Answers to Questions About Proposed Revisions to the ABA Model Code of Judicial Conduct

Q: Why is the ABA considering revising the code?

A: Periodically, the ABA conducts a complete review of each of the standards and models that it has developed and adopted, to assure that they continue to reflect developments in society generally and in the law in particular. The last review of the Model Code of Judicial Conduct was initiated in 1987, and resulted in adoption of a major revision in 1990. Individual provisions of the 1990 code have been amended three times since then, but in 2003 ABA leaders determined that it was time for another comprehensive review.

Q: How widely followed is the Model Code?

A: Versions of the Model Code have been adopted in every jurisdiction, although they often vary with respect to specific provisions

Q: How is the code enforced?

A: Each state and the District of Columbia has a judicial conduct commission that hears complaints of judicial misconduct. The ABA has promulgated Model Rules for Judicial Disciplinary Enforcement, which are posted on the Web at http://www.abanet.org/cpr/juddis/contents.html. Most jurisdictions follow some version of those rules when investigating complaints. Each of the states includes judges, lawyers and public or non-lawyer members in the process, although the mix of members varies substantially. See the American Judicature Society Web site for a chart of commission membership: http://www.ajs.org/ethics/pdfs/Commission%20membership.pdf. AJS also posts a chart identifying the point in the discipline process at which a complaint against a judge becomes public, at http://www.ajs.org/ethics/pdfs/When%20confidentiality%20ceases.pdf, and lists contact information for the state commissions at: http://www.ajs.org/ethics/eth_conduct-orgs.asp.

Q: Who are the people behind the proposed revisions?

A: The roster of members of the Joint Commission to Evaluate the Model Code of Judicial Conduct is posted on the Web at http://www.abanet.org/judicialethics/roster.html. Of the members, one is a federal appellate court judge, one is a state appellate court judge, one is a state trial court judge and one is a state administrative agency judge. Three members, plus the chair, are lawyers in private practice. One member is a law school dean, one is with a legal ethics consulting firm and one is a non-lawyer. Additionally, the commission was assisted by a group of 11 advisors representing entities within the ABA Center for Professional Responsibility and the following external organizations: the Conference of Chief Justices, the Judicial Conference of the United States, the American Judicature Society, the National Judicial College and the Association of Judicial Disciplinary Counsel. The commission staff included two reporters, Charles G. Geyh of Indiana University School of Law in Bloomington and W. William Hodes of Indianapolis.

Q: In what ways is the commission proposing to revise the code?

A: It is proposing both structural and substantive changes.

STRUCTURAL CHANGES

The commission recommends introducing a format commonly known as a "Restatement" or "rules" format. The new document presents a series of rules organized under four, rather than the previous five, "Canons." The canons remain general statements that identify overarching principles of judicial ethics, while specific rules identify the responsibilities and obligations of judges, and establish a variety of prohibitions. These rules are generally followed by comments that explain the rules and provide examples of how and when they are applicable.

Additionally, much of the content has been rearranged, allowing a more cohesive presentation of related rules. In addition to the canons, rules and commentary, there is a revised preamble, a new section on scope, a terminology section, and an application section.

SUBSTANTIVE CHANGES Although there are hundreds of changes being proposed, a substantial majority of them are organizational, as indicated above, or increase the clarity with which previously accepted principles are described. Others are intended to accomplish substantive change in judicial ethics standards. Among the most significant changes are:

