 A Federal Judicial Center Orientation Program for United States District, Bankruptcy and Magistrate Judges. Judicial Ethics, Part 1. An overview of ethical rules in the federal judicial system and the role of the Codes of Conduct Committee with the Honorable A. Raymond Randolph of the United States Court of Appeals for the District of Columbia Circuit and Chairman of the Judicial Conference Committee on Codes of Conduct and the Honorable Walter K. Stapleton of the United States Court of Appeals for the Third Circuit and former chairman of the Committee on Codes of Conduct. This program was recorded on February 5, 1991 and updated on May 28, 1996. I am pleased to have this opportunity to introduce you to the Committee on Codes of Conduct and to highlight some of the judiciary's ethical guidelines. The committee's former chairman, Judge Walter K. Stapleton, prepared the videotape you were about to watch in 1991. Despite the passage of time, it still provides an excellent overview of ethical rules in the federal judicial system and an explanation of the role of the committee. However, since 1991, there have been a few developments that I want to bring to your attention. First, in September 1992, the Judicial Conference adopted certain amendments to the Codes of Conduct for United States Judges. Most of these amendments are in the nature of clarifications, and in any event, do not affect the information contained in Judge Stapleton's presentation. The Code of Conduct for United States Judges, as amended, is contained in Volume 2, Chapter 1 of the Guide to Judiciary Policies and Procedures, which Judge Stapleton discusses in more detail. More recently, in September 1995, the Judicial Conference adopted a new Code of Conduct for Judicial Employees, which took effect on January 1, 1996. The new Judicial Employees Code covers all judicial employees, except for a few discrete groups, and extends to members of the judge's personal staff. At the same time, the Judicial Conference adopted a revised Code of Conduct for Federal Public Defender Employees, which applies to all employees of federal public defender offices. These two new Codes of Conduct are published in Volume 2, Chapter 2 of the Guide. You might also want to direct your law clerks and secretaries to Chapter 2 of the Chamber's Handbook for Judges' Law Clerks and Secretaries, which deals with conduct, ethics, and protocol. Another significant development is the Committee's recent publication of a Compendium of Selected Opinions. This document summarizes the Committee's published and unpublished advisory opinions, which number more than 1,000. The Summaries cover a broad range of issues under the Code of Conduct for United States Judges and the Ethics Reform Act gift, honor area, and outside employment regulations. The Compendium Summaries of Committee Advice have proven to be an important resource for judges seeking ethical guidance. It is located in Volume 2, Chapter 5 of the Guide. I should also mention that you will find in the written materials that accompany this program a few updated references to chapter numbers and the like that have changed since 1991. After Judge Stapleton's presentation, I'll return with a few final words about how you can obtain additional guidance on ethical questions should you need it. Some years ago, when I became a district judge, I used to walk down the street and people passing would say, good morning, Your Honor. Invariably I would turn around and look behind me to see who they were speaking to. I felt very uncomfortable at first being addressed as Your Honor, but I soon came to realize how important it was that I accept that salutation. You will have many difficult cases to decide, but once you decide them, all you'll have to do is enter an order. You won't have to give any thought at all to how that order will be carried out. When you think about it, it's really quite remarkable. The judicial system works because the public voluntarily chooses to comply with its directives. They choose to comply in large part because of the respect they have for the judicial system of which you are now a part. This of that respect is essential to the mission of the Third Branch. As a result, Congress and the Judicial Conference of the United States have established special rules that you and I must scrupulously observe. My purpose today is not to review all of these rules with you, rather I hope to acquaint you with the various sets of rules that are applicable to your conduct and with the resources that are available to help you comply. The applicable rules have been collected for you in a red loose leaf book that's entitled Codes of Conduct for Judges and Judicial Employees. It's the second volume in a series of red notebooks entitled Guide to Judiciary Policies and Procedures. You have received that set or you soon will be receiving it from the Administrative Office. There is an invaluable resource and I urge that you keep it with an easy reach. The rules can be grouped in four categories. First, there are miscellaneous statutory prescriptions on your behavior, especially the disqualification statute and the 1989 Ethics Reform Act. Second, there is the Financial Disclosure Act and its requirements. Third, the Judicial Discipline Procedures. And fourth and finally the Code of Conduct for United States Judges. First, there are numerous prescriptions in titles 5, 18 and 28 of the United States Code. For the most part they prohibit things that you wouldn't think of doing anyway, but it's important that you be aware that they exist and I recommend that you read chapter 5 of the red book to know what they are. They