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Revising the Rules

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The ABA is undertaking a comprehensive review of its Model Code of Judicial Con­duct in efforts to accommodate the changing world in which judges work.

The most recent major re­view was undertaken more than a decade ago, and many new issues have developed for judges since then, says Mark I. Harrison, a Phoenix lawyer who chairs the ABA Joint Commission on Evalu­ation of the Model Code of Judicial Conduct.

“The life and times of judges have changed, as have the court cases,” Harrison says. “We need to get in step.”

ABA President Dennis W. Archer appointed the commis­sion in the fall. The group plans to submit recommended re­vis­ions to the code for consideration by the ABA’s policy-making House of Delegates in about a year, at the 2005 ABA Midyear Meeting in Salt Lake City.

“We’ll look at the existing code to see whether it is still serviceable, to determine wheth­er there are changes that can be made in the existing code that would be helpful and address life in the judiciary as it is in the 21st century,” Harrison says. Among the issues on the com­mission’s agenda is how judges should deal with pro se litigants, Harrison says.

“More and more people in more and more settings are representing themselves,” he says. That trend creates a quandary for judges as they seek to remain neutral while they try to provide guidance to inexperienced litigants appearing pro se.

The commission will also con­sider the extent to which judges assigned to courts that follow “restorative justice” or “problem-solving” approaches to domestic relations or drug abuse cases should be permitted to interact with community organizations that provide services in those areas.

Debate Continues on Judicial Speech

Another topic for the commission is regulation of judges’ speech, especially during judicial election campaigns. This issue already has received attention from the House, which approved revisions to the Mod­el Code in August after the U.S. Su­preme Court struck down restrictions against judicial candidates expressing views on disputed legal or political issues in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

The revised code calls on candidates to act in a manner consistent with the impartiality, integrity and independence of the judiciary. It also prohibits candidates from making pledges, promises or commitments on cases or issues likely to come before a court that are inconsistent with judicial impartiality. Previously, the code prohibited candidates from making statements that committed or appeared to commit them on issues that came before their courts.

Regulation of judicial speech needs further attention as courts continue to address the issue, says commission member James A. Wynn Jr., a North Carolina Court of Appeals judge in Raleigh. “Minnesota v. White is not the focal concern, but it is a consideration,” he notes.

Other issues the commission plans to address include the concept of the “appearance of impropriety” by judges; the significance of judges’ family mem­bers’ activities, state­ments and affiliations; wheth­­er judges’ involvement with civic, charitable, educational and other organizations should be limited; and issues arising from judges’ impairment.

In December, the commission held its first public hearing on code-related issues. The next one is in February during the ABA Midyear Meet­ing in San Antonio. Other hearings will be June 4 in Naples, Fla., and Aug. 6 in Atlanta during the annual meet­ing. The work of the group is supported by a $175,000 grant from the Joyce Foundation of Chicago.

Wynn says any code revisions should seek to enhance public trust in the judiciary while giving judges clear parameters for their behavior. “From a judge’s stand­point,” he says, “you kind of like to know the kind of things that, if you do them, it will cost you your job.”

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