULES 1.1, 1.2,
AND 1.3

The Commission ruled that Judge Keenan violated Rule 1.2, which requires

a judge to be impartial and to avoid the appearance of impropriety. Order at 4, 5.

The Commission opined that a reasonable person could read the ad to “suggest that

Judge Keenan has a leaning, or preference, and would advocate accordingly for

marginalized communities.” Id. at 7. 1 The Commission further ruled that a person

not from a “marginalized community” could “reasonably be concerned about being

treated unfairly by Judge Keenan.” The Commission concluded that Judge Keenan

violated Rule 1.2. Id. at 7.

The Commission reasoned that if it were permissible for this ad to run with the
1

language “marginalized communities,” then it would also be permissible for another
judge to be in an ad that says “the judge got into the law, in part, to advocate for
‘divorced fathers,’ or ‘those accused of sex offenses,’ or ‘crime victims,’ or ‘landlords,’
and then he went to North Seattle College, and now, he is changing the world”—
implying that disclosing any such reasons for a judge’s original decision to study law
would make them unethical now. Order at 8.
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No. 201,996-0

The Commission also determined that Judge Keenan violated Rule 1.3. That

rule prohibits the abuse of the prestige of the judicial office to advance the

economic interests of others. Id. at 8. The Commission found that “[t]he ad aimed

at increasing student enrollment which, in turn, would advance the economic

interests of the college.” Id. Judge Keenan argued that his actions were permitted

because the ad would encourage people to go to law school after community

college. Id. at 9. But the Commission stated that the connection between

enrollment at North Seattle College and increased law school admissions was “too

tenuous or strained to be persuasive in this context.” Id. The Commission

continued that judges can promote only law schools, not other schools, and that

permitting Judge Keenan’s conduct would “open the flood gates to allow judges to

promote any activity that could possibly encourage students to attend law school.”

Id. The Commission held that Judge Keenan “abused the prestige of his office” by

using his title of “Judge” to promote the college. Id. at 10.

Finally, the Commission ruled that Judge Keenan violated Rule 1.1. Id. at 6.

Rule 1.1 is a catchall—if a judge violates any other rule, then that judge violates

Rule 1.1, also. 2

2
One member concurred and three members dissented in part. Comm’n Exs. A-
15-18. Those four members expressed uneasiness and regret about sanctioning Judge
Keenan for the ad. Order at 10-11. But all members agreed that Judge Keenan violated at
least Rule 1.3. Comm’n Exs. A-15-18.
5
No. 201,996-0

The Commission sanctioned Judge Keenan with an admonishment. Id. at 11.

Judge Keenan appeals and requests that we reverse the Commission’s ruling and

remand with instructions to dismiss the charges against him. Appellant’s Corrected

Br. at 50. For the reasons discussed below, we agree with Judge Keenan.

ANALYSIS

I. HISTORY AND CONTEXT OF THE JUDICIAL CANONS

The Commission was established in 1980 by amendment to the Washington

State Constitution. ROBERT F. UTTER & HUGH D. SPITZER, THE WASHINGTON

STATE CONSTITUTION 126 (2d ed. 2013). The Commission investigates complaints

against judicial officers, conducts hearings, makes recommendations for discipline

to the Supreme Court, and establishes rules of procedure for Commission

proceedings. WASH. CONST. art. IV, § 31; In re Disciplinary Proceeding Against

Hammermaster, 139 Wn.2d 211, 229-30, 985 P.2d 924 (1999). The Commission

consists of three judges, two attorneys, and six nonattorneys. WASH. CONST. art.

IV, § 31(1).

The Code governs judicial conduct in Washington. That code is adopted by

this court. We have updated it several times, most recently in 2011. 3 We revised

3
GR 9 Cover Sheet Suggested Amendments: Rescinding Current Code of Judicial
Conduct and Adopting New Code of Judicial Conduct,
https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=17
5 (last visited Feb. 7, 2022).

