Steps Forward, Steps Back on Judicial Ethics

Article excerpt

The proposed revisions to the ABA Model Code of Judicial Conduct go far toward ensuring public confidence in the judiciary, but some rules need to go further.

After over three years of review, the American Bar Association Joint Commission to Evaluate the Model Code of Judicial Conduct has released a final report proposing both format and substantive changes to the ABA Model Code of Judicial Conduct. The ABA House of Delegates will consider the report and recommendations at its February 2007 meeting. (The Joint Commission was appointed by and operated under the auspices of the ABA Standing Committees on Ethics and Professional Responsibility and on Judicial Independence.)

The Joint Commission was commendably transparent in its proceedings, including advisors from other organizations (such as AJS) in its deliberations, for example. It also held public hearings at which it took testimony, created a listserv for individuals who wanted to keep informed of its progress, posted drafts of portions of the code on its web-site, and solicited and considered comments. According to its final report, 39 entities and approximately 300 individuals filed commerits with the Joint Commission on the existing model code (last revised in 1990), a preliminary report distributed in June 2005, or a proposed final draft in December 2005. The final report, previous drafts, and comments can be found at www.abanet.org/judicialethics.

The results of all that hard work are obvious in the important strides the proposed revisions make in clarifying the ethical obligations of judges, filling in some of the gaps in the former versions, and reflecting recent developments. The report, for example, responds to the increase in individuals representing themselves in court by explaining that judges may make "reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard" without violating the principle of judicial impartiality. Similarly, the proposed draft indicates that judges serving on therapeutic or problem-solving courts "may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others" as authorized by law.

The Joint Commission recommendations include strengthening the prohibition on biased conduct by adding ethnicity, marital status, gender, and political affiliation to the code's list of improper bases for discrimination and prohibiting "harassment" in the black letter rules with explanatory comment that describes both harassment generally and sexual harassment. Further, the categories of gender, ethnicity, and sexual orientation have been added to the list of factors upon which discrimination is prohibited in the policies of clubs to which judges seek to belong.

The final report also includes an explicit requirement that judges "cooperate and be candid and honest with judicial and lawyer discipline agencies," without "retaliatfing], directly or indirectly, against anyone known or suspected to have assisted or cooperated with an investigation of a judge." The Joint Commission has drafted a new rule to encourage the judiciary to face the issue of impaired judges and lawyers by requiring a judge "having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition" to "take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program." Further, the final report adds an important rule prohibiting a judge, when engaging in extrajudicial activities, from using "court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law."

The Joint Commission also held the ground against arguments that restrictions on judges' political conduct cannot be justified after Republican Party of Minnesota v. …