Judicial Code Gets Rewrite

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Changes in law, politics and society have had a dramatic impact on the behavior of judges, both on and off the bench, in the 14 years since the ABA last revised its Model Code of Judicial Conduct.

During the years since the code was put through its last comprehensive revision, the association has at various times addressed specific aspects of judicial ethics. In recent years, however, the need for further revisions to the code became apparent due to the changing nature of judicial election and selection systems, and the expanding role of judges in the 21st-century U.S. justice system.

In September 2003, then-ABA President Dennis W. Archer of Detroit announced the appointment of the Joint Commission to Evaluate the Model Code of Judicial Conduct. Chaired by Mark I. Harrison of Phoenix, the 11-member commission is a joint undertaking of the standing committees on Judicial Independence, and Ethics and Professional Responsibility.

The commission embarked on an ambitious cross-country schedule of public hearings and meetings. The effort is funded with a generous grant from the Joyce Foundation, a Chicago-based group that supports an impartial judiciary. The commission expects to have a finished draft in time for the ABA Midyear Meeting in Salt Lake City, where it will hold its eighth public hearing on proposed revisions on Feb. 11.

What’s On the Table

This article provides a status report on revisions being considered by the commission to various canons in the judicial code. Once the code is adopted, states may look to it as they develop their own judicial ethics rules.

A new look. Generating perhaps the most comment is a proposal to change the format of the code. Canons would still deal with broad subjects, but rules under them would now address conduct that is clearly prohibited. Comments that follow would deal with aspirational goals. Reflecting that structural change is the code’s new working title: the ABA Model Rules of Judicial Conduct. However, the title and other code proposals still are subject to change, since revisions are being made as comments are received.

Appearance of impropriety. One of the thornier issues facing the commission—highlighted by some recent events raising judicial recusal issues—is whether to keep “appearance of impropriety” as an enforceable standard. Comparable language was deleted from the model ethics code for lawyers when the ABA adopted the Model Rules of Professional Conduct in 1983. Many believe that such language is nonetheless important in a code of conduct for judges because of the higher standards to which the public holds them accountable.

In May 2004, the commission released draft revisions of Canon 1 and Canon 2 for comment. Those versions retain the admonition that judges avoid impropriety and the appearance of impropriety.

In an effort to address concerns that such aspirational language is too vague to provide a proper basis for disciplinary enforcement, the commission emphasized in proposed com- mentary language that the standard is important to uphold the integrity, independence and impartiality of the judiciary.

Impaired judges. Partly in response to moving testimony the commission heard concerning the sensitive issue of impaired judges, the commission added proposed Rule 2.19, which provides that, if a judge knows that the performance of a lawyer or another judge is due to impairment, the judge is required to take appropriate action, which may include a confidential referral to a lawyers’ or judges’ assistance program.

Off-the-bench activities. In July, the commission released for comment proposed revisions to Canon 3 and Canon 4. During discussions of Canon 4, which deals with nonjudicial activities, commission members acknowledged the benefits for judges to participate in civic, fraternal or charitable activities in their communities.

The commission was careful to note, however, that judges must avoid participation in any activity that might cast reasonable doubt on their impartiality, integrity and independence, or that is likely to interfere with the effective operation of the courts. The commission did not recommend that judges be barred from serving as volunteers at charitable events or prohibited from receiving donations while doing such work.

Alternative dispute resolution. The work of judges as arbitrators and mediators was a topic that received an unexpected amount of comment and testimony during the commission’s hearings. Although it can be valuable for judges to participate in ADR, the integrity of the judiciary is undermined if judges take advantage of their official status by offering their services for compensation. Proposed Rule 4.06 now states that a judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity “unless expressly authorized by law.”

Gifts. Not surprisingly, there has been a great deal of interest within the legal community regarding the commission’s proposed revisions to the rules on gifts, including reimbursement, compensation and reporting.

Draft Rules 4.13-4.16, released for comment in October, prohibit judges from soliciting as well as accepting gifts. A new definition of “gift” excludes items such as ordinary social hospitality, tokens of appreciation such as trophies and greeting cards, loans, scholarships and other such items that judges receive for reasons generally unrelated to the offices they hold.

Exceptions to the ban would allow judges to accept:

• Tickets to “widely attended events,” such as conferences, dinners and receptions, at which more than 25 people are expected to attend.

• An individual gift of less than $50 in value or a series of gifts from the same source of less than $150 in aggregate value, if the donor has not appeared before the judge within the last five years or is not likely to come before the judge in the “foreseeable future.” The suggested limits are comparable to those established for gifts received by those serving in the other branches of government.

Proposed Rule 4.13(b) imposes a reporting requirement on gifts in excess of $250. Proposed Rule 4.14 would permit judges to be reimbursed for necessary travel and lodging associated with their attendance at programs or with other permissible extrajudicial activities. Judges should not, however, accept reimbursement or waiver of charges if they have the potential for creating the perception that judicial integrity, impartiality or independence have been compromised.

Another change would impose a quarterly, rather than an annual, reporting requirement on judges and recommends that the reports of such reimbursements or waivers be publicly accessible at the court or on the Web site of the court, if feasible.

Comments to Rule 4.14 list factors judges should consider before attending an expenses-paid seminar, such as the sources of funding, the reasonableness of the expenses paid and the identity of the sponsor.

Political activity. As of this writing, the commission is continuing to revise Canon 5, a daunting task because no area is more fraught with the potential for ethics problems than the conduct of judges and judicial candidates in the context of hotly contested election campaigns. In addition to reorganizing the canon, the commission is considering an approach that would target egregious conduct while identifying specifically acceptable types of conduct. In so doing, the commission will have to distance judges and candidates from the pressures of politics, while accommodating the reality that many judges must run for election and that political parties often play a role in judicial elections and appointments.

The complete drafts of the commission’s proposed revisions to the Model Code of Judicial Conduct, explanatory memoranda, comments, hearing transcripts and related information about the comment submission process are available on the commission Web site at

Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility.

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