Ethics

Resource Guide

Ethics codes provide visible guidelines to clarify a court’s mission and values.  They also demonstrate a court’s commitment to the fair administration of justice.  Comprehensive ethics programs that include handbooks, periodic training, ethics hotlines, and procedures for anonymous reporting of misconduct strengthen a court’s response to ethical dilemmas.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.


Featured Resources

Gregory E. Mize & James Fletcher Judicial Ethics Considerations When Managing Multi-Jurisdiction Litigation. (2012).

This study offers comparative analysis of how major judicial ethics codes in the United States of America address four ethical considerations that can arise in the context of judicial cooperation in the management of multi-jurisdiction cases. It also offers charts showing correspondence and similarity between state code sections and model code sections, as well as tables showing the relevant sections of each state code concerning the four ethical considerations.

Bam, Dmitry Making Appearances Matter: Recusal and the Appearance of Bias. (2011). Brigham Young University Law Review.

Professor Bam claims persuasively that we in the field have been ineffectively emphasizing the substantive recusal standards and the actual recusal results in specific cases.  As he explains, “[f]ocusing on the final recusal decision, and considering appearances only at the time of that decision, places too much emphasis on an aspect of recusal that may not be so important, at least when it comes to public confidence in the impartiality and fairness of American courts."

Code of Conduct for United States Judges. This Code applies to United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the "Compliance" section.
Code of Judicial Conduct. (2012). District of Columbia Courts, Advisory Committee on Judicial Conduct.

The Rules of the Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances.

Thoennes, Karl and Peter Kiefer. Generations, Courts, and Ethics. (2012). Future Trends in State Courts.

How do different generations view their role in the court workplace? Answering this question, and others, could be crucial for making the courts more attractive as a career and increasing public trust and confidence in the judicial system.

Judicial Conduct

Meiring, Adrienne. Ethical Considerations of Using Social Networking Sites. (February 2010). Indiana Court Times, Vol 18, No. 6 Adrienne Meiring, Counsel to the Indiana Commission on Judicial Qualifications, authors this article addressing use of social networking sites and implications for judicial ethics.
Judicial Ethics Handbook. (2008). Judicial Education Center of New Mexico This comprehensive judicial ethics manual includes case law and code references with examples.
ABA Model Code of Judicial Conduct. (February 2007).  This Web site includes links to the most recent ABA Model Code of Judicial Conduct, an explanation of changes, and a table comparing the 2007 and 1990 codes of conduct.
Arkfeld, Louraine C. Ethics for the Problem-Solving Judge: The New ABA Model Code. (2007). Justice System Journal (Vol. 28, No. 3).

This article details the different role that judges in problem-solving courts play as opposed to traditional judges, and examines the 2007 ABA Model Code in reference to problem-solving courts, specifically the unique ethical dilemmas judges in these courtrooms are prone to face.

Tembeckjian, Robert H. Judicial Disciplinary Hearings Should Be Open. (2007). Justice System Journal (Vol. 28, No. 3).

This article examines the disciplinary process in place to deal with judges partaking in unethical behavior, arguing that these incidents should be dealt with publicly to ensure honesty and public knowledge, and discusses the adoption of "sunshine laws" by 35 states.

Goldschmidt, Jona. Judicial Ethics and Assistance to Self-Represented Litigants. (2007). Justice System Journal (Vol. 28, No. 3).

This article examines the course of progression courts have made in attempt to increase the access to justice for pro se litigants, arguing that the increase in the self-represented litigant population in the courts is a widespread and continuing trend and one that is reflected in rule changes enacted in the last decades.

 

Cooke, John S. Judicial Ethics Education in the Federal Courts. (2007). Justice System Journal (Vol. 28, No. 3).

This article discusses the Federal Judicial Center's goal of increasing the sensitivity of judges' in regards to ethical matters, and the effectivness of this goal implemented through the development of an ethics curricula for in-person programs and both hard-copy and online resources in addition to television programs.

Tacoma, Kenneth L., Honorable. Thanks, Mike. (November 2007). Michigan Bar Journal In this article, Judge Kenneth L. Tacoma discusses how one attorney approached him with an issue that caused him to reconsider established practices within his courtroom.
Professionalism Codes. American Bar Association This ABA resource lists professionalism codes that have been adopted by various states, local bar associations, and ABA entities for lawyers and judges.
Harrison, Mark I. The 2007 ABA Model Code of Judicial Conduct: Blueprint for a Generation of Judges. (2007). Justice System Journal (Vol. 28, No. 3).

