Comments

Note: Resources associated with a meeting or hearing are located in the Meetings & Hearings section. Drafts available for public comment may be accessed in the Commission Drafts section.

Comments refer to documents submitted for review by the Commission. There are currently two categories of comments, including those based on the original 1990 Code and those based on the preliminary drafts of the new code. Additional categories of comments will be added during subsequent stages of rule development.



Comments on 1990 Code    |    Comments on Preliminary Draft of Code    |    Comments on Final Draft of Code


Comments on 1990 Code



ABA Standing Committee on Pro Bono and Public Service
Debbie Segal, Chair

     Comment   (February 3, 2004)
      Canon 4       Pro Bono Activities

        Summary

     Comment   (December 3, 2003)
      Canon 4       Pro Bono Activities

        Summary




Abramson, Leslie
Professor Louis D. Brandeis School of Law at the University of Louisville

     Comment   (January 14, 2004)
      Rules 2.09, 2.12, 2.17 and 2.18

     Summary




Alfini, James
Dean South Texas College of Law

     Comment   (February 26, 2004)
      Canon 2       Official Conduct

     Summary




American Judicature Society
Cynthia Gray, Director Center for Judicial Ethics

     Comment   (March 11, 2004)
      Terminology and Rules 4.13, 5.01, 5.03 and 5.08

         Summary - Terminology, Canon 4 and Canon 5

         Summary - Canons 1 - 4

     Comment   (October 15, 2003)
      Canon 5

         Summary - Canon 5 Political Conduct; Rule 4.13

         Summary - Preamble

         Summary - Terminology

         Summary - Application

         Summary - Canons 2, 3, and 4




Au, Benjamin

     Comment   (March 23, 2004)
      Rule 2.09       Special Masters and ex parte communication

     Summary




Calkins, Susan
Associate Justice Maine Supreme Judicial Court

     Comment   (January 14, 2004)
      Rule 4.04

     Summary




Coffin, Thomas M.
U.S. Magistrate District of Oregon

     Comment   (March 25, 2004)
      Canon 5

     Summary




Community Rights Counsel
Douglas T. Kendall Executive Director Washington, D.C.

     Comment   (July 14, 2004)
      Canons 1, 2 and 3

     Summary




Gass, J.J.
Brennan Center for Justice at NYU School of Law

     Comment   (2004)
      After White: Defending and Amending Canons of Judicial Ethics

     Summary

Canon 5
Political Conduct

In a report entitled, "After White: Defending and Amending Canons of Judicial Ethics," (one of a series emanating from a project to combat threats to fair and impartial courts), the Brennan Center for Justice (BCJ) evaluates Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002) and other litigation that has impacted the Canons; identifies core issues that recur in most litigation (impartiality, independence, and the appearance of impartiality and independence); and suggests defense of specific kinds of canons in the context of judicial election campaigns. The report also examines revision of judicial ethics canons by the American Bar Association and states in the areas of campaign speech, political activity and use of alternatives to disciplinary sanctions such as recusal and adoption of aspirational standards of conduct to protect values that the canons represent.




HALT, Inc., and Community Rights Counsel
James Turner Executive Director

     Comment   (October 15, 2003)
      Rules 4.13 and 4.15

        Summary
         Gift Rules

        Summary
         Rules 2.12 and 4.09




Iowa Supreme Court & Iowa State Court Administrator's Office
Jennifer Juhler, Domestic Abuse Coordinator     Iowa State Court Administrator's Office Mark Cady, Iowa Supreme Court

     Comment   (undated)
      Rules 1.01, 2.04, 2.05, 4.01 and 4.04

     Summary




Langslet, John L.
Martin, Bischoff, Templeton, Langslet & Hoffman LLP Portland, OR

     Comment   (March 31, 2004)       Rule 2.09(a)(4)

     Summary

Ex Parte Communications

Mr. Langslet brings to the Commission's attention his support of any rule change that may be necessary to permit federal judges to act as mediators in both state and federal court cases. He offers comment about complex state court mediation in which he was involved that was successfully mediated because of the cooperative and skillful teamwork of federal and state court judges, as well as lessons from the mediation processes in which he has been involved.




McDermott, James T.
  • Ball Janik LLP Portland, OR

         Comment   (March 16, 2004)
          Rule 2.09(a)(4)

         Summary

    Ex Parte Communications

    Mr. McDermott brings to the Commission's attention his support of the proposed rule of the U.S. Court of Appeals for the Ninth Circuit that would allow federal judges to perform state court settlement work. He outlines two main benefits of such a rule:
  • Because complex, multiparty and multi-issue cases are more common in federal court, there is a shortage of non-federal judges with the experience and ability to settle and resolve such cases.

  • Practitioners believe that federal judges possess the necessary attributes (intellect and impartiality) for settlement of complex, multi-party cases and the resultant conservation of judicial resources and expenditures by litigants for legal fees and costs.




Miller, David K.
  • Miller - Wagner Portland, OR

         Comment   (March 8, 2004)
          Rule 2.09(a)(4)

         Summary

    Ex Parte Communications

    Mr. Miller brings to the Commission's attention his support of a rule that would permit federal judges to participate as mediators or settlement judges in state court litigation. His support is based on several considerations:
  • Significant financial cut-backs in his state court's judicial system [Oregon] coupled with an ever-expanding criminal docket resulting in a reduction in the "right to a jury trial" in civil litigation, in general, and complex tort litigation, in particular.

  • The strain on the court system has made alternative dispute resolution through settlement conferences and mediation a matter of utmost importance to litigants. Because state court judges are unable to develop effective settlement conference/mediation programs for complicated cases, such litigation are profoundly and powerfully impacted by the participation of federal judges or magistrates in mediation of state court cases.

