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Programming Fundamentals

by: Adonis Nader

Programming Fundamentals IT 108

Adonis Nader
GPA 3.61


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This 41 page Class Notes was uploaded by Adonis Nader on Monday September 28, 2015. The Class Notes belongs to IT 108 at George Mason University taught by Staff in Fall. Since its upload, it has received 19 views. For similar materials see /class/215230/it-108-george-mason-university in Information technology at George Mason University.


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Date Created: 09/28/15
GEORGE MASON UNIVERSITY SCHOOL OF LAW Rnnald D Rnumdz 0643 200572006 Howard Liechtenstein Lecture m Edms Hafsva Law ngw Fonhcomxng GEORGE MAS ON UNIVERSITY LAW AND ECONOMICS RESEARCH PAPER SERIES Thls pup mm dnwnlaadzd wnhmn charge M m Sacml Scum stemh Nam m Imp lssm cammsmcgwmm 0643 JUDICIAL ETiucs 091106 REV 9112006 432 PM JUDICIAL ETHICS THE APPEARANCE OF IIVIPROPRIETY AND THE PROPOSED NEW ABA JUDICIAL CODE RonaldD Rotunda I am delighted to present the 20052006 Howard Lichtenstein Lecture in Ethics named after Howard Lichtenstein a prominent senior partner in Proskauer Rose ormerly Proskauer Rose Goetz and Mendelsohn He worked hard as a lawyer but also found time to become a community leader who strongly supported the teaching of and increased scholarship in legal ethics I am also honored because Hofstra is host to two of the giants in Legal Ethics Roy Simon is the Howard Lichtenstein Distinguished Professor of Legal Ethics as well as the director of Hofstra s Institute for the Study of Legal Ethics Roy of course succeeds the other giant Professor Monroe H Freedrnan as the Lichtenstein Professor who had held the position since its establishment in 19892 If we had to pick the one person who rst created modern legal ethics as a serious academic specialty it would be Monroe Although he has never hesitated to criticize the American Bar Association when it has confused legal ethics with trade barriers3 or with corporate fraud4 it speaks well of the ABA that it awarded him its highest award for George Mason University Foundation Professor of Law George Mason University School of Law 1 It is a small world Many years ago I interviewed with Proskauer Rose but at the time the lure ofWashington DC was too stron ee generally Ralph J Temple Monroe Freedman and Legal Ethics A Prophet in His Own Time 13 J LEGAL PROF 233 1988 This article lists many of Professor Freedman s major publications through 1988 If Monroe had stopped there he would be one of the most productive faculty members of any law faculty but in the nearly two decades since that time he has not stopped or even slowed down His prolific scholarly contributions continue 3 Id at 234 4 Monroe H Freedman The Corporate Watch Dogs that Can t Bark How the New ABA Ethical Rules Protect Corporate Fraud 8 UDCDCSL L REV 225 2004 101 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 102 HOFSTRA LAWREVIEW Vol XXnnn professionalism in recognition of a lifetime of original and influential scholarship in the eld oflawyers ethics Monroe and Roy have made Hofstra the Mecca for Legal Ethics All of us who labor in this area will make many pilgrimages to this place And like true pilgrims we do it because we want to do it not because we must I INTRODUCTION In any presentation on legal ethics it is common for the speaker to argue that we need more ethics As the Duchess of Windsor and others once said one can never be too thin or too rich So also many people think that one can never be too ethical But neither saying is correct Paris Hilton is proof than one can be too rich and any anorexic is proof that one can be too thin One can also be too ethical We sometimes think loosely that ethics is good and that therefore more is better than less But more is not better than less if the more exacts higher costs measured in terms of vague rules that impose unnecessary and excessive burdens Overlyvague ethics rules impose costs on the judicial system and the litigants6 which we should consider when determining whether to impose illde ned and inde nite ethics prohibitions on judges Unnecessarin imprecise ethics rules allow and tempt critics with minimum effort to levy a plausible and serious charge that the judge has violated the ethics rules7 Overuse not only invites abuse with frivolous charges that have the patina of legitimacy but also may eventually demean the seriousness of a charge of being unethical8 Compare for example the position of the B nai B rith which 5 ABA Michael Franck Award Citation 1998 Monroe H Freedman httpWWW Hofstraedupdflawimfreemanifranckiawardpdf See Simonson v General Motors Corp 425 F Supp 574 578 ED Pa 1976 noting that there is an obligation not to recuse Without valid reasons because of the burden that recusals place on colleagues See also Blizard v Frechette 601 F2d 1217 1221 1st Cir 1979 arguing that ajudge has an obligation not to recuse himself When no probative evidence reasonably gives rise to doubt as to his impartiality and in this sense the court said there is a duty to sit unless there is a duty to disqualify See Letter from Ronald C Minkoff and Ronald E Mallen Assoc of Prof l Responsibility Lawyers APRL to ABA Commission on the Model Code of Judicial Conduct June 30 2004 at 6 available a httpWWWabanetorgjudicialethicsresourcescommirulesiminkoff7063004pdf hereina er APRL Letter 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 103 rightly objects to those who use the term Holocaust lightly9 A sniper who kills a dozen people horri es us but it is wrong to call that evil deed the Holocaust because there is nothing like the Holocaust except the Holocaust Some people are strong believers in vegetarianism but meat eaters are not like the Nazis and it is wrong for PETA People for the Ethical Treatment of Animals to use Holocaust imagery in their advertising campaigns and compare the treatment of farm animals to the victims of the Nazi concentration camps10 We demean the term Holocaust when we use it ippantly11 I think that charging someone with an ethics violation is also serious business We will eventually demean the term and its importance when we routinely throw around the charge Oliver Wendell Holmes once said that an allegation that a law violates equal protection is the usual last resort of constitutional arguments because anyone can make it12 All laws make distinctions and so the lawyer can always allege that the distinction violated equal protection The Court responded to the problem by de ning equal protection with care and creating types of equal protection Lawyers can still make the argument of an equal protection violation but they will typically lose unless they show that the classi cation requires higher scrutiny than mere rational basis What is true of equal protection is not true of judicial ethics Today any lawyer or member of the media can ippantly accuse a judge of violating the the appearance of impropriety in either his or her private or of cial capacity because the title of Canon 2 of the ABA Model Code of Judicial Conduct boldly tells us that the judge must avoid such appearances1 Courts and commentators routinely treat this title of Canon 2 forbidding the appearance of impropriety as a rule violation of which subjects the judge to discipline and disquali cation However this rule does not appear in Canon 3 which is the rule regulating judicial quali cation On that issue the ABA Model Judicial Code tells us that a judge must disqualify herself where her impartiality might reasonably 9 See Press Release B nai B rith Int l B nai B rith Condems Evangelist s Statement on Stem Cell Research as Outrageous and Irresponsible Aug 9 20 5 httpbnaibrithorgpubspr0508107condemnStemc n tiDefamation League Holocaust Imagery and Animal Rights Aug 2 2005 httpadlorgantiisemitismholocaustiimageryasp PETA eventually apologized for its exhibit Id B nai B rith Int l supra note 9 12 Buckv Bell 274 US 200 208 1927 See also Skinner v Oklahoma ex rel Williamson 316 US 535 53940 1942 13 MODEL CODE OF JUDICIAL CONDUCT Canon 2 1990 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 104 HOFSTRA LAWREVIEW Vol XXnnn be questioned 14 Then it lists various speci c instances requiring disquali cation These speci c instances are fairly clear and reasonably de ned The broader catchall rulei impartiality might reasonably be questioned iis much more vague but it is crystal clear compared to appearances of impropriety Unlike the Court s treatment of equal protection the ABA has not de ned the appearance of impropriety with any precision In this Article I will focus on appearance of impropriety because it is even more vague than impartiality might reasonably be questioned The test impartiality might reasonably be questioned vague as it is does not forbid appearances of impartiality Moreover it speci cally requires that any allegation of bias must be reasonable 15 Finally the Code actually attempts to de ne impartiality in the terminology section Something is impartial when there is an absence of bias or prejudice in favor of or against particular parties or classes of parties as well as maintaining an open mind in considering issues that may come before the judge 16 That de nition compared to appearances of impropriety exhibits surgical precision I do not mean to suggest that we should embrace with gay abandon the language of impartiality might reasonably be questioned That phrase can be an excuse for careless and sloppy draftsmanship We expect lawyers and judges to be good draftsmen particularly when they are drafting in an area where they are unusually knowledgeableithe law governing judging An example of poor drafting is found in the official Comment to Canon 3El It tells us if a judge were in the process of negotiating for employment with a law rm the judge would be disquali ed from any matters in which that law rm appeared unless the disquali cation was waived by the parties after disclosure by the judge 17 One wonders why the drafters did not simply add that example the only one it gives in the list of speci c instances where the judge must disqualify herself18 If there are no exceptions to the prohibition and the phrasing of the example suggests none then it really is a speci c prohibition like the 14 MODEL CODE OF JUDICIAL CONDUCT Canon 3E1 1990 15 However the use of might invites a broad interpretation of reasonably See the discussion in MONROE H FREEDMAN amp ABBE SMITH UNDERSTANDING LAWYERs ETHICS 905907 23945 3d ed 2004 Professors Freedman and Smith present a force Il argument in favor of the appearance ofimpropriety rule On that issue we disagree ODEL CODE OF JUDICIAL CONDUCT Terminology 2004 17 MODEL CODE OF JUDICIAL CONDUCT Canon 3E1 cmt 1990 18 See Leslie W Abramson Appearance of Impmpr39iety Deciding When a Judge r Impartialiry MghtRearonably Be Quern39oned 14 GEO J LEGAL ETHICS 55 6061 2000 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 105 other ones listed in this Canon and should be listed there It certainly is easier for a judge to know what the rule is by looking at speci c prohibitions rather than a Comment which the ABA warns us does not create additional rules19 We simply do not know why the ABA chose to place the restriction on seeking private law rm employment in the Comment rather than in the rule Still for all its problems the test of impartiality might reasonably be questioned is not as troublesome as is the even more formless appearance of impropriety And because the duty of the judge to avoid an appearance of impropriety is a separate rule20 its invocation is not limited to charges requiring disquali cation Instead it adds a new arrow to the quiver of anyone attacking a judge for if there is an appearance of impropriety iif the judge has done something that is wrong or appears wrongithat is yet an additional reason to disqualify a judge because she is hearing a case in violation of Canon 2 Hurling the charge of appearance of impropriety if I may miX metaphors is like using a blunderbuss Nowadays we might describe a blunderbuss as a weapon of terror It was not a very precise weapon and marksmen never used it Instead it was good for crowd control when the goal was to shoot multiple balls simultaneously in the hope of hitting something The ABA has chosen to arm any lawyer or any pundit with the equivalent of a blunderbuss to attack a judge by giving its imprimatur to a charge of violating the appearances of impropriety The attack on the judge s ethics seldom results in discipline or disquali cation but it does serve to besmirch and tarnish a judge s reputation I do not blame lawyers who use the appearances rule when it helps their clients We train lawyers to do exactly that Judges and lawyers created the prohibition on avoiding the appearances of impropriety and we should eXpect lawyers to use it if it may bene t their clients It is useless to urge lawyers not to use the charge because they like countries are loath to engage in unilateral disarmament If some lawyers can use the charge when it might bene t their clients then other lawyers will use it in order not to suffer a competitive disadvantage Nor can I hold responsible laypeople whoiafter piling supposition on top of innuendo and allegationicharge that the judge who ruled against them must have been biased because of what she did or did not do and if the judge did not commit an impropriety at least there was 19 See MODEL CODE OF JUDICIAL CONDUCT pmbl 1990 20 MODEL CODE OF JUDICIAL CONDUCT Canon 2 1990 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 106 HOFSTRA LAWREVIEW Vol XXnnn the appearance of one The typical dictionary de nes impropriety as improper or unsuitable 21 The thesaurus treats impropriety as a synonym for rudeness unseemliness bad taste fauX pas gaffe or inelegance 22 Laypeople read the rule and think that it means what it says judges must not only avoid impropriety ia much more openended term than wrongful conduct or partiality ibut also they must avoid something that is not improper at all but appears to be improper Instead I lay the responsibility for the problem directly with those people who created and lobbied for Canon 2 They share equal billing with those members of the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct23 who are now drafting a revised Judicial Code that will make the appearances rule even broader and more expansive The proposed ABA Judicial Code will move the appearances language from the title of Canon 2 where the ABA has argued the language is hortatory and aspirational24 to a new black