6
No. 201,996-0

the 2011 CJC based on a review of the 2007 American Bar Association’s Model

Code of Judicial Conduct. Additionally, in 1983 this court established the

Committee. 4 The Committee, based on its expertise, issues EAOs to help guide

judges’ conduct. 5 “Compliance with an opinion issued by the [C]ommittee [is]

considered as evidence of good faith by the Supreme Court.” 6

II. STANDARD OF REVIEW IN JUDICIAL CONDUCT CASES

This court reviews Commission decisions de novo. In re Disciplinary

Proceeding Against Deming, 108 Wn.2d 82, 87-89, 736 P.2d 639, 744 P.2d 340

(1987); In re Disciplinary Proceeding Against Anderson, 138 Wn.2d 830, 843, 981

P.2d 426 (1999). De novo review of judicial disciplinary proceedings requires an

independent evaluation of the record. In re Disciplinary Proceedings Against

Turco, 137 Wn.2d 227, 245-46, 970 P.2d 731 (1999); Anderson, 138 Wn.2d at 843.

The ultimate decision to issue discipline lies with the Washington Supreme Court.

WASH. CONST. art. IV, § 31 (amend. 71); Hammermaster, 139 Wn.2d at 230 (“the

constitution’s use of the word ‘recommend’ indicates an intent to place the

4
Ethics Advisory Committee,
https://www.courts.wa.gov/judicial_education/?fa=judicial_education.ethics_display&sec
tion=Advisory (last visited Feb. 7, 2022).
5
GR 10,
https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&rul
eid=gagr10 (last visited Feb. 7, 2022).
6
Id.
7
No. 201,996-0

ultimate decision to discipline in the Supreme Court” (citing Deming, 108 Wn.2d

at 88)). However, the Commission’s findings and recommendations are given

considerable weight. In re Disciplinary Proceeding Against Kaiser, 111 Wn.2d

275, 279, 759 P.2d 392 (1988); In re Disciplinary Proceeding Against Sanders,

135 Wn.2d 175, 181, 955 P.2d 369 (1998). The burden of proof in judicial

disciplinary proceedings is clear, cogent, and convincing evidence. Sanders, 135

Wn.2d at 181.

This court has not decided a case involving the 2011 CJC. When interpreting

rules like those in the Code, we apply typical statutory interpretation principles.

See In re Disciplinary Proceeding Against Haley, 156 Wn.2d 324, 333-39, 126

P.3d 1262 (2006) (interpreting Rules of Professional Conduct (RPC) 4.2(a) using

traditional statutory interpretation tools); LK Operating v. Collection Grp., LLC,

181 Wn.2d 48, 75, 331 P.3d 1147 (2014) (“When interpreting the meaning of any

RPC, we apply settled principles of statutory construction.” (citing In re

Disciplinary Proceeding Against Blauvelt, 115 Wn.2d 735, 741, 801 P.2d 235

(1990)).

Therefore, when we interpret the Code we begin with the plain language of

the rule. We then consider the meaning of that language in the context of the Code

as a whole. See Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43

P.3d 4 (2002). If the rule is still ambiguous, then we resort to other aids to

8
No. 201,996-0

interpretation. Id. at 12. The goal of these interpretive rules is to carry out the

intent of the author—in this case, the intent of this court. Cf. id. at 9.

III. JUDGE KEENAN DID NOT VIOLATE RULE 1.2

A. The plain language of Rule 1.2 and its context within the Code show
that Judge Keenan did not violate that rule

The Commission ruled that Judge Keenan’s decision to approve the bus ad

violated Rule 1.2 because it showed that he was partial to “marginalized

communities” and, hence, the ad undermined public confidence in the judiciary.

Order at 6-8.

Beginning with the plain language, Rule 1.2 states:

A judge shall act at all times in a manner that promotes public
confidence in the independence,* integrity,* and impartiality* of the
judiciary, and shall avoid impropriety and the appearance of
impropriety.*[7]

The Code then defines “impartiality” as the “absence of bias or prejudice in favor

of, or against, particular parties or classes of parties, as well as maintenance of an

open mind in considering issues that may come before a judge.” CJC Terminology.