prohibit things like practicing law, appointing your relatives to office and accepting gifts from foreign governments valued at over $100. There are two of these statutes, however, which will warrant more study on your part. The first is 28 United States Code section 455, the Disqualification Statute. The first subsection of that statute says that you must disqualify yourself in any proceeding in which your impartiality might reasonably be questioned. The second subsection lists specific situations in which disqualification is required, such as where you have knowledge of disputed facts in the proceeding, where you or a member of your former firm was previously involved in the controversy, or where you or a member of your family has a financial interest in a party or has a financial interest that might be substantially affected by the outcome of the case. Where these specific disqualifying situations are present, the parties can't waive your disqualification. You are disqualified, period. The second statute warranting careful note is the Ethics Reform Act of 1989. It places major restrictions on the acceptance of gifts by judges, on the outside income that judges can earn, and on the kinds of outside activities that a judge may engage in. The statutory restrictions affecting the judicial branch and the judicial conference regulations implementing them took effect in 1991, and they too are contained in Chapter 5 of your red book. Look at that chapter closely. For example, you need to get approval from your circuit chief judge if you want to teach for compensation. You can't accept money for service on the governing body of a profit or non-profit organization or for giving a speech that is not part of a teaching program or for writing an article. And there's a 15% cap on the permissible outside income you may receive in any calendar year. Again, check Chapter 5 closely. Let's move now from what Congress has said you can't do to what Congress has said you must do, specifically what you must disclose about your income and assets. You need to know that Congress has established a financial disclosure requirement for all high-level government employees. Article 1 of the Ethics in Government Act of 1978 speaks specifically to the judiciary, and Chapter 7 of your red book summarizes the requirements of that act. Basically, you have to file a financial disclosure form as a part of the appointment process and then file a subsequent report form before May 15th of each ensuing year. Each report to disclose your financial situation at the close of the previous year. The statute requires that the Judicial Conference of the United States establish what the statute refers to as a Judicial Ethics Committee, and the conference has established such a committee which receives your disclosure forms, makes those disclosures available to the public, and generally oversees compliance with the disclosure mandates. The Judicial Ethics Committee will send you a form each year, well before the deadline for its filing. And you can look at Chapter 7 of the red book for instructions on to help you in filling out those forms. If you still have questions about those forms, don't call me. You should call or write the Chairman of the Judicial Ethics Committee for help. Let me warn you, however, that the members of this committee study the form that you file very closely, and I would suggest that each year before you file you compare this year's disclosure form with the disclosure forms you have filed in preceding years to make sure you haven't inadvertently left out or fail to disclose an acquisition or a disposition of an asset or some other reportable event. The Judicial Discipline Statute creates a mechanism pursuant to which your circuit chief judge, any litigant or for that matter any member of the public can file a complaint alleging that a judge, including a magistrate judge, has, and I'm quoting now, quote, engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts or is unable to perform all of the duties of the office by reason of mental or physical disability, unquote. Now before you get concerned about the generality and vagueness of those standards, let me tell you that the vast majority of complaints filed under this statute are promptly dismissed under a section of that statute which requires immediate dismissal if the complaint is frivolous or if it is, quote, directly related to the merits of a decision or a procedural ruling, unquote. All right, so much for what Congress in its wisdom has provided, what have the courts done? And this brings me to the Code of Conduct for United States Judges. In 1973, the Judicial Conference of the United States adopted with some modifications the American Bar Association's model code of judicial conduct. The Judicial Conference made its code of conduct for United States judges applicable to all Article III judges, all bankruptcy judges, and all magistrate judges. Since then, the Judicial Conference has also adopted codes for many other judicial employees. The Judicial Conference has also established a Committee on the Codes of Conduct, and persons who were covered by any of the codes of the conference can turn to this Committee for advice about the application of the Codes of Conduct. I want to talk to you further about the work of that Committee, but before I do, I want to take you on a brief walk through the Codes of Conduct or the Code of Conduct for United States Judges. I want to give you a word of caution before I begin this trip, however. Some of the cannons are quite general, and when you first read them, they seem very straightforward and on the obvious