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April 11, 2023

ABA ROLI’s Kazakhstan Rule of Law Program Improves the Code of Judicial Ethics

In Kazakhstan, the Code of Judicial Ethics (CJE) has a unique role within the judiciary and consists of a set of ethical principles and guidelines for judges on the issues of judicial integrity, independence, and impartiality. The Government of Kazakhstan is actively discussing judicial reforms. For example, on January 26, 2023, the President of the Republic of Kazakhstan Kassym-Jomart Tokayev met with the Chairman of the Supreme Court Aslambek Mergaliyev to discuss a mechanism for holding judges accountable for gross violations of the legislation. 

Although an important aspect of judicial reform, the current CJE has been critiqued for containing vague and unstructured provisions that do not effectively prevent ethical violations, as well as not provide a clear distinction between disciplinary and ethical violations and responsible parties for issuing disciplinary sanctions. To address these shortcomings, the American Bar Association Rule of Law Initiative (ABA ROLI)’s Kazakhstan Rule of Law program (KROL) has been working to improve the CJE. On January 27, 2023, in cooperation with the Union of judges, KROL organized an extended meeting on the drafted CJE. The meeting was attended by Justices of the Supreme Court, the Union of Judges, the Chairman of the Judicial Jury, regional judges, the Chairman of the National Bar Association, advocates, and representatives from the United States Agency for International Development and ABA ROLI. 

In this blog Judge Elizabeth Stong, U.S. Bankruptcy Judge for the Eastern District of New York, shared her experience on principles of judicial ethics and the Federal Judicial Code of Conduct in the United States, which is a set of ethical principles and guidelines adopted by the governing body of the federal judiciary. The Code of Conduct is comprised of five Canons, each of which highlights a distinct principle of judicial ethics. Judge Stong discussed each Canon.

Continuing the Conversation about Judicial Ethics in the United States Federal Judicial System

By Hon. Elizabeth S. Stong

For the last several months, I have been fortunate to participate as an international expert in the work of Kazakhstan’s high-level working group on revisions to the Code of Judicial Ethics.  A highlight of this work was presenting to the working group “in” Astana on January 27 – live from my courthouse in New York late in the evening of January 26.  

Sometimes, the best part about a good discussion is the questions that come afterwards.  Following that very engaging roundtable, I was delighted to receive several thoughtful questions that followed up on some of our discussions.  Below are some of those questions, and my responses.

In the United States, does the judge's spouse file an annual income tax return? 

In the United States, the judge’s spouse, and any of the judge’s family members, would have the same requirement to file (or not to file, if they have no reportable income) an annual income tax return if their spouse was not a judge.  Put another way, the requirements to file an annual income tax return, and to pay income tax, are completely unaffected by the fact that the individual’s spouse is a judge.  I note that there are annual financial disclosure requirements for federal judges, and that these disclosures do require a small amount of reporting by the judge as to the judge’s spouse’s sources of income.

Does the Code of Conduct for United States Judges apply to retired judges?  

The Code of Conduct applies to “anyone who is an officer of the federal judicial system authorized to perform judicial functions.”  That is, the Code of Conduct applies to sitting “active” judges, sitting “senior status” judges who have retired from active status but assumed senior status and continue to perform judicial functions, and certain categories of federal judges who retire but remain “recall-eligible,” including bankruptcy judges and magistrate judges.  It also applies to some extent to part time judges, and judges pro tempore (persons who are appointed to act temporarily as a judge or as a special master”).  

But a federal judge who is fully retired from judicial service and is no longer “authorized to perform judicial functions,” whether as a senior judge or a recall-eligible judge, is no longer bound by the Code of Conduct.  

To be sure, there may be ethical restrictions on a retired judge who re-enters the active practice of law, including in connection with whether they could be involved in matters in which they served in a judicial capacity.  It is safe to assume that a former judge would not choose to go down that path.  

As another example, even though Canon 1 – A judge should uphold the integrity and independence of the judiciary – no longer applies, it would be reasonable to expect that a retired judge would not choose to attack or undermine judicial integrity and independence.  But for example, Canon 5 – A judge should refrain from political activity – would no longer apply, and indeed, the former judge would be free to seek political office, engage in political activity, and the like.  

Does any judge's commitment to religion affect his or her ethics?  

A judge’s personal commitment to a particular religion – that is, their personal religious practices, faith, and related matters – has no effect on the judge’s ethical duties.  If in a particular case, the judge believed that they could not discharge their duties impartially as a consequence of their faith, that would be a different matter, and the judge should likely recuse themselves from the particular case.  But there is an expectation that there is separation of “church and state,” and the judge’s personal religion (or lack of religious faith) and practices should not have any role in their judicial work.

Have psychologist positions been introduced in the courts or do judges officially recommend that they see a psychologist?   

In recent years, our federal courts have worked to make mental health resources, including confidential Employee Assistance Programs, available to all members of the court family, including judges, their chambers staff, and court staff.  And it is fair to say that “wellness” is increasingly a topic of discussion in legal education, the legal profession, and the judiciary.  