It defines “impropriety” as “conduct that violates the law, court rules, or provisions

of this Code, and conduct that undermines a judge’s independence, integrity, or

impartiality.” Id. It then defines “independence” as “a judge’s freedom from

influence or controls other than those established by law.” Id. And the Code

7
The asterisks are in the rule; they indicate words defined elsewhere in the rules.
9
No. 201,996-0

defines “integrity” as “probity, fairness, honesty, uprightness, and soundness of

character.” Id.

Reviewing this language in the context of other portions of the Code, we see

that the Code also provides a test for determining whether an act causes the

appearance of impropriety. Rule 1.2’s comment 5 states that the test is “whether

the conduct would create in reasonable minds a perception that the judge violated

this Code or engaged in other conduct that reflects adversely on the judge’s

honesty, impartiality, temperament, or fitness to serve as a judge.” (Emphasis

added.) In other words, the test for impropriety is based on an objective standard—

whether a “reasonable” viewer “would” (not just “could”) perceive that the judge’s

conduct “reflect[ed] adversely” on the judge’s honesty, impartiality, etc.—not on

what a particular viewer subjectively might or could perceive. See generally In re

Reddin, 221 N.J. 221, 231, 111 A.3d 74 (2015) (majority of states have an

objective, reasonable minds test).

Thus, the key question for us in analyzing the alleged Rule 1.2 violation is

whether a reasonable, objective person would read the language that Judge Keenan

“got into law in part to advocate for marginalized communities” to mean that Judge

Keenan would tend to rule for marginalized communities as a judge. We hold that

the answer is no: that language does not suggest to a reasonable person that Judge

Keenan would tend to rule for marginalized communities (over others) in cases he

10
No. 201,996-0

heard as a judge. Instead, that language explains why he wanted to be a lawyer. An

objective, reasonable person would not infer from that description of his reasons

for attending law school that he lacks “an open mind in considering issues that may

come before [him]” as a judge. CJC Terminology (“Impartial”).

The Commission did make a “factual” finding that Judge Keenan admitted

that the ad could confuse the public into thinking that he advocated for

marginalized communities from the bench. 8 And Judge Keenan did state that he

could see how the ad “might” confuse the public.

But he did not state that it would make a reasonable person think that he

would not be impartial—he made that statement in the context of explaining his

willingness to hear and consider the views of colleagues. Comm’n Ex. D-2-107, at

9-10. And regardless of Judge Keenan’s testimony, whether a judge’s description

of his reasons for attending law school would cause an objective, reasonable

person to infer that he lacked “an open mind in considering issues that may come

before [him]” as a judge is a matter that we review de novo. CJC Terminology

(“Impartial”). On de novo review, we hold that the ad would not confuse a

reasonable person about whether Judge Keenan could be “honest,” “impartial,” or

“fit” as a judge.

8
Findings of Fact (FF) 12 states in whole, “Judge Keenan admitted the ad could
confuse the public into thinking that he, as a judge, advocated for marginalized
communities.” Order at 3.
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No. 201,996-0

The Commission also made a “factual” finding that the ad could reasonably

be read to express a preference for marginalized communities. 9 The Commission

based that finding on the same analysis that it used to conclude that Judge

Keenan’s description of his reasons for attending law school would cause an

objective, reasonable person to infer that he lacked “an open mind in considering

issues that may come before [him]” as a judge.

We review this decision de novo, for the reasons discussed immediately

above. And we reject the Commission’s “factual” finding on this matter for the

reasons discussed immediately above, also: all judges decide to join the legal

profession for one reason or another, and stating why you got into the law does not

mean that you cannot rule impartially in a case.