letter prohibitory rule Rule 102 A judge shall avoid impropriety and the appearance of impropriety 25 I am sure that the drafters meant well we all do But they were wrong They were wrong when they added the prohibition in the 1990 Judicial Code and they are wrong to retain and strengthen it in the proposed new ABA Judicial Code They believed that a rule prohibiting the appearances of impropriety will make the world think better of judges but that belief is inconsistent with the evidence The world will not think less well of judges if anyone can launch a plausible claim that any judge engaged in an act or omission that was not improper but might appear to be improper A l 39 the 39 of 39 quot39 39 has been the rule of law As we have become more civilized there has been a shift from judgments made on an ad hoc basis by the King or his representatives to relatively uniform rules enacted by a lawmaking body The vague and 21 See eg WEBSTER S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1252 2d ed 1959 22 See for example impropriety in the builtin thesaurus in Microso Word or Impropriety 39quotL 39 p p 39 See ABA About the Commission httpWWWabanetorgjudicialethicsabouthtml last visited June 17 2006 ANNOTATED MODEL CODE OF JUDICIAL CONDUCt 4 2004 Two of the Canons are aspirational Canons 1 and 2 3 See discussion infra note 178 and accompanying text 25 ABA JOINT COMM N TO EVALUATE THE MODEL CODE OF JUDICIAL CONDUCT FINAL DRAFT REPORT Canon 1 Dec 2005 available a httpWWWabanetorgjudicialethicsCanoaninalpdf hereina er FI NALDRAFTREPORT Canon 1 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 107 inde nite term appearance of impropriety is a step backward in that journey Instead of rules we have the conclusory prohibition of a vague term that invites ad hoc and ex postfacto judgments That is the reason why one federal court held that the appearance of impropriety standard in the New York Code governing judges is unconstitutional and void for vagueness a decision that the Second Circuit reversed on procedural grounds27 Other courts have expressed similar concerns about the vagueness of it all Propriety however is often in the eye of the beholder A given individual will find conduct to be within or beyond the bounds of propriety to the extent the conduct comports with that individual s own highly subjective views of propriety Disciplinary rules expressed in terms of propriety risk mercurial existence rising and falling with the temper of the moment Such rules place ipse dixit powers antithetical to rule of law in the hands of disciplinary boards and courts applying such rules2 I offer a simple solution to the problemithe ABA should not adopt its proposed Rule 102 which provides A judge shall avoid 39 l 39 and the U of39 l l 39 3 29 Similarly the ABA should repeal the associated commentary I am not arguing that the rules governing judges should be made weaker Instead I am arguing that they should be made more speci c30 The late Justice Goldberg was Y Com CODES R amp REGS tit 22 1002 2004 provides A judge shall avoid impropriety and the appearance of impropriety in all of the judge s activities 27 See Spargo v New York State Comm n on Judicial Conduct 244 F Supp 2d 72 91 NDNY 2003 rev d on other grounds 351 F3d 65 2d Cir 2003 cert denied 541 US 1085 2004 federal abstention The trial court added that the Judicial Commission s enforcement of 1002A must be arbitrary and subjective for lack of any speci c objective standards to apply Id 28 In re Larsen 616 A2d 529 58081 Pa 1992 per curiam 29 FINALDRAFTREPORT Canon 1 supranote 25 at R 102 30 See eg Editorial Weakening the RulesforJudges NY TlMES May 22 2004 at A16 The proposed change was apparently driven largely by an overblown concern about the vagueness of the appearanceof impropriety standard Judges interpret similar terms every day and there now exists a substantial body of case law and ethics opinions construing the type of behavior that gives rise to an appearance of impropriety The per w address an ue murkiness in any event is for the commission to provide further guidance not to dilute expectations Id emphasis added See also the statement of Mark 1 Harrison Chairman ABA Joint Commission to Evaluate the Model Code of Judicial Conduct responding One change proposed in our partial dra ofrevisions to the American Bar Association Model Code of Judicial Conduct is to strengtheninot Weakenithe standard requiring judges to avoid even the appearance of I impropriety by moving a prohibition to a more prominent place in the rule Mark Harrison 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 108 HOFSTRA LAWREVIEW Vol XXnnn correct when he called the appearances rule unbelievably ambiguous 31 We can do better The ABA should replace the vague appearances rule with speci c restrictions It can codify what the case law decides32 and replace the inde nite appearances with less nebulous rules that tell us what constitutes the appearance of impropriety when it is not an impropriety II APPEARANCE OF IMPROPRIETY UNDER THE ABA7 S MODEL CODE FOR LAWYERS Ifarulel quotquot39 the U of39 l 139 isagoodone we would eXpect that the ABA would apply it to lawyers as well Surely no one would recommend that lawyers engage in the appearance of impropriety If someone gave a young lawyer fatherly advice it would include the injunction to avoid the appearance of impropriety Yet it is one thing to believe in the concept and another to create an enforceable rule The appearances of impropriety as an ethical prohibition is a useful weapon to attack lawyers Would the ABA give this weapon to laypeople to attack lawyers To attack us The answer is no We lawyers write the rules and we are safe for we will not be governed under a standard that threatens to take away our license if we engage in the appearance of impropriety because we do not know what it means But what is not good enough for the goose is good enough for the gander The ABA brie y irted with the appearances of impropriety standard for lawyers but never adopted it as an enforceable rule The ABA rst adopted ethics rules for lawyers in 1908 when it approved thirtytwo Canons of Professional Ethics at its thirty rst annual Letter to the Editor NY TIMES May 29 2004 at A14 that the Editorial invited the ABA to codify What appearances actually means The ABA Commission declined that invitation 3 Nonjudicial Activities of Supreme Court Justices and Other Federal Judges Hearings on S 1097 and S 2109 Before the Subcomm on Separation of Powers of the Senate Comm on the Judiciary 91st Cong 1969 testimony of Justice Arthur Goldberg quoted in Cynthia Gray Avoiding the Appearance of Impropriety With Great Power Comes Great Responsibility 28 U ARK LITTLEROCKL REV 63 93 n187 2005 32 The proposals of the Association of Professional Responsibility Lawyers offers Well drat ted language that codifies What appearances should really mean See APLR Letter supra note 7 at 613 Commentators have already tried to make sense ofthe case law The ABA can also build on their analyses See generally Leslie W Abramson Canon 2 of the Code of Judicial Conduct 79 MARQUETTEL REV 949 1996 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 109 meeting at Seattle Washington33 Eventually amendments and additions led to ABA approval of fteen additional Canons34 Some principles or Canons were quite speci cifor example when a member of the rm on becoming a judge is precluded from practicing law his name should not be continued in the rm name 35 Others were quite vague and sound more like LawDay speechesifor example above all a lawyer will nd his highest honor in a deserved reputation for delity to private trust and to public duty as an honest man and as a patriotic and loyal citizen But none of these principles required the lawyer to avoid the appearance of impropriety That phrase does not appear until the ABA Model Code of Professional Responsibility of 197038 Canon 9 s title reads A Lawyer Should Avoid Even the Appearance of Professional Impropriety 39 The ABA never intended the Canons which are merely the titles to rules to be enforceable rules of discipline They are more like chapter headings The Preliminary Statement to the Model Code made that point explicitly The Canons are statements Of axiomatic norms expressing in general terms the standards Of professional conduct expected Of lawyers in their relationships with the public with the legal system and with the legal profession They embody the general concepts from which the 33 The ABA used these Canons as amended until the adoption of the Model Code in 1970 See THOMAS D MORGAN amp RONALD D ROTUNDA MODEL RULES OF PROFESSIONAL CONDUCT AND OTH39FR N 688 n 2006 hereinafter MORGAN amp ROTUNDA 2006 34 ANONS 0F PROF L ETHICS 1908 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 697700 Canons 3347 35 Id at 697 Canon 33 PartnershipNames 36 Id Canon 32 The Lawyer s Duty in Its Last Analysis earance of impropriety standard did not receive overt expression until the promulgation of the Code in 1970 but we can find case law that said that there was an appearance of evil concept that was implicit in several of the old Canons of Professional Ethics Woods v Covington County Bank 537 F2d 804 813 5th Cir 1976 quotations omitted Older ABA ethics opinions also referred to an appearance of evil Id The ABA House of Delegates adopted the Model Code of Professional Responsibility on August 12 1969 It was scheduled to take effect in 1970 Later motivated by antitrust concerns the ABA changed the name to Model Code and no longer listed an effective date The House amended the Model Code in February 1970 February 1974 February 1975 August 1976 August 1977 August 1978 February 1979 February 1980 and August 1980 For a copy of the latest version of the ABA Model Code see MORGAN amp ROTUNDA 2006 supra note 33 at 269366 The ABA replaced the Model Code with the Model Rules in 1983 39 MODEL CODE OF PROF L RESPONSIBILITY Canon 9 1981 reprinted in MORGAN amp ROTUNDA 2006 mer note 33 at 343 emphasis added 0643 JUDICIAL ETIIICs 091106 REV 9112006 432 PM 110 HOFSTRA LAWREVIEW Vol XXiI39II39II39I Ethical Considerations and the Disciplinary Rules are derived40 In other words the appearance of impropriety was itself never a ruleiit is a reason why we have some rules that are as strict as they are41 There is nothing wrong with using appearances as the rationale to create a rule that may seem stricter than it otherwise would have to be The problem with appearances as a rule is that it is not a test for it offers no reasonably clear guidelines In contrast a clear rule is neither fuzzy nor an invitation to ex post facto analysis even if the motivation for the strict rule derives from a concern about appearances For example in the context of the law governing the ethics of lawyers it is because of appearances that we usually impute to all lawyers in a rm the con icts that any one of them might have under Rules 17 and 1942 The appearances of impropriety is a reason for the imputation but appearances is not a rule itself Likewise when we turn to judicial ethics it is because of appearances and the need for a bright line that the federal judicial code requires a judge to disqualify herself in any case involving Ford Motor Company if she owns even one share of Ford stock43 Similarly it is the general rule that a judge should disqualify herself if a close relative is on the brief The mere fact that the relative is a member of the rm is not enough to require disquali cation44 However 40 MODEL CODE OF PROF L RESPONSIBILITY Prelim Stmt 1981 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 270 emphasis added See e g Roy Simon Chinese Wall Fends O Disquali cation in First Department NY PROF L RESP REP NYPRR Roy D Simon ed New York NY Sept 1998 at 67 reprinted in Roy Simon Con icts of Interest and Legal Malpractice in l LEG MALPRACTICE TECHNIQUES 0 AVOID LIABILITY 17 45 PLI Litigation amp Administrative Practice Series Course Handbook Series No H608 1999 illustrating the basis of the New York rule that disqualifies a firm from opposing a former client in a substantially related matter in order to avoid the appearance of impropriety 4 But Rule 110a does not impute Rule 18 MODEL RULES OF PROF L CONDUCT R 110a 2004 43 See USC 455b4 2000 requiring a judge to disqualify herself if she has a financial interest in the subject matter id 255d4 defining financial interest as ownership of a legal or equitable interest however small See so Fe Comm on Codes of Conduct Advisory Op 20 revised 1998 available at httpWWWuscourtsgovguidevolZ20html construing the facially similar text of Canon 3 of the Code of Conduct for United States Judges to require similar disqualification byjudges 44 MODEL CODE OF JUDICIAL CONDUCT Canon 3E1dii 1990 suggesting that disqualification is appropriate ifthe lawyerrelative is acting as a lawyer in the procee ing e associated Commentary makes clear the fact that a lawyer in a proceeding is affiliated with a law firm with which a relative ofthejudge is affiliated does not of itself disqualify the judge Id The federal rule is the same 28 USC 455b5ii 2000 See also JEFFREY M SHAMAN ET AL UDICIA C CT AND ETHICS 120 1990 explaining that disquali cation is only required if the relativeattorney is actually representing the party in a case before the judge 0643 JUDICIAL ETHics 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 111 because of appearances most of the US Supreme Court Justices announced they would abide by a different rule they would disqualify themselves not only when the relative was actually acting as a lawyer in the proceeding but also when the relative though no longer directly involved in the matter had been lead counsel at an earlier stage of the case I have no problem with this stricter rule for the Supreme Court My objections to the appearances test relate to vagueness unpredictability and unfairness These objections do not apply when one decides to draw a bright line although one can certainly argue that the line should be drawn differently In other words a concern of appearances may be a good rationale for a bright line rule but a concern for appearances offers too little guidance to be a rule itself47 When the ABA drafted the Model Code of Professional Responsibility it intended that the appearance standard for lawyers would simply embody a general foundation that the drafters of the Model Code would use when they created speci c Disciplinary Rules DRs Only the DRs are written in the style of a statute and the Model Code makes clear that it only intends DRs to be enforceable48 The appearance of impropriety does not appear in