Adoption and adaption

With the recent additions of Maine and Georgia, approximately 30 jurisdictions have issued comprehensive new codes of judicial conduct since the American Bar Association revised the Model Code of Judicial Conduct in 2007.  Whether these jurisdictions “adopted” the 2007 model code depends on how many deviations from the model a code can have before it is more than a variation.  For example, although the Delaware Supreme Court and the U.S. Judicial Conference have adopted new codes, in substance, both codes are closer to the 1990 model code or even the 1972 model code (both use “should” rather than “shall” throughout, for example), and, therefore, cannot be considered to be based on the 2007 model.

In their new codes, most jurisdictions include most, but not all of the 2007 model code revisions, and each has adopted unique versions of some rules and added clarifying revisions, definitions, or comments.  For example, the new Maine code of judicial conduct (effective September 1, 2015) explains that its rule on participation in educational, religious, charitable, fraternal, or civic organizations and activities “tracks the language and purpose of the 2011 ABA Model Code through Rule 3.7(B), with the terms restated to indicate affirmatively within each subsection what a judge ‘may’ or ‘shall not’ do.”  Thus, where the model code states that a judge may participate in activities sponsored by non-profit organizations including “soliciting contributions for such an organization or entity, but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority,” the Maine code states that a “judge shall not personally participate in the solicitation of such funds or other fund-raising activities, except that a judge may . . . [s]olicit funds from members of the judge’s family or from other judges over whom the judge does not exercise supervisory or appellate authority.”

The Maine code has several other provisions that make explicit what is probably implicit in the model code.  For example:

  • “A judge’s donation to a not-for-profit organization that accepts donations for the purpose of distributing the money collected, after the payment of expenses, to not-for-profit entities providing legal services to low income or elderly persons does not disqualify the judge from presiding over matters in which legal services are provided by those entities.” Rule 3.7(C).
  • “A judge conducting a case management conference, a judicial settlement conference, or a dispositional conference is not acting as an arbitrator or mediator.” Rule 3.9.
  • “A judge, after leaving practice and becoming a judge, may continue to receive fees and payments entirely earned while engaged in the practice of law before becoming a judge, including fees for services rendered, payments from structured settlements and judgments to be paid over time, deferred compensation plans, retirement plans, payments to the judge for sale of his or her practice, payments to the judge for his or her equity upon leaving a firm, and any other fees or payments entirely earned while engaged in the practice of law before becoming a judge.” Rule 3.11(E).

The new Georgia code (effective January 1, 2016) includes several new definitions not in the model code.  For examples, judges are prohibited from belonging to organizations that practice invidious discrimination, and the Georgia code supplements the definition.

“Invidious discrimination” is any action by an organization that characterizes a person’s age, disability, ethnicity, gender or sex, marital status, national origin, race, religion, or sexual orientation as odious or as signifying inferiority, which therefore is used to justify arbitrary exclusion of persons possessing those traits from membership, position, or participation in the organization.

The Georgia code augments the rule prohibiting independent investigations by explaining that “the facts a judge shall not investigate include those derived from personal observations or media, including printed publications, computer retrievable electronic data, or internet and social network communications.”  Rule 2.9(C).

The Georgia code adds a new requirement, not found in the model code, that “a judge who is arrested for or has been charged by way of indictment, information, or complaint with a serious crime, shall inform the appropriate authority in writing within five days of being arrested or being charged.”  “Serious crime” is defined as “any felony; any lesser crime that reflects adversely on the judge’s honesty, trustworthiness, or fitness as a judge in other respects; crimes involving moral turpitude; driving under the influence of drugs and/or alcohol; unlawful possession of any controlled substance; or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or willful failure to file income tax returns, or an attempt, conspiracy, or solicitation of another to commit a serious crime.”  Rule 2.15(D).

There will be a session on the 2007 ABA Model Code of Judicial Conduct at the 24th National College on Judicial Conduct and Ethics, October 28-30, 2015, in Chicago.  The session will be led by Daniel Crothers, Justice of the North Dakota Supreme Court and chair of the ABA Center for Professional Responsibility, Policy Implementation Committee, and James Alfini, Professor of Law and Dean Emeritus, South Texas College of Law.  As background for the session, the Center for Judicial Ethics is surveying states about their experience with the 2007 model, particularly any provisions that have been problematic.  The problem could be that a change from the previous versions was controversial, that a revision was ambiguous, or that a rule, definition, or comment is missing.  There are different surveys depending on whether a jurisdiction has adopted a new code since 2007.  Please feel free to respond even if you are not attending the College.

  • If your state has adopted a revised code of judicial conduct after considering the 2007 ABA Model Code of Judicial Conduct, click on this link to take a short survey.
  • If your state has considered or is considering adopting a revised code based on the 2007 ABA Model Code of Judicial Conduct, click on this link to take a short survey.

The 24th National College on Judicial Conduct and Ethics will provide a forum for discussion of ethical standards for judges and current issues in judicial discipline.  Click here for more information.

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