This article describes the makeup, the procedures and the processes that lead to the founding of the ABA Joint Commission, which revised the ABA Model Code in 2007, as well as analyzes and discusses the significant changes from the previous Model Code regarding format, and proposed principle modifications.

Wasby, Stephen L. The Code of Judicial Condcut and Lawyers' Ethics: A Little Case Study. (2007). Justice System Journal (Vol. 28, No. 3).

This article examines how the lawyers' code of ethics and the code of judicial conduct work together to evaluate behavior of both lawyers and judges when cases of misconduct arise, through the analysis of the 1977 incident in the U.S. Court of Appeals for the 9th Circuit, where lawyers utilized ex parte communications to try to influence a case regarding the Truth in Lending Act and the Federal Reserve Board Rule Z.

 

Lievense, Andrew J. and Avern Cohn The Federal Judiciary and the ABA Model Code. (2007). Justice System Journal (Vol. 28, No. 3).

This article tackles the root and growth of the ABA Canons of Judicial Ethics, the resulting transformation of the Canons into the ABA Model Code of Judicial Conduct, and the application and adoption of the ABA Model Code by the federal judiciary in the twentieth century, claiming there is a profound divergence between the federal ethics rules and the ABA Model Code stemming from the 1990s, a trend that is predicted to continue into the future.

Howard, Robert M. The Limitations on Judicial Free Speech. (2007). Justice System Journal (Vo. 27, No. 3).

In examining the decision of the Judicial Council of the Second Circuit concerning the conduct of a judge, this article examines the balance between the right to free speech and the necessity of impartial judges.

Ostermiller, Peter L. The New ABA Judicial Code as a Basis for Discipline: Defending a Judge. (2007). Justice System Journal (Vol. 28, No. 3).

This article analyzes the 2007 ABA Model Code from the perspective of a lawyer who defends judges, arguing from the bias that overall the new code improves the process, while some of the problems from this viewpoint are identified and discussed.

Howard, Robert M. Weighing Judicial Conduct Against Free Speech: Mississippi Commission on Judicial Performance v. Wilkerson. (2006). Justice System Journal (Vol. 27, No. 1).

This note weighs judicial conduct against free speech in Mississippi where a county justice made some disparaging remarks about gays and lesbians.

Judicial Campaign Ethics

Gray, Cynthia. Developments Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002). (September 2008). Center for Judicial Ethics, American Judicature Society This resource tracks developments among state judicial ethics committees after Republican Party of Minnesota v. White
Raftery, William E. 2006 Judicial Election Litigation: A Post White Update. (2007). Justice System Journal (Vol. 28, No. 3).

This article examines the effects of Republican Party of Minnesota v. White during the 2006 election cycle, where White truly came into his own, analyzing the "pledges-and-promises," "commit," and "recusal" clauses, and discussing various cases, the relevant canons, the issues with standing to sue, and the outlook for future election cycles based on the findings from 2006.

 

Bopp, James Jr. and Anita Y. Woudenberg To Speak or Not to Speak: Unconstitutional Regulation in the Wake of White. (2007). Justice System Journal (Vol. 28, No. 3).

 

This article discusses the deabte over whether or not judicial candidates should voice their opinions on political issues, noting the discrepancy between the Supreme Cour ruling, Republican Party of Minnesota v. White and the state rules, known as "pledges-and-promises" clauses and "commits" clauses, and analyzes how the White decision has affected extrajudicial speech, as well as the responses from states and the ABA on the matter.

Judicial Campaign Ethics Handbook. (2007). New York State Advisory Committee on Judicial Ethics

This resource for judicial candidates addresses issues such as avoiding partisan political activity; becoming a candidate; political activity that is permissible; fund-raising and use of campaign funds; communicating with voters; involving friends, family and colleagues in judicial campaigning; and post-election fund-raising.

Morrison, Alan B. Judges and Politics: What to Do and Not to Do About Some Inevitable Problems. (2007). Justice System Journal (Vol. 28, No. 3).

This article discusses two of the most controversial and substantial 2007 changes to the ABA Model Code, the process of judicial election races, and the protocol for judges regarding political affiliation once in office, and analyzes lingering problems with the new Model Code.

Goldberg, Deborah. How Much Speech for Judges?. (2007). Justice System Journal (Vol. 28, No. 3).