any DR although it does appear as the title to DR 9101 Avoiding Even the Appearance of Impropriety 49 The actual DR 9101 merely imposes a few very speci c limits on lawyers accepting private employment in matters where they had acted as a judge or public employee It also prohibits lawyers from stating or implying that they can in uence any government official on corrupt grounds 45 Supreme Court Justices Adopt Recusal Policy JUD CONDUCT KER Fall 1993 at 6 The seven participating Justices were William H Rehnquist John Paul Stevens Sandra Day O Connor Antonin Scalia AnthonyM Kennedy Clarence Thomas and Ruth Bader Ginsburg Id 46 See discussion in Steven Lubet Disquali cation of Supreme Court Justices The Certiorari Conundrum 80 MJNN L REV 657 66061 676 1996 See generally Robert C Hacker amp Ronald D Rotunda O icers Directors and Their Professional Advisers Rights Duties and Liabilities 3 CORP L REV 82 1980 Ronald D Rotunda Sister Act Conflicts of Interest with Sister Corporations 1 J INST STUDY LEGAL ETHICS 215 1996 4 See MODEL CODE OF PROF L RESPONSIBILITY DR 1102A1 1981 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 274 advising that a lawyer may no v io ate a Disciplinary Rule MODEL CODE OF PROF L RESPONsmlLITY Prelim Stmt 1981 reprinted in ORGAN amp ROTUNDA 2006 supra note 33 at 271 The Disciplinary Rules unlike the Ethical Considerations are mandatory in character The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall Without being subject to disciplinary action 3 49 MODEL CODE OF PROF L RESPONsmlLITY DR 9101 1981 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 345 50 Id 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 112 HOFSTRA LAWREVIEW Vol XXnnn The phrase appearance of impropriety also appears in a few Ethical Considerations ECS 51 The drafters of the Model Code equally made explicit that the ECs are not enforceable They are only aspirational in character and represent the objectives toward which every member of the profession should strive The Model Code of Professional Responsibility combined two goals that are not inconsistent but also not congruent The part that is written in statutory form tells lawyers what they must not do the part written like grandfatherly advice tells lawyers things that they should keep in mind like avoiding the appearance of impropriety Nonetheless the use of the appearances language in the title to Canon 9 and the references in a few of the ECs create a beguiling test and it should have been eXpected that lawyers would seek to use that language to attack their opponents particularly in disquali cation cases There is a long body of case law ethics opinions and commentators cautioning against this openended charge53 For example an ABA Ethics Opinion warned if the appearance of impropriety language were a disciplinary rule it is likely that the determination of whether particular conduct violated the rule would have degenerated into a determination on an instinctive ad 1100 or even ad hominem basis 54 Commentators such as Professor Geoffrey C Hazard Jr the reporter for the original ABA Model Rules referred to the old appearance of impropriety standard as garbage 55 The Second Circuit re ecting the case law57 generally advised 51 See eg MODEL CODE OF PROF L RESPONSIBILITY EC 56 93 95 96 1981 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 308 344 52 MODEL CODE OF PROF L RESPONSIBILITY Prelim Stmt 1981 reprinted in MORGAN amp ROTUN39DA 2006 supra note 33 at 270 emphasis added 53 See Ronald D Rotunda Alleged Con icts of Interest Because of the Appearance of Impropriety 33 HOFSTRA LREV 1141 2005 54 ABA Comm on Ethics and Prof l Responsibility Formal Op 342 n17 1975 discussed in RONALD D ROTUNDA PROFESSIONAL RESPONSIBILITY 33 7th ed 2004 This Formal Opinion said It is obvious however that the appearance of professional impropriety is not a standard test or element embodied in DR 9101B Formal Op 342 supra emphasis added 55 Pros and Cons of Restatement Are Debated at D C Conference 13 ABABNA LAWS MAN ONPROF CONDUCT 29 3132 Feb 19 1997 56 See Fund ofFunds Ltd v Arthur Andersen amp Co 567 F2d 225 2d Cir 1977 57 See eg Bd of Educ v Nyquist 590 F2d 1241 1247 2d Cir 1979 Appearance of impropriety is simply too slender a reed on which to rest a disqualification order exce t in the rarest cases Fred Weber Inc v Shell Oil Co 566 F2d 602 609 8th Cir 1977 refusing to disqualify under appearance of impropriety standard that existed in the legal ethics rules at the time because the appearance of impropriety is an eye of the beholder standard that gives no way to determine What a member of the public or of the bar would consider improper Woods v Covington County Bank 537 F2d 804 813 5th Cir 1976 It does not follow that an attomey s conduct must be governed by appearance of impropriety standards which can be imputed only to the most 0643 JUDICIAL ETHics 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 113 over a quarter of a century ago When dealing with ethical principles we cannot paint with broad strokes The lines are fine and must be so marked The conclusion in a particular case can be reached only after painstaking analysis of the facts and the precise application of precedent When the ABA reevaluated the old Model Code and drafted its new Model Rules in 1983 it not only eliminated the appearance standard but also harshly criticized its use as too subjective and unde ned The appearance of impropriety has a two fold problem First the appearance of impropriety can be taken to include any new client lawyer relationship that might make a former client feel anxious If that meaning were adopted disqualification would become little more than a question of subjective judgment by the former client Second since impropriety is undefined the term appearance of impropriety is questionbegging It therefore has to be recognized that the problem of disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety cynical members of the public Sherrod v Berry 589 F Supp 433 43738 ND 111 1984 no disqualification based on mere appearance of impropriety In re Powell 533 NE2d 831 836 Ill 1998 cert denied 491 US 907 1989 holding that the canon on avoiding even the appearance of impropriety is not an independent basis to impose discipline on a lawyer State v Davis 840 A2d 279 287 NJ Super Ct App Div 2004 The appearance of impropriety provisions in the RPCs seek to reduce the risk of improper con icts Because of their vagueness and ambiguity those provisions however are not appropriate as ethics standards quoting the report of the N Cou Commission on the Rules ofProfessional Conduct 8 Fund of Funds Ltd 567 F2d at 227 quoting United States v Standard Oil Co 136 F Supp 345 367 SDNY 1955 and citing Silver Chrysler Plymouth Inc v Chrysler Motors Corp 518 F2d 751 753 2d Cir 1975 59 M L RULES OF PROF L CONDUCT R 19 cmt 5 2001 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 200 See also eg Golias v King No 0995157 CV 1995 WL 517222 at 5 Tex Ct App Aug 31 1995 Appearance of impropriety was eliminated from the new Disciplinary Rules of Professional Conduct because of vagueness e w s one instance where the drafters of the 2002 Model Rules thought of appearances but it never made it into the final version A dra version would have permitted screening without client consent in the case of lawyers moving between firms to avoid disqualification of an entire rm where a lateral hire previously worked on a matter Margaret Colgate Love The Revised ABA Model Rules of Professional Conduct Summary of the Work of Ethics 2000 15 GEO J LEGAL ETHICS 441 456 2002 The ABA Commission had decided that if the Rules would permit screening in such cases there still was a difference between litigation and transactional practice but the members then concluded that this difference should only be a factor courts may consider in disquali cation motions where there is a concern about the appearance of impropriety Id at 456 n28 The ABA House of Delegates simply deleted the entire section Id at 456 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 114 HOFSTRA LAWREVIEW Vol XXnnn When the ABA reevaluated its Model Rules and adopted many changes in 2002 and 2003 it never returned to the old appearances language6 The Third Restatement of the Law Governing Lawyers agreed with the ABA decision to remove appearance of impropriety in its entirety This vague charge the drafters concluded does not give fair warning to a lawyer61 It invited a disciplinary panel or court to engage in subjective and idiosyncratic considerations and it was correct for the ABA to eliminate that forrnless and amorphous standard6 Commentators and courts have sought to justify why lawyers dropped the appearances language from the lawyers ethics codes but chose to retain it in the judicial codes63 The rationales are apt to be vague such as people expect more from judges and appearances are important64 or judges are the symbol of government under the rule of law 6 or judges have different roles than lawyers All those 60 The 2002 revisions to the ABA Model Rules eliminated this language as no longer necessary See M Peter Moser Chinese Walls A Means of Avoiding Law Firm Disquali cation When a Personally Disquali ed Lawyer Joins the Firm 3 GEO J LEGAL ETHICS 399 406 n12 1990 This concept the Appearance of Professional Impropriety is expressly rejected in the Model Rules However one can find cases that refer to the appearances of impropriety in disqualifying a lawyer even in a jurisdiction that has adopted the Model Rules Which explicitly reject the appearances test Old habits die hard See eg State ex rel Cosenza v Hill 607 SE2d 811 81718 w Va 2004 61 RESTATEMIENT THIRD OF THE LAW GOVERNJNG LAWYERS 5 cmt c 1998 citation d See eg Commonwealth v Goodman 311 A2d 652 654 Pa 1973 The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as Would be the actual presence of either of these elements In re Dean 717 A2d 176 184 Conn 1998 Avoiding the appearance of impropriety is as important to developing public confidence in the judiciary as avoiding impropriety itself 64 Andrew a an Judicial Ethics The Lesso en Asked Questions 64 WASH L REV 851 854 1989 arguing that the appearance of impropriety rule is the basic rule ofthe Code of Conduct the one to Which all other rules are mere commentary 65 David A Harris The Appearance of Justice Court TV Conventional Television and Public Understanding ofthe Criminal Justice System 35 ARIZ L REV 785 792 1993 quoting M 0F JUDICIAL CONDUCT pmbl 1990 One appreciates how malleable the concept of appearances is When the same author Who embraces the appearances rule for 39udges argues for the benefits of Court TV Id at 82627 The 1972 ABA Judicial Code Which first adopted the explicit appearances rule also prohibited televised trials CODE OF JUDICIAL CONDUCT Canon 3A7 1972 See Gray supra note 31 at 66 The appearance of impropriety standard is peculiar to the judiciary because judges have a peculiar position in the American system they are required to make decisions that sometimes many members of the public Will challenge and at all times at least one party Will dispute footnote omitted See also Roberta K Flowers What You See Is What You Get Applying the Appearance of Impropriety Standard to Prosecutors 63 M0 L REV 699 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 115 arguments tend to be conclusory and even if accepted at face value only justify different rules for judges than for lawyers They do not explain why those different rules must be vague The rationales used to justify the appearances rule do not follow the rigors of Euclidian geometry III THE ABA JUDICIAL CODES AND THE APPEARANCES OF IMPROPRIETY Initially the ABA did not impose any rule that threatened judges with discipline removal or disquali cation because of the appearances of impropriety Instead the ABA moved from fatherly advice to aspirations to stronger cautions to the present proposal that the ABA Commission is now advocating This progression did not have the inevitable pull of gravity Instead it just happened as if we lawyers and judges are anXious to convince the public that we are more ethical than the prior generation Let us start with 1924 when the ABA House of Delegates promulgated the rst Judicial Code of ethics called the Canons of Judicial Ethics An important catalyst to the 1924 Canons of Judicial Ethics was the revelation in the early 1920s that Kenesaw Mountain Landis a federal judge was supplementing his federal salary of 7500 by engaging in private employment with a substantially more generous yearly salary of 42500 as a Major League Baseball commissioner68 The ABA adopted a resolution censuring the judge69 Many states viewed the 1924 Judicial Canons as essentially advisory with their curious miXture of generalized hortatory 724 1998 arguing that a judge s independence can be tainted not only by his activities on the bench but also by his conduct outside the courtroom That is true enough and it justi es Why some rules apply to the judge even When she is not acting in ajudicial capacity But it does not explain Why We have an appearances rule The ABA considered resolutions for judicial canons in 1909 and 1917 but did not approve a Commission to dra rules until 1922 See ABA About the Commission Background Paper ABA Joint Commission to Evaluate the Model Code of Judicial Conduct httpWWWabanetorgjudicialethicsaboutbackroundhtml last visited June 17 2006 hereina er Background Paper Chief Justice Ta Was chairman of the ABA Commission that dra ed the 1924 Judicial Canons Id To see the product of this Commission see CANONS 0F JUDICIAL ETHICS 1924 reprinted in LISA L IVIJLORD THE DEVELOPMENT OF THE ABA JUDICIAL CODE 13143 1992 68 See Background Paper supra note 67 Walter P Armstrong Jr The Code of Judicial Conduct 26 Sw LJ 708 709 n9 1972 CHARLES W WOLFRAM MODERN LEGAL ETHICS 965 n72 West Pub Co Practitioner s ed 1986 6 See Armstrong supra note 68 at 709 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 116 HOFSTRA LAWREVIEW Vol XXnnn admonitions and speci c rules or standards of proscribed conduct 70 This Judicial Code like the original Canons of Professional Ethics was more sermonizing than statutory71 The title of Canon 4 of the 1924 Canons of Judicial Ethics was Avoidance of Impropriety 72 This Canon provided in part that a judge s official conduct should be free from impropriety and the appearance of impropriety 3 73 This Canon also advised that the judge in his everyday life should be beyond reproach 74 Such vague language was advice not a statutory command but it was the precursor of things to come Nearly a half century later