WASHINGTON - Judges should not accept any gifts, including
travel expenses, from "any person or entity whose interests
are likely to come before the judge in the foreseeable future,"
the American Bar Assn. says in a draft of its new ethics rules
Moreover, judges should not accept travel, food or lodging
if doing so would "cast reasonable doubt on [their] capacity
to act with impartiality, integrity or independence,"
the proposed rules say.
The ABA's code of conduct serves as a model for judges, and
it is followed by most state courts and the federal judiciary.
State and federal judges who violate the code can be reprimanded
by higher courts.
Supreme Court justices are not governed by the codes of conduct
promulgated by the ABA or the federal judicial system. However,
the justices say they consult these rules as a guide.
The proposal to tighten the rules on gifts and travel grew
out of news reports of judges accepting free trips to resorts
for seminars sponsored by business groups and of Justice Antonin
Scalia's duck-hunting trip with Vice President Dick Cheney.
In both instances, critics said the trips cast doubt on whether
the judges would be perceived as impartial.
"This is ultimately the judge's decision, but our watchwords
are 'independence' and 'impartiality,' " said Mark I.
Harrison, a Phoenix lawyer who led the ABA committee that
revised the rules. "We hoped this will cause judges to
be more thoughtful and more careful."
In early January, Justice Scalia, his son and his son-in-law
flew with Cheney on Air Force Two to southern Louisiana to
go duck hunting at a private camp. The justice said later
that none of them "saved a cent" by flying aboard
Cheney's plane because Scalia and his party had purchased
round-trip tickets, but used only the New Orleans-Washington
Scalia also said the hunting trip had been planned well in
advance, but it took place just three weeks after the Supreme
Court voted to take up Cheney's appeal in a case involving
access to the records of a task force, headed by the vice
president, on the administration's energy policy.
When asked to step aside, Scalia refused, asserting that
the case involved the office of the vice president, not Dick
In late June, the high court, in a 7-2 decision, set aside
a judge's order that required the White House to turn over
documents on who met with the task force. The ruling put off
further action in the case until after the November election.
While voting with the majority, Scalia and Justice Clarence
Thomas said in a separate opinion that they favored throwing
out the lawsuit that challenged the secrecy surrounding the
energy policy group.
In working on the proposed rules, the ABA's lawyers said
they wanted to warn judges to think in advance about possible
conflicts of interest, rather than face questions later about
the possible need to step aside in a case.
Scalia and other members of the Supreme Court say they are
especially reluctant to step aside in pending cases because
the loss of one justice could result in a 4-4 tie.
The rules make it clear that judges may accept "ordinary
social hospitality" from friends and family members.
They also may accept a reimbursement to attend a conference
or seminar that is "devoted to the improvement of the
law." However, judges should look closely at who is paying
for the seminar, the ABA said.
A university or a law school raises no concern, but it is
a different matter if the sponsors represent a particular
interest or industry, the panel said.
In recent years, Community Rights Counsel, a public interest
group based in Washington, has published reports showing that
some federal judges have attended free weeklong seminars sponsored
by business groups at resorts. Those same groups have advocated
changes in the law, such as the strengthening of property
rights and the weakening of environmental protection rules.
Judges should not accept anything of value from "an
organization whose members comprise or frequently represent
the same side in litigation," one draft rule says.
This same rule "prohibits a judge from accepting gifts,
even of a nominal value, from people who are or will be substantively
involved in a matter before the judge." Further, it warns
judges "to consider whether a donor, or the donor's interest,
might come before the judge in the foreseeable future."
The ABA panel says this new rule could be enforced, in part,
by requiring judges to file a report every three months listing
expenses or reimbursements of above $100 from an outside source.
Most judges, including members of the Supreme Court, now file
annual disclosure reports.
The authors of the draft rules say quarterly reports could
be put on court websites so lawyers and the public would be
able to see whether judges were accepting questionable reimbursements
from parties in pending cases.
Northwestern University law professor Steven Lubet applauded
the group's effort to forbid many gifts to judges. "It
is not as strict as I might have preferred, but it's an admirable
effort to tighten the rules," he said.
Others said the ABA should go further and make it clear that
judges may not accept free trips to law conferences sponsored
by business groups.
"I'm a hawk on this. A trip to Arizona or Hawaii in
the winter can run to $1,000 or more, and I don't think a
judge should go if it is funded by a company," said New
York University law professor Stephen Gillers.
The ABA last revised its model code of conduct for judges
15 years ago. It says it hopes to get comments on the draft
in the next few months so final rules can be adopted by summer.