Finally, the Commission seemed particularly concerned about the use of the

language “advocate” in the ad. Order at 7. To be sure, it is true that a judge should

not advocate for particular partisan causes. But a judge certainly should advocate

for and “promote” access to justice and improvements to the administration of

justice. The comments to Rule 1.2 say exactly that. Rule 1.2 cmts. 4 (“Judges

should participate in activities that . . . promote access to justice for all.”), 6 (“A

judge should initiate and participate in outreach activities for the purpose of

9
FF 11 states in whole, “The language of the ad can reasonably be read to express
a preference or commitment in favor of marginalized communities.” Id.
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No. 201,996-0

promoting . . . confidence in the administration of justice.”). Thus, the word

“advocate” alone does not show inappropriate partisanship. If anything, stating that

you got into law to advocate for communities that have been “marginalized” from

the benefits of the justice system might counter widespread perceptions that the

law has historically treated marginalized members of our community unfairly. 10

B. Our previous cases and EAOs also show that Judge Keenan’s conduct
did not violate Rule 1.2

Our decisions under earlier versions of the Code compel the same

conclusion. For example, in Turco, we ruled that a judge who pushed his wife to

the ground on purpose, in a public setting, violated his obligations under the Code

because complainants in domestic violence cases could reasonably question his

impartiality. 137 Wn.2d at 248 (“Fearful victims of domestic violence would

certainly be justified in questioning whether a judge who has demonstrated so little

control of his own emotions and so little restraint as to allow himself to assault his

10
“African Americans and Whites are on two different ends of the spectrum, with
the former exhibiting strong signs of cynicism about the ability of the justice system to
provide fair, impartial, and respectful justice, and the latter displaying substantially more
confidence and trust in the system.” MARK PEFFLEY ET AL., WASH. STATE MINORITY &
JUSTICE COMM’N, JUSTICE IN WASHINGTON STATE SURVEY 5 (2014) (report on attitudes
of Washington residents pertaining to the criminal justice system, focusing on racial and
ethnic group distinctions). As former Chief Justice Mary Fairhurst noted, judges are
stewards of justice and “[b]eing stewards of justice means doing what we can to ensure
the doors of the justice system are kept open. Our courts must be places where people can
come to seek redress without fear that they will be treated unfairly or disrespectfully
because of race, religion, sexual orientation, gender, or disability.” Justice Mary E.
Fairhurst, Welcoming Remarks to New Bar Admittees, 4 SEATTLE J. FOR SOC. JUST. 653,
655 (2006).
13
No. 201,996-0

own wife, can rule impartially and wisely in the emotion-charged arena of

domestic violence.”). Similarly, in In re Disciplinary Proceeding Against Sanders,

we ruled that a Justice who visited sexually violent offenders at their detention

facility—detainees with cases pending before the court—violated his duty to be,

and to appear, impartial. 159 Wn.2d 517, 519-20, 145 P.3d 1208 (2006) (“His

conduct created an appearance of partiality as a result of ex parte contact.”). And

we ruled that a judge undermined public confidence in the judiciary when he

improperly threatened defendants with life imprisonment and indefinite jail

sentences for failing to pay minor fines and costs (certainly, an approach that

shows animus against marginalized communities). Hammermaster, 139 Wn.2d at

217, 235.11 Judge Keenan’s historically accurate statement that he chose law

school to advocate for marginalized communities is not comparable to a sitting

judge committing an act of domestic violence, visiting ex parte with litigants, or

making inappropriate threats to litigants. Instead, viewed in context, it impartially

promotes respect for marginalized communities.

The EAOs also support this conclusion. EAO 96-16 permitted a judge to

attend a ceremony in honor of domestic violence survivors so long as the judicial

11
Cf. In re Disciplinary Proceeding Against Eiler, 169 Wn.2d 340, 352-53, 236
P.3d 873 (2010) (plurality opinion) (judge repeatedly found to have threatened to rule
against litigants who interrupted or annoyed her, derided the intelligence of pro se
litigants, and “humiliated” litigants, yet still not sanctioned).

