The 2007 ABA Model Code: Taking Judicial Ethics Standards to the Next Level

Article excerpt

At its February 2007 meeting, the American Bar Association House of Delegates adopted a revised model code of judicial conduct, the first comprehensive revision of the code since 1990. The 2007 model code makes important changes that clarify the ethical obligations of judges, filling in some of the gaps in the former version and reflecting recent developments in case law and court management. Unfortunately, the revised code also makes several unwarranted changes and fails to resolve several important issues. This article discusses the major revisions in the code, emphasizing the important and controversial changes.

The 2007 model code is based on a report of the Joint Commission to Evaluate the Model Code of Judicial Conduct.1 Created with a grant from the Joyce Foundation, the Joint Commission was appointed in 2003 and operated under the auspices of the Standing Committee on Ethics and Professional Responsibility and Standing Committee on Judicial Independence.

The Joint Commission was comprised of 10 judges and lawyers and one public member and included in its discussion 11 advisors, including a representative of the American Judicature Society. The Joint Commission met in person or by conference call over 50 times and held several public hearings. It posted drafts of portions of the code on a web-site with requests for comments and suggeslions.2 Thirty-nine entities, including AJS, and 300 individuals filed written comments.3 The ABA's Center for Professional Responsibility Implementation Committee is available to assist states as they consider whether to adopt the changes in the new code.4

The revisions reorganize the code, reducing the number of canons from five to four with numbered rules under each canon. The rules have numbered comments that provide aspirational statements and guidance in interpreting the rules. The code also includes a preamble and scope, terminology, and application sections. The report presented by the Joint Commission includes reporters' notes that explain the changes but are not part of the code.5 A copy of the revised model code, with correlation tables, is available on the Joint Commission's web-site.6

Canon 1: Independence, Integrity, Impartiality, and Impropriety

A Judge Shall Uphold and Promote the Independence, Integrity, and Impartiality of the Judiciary, and Shall Avoid Impropriety and the Appearance of Impropriety.

Canon 1 and its rules cover most of the subjects included in Canons 1 and 2 in the 1990 Code, including the obligations to comply with the law and to promote public confidence in the judiciary. The revised code adds two new comments to encourage judges to "participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all" and to "initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice."

Appearance of Impropriety (Rule 1.2). The most controversial issue addressed by the Joint Commission was whether to maintain the requirement, in Canon 2 of the 1990 model code, that a judge shall avoid "the appearance of impropriety in all of the judge's activities." Without any analysis, several commenters asserted that the standard was too vague and pressured the Joint Commission to eliminate it from the model code for judges as it had been eliminated from the model rules for lawyers. In the final report, the Joint Commission placed the standard in a canon, not a rule, and added a sentence to the scope section stating that "for a judge to be disciplined for violating a Canon, violation of a Rule must be established."

The ABA Ethics Committee, after the final report was submitted to the House of Delegates, persuaded the Joint Commission to amend the scope to further nullify the appearance of impropriety standard by specifying that canons provide only "important guidance in interpreting the Rules. …