  • Use of private mediators involves significant expense to litigants.

  • Use of federal judges as settlement judges or mediators in state court cases fosters a healthy and dynamic relationship between the federal bench and state bar.




National Council of Juvenile and Family Court Judges
Honorable David B. Mitchell, Executive Director Honorable James Ray, President

     Comment   (May 19, 2004)
      Canons 1 and 3 and Rules 2.12, 2.13 and 4.04

         Summary

     Comment   (May 18, 2004)
      General Comment of Canons 1 - 5

         Summary

In a letter transmitting Recommendations for Modification of the ABA Canons of Judicial Ethics ("the NCJFCJ Canons") for the Commission's consideration, Judges Mitchell and Ray advise that the NCJFCJ Canons were developed in response to a resolution of the Conference of Chief Justices passed at their Annual Meeting in August 2000 recognizing and encouraging judges to become involved in their communities to improve the quality of justice and have been approved and endorsed by the entire general membership of NCJFCJ.




National Council of Juvenile and Family Court Judges
Third District Juvenile Court Honorable Sharon P. McCully President

     Comment   (January 28, 2005)
      Overview

     Comment   (January 28, 2005)
      Canons 1, 2, 3, 4 and 5




National Judicial Education Program
Lynn Hecht Schafran, Director

     Comment   (July 8, 2004)       Canons 1 and 2


     Summary

Offering further comment on testimony it submitted in April 2004, the National Judicial Education Program expresses the following strong reservations about proposed revisions to Canons 1 and 2:
  • Proposed Canon 1.01, Commentary [2] will be read as yoking a violation of Canon 1.01 to another Canon before a claim of impropriety can be invoked.
  • The generic bar on harassment in the Commentary to Proposed Canon 2.05 is not only unacceptable because it weakens the bar on sexual harassment in the Commentary to current Canon 3B(5), but also puzzling in view of American Judicature Society and the National Judicial Education Program testimony on the need to strengthen the prohibition on sexual harassment with a new Canon and Commentary that provides an explicit, non-exclusive list of what constitutes sexual harassment.
  • Proposed Canon 2.05, Commentary [3] should include “insensitive statement about crimes against women” as an additional manifestation of bias that would violate Canon 2.05.
  • Current Canon 2C, barring membership in organizations that individually discriminate, should not be eliminated.


     Comment   (May 18, 2004)
      Rules 2.05, 4.03, 4.04 and Official Conduct

     Summary




New York County Lawyers' Association
Susan B. Lindenauer Co-chair Task Force on Judicial Selection

     Comment   (February 6, 2004)
      Rules 2.11 and 5.03

     Summary




New York State Lawyer Assistance Trust
Honorable Sarah L. Krauss

     Comment   (May 7, 2004)
      Rule 2.19

     Summary




Public Citizen Litigation Group
Alan B. Morrison

     Comment   (December 5, 2003)
      Rules 2.12 and 5.03

     Summary




Sledge, James S.
U.S. Bankruptcy Judge Northern District of Alabama

     Comment   (February 9, 2004)
      Rule 4.01

     Summary

Extra-judicial Activities in General

Judge Sledge urges the Commission to consider ABA policy that urges judges to incorporate as an integral function of their position, furtherance of the public's understanding of and confidence in the American system of justice and to develop, support and actively participate in public education programs about the law and the justice system, in order to promote the trust and confidence of the public. (See ABA Judicial Division recommendation, co-sponsored by Coalition for Justice, Standing Committee on Federal Judicial Improvements and Standing Committee on Judicial Independence). To be consistent with ABA policy, the Model Code of Judicial Conduct must include judicial outreach as an official judicial function and not an extra-judicial activity.




Stern, Gerald
Former Administrator New York State Commission on Judicial Conduct

     Comment   (December 5, 2003)
      Canon 2

     Summary




University of Pennsylvania Law Review
Jeffrey N. Barr Thomas E. Willging

     Comment   (November 2003)
      Rule 2.17

     Summary

Judicial Misconduct

This comment is a report of the Federal Judicial Center prepared for the National Commission on Judicial Discipline and Removal, published as Jeffrey N. Barr and Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence under the Federal Judicial Conduct and Disability Act of 1980, 142 U.Pa. L. Rev. 25 (1993).

The report addresses a 1993 empirical study by the Federal Judicial Center and consists of three parts: (1) a description of the appellate courts' processes for handling judicial conduct and disability matters; (2) a discussion of data on the effects of the Federal Judicial Conduct and Disability Act that the authors collected from interviewing chief circuit judges, circuit executives, and clerks of court, reviewing complaints and orders, as well as an examination of statistical data; and (3) a summary of chief circuit judges' assessments of the value of the Act and suggestions for change.




Walters, Martha L.
Walters Romm Uhanti & Diukens Eugene, OR

     Comment   (March 11, 2004)       Rule 2.09(a)(4)

     Summary

Ex Parte Communications

Ms. Walters urges the Commission to take a position on whether federal judges have the protections needed to enable their participation in mediation of state court cases. Ms. Walters offers comment, based on her experience as a practitioner, about the valuable assistance provided by federal judges in her jurisdiction in successful mediation of state court matters. In her experience, federal judges are extremely helpful because of their stature, experience and ability. She urges the Commission to provide the same protections to federal judges who serve as mediators that are available to mediators under the Uniform Mediation Act.




Zorza, Richard
Zorza Associates Washington, D.C.

     Comment   (January 14, 2004)
      Canons 2 and 3

     Comment   (December 5, 2003)
      Rules 2.05, 2.08 and 2.13

        Summary

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