Consistent reference throughout the proposed code to what commissioners describe as the three “I’s:” independence, integrity and impartiality of the judiciary.
Recognition of domestic partners as having status equivalent to spouses.
Acknowledgment of “problem solving” or “therapeutic” courts, such as drug courts, which may function under local rules that authorize conduct, including ex parte contacts not otherwise permitted under the code.
Prohibiting harassment, as well as bias and prejudice, and defining harassment generally and sexual harassment specifically; adding gender, sexual orientation, socioeconomic status and political affiliation to categories where bias, prejudice and harassment are prohibited.
Listing financial relationships among other sorts of relationships that should not be permitted to influence judicial conduct or judgment.
Adding a requirement that judges perform their judicial duties competently and diligently, and cooperate with other judges and court officials.
Cautioning that although judges may encourage settlements, they shall not coerce settlements, and identifying factors to consider in deciding on appropriate settlement practices for particular cases.
Requiring judges to be patient, dignified and courteous to all persons with whom the judge deals in an official capacity.
Prohibiting judges from making pledges, promises or commitments with respect to cases, controversies or issues likely to come before the court if they are inconsistent with impartial performance of adjudicative duties, and requiring them to disqualify themselves from cases when they made statements as judicial candidates that would violate the prohibition.
Requiring judges to disqualify themselves from cases involving parties or lawyers from whom the judges received campaign contributions exceeding an amount to be locally determined; prohibiting judges from appointing lawyers to compensated positions other than by rotation systems if the lawyers contributed to the judges campaign in excess of limits and within time periods to be determined locally.
Requiring a judge who reasonably believes another judge is impaired by drugs, alcohol or a mental, emotional or physical condition to take “appropriate action”, which may include a “confidential referral to a lawyer or judicial assistance program”.
Requiring judges who know that other judges have violated the judicial code or lawyers have violated their code of ethics to report the violations to appropriate authorities.
Specifically requiring judges to cooperate and be candid with judicial and lawyer disciplinary agencies.
Permitting judges to engage in extra-judicial activities unless they will lead to frequent disqualification of the judge, will interfere with proper performance of judicial duties, would appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or would appear to a reasonable person to be coercive.
Prohibit membership in or use of the facilities of organizations that practice invidious discrimination based on gender or sexual orientation, as well as other factors.
In permitting participation in educational, religious, charitable, fraternal or civic organizations, explicitly allowing judges to assist in such functions as planning the raising, managing and investing of organizational funds.
Clarification that judges may, without compromising their independence, integrity and impartiality, accept certain gifts without reporting them; specifying that other gifts may be accepted but must be reported; and clarifying under what circumstances judges may accept reimbursement of expenses or waiver of fees for themselves and spouses, domestic partners or guests in attending seminars or other educational functions, and what details about such gifts, reimbursements or waivers must be reported.
Detailing permissible political activities for candidates for judicial office, including judges seeking reelection, and explicitly stating they can express political views as long as they do not make pledges, promises or commitments to rule to reach particular results.

Q: Is it true that judges would be barred from participating in the Boy Scouts of America under the new provision prohibiting them from participating in organizations that invidiously discriminate based on sexual orientation.

A: While the commentary notes that "Whether an organization practices invidious discrimination is a complex question to which judges should be attentive," it provides guidance for judges in assessing whether organizations practice invidious discrimination. It provides specifically that membership is permitted in an organization that is intimate, purely private, and one whose membership limitations are not constitutionally prohibited. Under the most recent rulings of the Supreme Court of the United States, membership limitations of the Boy Scouts of America are not constitutionally prohibited.

Q: Has the commission weakened the prohibition against conduct creating an appearance of impropriety, by not including a specific rule against it?

A: No. The prohibition has in fact been moved from Canon 2 to Canon 1, highlighting its compelling importance. Any violations of the Code or other laws or rules of court, and any conduct that undermines the "three I's" are by definition improprieties.

Q: Does the commission’s continued reliance on prohibitions in campaign speech that constitute pledges, promises or commitments fly in the face of court rulings that have whittled away at restrictions on campaign statements by judges?

A: This is a developing area of law, but the commission believes that it has crafted rules that comply with rulings by the Supreme Court of the United States. Although the commission recognizes the value of informing the public of general political views of judicial candidates, and recognizes judges' rights to free speech, it believes that the role of judges is different from that of legislators or executive branch officials and that campaigns for judicial office must be conducted differently from campaigns for other office. The proposed restrictions on political and campaign activities of judicial candidates allow candidates to provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices, but prohibit pledges, promises or commitments that are inconsistent with their impartial performance of adjudicative duties.

News reporters can contact Nancy Slonim at 312/988-6132 or slonimn@staff.abanet.org at the ABA Division for Media Relations and Communication Services, for resources and interview requests relating to this issue.