ABA RELEASES COMPLETE FINAL DRAFT
OF REVISIONS TO MODEL CODE OF JUDICIAL CONDUCT

CHICAGO, Dec. 21, 2005 – The final complete draft of proposed revisions to the American Bar Association Model Code of Judicial Conduct is posted on the association’s Web site.

“As the nation heard from Chief Justice John Roberts, judges are society’s legal referees.  They apply the rules that permit us to rely on expectations of behavior by individuals and institutions of commerce and government and to resolve our differences in halls of justice rather than in the arenas of gladiators,” said Mark Harrison, chair of the ABA Joint Commission on Evaluation of the Model Code of Judicial Conduct.

“In the 18 years since the ABA last undertook a comprehensive look at the judicial code, there have been enormous changes in the way judges are chosen for office, in how they are viewed by the public and by the other two branches of government, and in the way they perform their work,” said Harrison. 

“It is critically important that standards of conduct for judges warrant our continued reliance on the independence, integrity and impartiality of our courts.  The code must provide the guidance judges need, while also assuring a regulatory structure that reinforces the rectitude we expect from our judiciary.  It also is important to encourage judges to participate in society in ways that assure they understand the circumstances of litigants who appear before them.  The commission drew on the experience and expertise of lawyers, judges, academics and members of the public in striving for the right balance.  Now we hope to hear from all quarters about whether we have succeeded,” said Harrison. 

Harrison invited comment during a public hearing scheduled the morning of Feb. 11 at the Hyatt Regency Hotel in Chicago, during the ABA 2006 Midyear Meeting.  But he also emphasized that the commission encourages written comment, which it will accept up to March 15.  Harrison encouraged those who do comment to suggest specific code language for any changes they may request.   Comments and possible further revisions will be considered before the commission submits a final report seeking adoption of the revised draft by the ABA House of Delegates in August 2006.

Harrison identified several key areas of change in the proposed new code. 

Among the most substantial revisions are those covering judicial and judicial candidate political activity.  “Although the law governing permissible political activity of judges and judicial candidates is in a state of flux, we have sought to recognize the political realities of judicial selection while ensuring that integrity, independence and impartiality are not undermined by inappropriate political activity,” he said. 

Those provisions, in Canon 5 of the draft revised code, suggest different restrictions on political activity when judges are selected by partisan election, non-partisan and retention election, and appointment.  For example, they would prohibit a candidate in a non partisan election from completing a questionnaire if the candidate knows the purpose of the document is to help a political organization determine whom it will endorse.  Commentary to the draft code says completing such questionnaires would otherwise be permitted but cautions candidates to make clear that despite their answers addressing controversial issues, they will keep an open mind while on the bench.

Harrison also noted the commission had received substantial comment on the question of whether the code should prohibit activity that might create an appearance of impropriety, and pointed out the proposed revision retains that prohibition both in a canon, as a statement of policy, and in a specific rule.

New provisions on acceptance, solicitation and reporting of gifts and on reimbursement for or waiver of charges for travel-related expenses also represent important topics, said Harrison.  The revised code suggests individual jurisdictions place dollar limits on gifts that judges may accept, allowing modest and innocuous gifts but barring gifts of unlimited size.  It would limit reimbursement of travel expenses, or waiver of such expenses, to necessary travel and lodging costs, and provide guidance on determining when accepting such financial benefits creates a perception that the judge’s integrity, impartiality or independence may be compromised.

Among other issues Harrison flagged in inviting new comment are:

• What judges should not do when debriefing jurors after a trial
• How aggressive judges can be in encouraging settlements
• Whether restrictions on judges independently investigating facts in a case should include Internet research
• What information judges should disclose when considering whether to disqualify themselves from hearing specific cases
• What specific conduct constitutes the misuse of the prestige of judicial office, in such areas as writing letters of recommendation and holding membership in and patronizing private clubs with restrictive membership policies
• What steps a judge should take if he or she believes the performance of another judge or a lawyer is impaired by drugs, alcohol or other mental, emotional or physical conditions

Access the draft code at www.abanet.org/judicialethics/finaldraftreport.html.  Comment should be submitted to George Kuhlman, ABA Ethics Counsel, at ABA Center for Professional Responsibility, 321 N. Clark St., Chicago IL  60610, or via e-mail at gkuhlman@staff.abanet.org.

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.

Archived Releases | Media Relations Home | ABA Network Home