This year, after considering comments from the judiciary, the bar, and the public, the Indiana Supreme Court will amend the Code of Judicial Conduct, effective 2009. In 2007, the Supreme Court appointed a subcommittee of the Ethics and Professionalism Committee, Hon. Marianne Vorhees, Chair; Hon. Marc R. Kellams; Hon. Margret G. Robb; Hon. Evan S. Roberts; Hon. Michael P. Scopelitis; and Hon. Dean A. Sobecki, to study the new ABA Model Code of Judicial Conduct and to draft a new Indiana Code. In December, the full committee sent its proposed rule to the Court, recommending adoption of the ABA Model with several amendments. In mid-January 2008, the proposed Code, among other new rules, will be posted for comment on the Court’s website at http://courts.IN.gov/code.
At the Court’s direction, the Ethics Committee adopted the structure and most of the substance of the ABA Model, suggesting only those changes it believed necessary for application in Indiana. The new Model Code and the proposed Indiana Code are reorganized, with Canons 1 and 2 merged into Canon 1 only, leaving four Canons instead of five. Within each Canon are numbered rules, followed by numbered comments, similar to the Rules of Professional Conduct and the Model after which they were patterned. Canon 1 relates to upholding the independence, impartiality, and integrity of the judiciary, Canon 2 to the proper performance of judicial and administrative duties, Canon 3 to extrajudicial activities, and Canon 4 to political conduct.
Substantively, the most significant aspects of the 2007 ABA Model Code include:
- maintaining the “appearance of impropriety” standard as an independent basis for discipline, and emphasizing the fundamental notions of impartiality, integrity, and independence;
- adding domestic partners to the definition of “members of a judge’s family”;
- recognizing the propriety of some nontraditional approaches in problem-solving courts;
- encouraging judges to participate in activities promoting professionalism within the legal community and public understanding of the judicial system;
- expressly stating that a judge may accommodate pro se litigants to ensure fair hearings;
- explicitly permitting judges to consult with other judges under certain conditions;
- explicitly permitting judges, under some circumstances, to respond to allegations concerning the judge’s conduct in a case;
- forbidding judges from making pledges, promises, or commitments in connection with issues likely to come before the court, and requiring disqualification in a case if a judge made a public statement appearing to commit the judge to a particular result;
- eliminating the 1-year grace period during which a judge who belongs to a discriminatory organization may work to change the policies in lieu of resigning, and clearly stating that the rule does not apply to membership in religious organizations or the military;
- including a rule that a judge must take appropriate action, such as a confidential referral to an assistance program, if a lawyer’s or judge’s performance is impaired by alcohol, drugs, or a mental, emotional, or physical condition;
- including a rule requiring cooperation with disciplinary authorities;
- permitting judges to solicit members for organizations concerned with the legal system and allowing them to be guests of honor at those organizations’ fundraising events, and stating expressly that a judge does not violate the fundraising rules by volunteering goods or services at fundraising events;
- restructuring the rules about receipt of gifts and loans to address three tiers of gifts and loans—those a judge may never accept, those which may be accepted and not reported, and gifts which may be accepted but must be reported depending upon the value;
- adding a rule allowing judges to accept reimbursement of expenses for attendance at seminars only if the judge determines to do so would not undermine the judge’s independence, integrity, or impartiality and only if the transaction is reported;
- continuing to limit judges’ financial and business interests to managing their investments and operating closely held businesses;
- permitting all types of judicial candidates, partisan, non-partisan, and retention candidates, to contribute to parties and to candidates and to attend party and candidate events, but only when running;
- permitting retention judges to form committees at any time during the year of the retention election;
- including commentary to the new rule on political activities distinguishing permissible statements about legal, social, and political issues from impermissible pledges, promises, and commitments in connection with cases or controversies likely to come before a court; and,
- eliminating the prohibition against a candidate personally soliciting public support.
Among the changes to the ABA Model recommended by the Ethics Committee for the Indiana Code are:
- to not include a specific dollar amount triggering a judge’s absolute duty to disqualify when a lawyer has contributed to the judge’s campaign;
- to continue to omit from Indiana’s Code a rule permitting remitter of disqualification;
- to prohibit nepotism rather than requiring judges only to avoid it;
- to continue to prohibit broadcasting of proceedings;
- to specify that a judge does not violate the rule against acting as a character witness by writing a letter of recommendation, and to provide limited flexibility to the rule against testifying as a character witness only by appearing pursuant to a subpoena;
- to continue to permit judges to accept appointments to governmental commissions if approved by the Supreme Court;
- to exempt judges practicing law pursuant to military service from the prohibition against practicing law;
- to maintain the current rule in Indiana that judges may engage in business activities so long as they do not impair the integrity, impartiality, or integrity of the judiciary, still obligating judges to give precedence to their judicial duties and to not engage in any business activities which would interfere with judicial performance, lead to frequent disqualification, or involve the judge in frequent transactions with lawyers or litigants;
- to not require judges to report invitations to bar-related or charitable and civic functions as gifts;
- to permit nonpartisan judges to attend party functions on a nonpartisan basis at any time;
- to permit partisan judges to attend party functions and to contribute to political parties at any time;
- to continue to prohibit retention judges from attending party functions or contributing to political parties;
- to permit only partisan judges to endorse and attend functions for other political candidates running in the same election cycle;
- to permit judges to participate on a limited basis in family members’ campaigns;
- to clarify that a candidate for appointment to judicial office is bound by the limitations on political activities applicable to judges holding that office;
- to caution candidates for appointment to judicial office to exercise restraint in soliciting letters of recommendation for the appointments;
- to continue the rules that employees of nonpartisan and partisan judges may not run for or hold nonjudicial elective office or hold office in a party’s central committee and that employees of retention judges are bound by the rule applicable to the judges; and,
- to state clearly that employees who perform judicial functions are bound directly by the Code unless exempted under the Application section.
The Ethics Committee work was exhaustive, but it is only the first step towards amending Indiana’s Code. Your input is crucial. Please check the Supreme Court’s website at http://courts.IN.gov/code for links to the 2007 Model Code, the Committee’s Proposed Code, the Committee’s Report, a list of Committee members, and other related documents and information. Most importantly, study the Model Code and the Committee’s proposed Indiana Code, discuss it with your colleagues, and let the Ethics Committee and the Supreme Court know your thoughts and reactions. The Code of Judicial Conduct is more than a list of prohibited conduct; it should inform and guide you as you continue to make Indiana’s judiciary a great institution. Our readers—judges, lawyers, and court personnel—are in the best position to know if the proposed new Code is realistic, user-friendly, and fair. Please post your comments.