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No. 201,996-0

officer did not “act as an advocate or in any manner indicate a predisposition as to

how he or she might rule in a domestic violence case.” Similarly, EAO 09-05

permitted a judge to maintain a blog that promoted “a more fair, just and

benevolent society” so long as the judge was cautious about maintaining an

appearance of impartiality. And EAO 13-02 prohibited a judge from advocating for

an amendment to overturn Citizens United 12 but opined that the judge could engage

in nonpartisan educational events regarding that Supreme Court decision. These

EAOs show that a judge can attend an event related to, can educate on, and can

comment on, general justice system issues that may confront the courts and still be,

and appear to be, “impartial.” Judge Keenan’s statement is best interpreted as a

comment on a general justice system issue, not as a comment on how he would

rule in a case.

Based on the language and context of the Code, decisions of this court, and

persuasive advisory opinions, Judge Keenan did not violate Rule 1.2.

12
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 175 L.
Ed. 2d 753 (2010).
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No. 201,996-0

IV. JUDGE KEENAN DID NOT VIOLATE RULE 1.3

A. The plain language of Rule 1.3 and its context within the Code show
that Judge Keenan did not violate that rule

The Commission found that Judge Keenan violated Rule 1.3 because “[t]he

ad aimed at increasing student enrollment which, in turn, would advance the

economic interests of the college.” Order at 8.

Again, beginning with the plain language, Rule 1.3 states:

A judge shall not abuse the prestige of judicial office to
advance the personal or economic interests* of the judge or others, or
allow others to do so.

This language was updated from the 1995 CJC. The relevant portion of Canon

2(B) stated that “Judges should not lend the prestige of judicial office to advance

the private interests of the judge or others . . . .”

Significantly, the 2011 update changed the language from “lend the prestige

of judicial office” to “abuse” such prestige. This change mirrored the change

contained in the 2007 ABA Model Code. The ABA explained that it changed

“lend” to “abuse” because

[i]n the Commission’s view, the term “lend” created unnecessary
confusion. For example, a judge who wrote a letter of
recommendation for a law clerk “lent” the prestige of the judge’s
office to the recommendation, and some judges told the Commission
that they declined to write letters on their clerks’ behalf as a
consequence. In the Commission’s view, however, the problem that

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No. 201,996-0

Rule 1.3 seeks to address is more accurately characterized as “abuse”
of the office.[13]

“Abuse” is not defined in the Model Code. It is defined by Black’s Law Dictionary,

in part, as “[t]o depart from legal or reasonable use in dealing with (a person or

thing); to misuse.” BLACK’S LAW DICTIONARY 13 (11th ed. 2019). There is no case

law from this court interpreting Rule 1.3 or its 1995 Model Code analogue.

But it is clear that the classic example of a Rule 1.3 violation is a judge

alluding to their judicial status to gain favorable treatment in encounters with

traffic officials. Rule 1.3 cmt. 1. Another example is using judicial letterhead to

gain an advantage in conducting personal affairs, such as inquiring into automobile

registrations or real property assessments. Rule 1.3 cmt. 1; EAO 86-15. In contrast,

a judge can now clearly use judicial letterhead to provide a recommendation letter.

Rule 1.3 cmt. 2; EAO 86-12, 87-10, 88-05.

What is the difference between unreasonable “abuse” of judicial office and

appropriate “use” of judicial office that these examples illustrate? A rule must be

interpreted in the context of the entire Code and with the intent of the canons in

13
REPORTER’S EXPLANATION OF CHANGES ABA MODEL CODE OF JUDICIAL
CONDUCT, 2007, at 10,
https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/
judicialethics/mcjc_2007.pdf [https://perma.cc/3KYR-6T3V]; SUPREME COURT TASK
FORCE ON THE CODE OF JUDICIAL CONDUCT 6, 131-32 (Sept. 2009),
http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Code%20of%20
Judicial%20Conduct%20Task%20Force%20Committe/Final%20CJC%20%20Task%20F
orce%20Report%20Sept%2009.pdf.
17
No. 201,996-0

mind. See Campbell, 146 Wn.2d at 10-12. We therefore read Rules 1.3 and 1.2 in

conjunction with Canon 3.