side, but they're not all that obvious and straightforward always in their application. And for that reason, it's essential that every judge develop a sensitivity to their potential application in a judge's everyday life. The best way to do this is to make yourself take the time to sit down with a red book and read not only the cannons, but the commentary on the cannons and the digest of published opinions of the Committee on Codes of Conduct. All of this material is gathered for you in the first part of your red book. Now the Code consists of seven cannons. I'm only going to refer to a sufficient portion of each one so that you'll be able to find your way around in the cannons when you go back to them with specific problems in mind. The first cannon says that a judge should uphold the integrity and independence of the judiciary. In other words, be honest and independent. It sounds easy, but it isn't always that easy. The job has subtle temptations, and one has to remain on guard as a result. As a trial judge, I had many cases in which there was sharply conflicting evidence about what had happened. If I found the facts one way, it would mean an easy case, and I could dispose of it in short order. If I found the facts the other way, however, it suddenly became a very difficult case, and many, many hours of research and writing would be required in order to finally resolve it. Cannon one required me to make sure that the prospect of that extra work didn't have any influence on my fact finding. Cannon two provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge's activities. In particular, this cannon stipulates that a judge should not allow family, social, or other relationships to influence judicial conduct or judgment, and that a judge must not lend the prestige of the office to advance the private interest of others. The questions that arise in the context of this cannon are questions like the propriety of membership in various clubs, writing letters for law clerks as they depart, recommending candidates for judicial office to appointing officials, participation at testimonial occasions, or vouching for the character of another either in court or out. Cannon three provides that a judge should perform the duties of the office impartially and diligently. The cannon tracks the language of the disqualification statute that I referred to a few moments ago, including that general prescription that you're required to disqualify yourself in any proceeding where your impartiality might reasonably be questioned. Most judges, for example, feel that this requires that they not sit for a reasonable period of time in any case where their former law firm is appearing as counsel, whether or not they are still receiving a payout from the firm. This cannon also contains rules of conduct for judges in the courtroom, and finally it specifies a detailed procedure for securing a remittal or a waiver of a disqualification in those situations where remittal is permitted by the code. Passing on to cannon four, a judge may engage in activities to improve the law, the legal system, and the administration of justice. This cannon contains the do's and don'ts concerning law related activities like teaching, writing, or speaking about the law, or participating in professional organizations. Cannon five concerns extrajudicial nonlaw related activities of judges, and it has actually occasioned more published opinions from my committee than any other can. It states that a judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties. Subject to stipulated conditions, the cannon permits participation in civic and charitable organizations and permits you to manage your own investments. However, with one exception relating to wholly owned family businesses, the cannon prohibits a judge from actively participating in any organization for profit. You will be happy to learn that cannon five permanently liberates you from any kind of solicitation of money for any purpose. Cannon six says a judge should regularly file reports of compensation received from law related and extrajudicial activities. It requires a judge regularly to file his or her financial disclosure forms, and it tells us what circumstances or under what circumstances we may accept compensation for law related and extrajudicial activities that are permitted by the code. Remember that it is necessary to watch the interplay between cannon six and the Ethics Reform Act of 1989 in order to stay out of trouble. Finally, a judge is not permitted to engage in political activity. Cannon seven says simply that a judge should refrain from political activity. It prohibits any participation in any organized political activity, be it formal or informal. It's not just limited to running for office or making political speeches. Let me add one footnote to this discussion of the cannons before I leave them. There are special conflict of interest rules that are applicable to part-time magistrate judges and that supplement the cannons so that part-time magistrate judges need to check chapter three of the red book in order that they may be sure that they know all of the rules that are applicable to their activities. Finally, let me close by telling you about my committee and how we may be able to help you. The Committee on Codes of Conduct has 15 members, including one member from each of the 12 regional circuits. The Judicial Conference has given us three missions. First, we provide confidential advice to anyone who is subject to a Code of Conduct. Because of this assignment, we are affectionately known among the federal judicial family as the Dear Abbey Committee. Second, we