The Federal Judiciary and the Aba Model Code: The Parting of the Ways

By Lievense, Andrew J.; Cohn, Avern | Justice System Journal, January 1, 2007 | Go to article overview

The Federal Judiciary and the Aba Model Code: The Parting of the Ways


Lievense, Andrew J., Cohn, Avern, Justice System Journal


This article addresses the origin and development of the ABA Canons of Judicial Ethics, the subsequent reformulation of the Canons into the ABA Model Code of Judicial Conduct, and how the federal judiciary initially applied and adopted the ABA's efforts for most of the twentieth century. This article traces how, following the ABA's subsequent efforts to improve its Model Code and to remain consistent with the growth of congressional action on judicial ethics, the federal ethics rules and the ABA Model Code began to diverge in the 1990s. In light of recent developments prompting the ABA once again to reform its Model Code, and because significantly different pressures to reform are being placed on the federal judiciary from within and without, we predict that the federal judiciary's own rules of conduct and the ABA Model Code will continue to diverge.

The federal judiciary, after years of being governed officially by statute alone, adopted its own code of conduct in 1973. In doing so, it essentially adopted the existing ABA model. The current Code of Conduct for United States Judges, adopted in 1992, still is based largely on the ABA model, and it, along with federal statutes and regulations, guides the conduct of federal judges. The ABA's adoption of a new model code traditionally sparks a similar movement in the federal judiciary.

Late in 2006, however, even with the adoption by the ABA of an updated model code imminent, the federal judiciary did not wait; indeed, it could not. Congress, the media, public-interest groups, and the public in general questioned the propriety of federal judges taking expenses-paid trips to privately funded seminars. Conflict-of-interest questions about federal judges' actual or appearance of impropriety also grew. This mounting pressure prompted the Judicial Conference of the United States (Judicial Conference) to strengthen ethics rules governing federal judges by adopting new conflict-of-interest and seminar-attendance regulations. With that action taken and with some of the 2007 ABA Model Code's reforms unlikely to be adopted by the Judicial Conference, the historical precedent of parallel action by the ABA and Judicial Conference clearly has been broken.

This article will examine the historical development of the ABA canons of judicial conduct and their application to the federal judiciary; the federal judiciary's formal adoption of the ABA Model Code; the subsequent expansion of congressional involvement in judicial ethics; and the reforms of the early 1990s in which the ABA and the Judicial Conference began to diverge.

A HISTORICAL PERSPECTIVE

The Early Years. Congress initially sought to prescribe rules and limitations on federal judicial conduct beyond the constitutional limits of "good Behavior," thus recognizing that federal judges were constrained by more than the threat of impeachment. Congress imposed some statutory limitations to guide federal judges, although there were few of these limits. For example, district court judges commonly sat as both trial and circuit court judges, but in the Judiciary Act of 1789 the first Congress barred judges from participating at both levels in the same case. No similar prohibition existed for Supreme Court justices, even though, riding circuit, they served on circuit courts and later might consider the appeal in such a case on the Supreme Court (Surrency, 1987:19). Common practice dictated, however, that "Justices who had heard a case on circuit would participate only where their presence was necessary for a clear majority on the appeal" (Frank, 1947:627, n. 87).

In the Act of 1790, Congress made it a crime to attempt to bribe a judge, although it imposed no penalty for accepting the bribe. Two years later, in the Judiciary Act of 1792, Congress permitted the disqualification of a federal judge, if requested by a party, on four grounds: interest; prior representation of a party; potential participation in the case as a material witness; and relationship with a party. …

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