May 01, 2013 Judicial Ethics

Reflections on the Future of Judicial Ethics

By Marla N. Greenstein

From its origins with the ABA Canons of Judicial Ethics in 1924 through the most recent 2007 Model Code of Judicial Conduct, judicial ethics standards have evolved tremendously. While the original Canons gave aspirational goals for the judiciary, it was not until the first Model Code of Judicial Conduct in 1972 that ethical rules holding judges accountable were established. Around the same time, judicial discipline mechanisms were created in the states with some autonomy from the states’ highest courts. The 1972 Code created enforceable ethics standards for the judiciary and, with the accompanying creation of disciplinary boards and commissions, consequences for misconduct.

In the years since that first Code, major revisions have issued in 1990 and 2007. The 1990 Code made an effort to clarify aspirational language from language creating standards with disciplinary consequences. In 2007, the Code was substantially reorganized to better reflect the logical sequence of the enforceable provisions and defined that part of the document not intended to create a basis for discipline. Through the years, provisions have been added to address the changing roles of judges both in the courts and in the community. Language addressing judicial outreach efforts by judges and communications in the therapeutic court setting was needed by 2007.

While Model Codes can be revised every few years, judges need advice and guidance when new circumstances arise. It is out of this need that most jurisdictions now provide some method for giving ethics advice to judges. An interpretation of the current Code to new situations is a daily need. The recent ABA opinion addressing the proper scope of judicial involvement in electronic social media is a prime example (ABA Formal Opinion 462, Feb. 21, 2013).

Judicial ethics has also become a legal field in its own right. The American Judicature Society has its Center on Judicial Ethics. The American Bar Association Judicial Division has its Ethics and Professionalism Committee. There is a professional association for judicial discipline attorneys and investigators, the Association of Judicial Disciplinary Counsel, and countless professional responsibility committees and institutions that address judicial ethics. Case law in the judicial ethics field has expanded exponentially in the past 50 years. We now have interpretations of state Code provisions that allow us to compare and distinguish their application in any given situation. So too, states have defined through case law their own standards and expected consequences for a breach of those standards.

In reflecting on this recent and developing history, what can we predict for the future? We have seen Codes develop and respond to case law and emerging new demands on the judiciary. Other articles in this issue highlight some of those new demands. Technology will create opportunities and ethical questions. Will “virtual courts” create new questions as to ex parte communications? Will court-funding crises cause judges to creatively respond without abandoning the ethical requirement to decide all cases promptly? Will attacks on the judiciary require an expansion of the current scope of judges’ ability to respond?

Whatever the shape of the new questions, we can be assured that professionals will give advice, courts will address transgressions, and Codes will continue to evolve. We have comfortably entered an era where judicial ethics training is an essential requirement of the position and an ethical judiciary is the expectation of the public.