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Must Judges Avoid "Appearance" Problems?

The American Bar Association commission tasked with revising the Model Code on Judicial Conduct is proposing to weaken the ethical requirements for sitting judges. Specifically, according to this New York Times report the rule that judges avoid "impropriety and the appearance of impropriety" would become a nonbinding aspiration and would no longer provide sufficient basis for disciplining judges.

Supporters of the change say disciplining judges for violating a concept as vague as "the appearance of impropriety" is unfair. Opponents denounce any retreat from the longstanding and widely embraced standard, . . .

Mark I. Harrison, the chairman of the A.B.A. commission, said the "appearance of impropriety" standard was vague and added nothing to the rules prohibiting specific conduct that remain mandatory.

"We think it's a step forward," Mr. Harrison said of the commission's decision. "It is important as a matter of due process and fairness to make clear what would be the basis for disciplinary enforcement without ambiguity and without confusion."

The article cites many critics of the proposed change, including some judges, who dispute the claim that the existing standard is unworkable or too vague. There is no doubt that a prohibition on appearance problems can, at times, be difficult to apply, it serves as a helpful prophylactic rule. Moreover, as with any rule that is sufficiently general or abstract, the application to specific instances is facilitated by the accumulation of precedent and the interpretations of various judicial organizations.

Here's more from the story:

Jonathan Lippman, New York's chief administrative judge, disagreed, saying the "appearance of impropriety" standard was sensible and workable. "I don't think this is nuclear science," he said. "Judges overwhelmingly approve of that standard as a basis on which to go about their daily business." . . . .

Victoria Henley, the president of the Association of Judicial Disciplinary Counsel, whose members hear and consider complaints against judges, said the recent revisions were unlikely to gain wide acceptance. "If they basically gut the 'appearance of impropriety' standard," Ms. Henley said, "it's unlikely that the A.B.A. will continue to be responsible for drafting a model code that will be used by any state."

Solid State (mail):
In the military, there are quite a few "appearance" standards applied. For example, it is impermissible for an officer to create the appearance of fraternization, or favoritism. This serves a couple of functions:

First, appearance standards address the real harm. The appearance of favoritism damages the credibility of both the individual and system as a whole. The harm being addressed is precisely that damage - not the act of fraternization. This seems analogous to "appearance of impropriety" for judges.

Second, by addressing the real harm you also create a workable way to measure and punish the conduct. It is not neccessary to go searching for an actual instance of favoritism (which in areas requiring judgment is quite difficult to prove), all that is required is to say the conduct resulted in the appearance of favoritism in order to censure the conduct.

Finally, it has been quite workable in the military context to employ such standards - and changing a _traditional_ standard on the basis of it being "unworkable" seems a little odd anyhow (did it not work for the last 50 years)? However, in the military you do have a sort of warning system for this sort of thing in a way you may not with judges. If your superior believes some behavior is creating the appearance, he can order you privately to cease the conduct (it makes things easier on the superior as well, since he doesn't have to discuss whether the conduct is actually occurring). I'm not sure if there is a comparable private advisement opportunity for judges. Maybe other judges?

Brian
2.6.2007 8:51am
logicnazi (mail) (www):
That's kinda entertaining. Presumably violating the ethical standards for a judge is a type of 'impropriety.' Therefore by making the appearance of impropriety an ethical infraction one presumably also makes the appearance of the appearance of the.... of impropriety also an ethical violation.

Solid State,

I get the sense that the sort of things the military has in mind are much more specific and clear than we are talking about for judges. I doubt their is much of a problem with judges taking a beer at lunch with the plantiff and if there was I suspect judges would still get in trouble for it even after this change.
2.6.2007 9:10am
logicnazi (mail) (www):
On a more serious note I want to add that I think there are some good reasons to avoid making these appearance rules binding. I don't know how it is with judges but in some areas these rules exist primarily to retroactively punish people once a situation has become a PR problem.

I'm sure that judges who do obvious things that violate this rule would still manage to be deterred, by social pressure if not direct discipline. However, so long as you keep this rule as binding anytime a judge makes a minor mistake (forgets he got really drunk once and slept with the plaintiff) and the situation ends up getting lots of PR their will be strong pressure to apply the rule since there has been an appearance of impropriety.