the ABA House of Delegates replaced these Canons with the 1972 Code of Judicial Conduct75 Many states widely adopted the 1972 Code subject of course to various nonuniform amendments The drafters wrote the 1972 Code in more conventional statutory form and its preface which many jurisdictions did not adopt intended that it be enforceable 70 John F Sutton Jr A Comparison of the Code of Professional Responsibility with the Code ofJudicial Conduct 1972 UTAHL REV 355 35556 See also Robert B McKay Judges the Code ofJudicial Conduct andNonjudicialActivities 1972 UTAHL REV 391 1972 71 The Preamble of the 1924 Code indicated that the Code was a guide and reminder for judges indicating What the people have a right to expect from them CANONS 0F JUDICIAL ETHICS supra note 67 at 2 72 Id 73 Id 74 Id at 133 Courts sometimes quoted this language in the course ofjudicial discipline In one case the Supreme Court of Ohio said ofthejudge Respondent admitted that he While still married to but separated from his first Wife took his girlfriend now his second Wife with him at his expense on the trip to Majorca and on the two trips to Mexico but he testified that they did not occupy the same room on any ofthe trips Such conduct is not behavior beyond reproach Within the meaning of Canon 4 Cincinnati Bar Ass n v Heitzler 291 NE2d 477 482 Ohio 1972 The case involved a disciplinary proceeding against an attorney who was also a judge The Ohio Supreme Court affirmed the findings of the Board of Commissioners on Grievances and Discipline which had ruled that the respondent had violated various Canons of Judicial Ethics Id at 488 The court inde nitely suspended the respondent from the practice of law Id 75 39s Judicial Code was a reaction at least in part to the events that led to Justice Fortas s resignation from the Supreme Court and the financial and other disclosures that came about when the US Senate rejected President Nixon s nomination ofFederal Circuit Judge Haynsworth and then Circuit Judge Carswell RONALD O O D 0W KI LEGAL ETHICS THE LAWYER S DESKBOOK ON PROFESSIONAL RESPONSIBILITY 20052006 1002 2005 76 The Preface to the 1972 Judicial Code said The canons and text establish mandatory standards unless otherwise indicated CODE OF JUDICIAL CONDUCT Preface 1972 quoted in CTR FOR PROF L RESPONSIBILITY UDICIAL DIv ABA ANNOTATED MODEL CODE OF JUDICIAL CONDUCT 4 2004 hereinafter ABA ANNOTATED MODEL CODE E WAYNE THODE REPORTER S NOTES TO CODE OF JUDICIAL CONDUCT 5 1973 Many jurisdictions did not reprint the preface when they adoptedthe 1972 Code 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 117 Nonetheless the 1972 Judicial Code used the term should instead of the more statutory shall Thus the title to Canon 2 said A Judge ShouldAvoid l l 39 and the U of l l 39 in All His Activities 77 The Reporter s Notes advised that the blackletter statement of Canon 2 is very broad in its terms and perhaps the nearest to being hortatory of any provision in the Code The road to mandatory rules rather than aspirational guidelines continued with the 1990 version of the ABA Code of Judicial Conduct A signi cant minority of commentators warned the ABA Committee drafting the new Code that the appearances language in the 1972 Judicial Code was simply too vague79 But the drafting Committee responded by changing should to shall and expanding its reach to include the judge s activities even when she is off the bench and not acting in her capacity as a judge80 Thus the title of Canon 2 of the 1990 Code provides A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge s Activities 81 However the requirement was still the title to Canon 2 rather than one of the rules under Canon 2 This language certainly looks like a prohibition and the accompanying commentary does not suggest that the requirement is merely aspirational Nonetheless the legislative history advised that the purpose of this eXpanded rule is to caution judges to avoid certain prospective conduct even if the conduct only appears suspect and to proscribe any act that is harmful even if it not speci cally prohibited in the Code 82 Perhaps because of this reference to cautioning the judge or for some other reason the ABA s Annotated Model Code of Judicial Conduct simply announces Two of the Canons are aspirational Canons I and 2 83 The ABA does not eXplain its signi cant assertion that these two Canons are supposed to be merely aspirational THODE supra note 76 at 8 emphasis added Id at 49 0RD supra note 67 at 13 In addition the 1990 Code adopted various changes in the details and organization DEL CODE OF JUDICIAL CONDUCT Canon 2 1990 emphasis added The 1990 Judicial Code made clear that an appearance of impropriety exists even in the absence of an actual impropriety MLORD supra note 67 at 13 82 0RD supra note 67 at 13 emphasis added 83 ABA ANNOTATED MODEL CODE supra note 76 at 4 emphasis added The full sentence says Two of the Canons are aspirational Canons 1 and 2 and the other three address speci c types ofjudicial conduct conduct when carrying out adjudicative and administrative duties Canon 3 conduct in various extrajudicial activities Canon 4 and conduct in campaigning for judicial office Canon 5 Id 0000444 Howoo4 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 118 HOFSTRA LAWREVIEW Vol XXnnn not mandatory and so we should not read it as an official gloss on the language I think that many courts would nd this statement astonishing for they use this appearances language to discipline judges not simply to caution them As a typical case Joachim v Chambers84 stated Canon 2 in the 1990 Model Code has been amended tO use shall instead Of should This provision is now mandatory inasmuch as the preamble to the Model Code provides When the text uses shall or shall not it is intended to impose binding Obligations the violation Of which can result in disciplinary action When should or should nOt is used the text is intended as hortatory and as a statement Of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined 85 The ABA s Annotated Model Code of Judicial Conduct actually cites Joachim twice once on the very same page that it declares Canon 2 to be merely aspirational and elsewhere but both times it is for another proposition In addition to the appearances command of Canon 2 there are also a few official Comments that refer to appearance of impropriety or similar language87 This Commentary does not create new rules but does offer explanations88 Case law concurs89 Hence a review of the Comments may offer insight to what the appearances requirement actually means Unfortunately in this case when one reads all these Comments it is fair to say that they do not explain the de nition of appearance of impropriety although they are sometimes redundant9 84 815 SW2d 234 Tex 1991 85 Id at 239 n9 emphasis added and citation omitted The Annotated Model Code cites Joachim for the proposition that a retired judge who continues to serve as ajudicial of cer by assignment may not testify as an expert Witness in a legal malpractice case ABA ANNOTATED MODEL CODE supra note 76 at 75 and for the proposition that the 1990 Code unlike the 1972 Code uses shall to express a mandatory obligation Id at 4 The rationale for the declaration of the Annotated Model Code that Canon 2 is merely aspirational remains a mystery 87 See infra note 90 88 See MODEL CODE OF JUDICIAL CONDUCT pmbl 11 2 1990 reprinted in MORGAN amp ROTUNDA 2006 supra note 33 at 604 See also ABA ANNOTATED MODEL CODE supra note 76 at 4 89 People for Ethical Treatment of Animals v Bobby Berosini Ltd 894 P2d 337 340 n5 Nev 1995 The Canons and the Sections are authoritative The Commentary provides guidance to the purpose and meaning of the Canons and Rules by explanation and example it is not a statement of additional rules For example the Commentary on Canon 2A states Ajudge must avoid all impropriety and appearance of impropriety The prohibition against behaving with impropriety or the appearance of 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 119 IV THE PROPOSED NEW ABA JUDICIAL CODE AND THE APPEARANCES OF IMPROPRIETY Since 2003 the American Bar Association has been in the process impropriety applies to both the professional and personal conduct ofajudge The test for a ear ce of impropriety iswhether the conduct would create in reasonable minds a perception that the judge s ability to carry out judicial responsibilities with integrity impartiality and competence is impaire MODEL CODE OF JUDICIAL CONDUCT Canon 2A cmt 1990 Th Commentary to Canon 2C reads as follows A judge s membershi in an organization that engages in any discriminatory membership practices prohibited by the law of the jurirdiction also violates Canon Section 2A and gives the appearance of impro riet Moreover public manifestation by a judge of the judge s knowing approval of invidious discrimination on any asis gives the appearance of impropriety under Canon 2 and diminishes public con dence in the integrity and impartiality ofthe judiciary in violation of Section 2A MODEL CODE OF JUDICIAL CONDUCT Canon 2C cmt 1990 emphasis added Note that this Comment merely prohibits that which other law already prohibits prohibited by the law of the jurisdiction The Commentary to Canon 3B5 states A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute Facial exprexrion and body language in addition to oral communication can give to parties or lawyers in the proceeding jurors the media and others an appearance ofjudicial biar MODEL CODE OF JUDICIAL CONDUCT Canon 3B5 cmt 1990 emphasis added This Comment is actually clear It does not de ne appearance but rather it imposes a new restriction and provides use Il advice by telling the judge not to manifest prejudice towards a party orally or by 0 er means such as facial and body language T Commentary on Canon 4D1 is redundant it simply tells us that violating the rules governing financial and business dealings also raises an appearance ofimpropriety Participation by a judge in nancial and business dealings is subject to the general prohibitions in Section 4A against activities that tend to re ect adversely on impartiality 39 icial office or interfere with the proper performance of judicial duties Such participation is also rubject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in Section B against the misuse ofthe prestige ofjudicial of ce MODEL CODE OF JUDICIAL CONDUCT Canon 4D1 cmt 1990 emphasis added T e Commentary preceding Canon 4H only tells us that the appearance of impropriety furnishes the reason for the reporting requirements in Canon 6 ofthe 1972 Judicial Code and Canon 4H ofthe 1990 Judicial Code Canon 6 new in the 1972 Code re ected concerns about con icts of interest and appearances of impropriety arising from compensation for offthebench activities MO EL CODE OF JUDICIAL CONDUCT C on H introductory cmt 1990 Canon 4H1 tells us that the compensation and reimbursement of extrajudicial activities that the Judicial Code allows should not be excessive and the source of the funds should not give the appearance of in uencing the judge s performance of judicial duties or otherwise give the appearance of impropriety MODEL CODE OF JUDICIAL ONDUCT Canon 4H1 1990 This rule does not raise the same questions that Canon 2 creates because it is not openended Litigants before the judge should not be nding the judge s speaking opportunities When an individual or an entity does pay for the judge s time for example when he or she gives a lecture the pay should be reasonable and should not exceed what a person who is not a judge would receive for the same activity MODEL CODE OF JUDICIAL CONDUCT Canon 4H1a 1990 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 120 HOFSTRA LAWREVIEW Vol XXnnn of revising its judicial ethics rules Recall that the ABA s Model Code of Professional Responsibility never intended that the appearance of impropriety would be used as a rule to impose discipline and its newer Model Rules of Professional Conduct use that phrase only to criticize it91 Not so with the proposed judicial revisions Last year after a great deal of deliberation and public criticism92 the ABA Joint Commission to Evaluate the Model Code of Judicial Conduct decided to retain its prohibition against an appearance of impropriety 93 and to expand it by using it not only as the title to Canon 1 but also as a special separate rule under that Canon Rule 10294 A great deal of y and has 1 39 39 this issue Many of the opponents wereias any legal realist might guessi lawyers who represent judges and judicial candidates in judicial discipline proceedings95 The opponents did not persuade the Commission which continues the appearance of impropriety standard The Commission heard presentations and received numerous written communications on the question identified by the Commission itself as an important one at the beginning Of the project Of whether the appearance Of impropriety concept contained in the present Code should be retained A majority Of commentators on the subject citing to judicial discipline cases decided over a threedecade period urged that the concept be retained The Commission was persuaded so that the Preliminary Draft places the admonishment that judges avoid not only impropriety but also its appearance in two places in the text Of Canon 1 and in Rule 103 The explicating Comment language relating to impropriety and its appearance are substantially as they appear in the present Code96 The Final Draft of the Commission Report provides in the title of Canon 1 that a judge shall avoid impropriety and the appearance of impropriety in all of the judge s activities 97 Later Rule 102 which 91 See supra Part II 92 See eg Weakening theRulesforJudges supra note 30 at A16 Harrison rupranote 30 at A14 responding The title of Canon 1 reads A judge shall avoid impropriety and the appearance of impropriety in all of the judge s activities FINAL DRAFT PORT Canon 1 supra note 25 emphasis added 94 Rule 102 is entitled Impropriety and Its Appearance Id R 102 95 See eg APLRLetter rupranote 7 at 613 96 ABA JOINT COMM N TO EVALUATE THE MODEL CODE OF JUDICIAL CONDUCT PRELIMINARY DRAFT INTRODUCTOR PORT June 30 2005 at 4 available a httpWWWabanetorgjudicialethicsIntroductoryReportpdf 97 FINAL DRAFT REPORT anon 1 rupranote 25 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 121 is titled Impropriety and Its Appearance provides that a judge shall avoid impropriety and the appearance of impropriety 98 The new proposed Rules attempts to de ne impropriety in its Terminology section It tells us that impropriety is conduct that compromises the ability of a