ABA COMMISSION SEEKS COMMENT ON COMPLETE DRAFT
OF REVISED MODEL CODE OF JUDICIAL CONDUCT

CHICAGO, July 6, 2005 -- A complete preliminary draft of revisions to the American Bar Association Model Code of Judicial Conduct is posted on the ABA Web site with an invitation for comment.

“The code addresses issues of judicial integrity, impartiality and independence and the public’s confidence that it can rely on those qualities in the men and women who preside over our courts,” said Mark I. Harrison, chair of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct.  “These are complex issues, and while our posted draft represents a majority view on each point, we had disagreements on various points along the way.  We have identified those issues and others about which we still have questions in our report and are especially hopeful for comment on them, although we welcome comment on any provision of the code.” 

The proposed code revision is not ABA policy.  

A public hearing on the preliminary draft is scheduled for 9 a.m. to noon Aug. 5 at the Chicago Marriott Hotel.  Sept. 15 is the deadline for comment on the preliminary draft.  After that, the commission will consider whether and how to further refine its proposals, and present a final draft for adoption as policy of the ABA House of Delegates in February 2006.

The preliminary draft incorporates changes made in response to comment about previously posted versions of Canons 1 through 4.  Sections of the preliminary draft that have not previously been posted are the preamble, sections explaining the scope of the code, terminology, and how it applies to judges serving in less than a full-time capacity. 

Posted along with the preliminary draft are two comparison documents.  First is the existing model code, clearly indicating where changes are proposed.  The other compares the preliminary draft with original draft revisions for Canons 1 through 4.  Canon 5, the last canon, has been posted so recently that comment still is being received.

Canon l articulates broad general principles, stating a judge should avoid impropriety and the appearance of impropriety in all activities, to uphold the integrity, impartiality and independence of the judiciary.  The report notes the commission received substantial comment about whether prohibiting conduct that creates an “appearance of impropriety,” is so vague it provides no guidance, but was persuaded the concept should be retained both in the canon and in an explicit rule.

Canon 2 addresses performance of judicial duties, and the commission seeks comment on six areas, including, for example, whether a judge should be required to tell litigants in a pending case information that the litigants might believe should disqualify the judge, even if the judge believes disqualification would not be warranted.

Canon 3 covers judges’ conduct in their personal affairs, including possible misuse of the prestige of the judicial office.  A number of changes proposed from the existing code deal with judicial membership in and use of benefits or facilities of private discriminatory organizations or clubs, such as barring judges from being members of organizations that discriminate by ethnicity or sexual orientation.  However, the comment to rules in Canon 3, taken directly from the existing code, expressly permits judges to belong to “any organization dedicated to the preservation of religious, ethnic or legitimate cultural values of common interest to its members.” 

Canon 4 applies to extra-judicial conduct by judges, or behavior in situations that involve them as judges but not while they are physically presiding in court.  Solicitation and acceptance of gifts has been a major focus of the commission under this canon, and its report directs attention to its new definition of gifts and directions about when and how gifts can be accepted and when they must be reported. 

While the initial rules under Canon 5 addresses general prohibitions on political activity by judges and judicial candidates, subsequent rules apply different levels of restrictions on political activity to persons seeking appointment as judges, or election or retention in partisan or non-partisan elections.

The preliminary draft and a cover report are posted at www.abanet.org/judicialethics/preliminaryreport.html.  To register to testify at the hearing, or to submit comment, contact Debra D. Taylor at debrataylor@staff.abanet.org or at the American Bar Association Center for Professional Responsibility, 321 N. Clark St., Chicago IL 60611.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.

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