Maybe I'm all wrong and the situation with judges isn't like this at all but this does seem to be a concern and I'm not sure in what situations it would be important to keep this rule as mandatory rather than just relying on general common sense and other rules about judicial behavior.
2.6.2007 9:21am
Bruce Hayden (mail) (www):
But the problem with the non-binding aspirational standard is the question of why to follow it. Except when in rare circumstances, reelection, if necessary, is usually assurred for most judges. And if it isn't criminal or pretty egregious, an appearance of impropriety isn't going to change this.

So, what leverage is there on judges to be unbiased, and to look to? I would suggest that w/o sanctions, little.
2.6.2007 9:29am
Steve Lubet (mail):
The "appearance of impropiety" standard is useful in situations where a judge's conduct raises predictable and legitimate suspicions, and yet it is impossible to prove specific consequences or intent.

In one case, for example, a judge regularly ate lunch with a group of insurance adjusters, at a restaurant near the courthouse. It was impossible to prove that he favored their insureds in court (or that he was generally biased in favor of defendants), but his public lunches naturally troubled plaintiffs and plaintiffs' lawyers.

The most that could be said was that he created an "appearance" of favoritism, but that was sufficient for an admonition (as I recall), in a rather useful instance of the "appearance" standard.
2.6.2007 9:41am
Dave N (mail):
An interesting read (though I have no doubt many VC readers will disagree with the ultimate result because of the parties involved) is Justice Scalia's persusasive in chambers statement as to why he refused to recuse in Cheney v. District Court, despite the fact that he and the Vice President went on a hunting trip together.
2.6.2007 10:01am
Dave N (mail):
An interesting read (though I have no doubt many VC readers will disagree with the ultimate result because of the parties involved) is Justice Scalia's persusasive in chambers statement as to why he refused to recuse in Cheney v. District Court, despite the fact that he and the Vice President went on a hunting trip together.
2.6.2007 10:02am
Dave N (mail):
An interesting read (though I have no doubt many VC readers will disagree with the ultimate result because of the parties involved) is Justice Scalia's persusasive in chambers statement as to why he refused to recuse in Cheney v. District Court, despite the fact that he and the Vice President went on a hunting trip together.
2.6.2007 10:02am
Dave N (mail):
Apologies to all for posting the exact statement three times. I must learn patience.
2.6.2007 10:07am
Houston Lawyer:
I believe the appearance of impropriety standard is asking too much. We've seen a lot of ranting lately about some truly minor pecadillos constituting some type of appearance of impropriety. The "appearance" standard is most often used as a hammer to beat up on ones opponents when nothing was actually improper.

Does any of this purport to be binding on federal judges? I would think that they are immune from the ABA's meddling.
2.6.2007 10:13am
M. Gross (mail):
I approve of the weakening of the "appearance of impropriety" rule. It has all too frequently been used as a bludgeon against viable court nominees who failed to recuse themselves in which the faintest hint of conflict was raised.
2.6.2007 12:25pm
Adeez (mail):
I think the vast majority of us who are lawyers here can agree on the importance of an impartial judiciary. Especially those who practice in NYC and are aware of the selling of judgeships in Brooklyn.

That being said, I am all for the "appearance of impropriety" standard. As Steve Lubet's example demonstrates, it's often impossible to prove actual favoritism. This standard thus does away with a virtually impossible standard of proof and helps keep our judiciary as transparent as possible.

The Scalia example is a good one for those who disagree. Yes, without knowing more, many (myself probably incl uded, I concede)would reflexively say that there was an appearance of impropriety. However, he wrote a thorough and well-reasoned analysis of why recusal was unwarranted, and I can't say I disagreed. So, if any judge thinks this standard is too harsh, let him or her write an opinion like Scalia's demonstrating precisely why not.
2.6.2007 12:44pm
James Fulford (mail):
In 1997 Glenn Reynolds co-authored an entire book called The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society.

The gist of it was that a lot of institutions spend too much time worrying about the appearance of impropriety, and not enough worrying about actual impropriety.
2.6.2007 1:05pm
Ron Hardin (mail) (www):
Coleridge, who wrote three volumes worth of newspaper editorials around 1800, wrote that a conflict of interest is the pulley on which good character is hoist into public view.