judge to carry out judicial responsibilities with independence integrity and impartiality or otherwise demeans the judicial of ce See Canon 1 and Rule 102 99 Do you nd that clear If it is clear enough then why bother to draft the rest of the Judicial Code All those other provisions eXist only to prohibit any conduct that compromises the ability of a judge to carry out judicial responsibilities with independence integrity and impartiality or otherwise demeans the judicial of ce 100 A Comment to Rule 1 tries to elaborate on this de nition in two different sentences I will quote the language exactly because I want you to know that I am not making this up This is the rst sentence The test for impropriety is whether the conduct compromises the ability Of the judge tO carry out judicial responsibilities with independence integrity impartiality and competence101 The rst sentence merely repeats the language in the Terminology section Repetition adds nothing to our understanding of the concept That sentence serves neither to de ne the term nor to eXplain its rationale The second sentence states Examples Of actual improprieties under this Rule include violations Of law court rules or other specific provisions Of this Code The rst part of this sentence tells that that it is improper to violate the ethics rulesisomething that we had already suspected In that sense it is not too helpful for two reasons First it is too broad because it tells us that an impropriety is a violation of any law court rules or other speci c provisions of the Judicial Code That rule is clear but it is much too broad The violation of court rules other than violations of the Judicial Code or the violation of a law should have some functional relationship to the business of judging Lawyers are subject to discipline 98 Id R 102 99 ABA JOINT COMM N TO EVALUATE THE MODEL CODE OF JUDICIAL CONDUCT FINAL DRAFT PORT erminology Dec 14 2005 at 3 available a httpWWWabanetorgjudicialethicsTerminologyFinalpdf 100 Id 101 FINALDRAFTREPORT Canon 1 mpranote 25 R 102 cmt 2 102 Id 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 122 HOFSTRA LAWREVIEW Vol XXnnn for committing crimes that re ect adversely on the lawyer s honesty trustworthiness or tness as a lawyer in other respects 103 Lawyers are also disciplinable if they engage in any conduct that involves dishonesty fraud deceit or misrepresentation 104 If a lawyer engages in this conduct even if the lawyer is not acting as a lawyer at the time the conduct has a functional relationship to the practice of law In contrast the proposed Judicial Code would subject a judge to discipline or removal or some other remedy if he breaks a law no matter how unrelated it is to the practice of law105 It is unclear why a violation of any law no matter how minor not putting enough money in the parking meter crossing the fog line on a highway driving 56 mph in an 55 mph zone really merits judicial discipline Granted this part of the proposed rule is clear but its rationale is not One would think that the violation should have some functional relationship to what judges do Violating the Judicial Code has a functional relationship to the business of judging violating a parking ordinance does not There is a second reason why this sentence is unhelpful It is also too vague If this sentence of the Comment had said that an impropriety is a violation of a law court rules or other speci c provisions of the Judicial Code then that would have been quite clear although too broad But the Comment advises that those violations of law even minor law for which there is no criminal penalty are merely examples of what is an improprietym The language does not use the boilerplate included but not limited to but the Comments are written in a less formal tone than the black letter rules so one should not make too much of this fact because include often means a partial list107 The Comment in the end gives us no real test to determine what constitutes an impropriety The failure of this Comment to give us a real test has consequences far beyond the ABA The ABA draft of the Judicial Code like its predecessors becomes real law in the same way that rules of procedure or rules of evidence are real law when a court adopts it108 This model 103 MODEL RULES OF PROF L CONDUCT R 84b 2003 Id R 84c 105 See FlNAL DRAFT REPORT Canon 1 mpquot note 25 R 102 cmt 2 o 4 106 Id 107 See BLACK s LAW DICTIONARY 77778 8th ed 2004 defining include as follows To contain as apart of something The participle including typically indicates a partial list ltthe plaintiff asserted five tort claims including slander and ibelgt But some dra ers use phrases such as including without quot 39 39 39 39 39 quot but quot 39 39 iWhl mean L L39 108 Because the Model Judicial Code if adopted as a rule of the court becomes real law one Wonders Why the dra ers refer to violations of law court rules or other speci c provisions ofthis Code FlNAL DRAFT REPORT Canon 1 mpra note 25 R 102 cmt 2 One would think that the drafters would refer to violations of other law such as statutes or other court rules 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 123 code thus has signi cant consequences particularly because whatever the ABA recommends comes with a presumption of authority and state and federal courts are likely to adopt it Even when a court has not adopted the ABA model codes it often cites them as well as the ABA ethics opinions as evidence of the law109 Compare this proposed ABA Comment to a litmus test In a litmus test we dip the paper created from lichens and absorbed into lter paper in the solution and we know if the solution is acidic or basic when the paper turns red acid solutions or blue alkaline solutions A test that tells us that the solution is sometimes acidic if the paper turns red or that it is sometimes basic if the paper turns blue would not be much ofa test at all The test for impropriety found in the latest draft of the ABA proposed Judicial Code is as useful as litmus paper that sometimes turns blue even if the solution is acidic The proposed revision of the ABA Judicial Codeithe latest draft the product of several years of effort and countless lawyerhoursitells us that there is an impropriety if the judge at a minimum commits a violation of law court rules or other speci c provisions of this Code 110 That de nition if it were complete only makes the term redundant a characteristic that would cause little harm Granted redundancy is not an attribute of good legislative drafting but there are worse sins No this selfproclaimed test is more than redundant Instead it is inconclusive and indecisive for it gives these violations as mere examples The real test is whether the conduct compromises the ability of the judge to carry out judicial responsibilities with independence integrity impartiality and competence The ABA test for impropriety eXplicitly provides that impropriety is more than a violation of these ethics rules or any other rules of the court or any other law How much more How do we know when conduct compromises the ability of the judge to carry out judicial responsibilities with independence integrity impartiality and competence The proposed Judicial Code is silent Now that the proposed Judicial Code has told us how to determine what constitutes an impropriety we need to know what constitutes an appearance of impropriety As a matter of logic appearance must be something broader than an impropriety itself for there would be no need 109 See Ex parte Masonite Corp 681 So 2d 1068 1070 Ala 1996 Frye v Tenderloin Housing Clinic Inc 129 P3d 408 426 n12 Cal 2006 Nationwide Mut Fire Ins Co v Bourlon 617 SE2d40 57 NC Ct App 2005 110 FINALDRAFTREPORT Canon 1 supranote 25 R 102 cmt 2 111 Id 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 124 HOFSTRA LAWREVIEW Vol XXnnn to mention it if it were already included in the concept of an impropriety Oddly enough there is no de nition in the Terminology section for appearance although this term appears multiple times in the title of Canon 1 the title ofRule 102 and in Rule 102 itself112 However we nd an attempt at a de nition and a test in Comment 2 ofRule 102 The test for an appearance of impropriety is whether the conduct of the judge would be perceived by a reasonable person with knowledge of the circumstances to impair the judge s ability to carry out judicial responsibilities with independence integrity impartiality and competence113 This test is remarkably similar to the test to determine what constitutes an impropriety Recall the proposed Judicial Code tells us that the test for impropriety is whether the conduct compromises the ability of the judge to carry out judicial responsibilities with independence integrity impartiality and competence 114 So what is an appearance Apparently it is something that is not itself an impropriety but appears to be so to a reasonable person with knowledge of the circumstances But if this reasonable person knows what is going onithe person has knowledge of the circumstances 7 then one would think that he or she would already know whether it really is an impropriety or not And if it is not an impropriety how can it look like an impropriety how can it become the appearance of an impropriety to a reasonable person who really knows what is going on a reasonable person with knowledge of the circumstances If this reasonable person who knows what both the law and facts are decides that the judge s action would impair the judge s ability to carry out judicial responsibilities with independence integrity impartiality and competence then that action is an impropriety which gets us right back to square one But an appearance is supposed to be more than a mere impropriety so we are a further step removed from the litmus paper test that turns red sometimes when the solution is acidic Remember we are talking about drafting a law Lawyers should be good at drafting 112 Id 113 Id emphasis added See also eg State v Ross 974 P2d 11 20 Haw 1998 holding that the test for disqualification due to the appearance of impropriety is an objective one based not on the beliefs of the petitioner or the judge but on the assessment of a reasonable impartial onlooker apprised of all the facts emphasis added 114 FINALDRAFTREPORT Canon 1 supranote 25 R 102 cmt 2 115 See MILORD supra note 67 at 13 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 125 they should be particularly good at drafting language dealing with the practice of judging because that is their training The ABA is telling us that one cannot get more precise than this Granted not all tests have the precision of a real litmus test where a single factor is decisive Law is more an art than a science While it is an art it is not black magic There is a rhyme and reason when the law must use tests that are imprecise Consider a common rule in driving driving too fast for conditions We know that if the weather is bad ice is on the road visibility is dreadful and traffic is congested one drives too fast for conditions even if one stays within the speed limit Yet we cannot make this rule more precise such as you must stay ve miles under the posted limit when it rains a lot because it would not solve the problem of driving too fast based on all the conditions We tolerate vagueness in driving law because the risks are high highway accidents kill people we cannot think of another way to draft the language and we all have a good sense of what it means to drive too fast for conditions so that the limited ambiguity is inherent We accept vagueness in that circumstance while we would not accept a law that forbade walking too fast for conditions 116 As for walking too fast the risks are small we do not have a good sense of what that means and we have other laws that can take care of truly boorish conduct for example laws against public drunkenness and assault and battery Now compare driving too fast for conditions to the appearance of impropriety which can on occasion lead to a judge being removed from the bench or suspended More likely it leads to the judge losing his or her reputation which is to a lawyer what gold is to a goldsmith it represents what we are and it is our stock in trade Think of this another way If you were nominated for a federal judgeship would you rather have the Senators reject you because you are not smart enough or because you are unethical We all would choose the rst alternative Yet the ABA has armed every disgruntled litigant with the means to tear down a judge s reputation by arguing that even if what you did was not wrong it appeared wrong to me and so you violated the appearance of impropriety See 4 RONALD D ROTUNDA amp JOHN E NOWAK TREATISE 0N CONSTITUTIONAL LAW 209 at 274 3d ed 1999 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 126 HOFSTRA LAWREVIEW Vol XXnnn V THE CASE LAW AND ETHICS OPINIONS REQUIRING JUDGES TO AVOID THE APPEARANCE OF IMPROPRIETY The cases and ethics opinions that refer to the appearance of impropriety are numerous In their judicial opinions they treat it as the gold standard something to which we should all strive117 We have now had over thirtythree years of experience a third of a century under the present Canon 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge s Activities or its predecessor the 1972 version which was identical except that it used should instead of shall 118 That should be enough time for the case law to give us enough examples of what this prohibition is trying to accomplish The ABA ought to study the case law make judgments and choose what conduct it concludes that law should prohibit and then draft speci c rules to prohibit that bad conduct The ABA will have plenty of help for others have already analyzed the case law and have come up with proposed speci c rules 19 When we look at the case law we nd that courts often use the appearance of impropriety as a makeweight to label an activity that other provisions of the Model Code already forbid Removing appearances from the Judicial Code will not affect judicial actions in any way When a speci c rule already prohibits certain conduct there is no need to pile on the appearance of impropriety In some other circumstances even when the court only uses the appearances language it is easy to codify what the case law decides and replace the general language of appearance with more speci c rules that tell us what constitutes the appearance of impropriety121 For One wonders Why striving for appearance is considered so noble The proposed Model Judicial Code suggests that the appearance is at least as important as the reality The