This article analyzes contemporary jurisprudence regarding the amount of speech for judges, the lack of clarity in current case law, the institutional role of judges that inherently creates controversy, the changes that have been made, including legislative ramifications, and the responses of affected people, organizations, institutions, regarding extrajudicial speech.

Eakins, Keith Rollin and Karen Swenson An Analysis of States' Responses to Republican Party of Minnesota v. White. (2007). Justice System Journal (Vol. 28, No. 3).

This article examines how the various state Supreme Courts have implemented the decision in Republican Party v. White, analyzing the disparity in responses by court level, the variety of contributing factors shaping states' reactions, and the effects of the White decision and this widespread spectrum of responses.

 

Rottman, David B. Campaign Oversight Committee and the Challenge of Perpetuating Ethical Judicial Elections. (2007). Justice System Journal (Vol. 28, No. 3).

This article contemplates the role and the contribution of judicial campaign oversight committees, in regards to upholding ethical conduct through the process of judicial elections and historical examples of how these committees have participated in the past.

Dann, Mike, David Rottman and Lynn Grimes. Focus: Reforming State Judicial Elections. (January 2002). Civil Action, Vol 1, No 2.

This issue highlights the "Call To Action" statement that came out of the Summit on Improving Judicial Selection.

Recusal Removal and Disqualification

Hurtwitz, Mark S. Removing Judges: The Case of Immigration Judges Jeffrey Chase and Noel Ferris. (2010). Future Trends in State Courts.

In the past few years the Second Circuit took the extraordinary step of removing two immigrant judges from case for evincing inappropriate behavior and conduct toward asylum seekers in their courts. As a consequence, in each case the Second Circuit vacated and remanded these judges' decisions and ordered that further proceedings continue from different immigration judges. While the two cases are factually different, and indeed the behavior of one of these immigrant judges seems somewhat more egregious than the other, they are remarkable in that the removal of judges for inappropriate conduct is not all that common a remedy.

Abramson, Leslie W. Judicial Disclosure and Disqualification: The Need for More Guidance. (2008). Justice System Journal (Vol. 29, No. 1).

The article discusses the stipulations of the 2007 ABA Model Code concerning disqualification due to intolerable conflicts of interest, and details two ways to resolve these conflicts of interest through judicial disclosure, and sanctions for disqualifying conditions, while arguing the need for more guidance in the Code regarding the issue.

Sample, James et al. Fair Courts: Setting Recusal Standards. (2008). Brennan Center for Justice, New York University School of Law This paper discusses increasing threats to the impartiality of state courts, describes the trends undermining public confidence in the courts and offers ten proposals to strengthen the fairness and legitimacy of state recusal systems.
Howard, Robert M. I'm Sorry, Please Recuse Me Before I Hurt Myself. (2007). Justice System Journal (Vol. 28, No. 3).

This article discusses clauses and judges' responsibility to ensure fairness and impartiality, analyzing the lack of clarity surrounding recusal requirements, the lack of formal disqualification procedures in many states, the statute laying out recusal, the system's dependence on self-recusal and the difficulty with this, and finally judicial misconduct due to the failure to recuse and what behaviors cross the line of ethical conduct.

Hurwitz, Mark S. Judges and the Rule of Necessity: Ignacio and the Ninth Circuit's Judges. (2007). Justice System Journal (Vol. 28, No. 2).

This article discusses the rule of necessity as applied in Ignacio when all the judges of the Ninth Circuit were listed as defendants thus forcing some of the judges to remain on the case.

 

Clark, Tom. A Note on the Moore Cases and Judicial Administration. (2006). Justice System Journal (Vol. 26, No. 3).

This article examines under what circumstances a justice of a state supreme court can be removed and on what grounds can members of that same judiciary exercise authority to sanction and remove any such justice.

Methods of Removing State Judges. American Judicature Society This article provides an overview of the methods of removing state judges and how those methods differ from state to state.

Judicial Conduct Organizations

Gray, Cynthia. Judicial Ethics Advisory Committees. (2008). Future Trends in State Courts.

Judges often need advice about whether their actions both on and off the bench comply with the highest standards of judicial ethics. Many states use judicial ethics advisory committees to provide judges with that guidance.

Gray, Cynthia. How Judicial Conduct Commissions Work. (2007). Justice System Journal (Vol. 28, No. 3).