publish advisory opinions on issues that keep coming up or issues that are of a particular importance to a substantial segment of the judicial family. All of our published opinions are found in chapter four of your red book. Finally, we have the assignment of recommending amendments to the cannons and to the commentary to the cannons for the Judicial Conference to consider, and we advise the conference with respect to proposed legislation in the ethics area. I want to stress three things about the way our committee performs its advice-giving function. First, the advice is strictly confidential, and only the requesting judge is free to disclose the inquiry and our response. Consistent with our role as a confidential advice giver, we have no Code enforcement responsibilities, and no one need have any fear that information supplied to the committee in the course of making an inquiry will wind up somewhere beyond the committee. Second, we only provide advice to people who are subject to the codes of conduct. We don't, for example, express an opinion if a litigant or somebody from the press calls and asks whether certain conduct of a judge is consistent with the cannons. And finally, I want you to know that our advice is just that-it's advice. When you have an ethical problem and you want to talk about it and get some advice, we'll respond, we'll talk, we'll give you our advice, but the decision making is all yours. In the final analysis, you have to make a decision that you're going to be comfortable living with. I've already stressed that you need to become familiar with the cannons and with the associated materials. If you don't, you may not realize that you have a problem when in fact a problem arises. But when you do perceive a problem, what do you do about and how do you go about solving it? Well, first of all, you should pick up your red book, obviously, and read any canon, any commentary, and any published opinion of the committee that pertains to that particular area. The opinions of the committee are digested in the red book right after the cannons, so you can find those opinions and the ones that relate to your particular problem. But if after you've done that, you're still not confident that you have the right answer, pick up the telephone and call me or call the committee member from your circuit. And we'll be glad to talk to you about your problem. Sometimes it helps just to talk and try to identify the relevant issues and how one should go about analyzing the problem. More significantly, it may be that the committee in its years of experience has had occasion to issue a confidential unpublished opinion on the same issue that you have or on some kind of analogous issue. And where that's the case, we're authorized to share the committee's advice about that issue with you without, of course, providing any information that would tend to identify the judge whose inquiry was responsible for the prior opinion. If the committee has not addressed a similar issue before, you may wish to ask the committee for a written opinion addressed to you and direct it specifically to the problem and to the facts that you face. Indeed, even if the committee has had occasion to address your issue before, you may want to ask for a written opinion for your own protection in the event anyone subsequently raises a question about what you ultimately decided to do. Finally, you should know that if you rely on one of our advisory opinions interpreting the 1989 Ethics Reform Act and the regulations under that act, you will be insulated from the act's civil penalties. If you want to request an opinion from the committee, all you need to do is to write me a brief letter setting forth your inquiry and what the relevant facts are. It might help to call me first and we can talk about what facts are relevant. Frequently that saves time in the long run. Unfortunately, time is a problem. Our committee is scattered across the country and a response has to be written and then circulated for all the judges on the committee to have an opportunity to comment. Because of that, it takes us frequently two to three weeks after we receive an inquiry before we get a response out. If that's not soon enough, however, please give me a call anyway and I'll see what I can do to expedite the response. We may not be able to do any better than that, but then again we may. Frequently judges call and then apologize for bothering us with their problems. There's no need to apologize. We want you to call and we want to be of service to you. I wish you well in your new assignment. The Committee on Codes of Conduct is comprised of a representative from each circuit as well as a bankruptcy judge and a magistrate judge. A listing of the current members of the committee is included in your written materials. Judges who have ethical questions are encouraged to contact the committee member representing their circuit or the bankruptcy or magistrate judge to discuss the inquiry and receive individual guidance. Committee members cannot provide a formal advisory opinion, but if one is needed it can be obtained from the full committee by addressing a written inquiry to me at the address noted in the committee listing. Please do not hesitate to contact the members of our committee for advice. I join Judge Stapleton in wishing you well as you undertake the responsibilities and challenges of the federal bench. This videotape is part one of a series on judicial ethics. Part two is a panel discussion of hypothetical cases based on the Code of Conduct for Judges. To order parts one or two, contact Information Services at the Federal Judicial Center.