novelist Henry Fielding has other views when he warned us that the most formal appearance of virtue when it is only an appearance is rather less commendable than virtue itself even though it will be always more commended HENRY FIELDING THE HISTORY OF TOM JONEs A FOUNDLING 615 Modem Library ed Ran om House Inc 1994 1749 available httpWWWliteraturepagecomreadtomjones557html 118 MODEL CODE OF JUDICIAL CONDUCT Canon 2 1972 119 See eg Abrarnson supra note 32 at 95867 APLRLetter supra note 7 at 7 11 120 Disciplinary Counsel v Lisotto 761 NE2d 1037 1038 Ohio 2002 per curiam holding that ajudge s acceptance of tickets to sporting events from the lawyer who appeared before him and to Whom he once referred a potential client together with his failure to include receipt of tickets on his original financial statements violated Canons prohibiting 1 ajudge s acceptance of gifts from a person who has come or is likely to come before him or her 2 filing of complete and timely financial disclosure statements and 3 requiring avoidance of appearance of impropriety 1 1 e analysis of case law in eg Abrarnson supra note 32 at 95867 See also Gray 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 127 example Canon 4D1b advises the judge not to engage in business relations with lawyers who appear before him122 Canon 4D5 also tells the judge not to accept a loan from anyone subject to a few exceptions123 The judge may accept a loan from a lending institution in its regular course of business on the same terms available from people who are not judges A few cases cite the appearance of impropriety as a reason for a judge not to accept loans from lawyers who regularly appear before him yet one does not need that vague term to reach the commonsense result A Stock Ownership and the Appearance ofImproprieiy Consider the situation where a judge owns stock in an entity that appears before him Those were the facts of Huffman V Arkansas Judicial Discipline and Disability Commission125 In this case the judge and his wife then owned 12000 shares of WalMart stock worth about 700000126 The judge argued that the amount was de minimis and so the court avoided that issue by holding that the judge s ownership of the retailer s stock created an appearance of impropriety in ruling on Wal Mart s motion for a temporary restraining order127 Maybe it was de minimis to the judge for we do not know what his net worth was and perhaps it is the case that nothing he decided in that case could have moved the stock in any direction We do not have the facts to make the supra note 31 at 67 Although in mostjudicial discipline cases ajudge is charged with violating a speci c canon such as the prohibition on ex parte mmunications there are cases based on ndings of an appearance of a violation Most a pearance cases fall into several categories Note however that this author favors the present appearances language See also APLR Letter supra note 7 at 7 11 122 MODEL CODE OF JUDICIAL CONDUCT Canon 4D1b 1990 123 MODEL CODE OF JUDICIAL CONDUCT Canon 4D5 1990 124 In re Topper 553 NE 2d 306 31112 316 Ill 1990 disciplining a lawyer for lending money to the judge presiding over client s caseiitwas irrelevant that the judge did not rule in the client s favor similarly irrelevant Was the claim that thejudge extorted the money from the lawyer In re Corboy 528 NE2d 694 698 70001 703 Ill 1988 concluding that six 1000 loans to a judge by six lawyers regardless of their alleged charitable intent raised the appearance of improprietyisurprisingly in this case the court said that it Would not censure the lawyers for violating any disciplinary rule because they had acted Without guidance of any precedent or settled opinion In re Litman 272 NW2d 264 266 Minn 1978 Regardless of a lawyer s innocent intentions or the existence ofa longestablished friendship and personal relationship with a judge or the judge s urgent need for nancial help making a loan to ajudge before Whom a lawyer practices as sic the ineluctable appearance of tampering With judicial impartiality As Canon 9 Code of Professional Responsibility emphasizes A Lawyer Should Avoid Even the Appearance of Professional Impropriety 125 42 SW3d 386 Ark 2001 126 See id at 391 127 See id at 390 39394 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 128 HOFSTRA LAWREVIEW Vol XXnnn decision The 1990 ABA Model Code provides that the judge subject to various exceptions not applicable here must disqualify himself in any case where he or his spouse have a more than de minimis interest that could be substantially affected by the proceeding 128 What is de minimis The Model Code tells us that it is an insigni cant interest that could not raise reasonable questions as to a judge s impartiality 129 The ABA Model Judicial Code loves ambiguity even when precision is easily attainable In contrast the federal statute130 and the Model Code of 1972131 are clearcut on this issue If you own even one share of WalMart you must disqualify yourself because any interest is a nancial interest There should be little hardship on the judge or the parties because under the 1972 Code the parties could waive the disquali cation132 Under this brightline test the law gave the judge fair warning and he or she and the litigants knew exactly what the judge must do The judge did not have to decide whether fty shares of WalMart stock is de minimis in some absolute sense The fty shares might be worth 1200 which is not chicken feed Or it may be de minimis in some comparative sense The judge may have a net worth of 10 million so even if his decision would reduce the value of the company by 10 in one day and that is a huge drop to be attributed to one judicial decision and the judge owns 500 shares of stock worth 22000 that still amounts to only 22 of his net worth hardly a ripple 128 MODEL CODE OF JUDICIAL CONDUCT Canon 3E1diii 1990 129 MODEL CODE OF JUDICIAL CONDUCT Terminology 1990 130 28 USC 455b4 provides He knows that he individually or as a fiduciary or his spouse or minor child residing in his household has a nancial interert in the subject matter in controversy or in a party to the proceeding or any other interert that could be substantially affected by the outcome of the proceeding 28 USC 455b4 2001 emphasis added e statute then d ines financial interest as the ownership of a legal or equitable interest however small subject to various exceptions that are not applicable here Id 455d4 emphasis added See also Fed Comm on Codes of Conduct Advisory Op 20 revised 1998 available a httpWWWuscourtsgovguidevolZ20html Canon 3C1c of the 1972 Model Judicial Code provided that the judge should disqualify himself if he individually or as a duciary or his spouse or minor child residing in his household has a financial interest in a art to the proceeding CODE OF JUDICIAL CONDUCT Canon 3C1c 1972 reprinted in THOMAS D MORGAN amp RONALD D ROTUNDA 1989 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY 335 1989 hereina er MORGAN ampROTUN39DA 1989 There was no de minimis test 132 See CODE OF JUDICIAL CONDUCT Canon 3D 1972 MORGAN amp ROTUNDA 1989 rupra note 131 at 336 allowing parties to waive disquali cation outside the presence of the judge in riting b 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 129 The modern ABA approach including the proposed new ABA Judicial Code invites the litigants to inquire of the judge s net worth A simpler solutioniand one that has worked in federal court for decadesiis for the judge to disqualify himself if he owns even one share of stock Or the judge can avoid this problem by simply investing in mutual funds 133 B Ethics Opinions and the Appearance ofImproprieiy The range of activities that might appear improper is even greater when one turns to the ethics opinions In some cases they rely on the appearance of impropriety when it may be unlikely that a court would ever enact a speci c rule prohibiting the conduct One can nd many ethics opinions that worry about any relationship between the practicing bar and judges134 These ethics opinions are advisory and so they share the problem that is inherent in advisory opinions The authors talk about issues and not concrete cases and it is simpler to inveigh against appearances in a vacuum For example a Kansas ethics opinion warned associations of lawyers that awarding a Judge of the Year to honor a trial judge would raise the appearance of impropriety135 The ABA has similarly advised that a bar association whose members customarily represent the same side of cases in litigation involving a certain area of the law may not 133 The 1990 ABA Model Code defines economic interest to exclude an interest in a mutual fund unless the judge participates in the management of the ind or the proceeding could substantially affect his investment MODEL CODE OF JUDICIAL CONDUCT Terminology 1990 Both conditions are most unlikely If ajudge owns for example 20000 in Fidelity Magellan Fund or Vanguard Equity Income Fund it is hard to conceive ajudicial ruling that could substantially affect the value of that investment And it is most unlikely that the judge will participate in the management of the ind given that a main benefit of a mutual ind is that professional money managers run the ind 1 See infra notes 13536 and accompanying text Kan Ethics Op 8124 1981 cited in ABABNA LAWS MAN ON PROF CONDUCT 8013807 1984 See also Kan Judicial Ethics AdvisoryPanel Op JE7 Sept 11 1984 available a httpWWWkscourtsorgclerkctJE609pdf opining that a judge s receipt of an award from a special interest bar association may or may not be proper This opinion had some qualifiers or example if the award is given upon the judge s retirement in honor of the judge s years of service knowledge of the law and integrity on the bench the award is entirely proper On the other hand if the award is given by a special interest bar association group under circumstances which tend to create the impression that thejudge is committed to a particular legal philosophy in accordance with that of the special interest group then acce tance ofthe award is violative of Canon 2 Id These qualifiers under circumstances which tend to create the impression that the judge is committed to a particular legal philosophy only serve to make the prohibition more vague 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 130 HOFSTRA LAWREVIEW Vol XXnnn establish a judicial award program to honor particular judges since it would be improper for a judge to accept an award from such an association 136 One would support this rule if you thought you could corrupt a judge by giving him a statute of brass and a certi cate But most people hope that it is not that easy to buy a judge We are talking about bona de organizations Over the years many special interest organizations not open to all members of the bar have routinely honored judges as Judge of the Year iorganizations whose members are primarily plaintiffs lawyers or defense lawyers or civil trial lawyers It is the same with nonbar special interests organizations like Mothers Against Drunk Driving This prohibition found in some ethics opinions would surprise the various special interest bar association groups and similar organizations that have honored judges over the years by calling them Judge of the Year all blissfully unaware of an ethics opinion that cited no case law or other authority137 One might argue that the American Judicature 136 ABA Comm on Ethics andProt l Responsibility Informal Op 861516 1986 137 For example Texas Attorney General Greg A at when he was a Texas judge received various awards including Jurist of the Year mm the Texas Review of Law amp Politics Trial Judge of the Year from the Texas Association of Civil Trial and Appellate Specialists and Appellate Judge of the Year from the Texas Chapter ofthe American Board of Trial Advocates Attorney General of Texas Greg Abbott Homepage httpWWWoagstateDltusagency aggaibioshtml last visited June 18 2 0 Monterey County Chapter of the American Civil Liberties Union annually presents the Atkinson Award named for the distinguished civil rights advocate Ralp B Atkinson to a loca advocate for civil liberties In 2002 the winner was Judge Richard Silver ACLU Monterey County B Atkinson Award Winners httpWwwaclumontereycountyorgabout7atkinsonhtrnl last visited June 18 200 Washington State Court of Appeals Judge Faye C Kennedywas one ofthe first women at the appellate level in Washington state In 2004 Judge Kennedy received the Judge of the Year Award from King County Washington Women Lawyers another special interest bar association Washington State Bar Association Bar News Nov 2005 httpWWWstaorgmediapublicationsbamewsfyinovOShtrn last visited June 18 2006 Chief Judge Kenneth H Kato in 1998 was honored as Judge of the Year by the Asian Bar Association of Washington He was one of the recipients of National Asian Pacific American Bar Association s Trailblazer Award in 2000 both special bar associations Washington Courts Court 0 peals Members httpWWWcourtswagovappellateitrialicourtsbios7faatc7biosdisplay ampfolderid iv3amp leIDkato last visited June 18 2006 Justice Bobbe J Bridge also of Washington state has also been honored by multiple ial ar associations and special interest groups She was honored by the Soroptimist International of Kent as a Woman lp39n Women in 1999 In 1998 she was awarded the Wome Making a Difference Award by YouthCare She received the Mothers Against Violence In America s Community Catalyst Award in 1997 and the Hannah G Solomon Award from the National Council of Jewish Women in 1996 The Washington Women Lawyers honored her as Judge of the Year in 1996 In 1982 she was awarded the American Jewish Committee s Edward F Stern Human Relations Award Washington Courts Supreme Court Members 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 131 Society has a special interest in that it supports merit selection of judges over popular election Yet even that Society which ought to know something about judicial ethics gives out an annual Dwight D Opperman Award for Judicial Excellence 138 Still judicial ethics httpWWWcourtswagovappellate7trial7courtssupremebios lfascbiosdisplayifileampfileIDbrid ge last visited June 18 2 0 Justice Randy J Holland of the Delaware Supreme Court received the 1992 Judge of the Year Award from the National Child Support Enforcement Association another organization Whose members tend to be on the same side in litigation involving child support Vanderbilt University Law School Af liated Faculty httplawvanderbiltedufacultyadjunctshtml last visited June 18 2006 In November 2005 the Washington chapter of the American