In February 2019, the federal Committee on Codes of Conduct issued a new judicial ethics opinion, Advisory Opinion No. 116: Participation in Educational Seminars Sponsored by Research Institutes, Think Tanks, Associations, Public Interest Groups, or Other Organizations Engaged in Public Policy Debates (hereafter "Federal Opinion 116").
The opinion does not break new ground, but rather refines and consolidates prior opinions on the topic.
The issue of judicial (and law clerk) participation in continuing legal education programs offered by organizations other than the judiciary first arose in the early 1980s. Various media raised questions about judicial education that was funded, primarily by industries with particular special interests, though they appeared to be neutral entities. As the reimbursement for judges attending said programs became more elaborate and the sites more exotic, more questions were raised. As legal ethics expert Stephen Gillers of New York University Law School said: “It’s the funders that create the problem…The money comes from interests that have matters before the courts, and they’d like to have those matters settled in their favor.”
The late Abner Mikva, who served in Congress, on the Court of Appeals for the D.C. Circuit, and as White House counsel to President Bill Clinton, noted in an op-ed in the New York Times in 2000: “[S]o much is built into our judicial system – from the black robe and ‘all rise’ custom to lifetime tenure for federal judges – to help foster the notion of judicial integrity. It all becomes meaningless, however, when private interests are allowed to wine and dine judges at fancy resorts under the pretext of ‘educating’ them.”
There have been a wide variety of reports regarding special interest sponsorship of judicial programs, but few court opinions. In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992) concluded that a judge should be disqualified because, among other factors, he attended a program organized and participated in by expert witnesses that were scheduled to testify in the national asbestos class action matter over which the judge presided.
The majority of special interest judicial education programs facing criticism have been sponsored by conservative and industry entities. The tobacco industry, groups opposed to environmental regulation and groups promoting free market philosophy have been the primary sponsors and focus of concern. In response, conservative commentators have, in turn, criticized more recent programs and institutions that may have received contributions from groups and individuals perceived as their opposition. Thus, the issue has become a part of the partisan contretemps that inflicts discussion of virtually every issue of public concern.
Dispute exists over whether programs by entities that are largely funded by special interest and corporate entities and attended by judges and their clerks are improper or created the appearance of impropriety. More directly, is the judge’s impartiality in question because of attendance at an educational program?
Federal Opinion 116 notes the continuing concern:
Organizations that were once clearly engaged in efforts to educate judges and lawyers have become increasingly involved in contentious public policy debates. Gone are the days when it was possible for a judge to identify the sponsoring organization and know that the judge was within a bright-line “safe zone” for participation.
The factors cited from prior opinions that are reaffirmed in Federal Opinion 116 appear to validate that programs by general interest bar associations are not excluded from the “safe zone”:
(1) its identity;
(2) its stated mission, including any political or ideological point of view;
(3) whether it engages in education, lobbying or outreach to members of Congress, key congressional staffers or policymakers in the executive branch;
(4) whether it conducts outreach or educational programs for the media, academia or policy communities;
(5) whether it is actively involved in litigation in the state or federal courts, including the filing of amicus briefs, participating in moot courts or boards to prepare candidates or advocates;
(6) whether it holds rallies, meetings or appearances in conjunction with hearings or trials with a view toward influencing public opinion;
(7) whether it advocates for specific outcomes on legal or political issues;
(8) its sources of funding; and
(9) whether it is generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.
In Federal Opinion 116, additional factors enumerated include:
(1) whether the cost of attendance (including items such as scholarships, tuition waivers and room and board) will be borne by the sponsoring organization;
(2) whether the sponsoring organization requests that participation, materials, or subject matter be maintained secret or confidential; and
(3) whether participation is limited to certain applicants based on criteria designed to screen out persons of particular backgrounds or points of view or is open for general participation.
These factors are further clarified in Federal Opinion 116 by incorporation of standards in prior Opinions Nos. 67, 87, 93 and 105.
Committee on Codes of Conduct Advisory Opinion No. 67 (1980) set the original standard for judicial involvement in educational programs stating nonexclusive factors:
(1) whether the sponsor is a recognized and customary provider of educational programs;
(2) whether an entity other than the sponsor is a substantial source of funding;
(3) whether the sponsor or a source of substantial funding of the seminar is currently involved or is likely to be involved as a party or attorney in litigation before the judge;
(4) the subject matter of the seminar, including whether contributors of seminar funding play a role in designing the curriculum or are involved as parties to litigation;
(5) the nature of the expenses paid or reimbursed or whether the seminar is primarily educational and not recreational in nature; and
(6) whether the seminar provider makes public disclosure about the sources of seminar funding and curriculum.
Committee on Codes of Conduct Advisory Opinion No. 105 focused on “private law-related training programs other than those offered by CLE providers, accredited institutions, and similar established educational providers . . . offered to a selected audience of attorneys and/or litigants and designed to improve attendees’ legal skills or performance in judicial proceedings.” And the factors to consider regarding private organizations included:
(1) the sponsor of the training program;
(2) the subject matter;
(3) whether there is a commercial motivation for the program;
(4) the attendees, including whether members of different constituencies are invited to attend; and
(5) other factors, including the location of the program and advertising or promotion of the event.
Finally, Opinion No. 93 succinctly states the standard for judicial education programs:
[T]o qualify as an acceptable law-related activity, the activity must be directed toward the objective of improving the law, qua law, or improving the legal system or administration of justice, and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.
The topic of judicial education has itself become a political football with conservative organizations alleging that programs sponsored by organizations they perceive to be opposed to them are improper while other organizations raise questions about the sponsors and impartiality of programs sponsored by conservative organizations. Consequently, anyone who dislikes a position taken by any general bar association, like the ABA, can attack the general bar association as being a “special interest.”
The ABA Judges Advisory Committee (JAC) is an adjunct to the Standing Committee on Ethics and Professional Responsibility (SCEPR). SCEPR issues advisory opinions interpreting both the Model Rules of Professional Conduct and the Model Code of Judicial Conduct – the latter in consultation with JAC. While SCEPR has not issued an opinion on this topic, there is nothing in Federal Opinion 116, when read reasonably and without a pre-existing interest, would appear to conflict with ABA policies or activities. Further, it appears consistent with the various state opinions covering state judge conduct.
In sum, the burden is placed on judges and judicial clerks to check the transparency of any judicial education program. Who is the sponsor and who is funding the program; does the program appear to have a particular policy preference being advocated; and are the location, reimbursement and social and recreational activities excessive? If it’s too good to be true, it probably is.
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