This article details the process judicial conduct organizations employ to investigate, prosecute, and adjudicate complaints of judicial misconduct, discussing sanctions, confidentiality, committee membership, supreme court review, and the high dismissal rate.

Hellman, Arthur D. Judges Judging Judges: The Federal Judicial Misconduct Statutes and the Breyer Committee Report. (2007). Justice System Journal (Vol. 28, No. 3).

The article considers the system utilized by the judiciary to deal with complaints of judicial misconduct, and examines the findings of a committee chaired by Supreme Court Justice Stephen Breyer, in the aftermath of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, the 2002 amendments, and the addition to the United States Code, Chapter 16.

David B. Rottman et al. Table 11 - Judicial Discipline: Investigating and Adjudicating Bodies. (2006). State Court Organization, 2004. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics This 50-state summary identifies the judicial disciplinary investigating body and its composition, the adjudicating body, the body with which any appeals are filed, the final disciplining body, and the point at which reprimands are made public.
Silverman, Scott J. National Survey of Judicial Ethics Advisory Organizations. Conference of County Court Judges of Florida A compilation of state statutes and rules for committees, commissions, and panels charged with rendering ethical opinions on judicial conduct.
State Judicial Conduct Organizations. American Judicature Society This AJS Web site lists the organizations from each state established to investigate allegations of misconduct by state court judges.
Judicial Ethics Advisory Committees. American Judicature Society This American Judicature Society Web site provides links to state judicial ethics advisory committees that have Web sites.

Court Staff Ethics

Your Role as a Court Employee. (2007). Michigan Judicial Institute A self-directed, online course that includes guidance on making ethical decisions.
Lochner, Todd. The Judge and the Discharged Clerk Revisited. (2005). Justice System Journal (Vol. 26, No. 2).

This article discusses First Amendment Rights of judges' clerks who are terminated from their position because of caustic comments they make to the judges who employ them in the case of Sheppard v. Beerman which involved such a situation.

 

Rottman David. Call To Action With Commentary. (2002).

The Call To Action was issued by the participants in the National Summit on Improving Judicial Selection, held on December 8-9, 2000 in Chicago, Illinois. This new edition of the Call To Action provides a commentary that introduces the four sections of the Call To Action and provides background on the 20 recommendations.

Arkfeld, Honorable Louraine. Ethics: Trends and Precautions. (Fall 2002).

This presentation was given at the National College of Probate Judges' 2002 Fall Conference. It discusses the ABA Model Canons and raises questions on judge's participation in volunteer work, fundraising activities, and educational programs funded by businesses, foundations or other non-governmental entities.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks. (2002). Federal Judicial Center

This publication covers confidentiality, conflicts of interest, outside legal activities, dealings with prospective employers, outside professional, social and community activities, and receipt of gifts and honoraria.  It also provides an ethics checklist for federal judicial law clerks.

Kiefer, Peter and Karl Thoennes. CourtEthics.Org. This resource, maintained by the authors of the "A Question of Ethics" column in NACM's popular The Court Manager quarterly publication, provides links to national and international codes of ethics and ethics commentary specific to the court environment. 
Greacen, John. Legal Information vs. Legal Advice - - Developments in the Last Five Years. American Judicature Society In this article, the author discusses responses to his 1995 article on the difference between legal advice and legal information.

Ethics Codes for Court Staff

Model Code of Conduct for Nonjudicial Employees. (2008). American Judicature Society AJS provides a summary and scope for a model code of conduct for nonjudicial employees.  The scope includes: guidelines for abuse of position, confidentiality, conflict of interest, political activities, performance of duties, and court managers. 
Model Code of Conduct for Court Professionals. (October 2007). National Association for Court Management Recently approved by NACM's Board, this model code of ethics is geared toward court professionals.  The code includes four canons and addresses issues regarding impropriety and the appearance of impropriety, impartiality and diligence, outside activities and conflict of interest, and inappropriate political activity.
Romberger, Wanda and Madelynn Herman. Court Interpreter Ethics Programs: Where We Are and Where We Should Be Going?. (2005). Future Trends in State Courts.

This article addresses the needs for court interpreter ethics programs, strategies for implementing such programs as well as information on existing court interpreter ethics programs.