Board of Trial Advocates a ecial interest bar to be a full member one has to have tried at least twentyfive civil jury trials to conclusion presented King County Superior Court Judge Mary Yu its Judge of the Year Award aur e Hagan A Special Ruling Judge Of The Year SEATTLE TIMES Nov 26 2005 at B2 available a 39 7yu26mhtm The newspaper story shows a photograph ofthe judge with a bright smile She also must be unaware of What the ethics committee of Kansas or the ABA thinks i ferent local chapters of the American Board of Trial Advocates give out annual awards for various types of judicial excellence See Robert J Moss Orange County CA THE PRESIDENT S REPORT AM B A ocs NovDec 1999 at 3 available a httpWWWabotaorgLimagesmediacenterPRI999v14pdf Last but not least We presented our annual Judge of the Year award to e Honorable Robert Jameson In 1998 Judge Anthony Romano received the Judge of the Year Award from Mothers A ainsi Drunk Driving yet another special interest organization That year he discovered the municipalities in the Kansas City Metropolitan Area a no city ordinances enforcing the ignition interlock program initiated by state statute I was shocked he said Sheila Thiele Judge Planr to Continue Making a Di erence A er Retirement DAILY S DAILY NEWS PREss Ju y 10 2002 available a httpWWWfindarticlescomparticles miiqn4181is720020710ai7n10065659 2005 the National Council of Juvenile and Family Court Judges another special interest organization during its 68th Annual Conference held in Pittsburgh named Judge Jeremiah eremi Jr ie Judge of the Rhode Island Family Court in Providence as Judge of the Year Press Release Nat l Council of Juvenile and Family Court Judges NCJ39FCJ Names Judge Jeremiah S Jeremi Jr Judge of Year July 22 2005 available httpwwwncjfcjorgcontentlview468379 In California the a ento Lawyer a bar publication proudly reported that Sacramento County Bar Association a bar not seeking membership from all California lawyers awarded the Judge ofthe Year in 2001 to Sacramento Superior Court Judge Richard K Park Charity Kenyon Richard K Park Judge of the Year SACRAMENTO LAWYER June 2001 available a httpWWWsacbarorgmemberssaclawyerjunO1cover7storyhtml The Wisconsin Sta e ar one a is not special interest proclaimed the fact that Barron County Circuit Court Branch 11 Judge E ar runner received the 2005 Lifetime Jurist Achievement Award and that Milwaukee County Circuit Court Chief Judge Kitty K Brennan received the 2005 Judge of the Year Award The Bench and Bar Committee presented both awards the Annual Convention in May State Bar of Wisconsin News 39 T 39 TemnlatPCMContentDisplaycfmampC l httpWWW ontentID56204 last visited June 18 2006 See eg The Second Annual Dwight D Opperman Award for Judicial Excellence Hon r e R t V McGregor AJS Sept 19 2005 httpWWWajsorgajsawards oppermanAJSopperman05finalpdf 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 132 HOFSTRA LAWREVIEW Vol XXnnn opinions like the ABA or Kansas ethics opinions which have no legal force are always in the background waiting for someone to use them to attack a judge139 The Florida Committee on Standards of Conduct Governing Judges has advised that there is the appearance of impropriety when a judge runs for a bar association of ce140 The rationale people might question whether the judge is exerting subtle pressure on lawyers who must litigate before the judge creating at least the appearance of impropriety 141 If that is a good rule one does not have to interpret appearance of impropriety One simply has to create a brightline rule that forbids the judge to run for a bar office even though the bar association members are not always on the same side in litigation and even though the balloting is secret But if one were to propose a clear rule there would be debate People would wonder why should there be such a prohibition when we routinely allow the bar to rate judges We publish these ratings and there is no concern that judges will exert subtle pressure on lawyers for favorable ratings If there is pressure it must be too subtle because some judges routinely earn negative ratings If there were a proposal for a brightline rule other members of the bar might wonder why judges should not be able to run in elections with secret ballots If the judge runs for an office and loses that judge will not know who voted against him or heriunless the votes were unanimous And in that situation the entire world should know that the entire practicing bar thinks so little of the judge Instead the judicial ethics committee can avoid those pesky things that often accompany a proposed rule when it simply relies on appearances and announces the judicial ethics opinion as a fait accompli In another class of cases we nd ethics opinions refer to the appearance of impropriety when neither that phrase nor anything else in the opinion offers any real advice Here is a complete quotation from an Ohio ethics opinion A judge whose spouse is a county court judge may serve on the court 139 The Kansas Judicial Ethics Advisory Panel acknowledges that its opinions are purely advisory and not binding on anyone See Kan Judicial Ethics Advisory Panel supra note 135 Indeed court rules explicitly provide that these ethics opinions are not binding on the Commission or the Kansas Supreme Court KAN SUP CT R 650f 2005 140 Fla Judicial Ethics Advisory Comm Op 9444 1994 discurred in May a Judge Serve asaBarArrociaIion O ce JUD CON DUCTREP Winter 1997 at 2 141 39 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 13 3 of common pleas within the same county so long as both judges avoid any appearances of impropriety and do not allow their relationship to in uence their judicial conduct or judgment142 This analysis is about as helpful as John Wayne s advice A man s gotta do what a man s gotta do 143 VI APPEARANCE OF IMPROPRIETY AND PUBLIC UNDERSTANDING OF THE ROLE OF JUDGES One of the recurrent arguments in favor of a rule banning the appearance of impropriety is that av0iding the appearance of impropriety is as important to developing public con dence in the judiciary as avoiding impropriety itself 144 On the contrary there are many examples where the existence of this vague prohibition has led to reducing public con dence in the judiciary because it arms its critics with the ability to attack a judge s integrity using the vague standard the appearance of impropriety Even if the action is not itself wrong even if the action is not an impropriety there may be an appearance of 39 39 based on J 1 U 39 insinuation and innuendo These issues never reach the status of a judicial opinion or even an advisory ethics opinion Instead their forum is the public press Let us turn to a few recent examples Recently the Senate con rmed Judge Samuel Alito of the Third Circuit to the US Supreme Court Not only did Judge Alito testify at his con rmation hearingsia practice that is relatively recent in the history of con rmation hearingsmibut other judges testi ed as well Two current judges and ve retired judges testi ed in person or via videotapem All the judges favored his nomination even though a few said that they held political views decidedly different from Judge Alito The Judicial Code does not prohibit this testimony by fellow judges147 142 Ohio Ethics Opinion 8920 1989 as cited in ABABNA LAWS MAN 0N PROF L CONDUCT 9016851 1991 143 See Colbert 1 King A Test for Tolerance WASH POST Jan 1 2005 at A23 quoting John Wayne available at nttp www 39 wp 39 3 2004Dec31html 144 In re Dean 717 A2d176 184 Conn 1998 145 Ronald D Rotunda The Con rmation Process for Supreme Court Justices in the Modern Era 37 EMORYLJ 559 56061 1988 146 Mauro Judges Turn Witnesses for Alito Unusual Endorsement Sparks Worries About Politicization of Bench Possible Recusals LEGAL TlMES Jan 16 2 a 3 The ABA Model Judicial Code provides a fair endorsement ofrecent nominees practice of making themselves available to the Senate Judiciary Committee The con rmation testimony is an appearance before a legislative body in order to speak about the law Steven Lubet Advice and 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 134 HOFSTRA LAWREVIEW Vol XXnnn First the Model Code of Judicial Conduct Canon 4C speci cally authorizes judges to testify at legislative hearings about the law the legal system or the administration of justice148 Moreover the judges were testifying as fact witnesses about what they saw and heard Judges testifying about other judges at con rmation hearings is a practice with extensive historical precedent 0 And this testimony can be very useful151 For example if the testimony had been to the Consent Questions andAnswers 84 NW U L REV 879 881 1990 Professor Lubet who was no supporter of Judge Alito even accused some of those who opposed Alito of Wasting time on specious charges of bigotry and unethical conduct Steven Lubet The Alito Con rmation H emocrats Lost the Political Battle SAN DIEGO UNIONTRIBUNE Feb 1 2006 at B7 available at 2006 WLN39R 1918446 8 See MODEL CODE OF JUDICIAL CONDUCT Canon 4C1 1990 Another provision advises judges not to testify at trials as character witnesses unless they are subpoenaed See MODEL CODE OF JUDICIAL CONDUCT Canon 2B 1990 But congressional hearings are not trials and the character Witness rule does not even apply to testimony a out facts even in a trial The character Witness rule in any event does not give judges any immunity from testifying it only says that they should be subpoenaed if testifying as a character Witness as a way to reduce the number of times that lawyers will be crossexamining the judges before Whom they appear MODEL CODE OF JUDICIAL CONDUCT Canon 2B cmt 1990 This circumstance does not even apply when appearing before the Senate Judiciary Committee 149 One judge testified I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me on our courtiand the countless number of times that we have sat together in private conference after hearing oral argumentihas he ever expressed anything that could be described as an agenda Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions Nomination of Judge Samuel Alito to the US Su reme Court Hearings Before the S Comm on the Judiciary 109th Cong 2006 hereinafter Alito Nomination Hearings testimony of J Leonard Garth Senior Judge 3d Circuit available at 2006 WLN39R 733253 Ano er told the Senate Committee In hundreds of conferences 1 have never once heard Sam raise his voice express anger or sarcasm or try to proselytize Alito Nomination Hearings supra testimony of Edward Becker former Judge 3d Circuit available at 2006 WLN39R 733249 5 0 example in 1987 former Chief Justice Warren Burger testified in favor of Judge Robert Bork during his confirmation hearings when he was nominated to the US Supreme Court Bob Egelko Questions Raised About Having Judges Testi l SAN FRANCISCO CHRON an 2006 at A7 Various other federal judges appeared as witnesses for William Rehnquist in 1971 Sandra Day O Connor in 1981 and Clarence Thomas in 1991 Id While the Senate Judiciary Committee was conducting it hearin s on Sam Alito other judges were testifying at hearings involving st e ju ges The confirmation hearing for California Supreme Court nominee Carol Corrigan included supporting testimony from three former judicial colleagues including a current federal judge Martin Jenkins and a state Supreme Court justice Ming Chin I 39 invited all three to testify Like all the judicial nominees except for Robert Bork she was confirmed Id Judge Timothy Lewis now a Washington DC lawyer described himself as unapologetically prochoice and a civil rights activist He said that Judge Alito Whether in the courtroom or behind closed doors never exhibited anything resembling an ideological bent I cannot recall one instance when he exhi ited anything remotely resembling an ideological bent Id see also Charles Babington and Jo Becker Alito Likely to Become a Jusice WAsH osT Jan 0643 JUDICIAL ETHrcs 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 13 5 contrary if a judge had said that the nominee occasionally lost his temper and got angry during judicial conferences or made seXist remarks that surely is useful information that the Senators should know before the con rmation vote Nonetheless one can always raise a question about the appearance of impropriety and some people did so wondering if the Third Circuit judges were acting unethically by testifying Some people argued that Alito perhaps should recuse himself in cases where he would review their decisions as a Supreme Court Justice because the lower court judges could be seen as currying favor through their testimony 2 Would it raise at least the appearance of impropriety if Justice Alito decided a case by af rming a lower court judge who had testi ed in his behalf That is an argument that one can always make but its logic is a bit strained First it assumes that judges treat reversal and af rmance rates the way a baseball player treats his batting average as something personal to himself But judges unlike the litigants have no personal interest in the case If they did they could not be judges Judges have even disagreed with themselves when they decide to reverse a precedent that they originally joined 153 or vote as a judge in a way contrary to their view as an author154 or as an executive branch official 13 2006 at A1 available at 2006 WLN39R 685733 Senate Judiciary Committee Debates the Alito Nomination htt Www 39 r 39 M AR20060124005 63htrnl last visited June 18 2006 also available a 2006 WLN39R 1464775 152 See Mauro supra note 146 at 13 Egelko supra note 150 at A7 153 The xarnples are numerous See Justice Blackmun s opinion in Garcia v San Antonio Metro Transit Auth 469 US 528 530 54647 556557 1985 reversing Nat l League of Cities v Usery 426 US 833 856 1976 in which Blackmun had concurred See also United States v Gooding 25 US 12 Wheat 460 478 1827 Justice Story explaining his rejection of his own former opinion My own error however can furnish no ground for its being adopted by this Court in Whose name I speak on the present occasion 154 Compare Henry J Friendly The Bill of Rights as a Code of Criminal Procedure 53 CALIF L REV 929 953 1965 arguing that convictions should not be reversed when the Worst that can be said is that a policeman placed a bit too much credence on the reliability of an informer with Williams v Adams 436 F2d 30 35 3839 2d Cir 1970 Friendly J dissenting arguing that a Writ of habeas corpus should have been granted to the defendant W en an of rcer s cause to stop a car was based solely on What an unnamed informer had said Judge Friendly the Judge not the author was