Canon 3 affirmatively encourages judges to participate in extrajudicial

activities because such participation “helps integrate judges into their

communities.” 14 Rule 3.1 cmt. 1. Similarly, Rule 3.7 states in part that a judge

“may participate in activities sponsored by organizations or governmental entities

concerned with the law, the legal system, or the administration of justice” and

nonprofit organizations. (Emphasis added.) 15

14
Canon 3’s overarching guidance at the start of the Canon states, “A JUDGE
SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL
ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS
OF JUDICIAL OFFICE.” Its Rule 3.1 states, A judge may engage in extrajudicial
activities, except as prohibited by law* or this Code. However, when engaging in
extrajudicial activities, a judge shall not: … (C) participate in activities that would
undermine the judge’s independence,* integrity,* or impartiality;* . . . .”
15
Rule 3.7 states in full:

Subject to the requirements of Rule 3.1, a judge may participate in
activities sponsored by organizations or governmental entities concerned
with the law, the legal system, or the administration of justice, and those
sponsored by or on behalf of educational, religious, charitable, fraternal,
or civic organizations not conducted for profit, including but not limited to
the following activities:
(A) assisting such an organization or entity in planning related to
fundraising, and participating in the management and investment of the
organization’s or entity’s funds, or volunteering services or goods at
fundraising events as long as the situation could not reasonably be deemed
coercive;
(B) soliciting* contributions* for such an organization or entity,
but only from members of the judge’s family,* or from judges over whom
the judge does not exercise supervisory or appellate authority;
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No. 201,996-0

Permissible activities include assisting and planning fundraising, appearing

or speaking at events, and serving as an officer or director of an organization. See

Rule 3.7.

In fact, comment 1 to Rule 3.7 specifically states that activities in which

judges may participate “generally include those sponsored by or undertaken on

behalf of public or private not-for-profit educational institutions.” (Emphasis

added.) As the emphasis shows, comment 1 makes no distinction among legal,

nonlegal, postgraduate, and undergraduate types of not-for-profit educational

institutions.

Further, Rule 3.7(C) permits a judge to give permission to an organization to

use their title “in connection with an event of such an organization or entity, but if

the event serves a fundraising purpose, the judge may do so only if the event

concerns the law, the legal system, or the administration of justice.”

(C) appearing or speaking at, receiving an award or other
recognition at, being featured on the program of, and permitting his or her
title to be used in connection with an event of such an organization or
entity, but if the event serves a fundraising purpose, the judge may do so
only if the event concerns the law, the legal system, or the administration
of justice;
(D) serving as an officer, director, trustee, or nonlegal advisor of
such an organization or entity, unless it is likely that the organization or
entity:
(1) will be engaged in proceedings that would ordinarily come
before the judge; or
(2) will frequently be engaged in adversary proceedings in the
court of which the judge is a member, or in any court subject to the
appellate jurisdiction of the court of which the judge is a member.
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No. 201,996-0

When considering Rule 1.3, the language change from “lend” to “abuse,”

and the context of the entire Code including Canon 3 and its rules and comments,

we conclude that Judge Keenan’s conduct does not violate Rule 1.3. Judge Keenan

did not “misuse” his title or the prestige of his office. BLACK’S LAW DICTIONARY,

supra, at 13. The Code, when read as a whole, encourages judges to participate in

their communities and to work productively toward the betterment of our legal

system. Comment 1 to Rule 3.7 explicitly permits judges to promote nonprofit

educational institutions. The ad for North Seattle College was not even a

fundraiser; it was intended primarily for recruitment. 16 While recruitment has an

incidental economic benefit, just about anything that a judge would do for a

college would incidentally benefit it economically. This incidental economic

benefit is permissible under Canon 3 because a judge’s prestige should be used to

encourage education. Using one’s judicial title for such a purpose does not

constitute an abuse. 17

16
The Commission also found that the ad “could be viewed by a reasonable
person as campaign ads for Judge Keenan.” Order at 3 (emphasis added). We disagree
with this finding—which is more legal than factual—because a reasonable person
“would” not view this ad, which is clearly an ad for North Seattle College, as a campaign
ad for Judge Keenan.
17
Judge Keenan assigned error to FF 8, which stated that Judge Keenan reviewed
Canons 1 and 3 and EAO 96-06 but “did not do any further research” or “talk with
anybody about his ethical concerns.” Order at 3. Judge Keenan contends that he read
multiple EAOs and also examined commission decisions. TP at 59. The Commission is
certainly entitled to decline to credit his testimony, but it is not clear from its decision
20
No. 201,996-0

