Unintended Consequences

One of the goals of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct has been to expand opportunities for judges to participate in law-related civic or charitable organizations.

But a number of witnesses at a public hearing in February said the commission’s proposed revisions to the Model Code would make it harder, not easier, for judges to participate in such activities.

The commission’s proposed new language was so broad and vaguely drawn that it threatened to stymie its own efforts to encourage judges to participate more fully in the civic and charitable activities of their communities, said Lynn Hecht Schafran, director of the National Judicial Education Program in New York City, which addresses gender bias in the courts.

The proposed language, Schafran said, could be interpreted to restrict participation of judges in a broad range of legal organizations, such as the National Bar Association, whose members are largely African-American; New York City’s Lawyers Committee Against Domestic Violence; and the ABA’s own Section of Individual Rights and Responsibilities.

Kay H. Hodge of Boston, who chairs the ABA Commission on Racial and Ethnic Diversity in the Profession, expressed concern that the proposed new rules for judges would inhibit their interaction with minority bar associations and other organizations that advocate on behalf of minorities.

“It is crucial that judges have every opportunity to acquaint themselves with minority perspectives, experiences and cultural norms,” Hodge said. “The [draft] rule in its current form, however, threatens those opportunities by suggesting that the activities of specialty bars or minority community-based organizations may be inappropriate avenues for civic and charitable involvement.”

Involvement of judges in civic or charitable activities was the primary topic of the judicial conduct commission’s hearing during the 2006 ABA Midyear Meeting. The commission held its final hearing in Chicago before completing proposed revisions to the Model Code that it will submit for consideration by the ABA House of Delegates in August during the annual meeting in Honolulu.

Like the current version, the proposed revision would allow judges to participate in civic and charitable organizations, including bar associations and other law-related groups, while prohibiting them from engaging in personal fundraising or membership solicitation on behalf of the groups. (An exception allows judges to solicit family members and other judges over whom they don’t have supervisory or appellate authority.)

Additional Leeway Proposed

The commission also drafted a provision intended to give judges some additional leeway to participate in events sponsored by law-related organizations.

The provision would permit judges to “appear at, speak at, receive an award or other recognition at, be featured on the program of, and permit his or her title to be used in connection with an event of a charitable organization concerned with the law, even though the event may serve a fundraising purpose, unless the organization’s membership includes predominantly lawyers who chiefly advocate a particular position or represent a particular client or type of client.”

The commission also drafted a comment stating that a judge should consider whether his or her association with or participation in the activities of a particular group, even if it is law-related, would reflect adversely on his or her independence, integrity or impartiality. Commission chair Mark Harrison of Phoenix said it was never the panel’s intent to prevent judges from participating in the activities of so-called specialty bars. That term is often used to refer to specialty interest and affinity bar associations, including women’s and minority bars, as well as groups like the Association of Trial Lawyers of America, the Federalist Society, the National District Attorneys Association and the National Legal Aid and Public Defenders Association.

Both commission members and witnesses responded favorably to a suggestion that the objectionable language be dropped, letting a judge’s extrajudicial activities be governed by other provisions in the Model Code.

The commission is expected to take up the issue at its next meeting in April.

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