vindicated when the Second Circuit en barre reversed the pan decision in Williams v Adams 441 F2d 394 394 2d Cir 1971 per curiarn But the US Supreme Court agreed with Henry Friendly the author and not Henry Friendly the judge and it reversed the Second Circuit Adams v Williams 407 US 143 149 1972 1 or example Justice Jackson concurred in MeGrth v Kristensen 340 US 162 176 1950 even though the view he took in that case was contrary to his opinion as Attorney General Registration of Aliens Under Selective Training and Service Act 39 Op Atty Gen 504 505 1940 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 136 HOFSTRA LAWREVIEW Vol XXnnn Second if we assume that a judge should recuse himself from reviewing cases decided by other judges because those judges said nice things about him then surely he should recuse himself from hearing any cases about lawyers who said nice things about him Lawyers unlike judges really do have an interest in their cases Their wonlost record is important And if lawyers who say nice things can cause a judge s recusal then lawyers who say bad things about a judge should de nitely cause his recusal Yet if that were the rule any lawyer can create a permanent preemptory challenge against a judge simply by testifying against him at the con rmation hearing or saying nasty things about him during an election campaign The lawyer who decides to create this right to recuse a judge whom he does not like will also create a niche practice for other lawyers can hire this lawyer when they decide that they want to prevent this particular judge from being on the panel Now this is not the law If the powers that be want to create such a recusal rule it is easy to write one but for the logical and policy reasons I have suggested that is unlikely Still the media or pundits can always raise a question of impropriety which serves to tarnish the judge even if no higher court will order a recusal Recently ABC News breathlessly criticized Justice Scalia for violating the appearance of impropriety because Scalia attended a cocktail reception sponsored in part by the same lobbying and law rm where convicted lobbyist Jack Abramoff a convicted in uence peddler once worked 156 No one who has ever played this is the house that Jack built can ever doubt this reasoning Lobbyist Jack Abramoff in early January pled guilty to conspiracy fraud and taX evasion charges in a major corruption case and agreed to cooperate with prosecutors investigating whether members of Congress took bribes from him in exchange for favors 7 Abramoff once worked for a law rm and that law rm later became one of the hosts for a reception and Justice Scalia went to that reception158 Nowadays we call this line of attack the appearance of impropriety but in the old days we would call it guilt 156 Brian Ross Exclusive Supreme Ethics Problem What Was Supreme Court Justice Antonin Scalia Doing on Day of Supreme Court SwearingIn ABC NEWS Jan 23 2006 157 See Susan Schmidt amp James V Grimaldi Abramojf Pleads Guilty to Three Counts WASH POST Jan 4 2006 at A01 available at httpWWWWashingtonpostcomWp dyncontentarticle20060103AR2006010300474html 158 See Ross supra note 15 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 13 7 by association And people think this is progress a forward move in the endeavor to be more ethical ABC News also complained that Justice Scalia was absent when Roberts was sworn in as Chief Justice because of his previously scheduled commitment to teach a law course in Colorado This absence was a snub and ABC News said may have violated the appearances of impropriety159 A short time later Justice O Connor missed the swearingin of Justice Alito because of her previouslyscheduled commitment to teach a course in Arizona 0 But those who criticized Scalia for snubbing Chief Justice Roberts had no criticism of O Connor snubbing Justice Alito One of the nice things about charging appearances of impropriety is that one does not have to be consistent because appearances require weighing and considering each case as unique so there is no precedent and any layperson can make a judgment call161 But law is not supposed to be like that We no longer measure justice by the length of the chancellor s foot iso said because in medieval England the chancellors often had no formal legal training and precedent was not binding Loose charges of a violation of appearances are not limited to Supreme Court Justices who are simply at the top of the food chain and so attract more attention All judges are targets As I was researching for this Article I ran across an interesting albeit not atypical news item A developer sued the Winged Foot Golf Club and several others after the Club denied him membership New York Supreme Court Justice Kenneth W Rudolph granted the defense motions to dismiss the various 159 Not only did Scalia s absence appear to be a snub of the new chiefjustice but according to some legal ethics experts it also raised questions about the propriety ofwhat critics call judicial junkets Id 1 O Connor was in Arizona Tuesday teaching a class at the University of Arizona law school during Alito s swearingin N39P org Legal Affairs Senate Con rms Alito as Supreme Court Justice Jan 31 2006 httpwwwnprorgtemplatesstorystoryphpstory1d5180411 161 Scalia spoke at a previouslyaccepted lecture series sponsored by the Federalist Society a nonpartisan thinktank in Washington DC which takes no positions on any legal issues or policy issues does not engage in other forms of political advocacy and files no amicus briefs although it o en sponsors debates on legal issues between liberals conservatives and libertarians The Federalist Society Frequently Asked Questions httpwwwfedsocorgPressFAQshtm The Federalist Society invited all of its members to attend the seminar on separation of powers One who becomes a member has no obligation to ascribe to any particular beliefs ntrast O Connor spoke at the University of Arizona which does file amicus briefs See eg Brief of the University of Pittsburgh Temple University Wayne State University and the University of Arizona as Amici Curiae Supporting Respondents Grutter v Bollinger 539 US 306 2003 No 02241 2003 WL 399066 The University also takes positions on legal issues See eg Associated Students of Univ of Ariz v Ariz Bd of Regents 584 P2d 564 Ariz Ct App 1978 cen denied 440 Us 913 1979 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 138 HOFSTRA LAWREVIEW Vol XXnnn causes of action162 The plaintiff then moved to recuse the judge not because Justice Rudolph exhibited actual bias but rather that the circumstances gave rise to the appearance of a bias and impropriety 163 And what was the appearance The plaintiff Corey A Kupersmith had engaged in other litigation with a golf club on Martha s Vineyard Years earlier the judge s daughter used to work for a company that Mr Kupersmith now says was one of his business rivals She was an employee at will and never had any equity interest 4 Plaintiff s motion asserted Your Honor s daughter Kelly Mooney is a former competitor of the plaintiff s with GEM Communications This information should have been known to the Court and disclosed prior to submission of the motion 165 Granted the motion does not eXplain how GEM Communications was a competitor of the plaintiff or how the judge should have known that166 But surely some people will argue it would not have hurt the judge to make this disclosure Is not the failure to disclose an appearance of impropriety even though it is not an actual impropriety The proposed ABA Judicial Code invites this line of argument But that is not all Counsel affirms on personal knowledge that the children of this jurist played golf at Winged Foot and met with members of the Club who stood to be damaged nancially should the plaintiffs action be allowed to proceed 167 The motion did not identify who these people were and the judge said that he did not know when and where his emancipated children played golf There is more The judge s daughter was getting married and her ancee is a member of the defendant Winged Foot Golf Club As such Your Honor s daughter stands to be directly negatively monetarily effected by a continuation of this action 168 The judge protested The daughter of this jurist is not by marriage a member of Winged Foot Golf Club Inc and is not by eXtension of her marriage affected by the determination of this litigation 169 The judge to put it mildly was quite upset with the plaintiffs 162 Kupersmith v WingedFoot Golf Club Inc 9 Misc 3d 1123A NY Sup Ct 2005 Mark Fass Judge Spurm Recum From Suit to Join Club Blasts Lawyer for Intrunon Into Hix Personal Life NYLJ Mar 6 2006 at 2 d 165 Id 166 d 167 Kupersmith v Winged Foot Golf Club Inc NYLJ Mar 9 2006 at 22 NY Sup Ct Feb 21 2006 168 Fass supra note 163 at 2 169 Id 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 200x DESKTOP PUBLISHING EXAMPLE 13 9 lawyer The judge said that Mr Kupersmith s attorney Mr Herman at the time of the preparation of the submission was aware that spouses of Winged Foot members are not members as evidenced by Herman s original submissions in opposition 170 The judge was also none to happy with the plaintiff who had hired a private investigator to probe possible connections between the judge s family and the defendants171 The judge said This unwarranted intrusion into the personal life of the jurist and my family can only be intended to intimidate the Court in the administration of justice and cannot be tolerated in the civil practice of law and the ethics of same must be determined by those charged with the review of professional responsibilities of attorneys who practice before the bar 172 That last sentence is a little compleX but it appears that the judge is suggesting discipline against the lawyer173 That leads to a new issue If the judge is that upset should he recuse himself in any further case involving the plaintiff or this particular lawyer I am not arguing that the judge should recuse only that it would hardly be surprising for a lawyer or other critic to point out that further action by the judge may raise the appearance of impropriety VII CONCLUSION Surely judges sometimes do violate clear ethics rules and it is proper to criticize them when they do174 Nor is there a problem criticizing judges for the substance of their decisions even when the commentators are harsh175 We are merely criticizing the judges 170 Id See id at 1 2 Id 44 The judge is clearer in another sentence Thus the conclusions of counsel as set forth in paragraph 11c are baseless insulting and undigni ed and degrading to the Court in violation of DR 7106c6 Unpublished opinion on file With the author 174 39 har Carelli AP Ginsberg Reportedly Heard Cases Involving Firms in Which Husband Had Stock BUFFALO NEWS July 11 1997 at A6 Supreme Court Justice Ruth Bader Ginsburg may have violated a federal law 21 times since 1995 by participating in cases involving companies in Which her husband owned stock Responding to queries Associated Press Martin D Ginsburg said he has ordered his broker to sell all his stock in the eight companies Here We have a clear federal rule Justice Ginsburg made a mistake and so she responded by correcting the problem See also Tony Mauro Judicial Ethics Draw Increased Scrutiny LEGAL an 30 2006 at 12 noting reports that 10th Circuit appeals court nominee James Payne participated in 18 cases involving companies Whose stock he held While serving as a federal district court judge in Oklahoma The judge later withdrew his name for consideration 175 nroe H Freedman The Threat to Judicial Independence by Criticism of JudgesiA Proposed Solution to the Real Problem 25 HOFSTRA L REV 729 729 1997 Criticism of 0643 JUDICIAL ETHICS 091106 REV 9112006 432 PM 140 HOFSTRA LAWREVIEW Vol XXnnn reasoning andiwhether we are right or wrongiwe are not criticizing their ethics and dressing our accusations in the appearance of impropriety Proponents of a rule that forbids judges from engaging in the appearances of impropriety and then does not de ne the term argue that the rule promotes in the View of the lay public the integrity of the judges On the contrary the power to unfairly criticize a judge as violating the appearances of impropriety serves to bring the judiciary into disrepute If the judge has violated an ethics rule more precise than avoiding the appearances of impropriety then by all means one should make the charge That is how we improve the judiciary s ethics If the judge has done something that should be unlawful but is not then enact a rule to forbid it But the ABA proposed Judicial Code should not give its imprimatur to us to engage in criticism that too easily becomes an ex postfacto ad 1100 or ad hominem attack These fallacious methods of argument are so old and tired that we use Latin a language longdead to describe them The 1990 ABA Judicial Code titled its Canon 2 A judge shall avoid 39 l l 39 and the l l of39 l l 39 in all ofthe judge s activities 176 Granted the language used the command shall but the Code also said that the Canons are intended to be broad statements 177 judges by lawyers is both constitutionally protected and desirable in a democratic society See also Justice Thomas Asjudges We must expect that our opinions will be dissected not only by the parties but by scholars journalists students politicians and the bar Such scrutiny can even be useful at times It can force judges to be selfre ective Judges do not get everything right as Justice Jackson has said We are not nal because We are infallible We are infallible because We are nal Judges can benefit from constructive criticism to improve the quality of their Work just as anyone can Now I have some experience with criticism myself Early in my service on the Court I was painted by the New York Times as the youngest cruelest justice for a dissent that I had Written about the proper interpretation of the Eighth Amendment Especially now that the gray in my hair has become ever more apparent I appreciate the youngest part of that statement At that time no person or outside groups jumped to my defense nor didI expect or Want anyone to do so I am Willing to let my opinions speak for themselves and it is part of my judicial duty to accept outside criticism however incorrect or unjust to go by unanswere Justice Clarence Thomas Address at the Federalist Society National Lawyers Convention On Judicial Independence Nov 1999 available a httpfed socorgPublicationsTranscriptsjusticethomashtm UDICIAL CODE Canon 2 1990 177 ABA MODEL JUDICIAL CODE Pmbl 112


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