The parties spend a significant amount of time debating whether

encouraging admissions to a community college has a sufficient connection to “the

law, the legal system, or the administration of justice” to permit Judge Keenan’s

activity. This relates to Rule 3.7’s language permitting judges to undertake conduct

“concerned with” such law and justice activities. See, e.g., Appellant’s Corrected

Br. at 45-47; Resp’t’s Br. at 15.

We agree with Judge Keenan that in this context, the involvement with the

nonprofit community college did concern the administration of justice. 18 As our

open letter of June 4, 2020, noted, “Too often in the legal profession, we feel

bound by tradition and the way things have ‘always’ been”—we must work to

eradicate “systemic inequities.” Supporting community colleges may be one

whether the Commission declined to credit it or merely overlooked it. In any case, the
finding is irrelevant to whether he violated the rules.
18
Laura Rothstein, Shaping the Tributary: The Why, What, and How of Pipeline
Programs to Increase Diversity in Legal Education and the Legal Profession, 40 J.L. &
EDUC. 551 (2011) (discussing various ways to increase diversity in the legal community,
including early education intervention); E. Christopher Johnson Jr., Pipeline Programs
Increasing Diversity and Creating Responsible Citizens and Leaders, 32 MICH. B.J. 33
(2012) (discussing how educational programs are essential to increasing diversity in the
legal community); Jason P. Nance & Paul E. Madsen, An Empirical Analysis of Diversity
in the Legal Profession, 47 CONN. L. REV. 271, 316-18 (2014) (finding that “Hispanic
Americans” and African Americans are as underrepresented in the legal profession as in
other prestigious professions, suggesting earlier intervention in education could help
increase diversity in the legal field).

21
No. 201,996-0

important way to increase diversity and access to the legal community—certainly

an impact that improves the “administration of justice.” 19

B. The EAOs also support the conclusion that Judge Keenan’s conduct
did not violate Rule 1.3

To be sure, the EAOs state that a judge should not solicit funds for charitable

organizations or advertise for businesses. For example, EAO 20-01 concluded that

a webpage that promoted an individual judge’s availability to perform wedding

services and listed the cost of such services would violate Rule 1.3 because it

“begins to creep into the realm of advertising and solicitation.” Similarly, EAO 87-

04 opined that it was impermissible for a judge to permit a friend to place the

judge’s quote in a flyer advertising a business that works with law firms in the area

where the judge sits, even if the judge’s nonjudicial former title was used.

This bar against soliciting and advertising, however, does not apply the same

way to the promotion of certain educational institutions or organizations. The

EAOs themselves say that. E.g., EAO 93-31 (a judicial officer can allow a law

student association to establish a scholarship in their name, as long as that judicial

officer refrains from fundraising for the scholarship).

19
Letter from Wash. State Supreme Court to Members of Judiciary & Legal Cmty.
(Wash. June 4, 2020),
https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary
%20Legal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4-H5P7].
22
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Judge Keenan testified that he relied heavily on EAO 96-06, which

permitted a judicial officer to appear in a promotional law school video that the

school sent to prospective students. The Committee stated that this video complied

with the Code, as long as the judge’s comments in the video reflected that judge’s

own personal experiences and observations while attending (or teaching at) the

school. EAO 96-06. The opinion states that a judge “may contribute to the

improvement of the legal system and the administration of justice by assisting law

schools in recruiting the most qualified individuals into the legal profession.” Id.

