The American Bar Association commission tasked with revising the Model Code on Judicial Conduct is proposing to weaken the ethical requirements for sitting judges. Specifically, according to this New York Times report the rule that judges avoid "impropriety and the appearance of impropriety" would become a nonbinding aspiration and would no longer provide sufficient basis for disciplining judges.
Supporters of the change say disciplining judges for violating a concept as vague as “the appearance of impropriety” is unfair. Opponents denounce any retreat from the longstanding and widely embraced standard, . . .The article cites many critics of the proposed change, including some judges, who dispute the claim that the existing standard is unworkable or too vague. There is no doubt that a prohibition on appearance problems can, at times, be difficult to apply, it serves as a helpful prophylactic rule. Moreover, as with any rule that is sufficiently general or abstract, the application to specific instances is facilitated by the accumulation of precedent and the interpretations of various judicial organizations.Mark I. Harrison, the chairman of the A.B.A. commission, said the “appearance of impropriety” standard was vague and added nothing to the rules prohibiting specific conduct that remain mandatory.
“We think it’s a step forward,” Mr. Harrison said of the commission’s decision. “It is important as a matter of due process and fairness to make clear what would be the basis for disciplinary enforcement without ambiguity and without confusion.”
Here's more from the story:
Jonathan Lippman, New York’s chief administrative judge, disagreed, saying the “appearance of impropriety” standard was sensible and workable. “I don’t think this is nuclear science,” he said. “Judges overwhelmingly approve of that standard as a basis on which to go about their daily business.” . . . .Victoria Henley, the president of the Association of Judicial Disciplinary Counsel, whose members hear and consider complaints against judges, said the recent revisions were unlikely to gain wide acceptance. “If they basically gut the ‘appearance of impropriety’ standard,” Ms. Henley said, “it’s unlikely that the A.B.A. will continue to be responsible for drafting a model code that will be used by any state.”
First, appearance standards address the real harm. The appearance of favoritism damages the credibility of both the individual and system as a whole. The harm being addressed is precisely that damage - not the act of fraternization. This seems analogous to "appearance of impropriety" for judges.
Second, by addressing the real harm you also create a workable way to measure and punish the conduct. It is not neccessary to go searching for an actual instance of favoritism (which in areas requiring judgment is quite difficult to prove), all that is required is to say the conduct resulted in the appearance of favoritism in order to censure the conduct.
Finally, it has been quite workable in the military context to employ such standards - and changing a _traditional_ standard on the basis of it being "unworkable" seems a little odd anyhow (did it not work for the last 50 years)? However, in the military you do have a sort of warning system for this sort of thing in a way you may not with judges. If your superior believes some behavior is creating the appearance, he can order you privately to cease the conduct (it makes things easier on the superior as well, since he doesn't have to discuss whether the conduct is actually occurring). I'm not sure if there is a comparable private advisement opportunity for judges. Maybe other judges?
Brian
Solid State,
I get the sense that the sort of things the military has in mind are much more specific and clear than we are talking about for judges. I doubt their is much of a problem with judges taking a beer at lunch with the plantiff and if there was I suspect judges would still get in trouble for it even after this change.
I'm sure that judges who do obvious things that violate this rule would still manage to be deterred, by social pressure if not direct discipline. However, so long as you keep this rule as binding anytime a judge makes a minor mistake (forgets he got really drunk once and slept with the plaintiff) and the situation ends up getting lots of PR their will be strong pressure to apply the rule since there has been an appearance of impropriety.
Maybe I'm all wrong and the situation with judges isn't like this at all but this does seem to be a concern and I'm not sure in what situations it would be important to keep this rule as mandatory rather than just relying on general common sense and other rules about judicial behavior.
So, what leverage is there on judges to be unbiased, and to look to? I would suggest that w/o sanctions, little.
In one case, for example, a judge regularly ate lunch with a group of insurance adjusters, at a restaurant near the courthouse. It was impossible to prove that he favored their insureds in court (or that he was generally biased in favor of defendants), but his public lunches naturally troubled plaintiffs and plaintiffs' lawyers.
The most that could be said was that he created an "appearance" of favoritism, but that was sufficient for an admonition (as I recall), in a rather useful instance of the "appearance" standard.
Does any of this purport to be binding on federal judges? I would think that they are immune from the ABA's meddling.
That being said, I am all for the "appearance of impropriety" standard. As Steve Lubet's example demonstrates, it's often impossible to prove actual favoritism. This standard thus does away with a virtually impossible standard of proof and helps keep our judiciary as transparent as possible.
The Scalia example is a good one for those who disagree. Yes, without knowing more, many (myself probably incl uded, I concede)would reflexively say that there was an appearance of impropriety. However, he wrote a thorough and well-reasoned analysis of why recusal was unwarranted, and I can't say I disagreed. So, if any judge thinks this standard is too harsh, let him or her write an opinion like Scalia's demonstrating precisely why not.
The gist of it was that a lot of institutions spend too much time worrying about the appearance of impropriety, and not enough worrying about actual impropriety.
It's sufficiently memorable to make the index (``pulley II 115''). A thought for ``reformers.''
_Essays on His Times_ which is 3 volumes of _The Collected Works of Samuel Taylor Coleridge_ Princeton University Press
The "appearance of impropriety" canon has nothing to do with recusal of federal judges, that being governed by 28 U.S.C. sec 455. The relevant statutory language requires disqualification whenever the judge's "impartiality might reasonably be questioned."
That provision will not be affected by changes in the ABA Model Code.
The very first canon of the proposed revisions continues to say that judges “shall avoid impropriety and the appearance of impropriety.”
But recently added language in the introduction to the code says that while that and other canons provide “important guidance,” judges cannot be disciplined for violating them. The canons are followed by rules that are more specific . . ., and the new introduction says that only those rules may serve as the basis for discipline.
It appears that they've structured the code as a set of general guidelines or precepts, followed by a set of specifically elaborated rules. The former are intended to guide judges' thinking about professional ethics, and to express certain values or standards of the profession; the latter are intended to stipulate explicit behavioral regulations. The latter are enforceable, because the rules are explicit and behavioral; the former are not enforceable, because they are aspirational, not behavioral, and not explicit.
This is not a bad way to go about things. The AMA ethics guidelines are structured in the same way, and many professional codes have at least a preamble or set of principles that are not intended to be interpreted as statutory.
I can't tell from the article how much of this structure is new: did they add the behavioral rules and then declare them the body of enforceable canon, or did they always have both guidelines and rules and have just now rendered one of them unenforceable? If the first, I can't see what the objection is. If the second, then, yes, they do appear to be backing off from their previous standards, but that still may not be unreasonable if those standards were composed of very vague and very explicit parts, and they now choose to eliminate the ambiguity.
28 U.S.C. sec 455 generally doesn't enter into the discussion because it's generally a higher standard, as the accussation must be reasonable. The ABA statute is the one generally used as the bludgeon as the mere "appearance" is a much easier bar to clear.
You can find a rather interesting article on the subject here:
On Findlaw.
Page 3 is directly linked as it is the most relevant.
Wrt your insurance adjusters anecdote, that would seem to me to be grounds for recusal, but should it be grounds for discipline?
Tainted Justice: How Private Judicial Seminars Undermine Public Trust in the Federal Judiciary 18 GEO. J. L. ETHICS 65 (2004)