Model Code Anniversary

10 years ago, the American Bar Association House of Delegates, at its February 2007 Midyear Meeting, adopted a revised Model Code of Judicial Conduct based on the recommendations of a joint commission.  The previous version of the model code had been adopted in 1990, modifying the original 1972 model, which replaced the 1924 canons of judicial ethics.  (A few minor amendments to the 2007 application section were made in 2010.)

The 2007 revisions reorganized the code, reducing the number of canons from 5 to 4 with numbered rules under each canon and numbered comments that provide guidance for interpreting the rules.  There were also substantive additions and changes to clarify and amplify the standards and to address developments in judicial ethics and comments from the extensive public review conducted by the joint commission.  However, the central precepts regarding judicial independence, integrity, and impartiality both on and off the bench were unchanged and the specific corollaries, regarding demeanor, disqualification, and ex parte communications, for example, remained essentially the same.  There had been a last-minute attempt to demote the “appearance of impropriety” from a rule to a suggestion but, as adopted, the new model code kept the “appearance of impropriety” both as an aspirational standard and as grounds for disciplinary enforcement, as the Conference of Chief Justices had urged.

Most states adopted the 1972 model code almost verbatim, but since then, when adopting new codes, states have adapted the model to reflect their own experience, case law, and advisory opinions while maintaining the general principals.  In other words, it can be difficult to definitively say whether a state has “adopted” the 2007 model.

With that caveat, 30 jurisdictions have adopted new codes of judicial conduct that include many, but not all of the 2007 model code revisions and adopt some changes unique to each state:

  • Arizona (effective September 1, 2009)
  • Arkansas (effective July 1, 2009)
  • Colorado (effective July 1, 2010)
  • Connecticut (effective January 1, 2011)
  • D.C. (effective January 1, 2012)
  • Georgia (effective January 1, 2016)
  • Hawaii (effective January 1, 2009)
  • Idaho (effective July 1, 2016)
  • Indiana (effective January 1, 2009)
  • Iowa (effective May 3, 2010)
  • Kansas (effective March 1, 2009)
  • Maine (effective September 1, 2015)
  • Maryland (effective July 1, 2010)
  • Massachusetts (effective January 1, 2016)
  • Minnesota (effective July 1, 2009)
  • Missouri (effective January 1, 2012)
  • Montana (effective January 1, 2009)
  • Nebraska (effective January 1, 2011)
  • Nevada (effective January 19, 2010)
  • New Hampshire (effective April 1, 2011)
  • New Mexico (effective January 1, 2012)
  • North Dakota (effective July 1, 2012)
  • Ohio (effective March 1, 2009)
  • Oklahoma (effective April 15, 2011)
  • Pennsylvania (effective July 1, 2014)
  • Tennessee (effective July 1, 2012)
  • Utah (effective April 1, 2010)
  • Washington (effective January 1, 2011)
  • West Virginia (effective December 1, 2015)
  • Wyoming (effective July 1, 2009)

(At least 4 jurisdictions (Delaware, New Jersey, Oregon, and the federal judiciary) have adopted new codes since 2007, without adopting enough of the 2007 revisions to be considered the 2007 model.  Several additional states have adopted a couple of the 2007 revisions without adopting completely revised codes.)

Some changes made by the states are minor, clarifying the model’s rules through additional comments, definitions, and exceptions.  Many of the variations are in the rules for political conduct, extra-judicial activity, or part-time or senior judges where the differences among the states in judicial selection methods and organization are manifest.  Some states have made a few major changes, drawing the line between prohibited and permitted conduct in a different – stricter or more lenient – place for the state than nationally.

To illustrate the deviations from the model, a few recently adopted by the supreme courts in Idaho, Georgia, and Massachusetts are summarized below.

Idaho added a reference to social media in the code of judicial conduct, the third state to do so (New Mexico and West Virginia are the others).  Idaho’s comment:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

The new Idaho code also adds an extended comment on the use of judicial letterhead.

A judge shall not use judicial letterhead to gain an advantage or potential deferential treatment in conducting his or her personal business, including but not limited to financial matters, private business dealings, discharging parental responsibility, private disputes, political activities or charitable solicitations or endeavors.  It is not an abuse of the prestige of the judicial office to write letters of appreciation, letters of recognition or other laudatory letters written in connection with law-related activities, community outreach activities, civic activities, or educational activities so long as there is no reasonable likelihood that the use of the letterhead would be perceived as any attempt to exert pressure by reason of the judicial office or to gain any personal advantage or potential deferential treatment for the judge or others.  Judges should be cautious in writing such letters for any person who regularly appears before the court, has a matter pending or impending before the court, political figures or other personnel such as law enforcement officers or attorneys who appear before the court.

Like the model code, the Georgia code of judicial conduct prohibits membership in organizations that practice invidious discrimination, but the Georgia code adds a definition of invidious discrimination:  “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 new Georgia code has a requirement, not in the model, 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.”)

In 2009, after a judge’s release of a defendant on personal recognizance became an issue in the 2007 Republican presidential nomination, the Massachusetts Supreme Judicial Court had amended the rule regarding public comment on a pending case and added guidance regarding the issuance of explanatory memoranda.  The new Massachusetts code that became effective in 2016 reflects that discussion.

Thus, where the model code states that “a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter,” the Massachusetts code states that “a judge may respond directly or through a third party to public criticisms of the judge’s behavior, but shall not respond to public criticisms of the substance of the judge’s rulings other than by statements” that explain the procedures of the court, general legal principles, or what

may be learned from the public record.  (A comment notes that “a judge is not required to respond to statements in the media or elsewhere.”)  The Massachusetts provision elaborates on the model exception for explaining court procedures to add in a comment that this “permits the dissemination of public information to educate and inform the public, while assuring the public that cases are tried only in the judicial forum devoted to that purpose.”  As examples, the comment states that a judge may explain “procedures and standards governing a ‘dangerousness hearing’” and refer “to matters that may be learned from pleadings, documentary evidence, and proceedings held in open court” in response to questions from a reporter or to correct a media report.

Another comment encourages judges “to explain on the record at the time decisions are made the basis for those decisions or rulings, including decisions concerning bail and sentencing.  By helping litigants to understand the basis for decisions in cases, the judge also promotes public understanding of judicial proceedings.”  The Massachusetts code states that a judge has the discretion to issue an explanatory memorandum, even if he or she had not indicated at the time of an underlying order that a written explanatory comment would be forthcoming, but before exercising that discretion, the judge should weigh, at a minimum:

  • the importance of avoiding or alleviating the parties’ or the public’s misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision;
  • the amount of time that has elapsed since the order was issued and the extent to which the judge’s reasons for the decision remain fresh in the judge’s mind;
  • the risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order; and
  • the danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence, integrity, and impartiality of judges.

The ABA’s Center for Professional Responsibility web-site has comprehensive information about the model code, including the text, an explanation of the changes between 1990 and 2007 model codes, and information about implementation.

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