(emphasis added).

The language of these two cited advisory opinions is certainly limited to law

schools. The logic of those advisory opinions, however, extends further. Those

opinions—especially EAO 96-06—recognize that a judge contributes to the

improvement of justice by helping get “the most qualified individuals into the legal

profession,” and permit judges to promote law schools for that reason. But many of

“the most qualified individuals” for “the legal profession”—and probably many

from marginalized communities—might start at community colleges. It necessarily

follows that a judge may contribute to the improvement of justice by helping get

“the most qualified individuals into the legal profession” by promoting the

educational opportunities afforded by their own former community college.

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Our conclusion finds further support in EAO 21-02. In that opinion, the

Committee concluded that Rule 1.3 permits a judge to write a letter to prospective

law students on behalf of the judge’s law school “in an effort to further diversity at

the law school.” EAO 21-02. The Committee found that this situation was similar

to the one described in EAO 96-06 because “(1) [] recruitment of law school

students is directly related to improving the law, the legal system, and the

administration of justice; (2) [] the letter will be sent to prospective law students

only and is not associated with general fundraising efforts; and (3) [] the judge is

speaking about their personal experience during their time as a law student and

practicing law in the same community.” EAO 21-02 (emphasis added). As the

emphasized material shows, although this opinion is limited to law schools, its

logic applies to other schools from which quality law students might be drawn: it

states that the recruitment conduct is permissible because it focuses on recruiting

quality law students, on doing that recruitment separately from general fundraising

efforts, and on recruiting based on the judge’s personal experience during their

time as a student. All of those prerequisites to permissible recruitment activities are

satisfied here.

The Office of Disciplinary Council (ODC) came to a contrary conclusion. In

doing so, it relied heavily on the medium that the school used to communicate

Judge Keenan’s support of his nonprofit alma mater: a bus advertisement. To be

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sure, a bus advertisement differs dramatically from a pamphlet mailed to a targeted

house, a video sent to targeted prospective students, or to appearances in law

school alumni publications—all of which many judges do. See EAO 21-02, 96-06.

But the difference lies mainly in who, and how many, people these ads and

publications reach. Law school magazines, videos to prospective students, and

published books reach a narrow, primarily self-selected, audience; bus ads, like

social media postings, reach a broader audience. The ODC’s decision thus ends up

punishing judges for communications that have a broad and nondiscriminatory,

rather than a narrow and targeted, reach.

We find no support in the rules for that approach. Instead, we hold that the

rules—especially Rule 3.7 and its comments—take the opposite approach. As

comment 1 to Rule 3.7 states, the activities in which judges may participate

“generally include those sponsored by or undertaken on behalf of public or private

not-for-profit educational institutions.” Judge Keenan’s promotion of North Seattle

College did not violate Rule 1.3.

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V. JUDGE KEENAN DID NOT VIOLATE RULE 1.1

Rule 1.1 is a catchall rule that states, “A judge shall comply with the law,*

including the Code of Judicial Conduct.” The Commission found that Judge

Keenan violated Rule 1.1 because he violated Rules 1.2 and 1.3. Order at 6.

Judge Keenan did not violate Rules 1.2 or 1.3. He therefore did not violate

Rule 1.1.

CONCLUSION

Judge Keenan did not violate the Code when he approved a bus ad to

support his nonprofit alma mater, North Seattle College. The language that he “got

into law in part to advocate for marginalized communities” did not violate his duty

to be, and to appear, impartial; thus, he did not violate Rule 1.2. The ad did not

violate Rule 1.3 because the rules, read as a whole, permit judges to promote

nonprofit educational institutions that they credit for their success, in an effort to

attract the most qualified people to the legal profession. As a result, Judge Keenan

did not violate Rule 1.1, either.

The Commission’s decision is reversed and the charges are dismissed.

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____________________________

WE CONCUR:

_____________________________ ____________________________

_____________________________ ____________________________

_____________________________ ____________________________

_____________________________ ____________________________
Fearing, J.P.T.

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