Code of Ethics and Professional Responsibilities. National Association of Judiciary Interpreters and Translators Outlines the eight canons of NAJIT:  accuracy, impartiality and conflict of interest, confidentiality, limitations of practice, protocol and demeanor, maintenance and improvement of skills and knowledge, accurate representation of credentials, and impediments to compliance.
Code of Ethics for Interpreters. Wisconsin Court System

This Web site outlines the Wisconsin code and provides commentary.  Topics include: accuracy and completeness, representation of qualifications, impartiality and avoidance of conflict of interest, professional demeanor, confidentiality, restriction on public comment, scope of practice, assessing and reporting of impediments to performance, duty to report ethical violations, and professional development.

Code of Ethics for the Court Employees of California. California Judicial Council This California code provides guidelines for twelve tenets of employee ethics:  impartiality, personal integrity, professionalism, confidentiality, impropriety, appearance of impropriety, prohibition against giving legal advice, duty to serve, competency, discrimination, harassment, and technology.
U.S. Federal Courts Codes of Conduct for Judicial Employees. U.S. Administrative Office of the Courts These Web pages provide the code of conduct for judicial employees of the U.S. Courts.

Ethics Organizations

ABA Center for Professional Responsibility. American Bar Association This Web site provides guidance and links that address many of the legal profession's ethical dilemmas.  Task forces and standing committees within the Center periodically produce reports, recommendations and revised rules.
American Inns of Court. AIC is designed to improve the skills, professionalism and ethics of the bench and bar.  An American Inn of Court is an amalgam of judges, lawyers, and in some cases, law professors and law students.  Each Inn meets approximately once a month to hold programs and discussions on matters of ethics, skills and professionalism.
American Judicature Society. The AJS promotes judicial ethics education, as well as a fair and effective system of judicial discipline.  It provides a national directory of judicial conduct organizations, a clearinghouse service for data concerning judicial discipline, descriptions of courses available through its National College on Judicial Conduct and Ethics, and a selection of in-depth articles, such as "An Ethics Guide for Part-Time Lawyer Judges“ and “Key Issues in Judicial Ethics."
Center for Ethics in Government. National Council for State Legislatures Maintained by the NCSL, the Center Web site includes links to state ethics laws, ethics-training resources and ethics committees.
United States Office of Government Ethics.

The OGE provides information on the latest developments in the Office of Government Ethics, laws and regulations, advisory opinions, training modules and seminars, forms, and publications.  Technical assistance for ethics is also available.

Attorney Ethics

McCauley, James M. Current Ethical and Unauthorized Practice Issues Relating to Endeavors to Assist Pro Se Litigants. (December 2002). Access to Legal Services This article discusses unauthorized practice of law considerations, ethical concerns with regard to unbundling legal services, and legal advice vs. legal information.
ETHICSearch. Center for Professional Responsibility, American Bar Association This Web site provides links to relevant ABA rules and opinions and other resources.  Lawyers may also e-mail their ethics questions and receive citations to legal authorities that should help answer their questions. 
National Organization of Bar Council. This organization provides a semiannual compilation of ethics cases and includes the complete staff roster of every state ethics agency and a collection of links to notable ethics sites.
Task Force on the Model Definition of the Practice of Law. Center for Professional Responsibility, American Bar Association This Task Force Web site includes the final recommendation and report on the definition of the practice of law, and maintains links to other useful information, such as state by State Definitions of the Practice of Law, and correlating codes.

Lawyer Assistance Programs

Edwards, Timothy D. and Gregory J. Van Rybroek. Addiction and Attorneys: Confronting the Denial. (August 2007). Wisconsin Lawyer, 80, No. 8 Lawyers and other professional groups are becoming increasingly open about discussing addiction and other mental health issues.  In this article, the authors debunk myths about addiction, and explain how addiction affects lawyers and what treatment options are available for recovery.
Clark, John W. We`re from the Bar, and We`re Here to Help You. (October 2004). GPSolo, 21, No. 7 This is a brief history of the lawyer-assistance program (LAP) and a description of the many services available through such programs. 
ABA Commission on Lawyer Assistance Programs. American Bar Association The Commission's Web site features links to its newsletter, a Directory of Local Programs with contact information and Internet addresses for Lawyer Assistance Programs in all 50 states, and Chemical Dependency and Self-Help Sites to help lawyers and others with dependency issues or other needs.
Lawyers Helping Lawyers. This Virginia program provides confidential, non-disciplinary help for lawyers, judges, law students, and their family members with substance abuse or mental health problems.
Lawyers with Depression.com. This Web site is dedicated to helping laywers and judges suffering from depression address the peculiarities of legal practice or sitting on the bench while taking steps to address depression.