November 01, 2018 Judicial Ethics

Finding Guidance Beyond Your Code of Judicial Conduct

By Marla N. Greenstein

Codes of judicial conduct are revised over time, incorporating language that more accurately addresses situations in an evolving world and providing guidance where it may have been lacking in the past. In the areas of bias and harassment, the ABA Model Code of Judicial Conduct has seen several revisions.

While the 1972 Code did not explicitly mention sexual harassment, its provision requiring a judge to be patient, dignified, and courteous was used to address workplace harassment on the part of judges. Later incorporated as Canon 3B(4) in the 1990 Model Code, disparaging and demeaning conduct by judges toward employees, litigants, and lawyers was covered under this provision.

“Sexual harassment” as a term did not appear until the 1990 Code Commentary to Canon 3B(5). While implicitly included in the prior Canon 3B(4), the 1990 Code included a new provision that expressly required judges to perform duties without bias or prejudice and required the same from staff under their control. Bias based on “sex” was one of the enumerated protected attributes, and the commentary now stated explicitly that a judge “must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge’s direction and control.” The linkage of sexual harassment to “bias” reflects the first major acknowledgment that sexual harassment is related to a diminished view of women in the workplace.

With the major Code revisions in the 2007 ABA Model Code, and its concerted effort to put all enforceable provisions in the Code provisions themselves (as distinct from the commentary), sexual harassment is explicitly prohibited. Rule 2.3(B) essentially incorporates the commentary language of the 1990 Code into the substantive language of the former 3B(5) by providing: “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, based upon attributes including but not limited to race, sex, gender, . . . against parties, witnesses, lawyers, or others.” Harassment is later defined in the commentary as “verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender. . . . Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.” The commission’s explanatory notes emphasize an awareness that harassment is distinct from other expressions of bias and prejudice. (See Explanation of Black Letter to Paragraphs (B) and (C) Rule 2.3.)

This evolution of the Model Code language illustrates an evolution of our understanding of sexual harassment and its significance in arenas of power disparities. Judges wield enormous power in not only their decision-making roles, but also as employers and leaders in the community. While judges typically look first to the Code of Judicial Conduct for their ethical duties, in the area of sexual harassment, courts are gaining awareness that other policies are needed as well. Workplace harassment policies guide not only the direct actions of judges but also their important role as supervisors and guardians of safe court workplaces. All judges should look beyond their own Code of Judicial Conduct to their broader responsibilities as guardians of the law and the embodiment of fairness and justice. 

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Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at mgreenstein@acjc.state.ak.us.