Keeping Up With The Times
The commission conducting the first sweeping review of the ABA Model Code of Judicial Conduct since 1990 is considering a new format that would help judges understand more easily what conduct is prohibited. That structural change would make the judicial canons more like the Model Rules of Professional Conduct for lawyers, says Mark I. Harrison, chair of the Joint Commission to Evaluate the Model Code of Judicial Conduct.
“That way there would be a more obvious and clear distinction between the rules and comments, with more of the aspirational content in the comments,” Harrison says. “Then judges would have a better idea about what would be the subject of enforcement.”
Neither the ABA Model Rules nor the ABA Model Code of Judicial Conduct are binding on the states, though they serve as a template or basis for most of them. Some states adopt them virtually intact and some tinker with them first.
The commission began work in August 2002, after the review was recommended by the Commission on the 21st Century Judiciary. At the ABA Midyear Meeting in San Antonio in February, the group held two days of meetings for public comment and for members’ own sometimes tedious discussions about shalls and shoulds.
While much of what comes before the group has been expected, a new wrinkle was added at the midyear meeting with a call for judges to get more involved in dealing with lawyers and judges impaired by alcohol or drugs.
The commission hopes to complete its work in time for the proposed changes to be considered by the House of Delegates at the 2005 midyear meeting.
But the schedule itself is aspirational because groups interested in the canons are expected to analyze and provide feedback on any proposals before they go to the House. That process depends on the timing and committee meetings within those groups.
The commission is a joint effort by the standing committees on Judicial Independence and on Ethics and Professional Responsibility. It is dealing with considerable change in the role of judges over the past decade or so. Among those changes are the increased number of litigants representing themselves—who sometimes need the court’s help in procedural matters—and judges in specialty courts who step out of the role of umpire and get involved in matters.
A proposed amendment presented in San Antonio would ask judges to get involved in yet another way. It would require them to report any lawyer or judge to a lawyer assistance program if they have reason to believe that person is impaired by the use of drugs or alcohol, or by mental illness such as depression.
Over the years there has been an increase in reliance on effective lawyer assistance programs provided by the organized bar to intervene and work with impaired lawyers, treating the problem as a medical condition, rather than taking the matter to bar disciplinary counsel.
“We’ve gotten really good at getting them and taking care of them once they’re down and out, but not when they’re falling but still successful and married and possessing a checkbook,” says John W. Clark Jr., chair of the ABA Committee on Lawyer Assistance Programs, who presented the proposal. “We need to find a way to help them earlier and we’re trying to get judges to help do that.”
CANDIDATE CONSIDERATIONS
Other possible changes stem from a U.S. Supreme Court ruling in 2002 that threw out a state’s limits on what some judicial candidates may tell voters. Republican Party of Minnesota v. White, 536 U.S. 765.
The court said Minnesota’s Code of Judicial Conduct abridged judges’ First Amendment right to announce their views on disputed legal or political issues. The court did not, however, address a portion of the state code barring judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”
Last summer the ABA House of Delegates took up the “pledges or promises” issue and adopted amendments to the Model Code of Judicial Conduct that attempted to make a finer point. The revisions replaced language prohibiting candidates from making statements that commit or appear to commit them on issues that come before their courts.
The amended version calls on candidates to act in a manner consistent with the impartiality, integrity and independence of the judiciary, and it prohibits pledges, promises or commitments on cases or issues likely to come before the court that are inconsistent with impartiality.
The commission has received a lot of information and input concerning White.
“We’re getting a cross-section of views, and there is no perfect solution,” says Charles G. Geyh, the commission’s reporter and a professor at the Indiana University School of Law.
For more information on the work of the Joint Commission to Evaluate the Model Code of Judicial Conduct, go to its Web page: www.abanet.org/judicialethics/ home.html.
NEW DEFENSE MEASURES OK’D
Rules on Enemy Combatants Coincide With ABA Policy Urging Better Access to Justice
ABA President Dennis W. Archer was preparing to speak at a news conference at the midyear meeting in San Antonio when word came that the Bush administration had relented some on strictures concerning civilian lawyers representing detainees at Guantanamo Bay, Cuba.
The Department of Defense issued new rules concerning the monitoring of lawyer-client communications, adding a requirement that the government must notify lawyers before listening in on them. Now, Archer told reporters, at least defense counsel “can contest it should they choose to do so during the course of a trial.”
Unannounced eavesdropping and other restraints on the defense of those accused in the war on terrorism have proved controversial. Last August, the ABA House of Delegates adopted policy urging that defendants before military tribunals have access to civilian lawyers and to meaningful judicial review.
In February, the ABA House was set to consider a proposal calling for U.S. courts to exercise jurisdiction over habeas corpus petitions filed by foreign nationals at Guantanamo, but action was deferred.
Archer said at the news conference that he is pleased with the administration’s move to ensure more fairness in access to justice for the detainees.
Archer also addressed the increasing problem of insufficient funding for state judicial systems. He was accompanied by New Hampshire Supreme Court Justice Joseph Nadeau, who chairs the ABA Commission on State Court Funding. Archer created the commission last November to find solutions for underfunded courts. He says many face their worst budget crisis since the Great Depression.
Archer listed several examples: a state court system that closed on Fridays to save on payroll costs, a jurisdiction requiring parties in litigation to pay for court reporters, and a jurisdiction that stopped prosecuting misdemeanor domestic violence cases because of budget cuts.
At another news conference, ABA President-elect Robert J. Grey Jr. told reporters about the association’s increased work worldwide to help countries develop justice systems based on the rule of law and independent judiciaries. He was joined by representatives from the various efforts: ABA-CEELI (Central European and Eurasian Law Initiative), launched in 1990; ABA-Africa, launched in 2000; and ABA-Asia, launched in 2000; and an initiative in Iraq that began last year.
Grey emphasized that these programs are not exporting American law, but rather working with institutions and offering a comparative model.