As one example of this, I teach a seminar for federal judicial externs at Brooklyn Law School, and have done so for nearly twenty years.  Several years ago, I added a class session on “Wellness in Chambers and Practice” to my syllabus.  It is often one of our most engaging and successful sessions, and many of my students write about this topic in their final essay.  We address “impostor syndrome,” the role of fear in lawyering, and how to identify what kind of position would be a good fit, among other topics.  Wellness is also an occasional topic in our Federal Judicial Center judicial education programs, as there is a growing recognition that judges have very demanding jobs, and need to be able to recognize the need to take care of themselves.  

But to my knowledge, the position of “court psychologist” for the care of judges and court staff does not exist.

Who qualifies as a family member under U.S. law under the Code of Conduct for United States Judges?  

Certain sections of the Code of Conduct specifically define “members of the judge’s family.” For example, Canon 4D(2), which discusses financial activities of a judge, defines “members of the judge’s family” to include those people “related to the judge or the judge’s spouse within the third degree of relationships as defined in Canon 3C(3)(a) [including “parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew”], any other relative with whom the judge or the judge’s spouse maintains a close familiar relationship, and the spouse of any of the foregoing.” See Canon 4D(2).  As another example, Canon 4D(4), which regards the acceptance of gifts, defines a “member of the judge’s family” as “any relative of a judge by blood, adoption, or marriage, or any person treated by a judge as a member of the judge’s family.”  See Canon 4D(4).

By including this general description of “any person treated by a judge as a member of the judge’s family,” it seems that the Code of Conduct provides both the specific illustrations of the first provisions I have noted, and the more general and practical guidance reflected in this second provision.

Please explain Canon 2C. What is the meaning of "the organization to which the judge belongs"?  How should a judge determine this?   

Canon 2C gives effect to the Canon’s direction that “A judge should avoid impropriety and the appearance of impropriety in all activities,” in the particular context of organizations, such as private clubs or membership associations, that practice invidious discrimination “on the basis of race, sex, religion, or national origin.”  So, for example, if a club or association excluded people of color, or members of a particular religion, or women (or men) from its membership in a way that amounted to “invidious discrimination,” that is, discrimination that is likely to arouse or incur resentment or anger in others, the judge should not join that organization.  And if they are a member at the time that they become a judge, they should resign.  Of course, if the judge is part of a religious group that limits its membership to followers of that faith, that would not be “invidious discrimination,” and would not be a violation of the Canon.

There is a history of such discrimination in private clubs and associations in the United States, and many – perhaps most – of those groups have revised their policies.  Many professional associations, including in the legal profession, have the same unfortunate history.  Indeed, the American Bar Association formally restricted its membership to white men in 1912, admitted its first woman member in 1918, and admitted its first black lawyer in 1950.  Harvard Law School, of which I am a proud graduate, was founded in 1817, and graduated its first class that included women some 136 years later, in 1953.  And fifty years after that, in 2003, I was president of the global Harvard Law School alumni association.  So, there is progress, to be sure.

Finally, how should a judge determine this?  The judge should take reasonable steps to comply with this Canon – and for example, if invited to join an organization, the judge may wish to inquire if the organization has restrictive membership policies or practices.  If the situation is uncertain, the judge may also consult with the ethics counsel for the federal judiciary, on a confidential basis.  At the same time, as stated in the Commentary to Canon 1, “the Canons are rules of reason.”  

Do judges participate as a representative or advocate in order to protect their family members (can they)?  For example, family member – spouse, children?  

As set forth in Canon 4A(5) of the Code of Conduct, a judge should not practice law or serve as a lawyer to a family member in any forum.  At the same time, the Code describes a small zone in which the judge may assist a family member.  Canon 4A(5) states that if done without compensation, a judge may act pro se and “give legal advice to and draft or review documents for a member of the judge’s family.”  See Canon 4A(5).

Who can be a temporary judge and for what period?  

Our federal judiciary permits the designations of judges “pro tempore,” and this would be a “person who is appointed to act temporarily as a judge or as a special master.”  See Compliance with the Code of Conduct, (B).  It would be a very unusual and particular circumstance for a “temporary judge” to be appointed, though special masters may be appointed from time to time to assist a judge in the management and provisional determination of particular questions, such as recommended determinations on discovery questions or damages.  These situations are unusual, and these appointments would likely be tailored to the particular circumstances and needs of the situation.  We do not have general jurisdiction “temporary judges” in the federal judiciary.

About Kazakhstan Rule of Law program

In 2020, ABA ROLI began implementing the USAID-funded KROL Program, which supports improvements to the investment and business climate, the legal framework for civil society organizations (CSOs), the modernization of the judiciary, and the elimination of real and perceived bias to increase judicial independence and professionalism. The program builds on a nearly three-decade partnership between Kazakhstan and the United States to modernize the judicial system, build public trust in the judiciary, and implement judicial reforms. The program supports judicial transparency and openness by providing opportunities for businesses, CSOs, lawyers, and other interested stakeholders to interact with one another and advocate for change. 

The contents are the responsibility of author and do not necessarily reflect the views of USAID, ABA ROLI or the United States Government. 

The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or ABA Rule of Law Initiative unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.

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