It's sufficiently memorable to make the index (``pulley II 115''). A thought for ``reformers.''

_Essays on His Times_ which is 3 volumes of _The Collected Works of Samuel Taylor Coleridge_ Princeton University Press
2.6.2007 1:43pm
steve lubet (mail):

I approve of the weakening of the "appearance of impropriety" rule. It has all too frequently been used as a bludgeon against viable court nominees who failed to recuse themselves in which the faintest hint of conflict was raised.


The "appearance of impropriety" canon has nothing to do with recusal of federal judges, that being governed by 28 U.S.C. sec 455. The relevant statutory language requires disqualification whenever the judge's "impartiality might reasonably be questioned."

That provision will not be affected by changes in the ABA Model Code.
2.6.2007 1:56pm
Kevin T. Keith (www):
Well, what actually happened was this:

The very first canon of the proposed revisions continues to say that judges "shall avoid impropriety and the appearance of impropriety."

But recently added language in the introduction to the code says that while that and other canons provide "important guidance," judges cannot be disciplined for violating them. The canons are followed by rules that are more specific . . ., and the new introduction says that only those rules may serve as the basis for discipline.

It appears that they've structured the code as a set of general guidelines or precepts, followed by a set of specifically elaborated rules. The former are intended to guide judges' thinking about professional ethics, and to express certain values or standards of the profession; the latter are intended to stipulate explicit behavioral regulations. The latter are enforceable, because the rules are explicit and behavioral; the former are not enforceable, because they are aspirational, not behavioral, and not explicit.

This is not a bad way to go about things. The AMA ethics guidelines are structured in the same way, and many professional codes have at least a preamble or set of principles that are not intended to be interpreted as statutory.

I can't tell from the article how much of this structure is new: did they add the behavioral rules and then declare them the body of enforceable canon, or did they always have both guidelines and rules and have just now rendered one of them unenforceable? If the first, I can't see what the objection is. If the second, then, yes, they do appear to be backing off from their previous standards, but that still may not be unreasonable if those standards were composed of very vague and very explicit parts, and they now choose to eliminate the ambiguity.
2.6.2007 2:23pm
M. Gross (mail):
The "appearance of impropriety" canon has nothing to do with recusal of federal judges, that being governed by 28 U.S.C. sec 455. The relevant statutory language requires disqualification whenever the judge's "impartiality might reasonably be questioned."

That provision will not be affected by changes in the ABA Model Code.


28 U.S.C. sec 455 generally doesn't enter into the discussion because it's generally a higher standard, as the accussation must be reasonable. The ABA statute is the one generally used as the bludgeon as the mere "appearance" is a much easier bar to clear.

You can find a rather interesting article on the subject here:

On Findlaw.

Page 3 is directly linked as it is the most relevant.
2.6.2007 2:52pm
John Doe (mail):
Without such a standard, what would Gillers et al. use to beat up on Republican-appointed judges?
2.6.2007 2:53pm
David M. Nieporent (www):
Steve L:

Wrt your insurance adjusters anecdote, that would seem to me to be grounds for recusal, but should it be grounds for discipline?
2.6.2007 5:00pm
DCL (mail):
Much has also been written about judges accepting all-expense paid invitations to privately funded judicial education seminars, many of which are sponsored and paid for by groups promoting a particular ideological viewpoint. Short of a proper gift ban that would cover such trips, the appearance of impropriety standard is critically important in at raising questions about this conduct. An interesting study on this issue was published in the Georgetown Journal of Legal Ethics:

Tainted Justice: How Private Judicial Seminars Undermine Public Trust in the Federal Judiciary 18 GEO. J. L. ETHICS 65 (2004)
2.6.2007 5:05pm
Christopher Cooke (mail):
Why is the ABA tinkering with this standard all of a sudden? Has the "appearance of impropriety" standard been used improperly or unfairly against any sitting judges? I guess I reflexively believe, "if it ain't broke, don't fix it." The NY Times article didn't recite any specific situations where this standard created a problem. Does anyone know what motivated the ABA?
2.6.2007 9:06pm