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AMERICAN BAR ASSOCIATION
matter at once to the proper investigating and disciplinary authorities.
12. Appointees of the Judiciary and Their Compensation.
Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments.
While not hesitating to fix or approve just amounts, he should be most scrupulous in granting or approving compensation for the services or charges of such appointees to avoid excessive allowances, whether or not excepted to or complained of. He cannot rid himself of this responsibility by the consent of counsel.
13. Kinship or Influence.
A judge should not act in a controversy where a near relative is a party; he should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person.
A judge should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor by apprehensive of unjust criticism. 15. Interference in Conduct of Trial.
A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examining of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.
Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone.
He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.
16. Ex parte Applications.
A judge should discourage ex parte hearings of applications for injunctions and receiverships where the order may work detriment to absent parties; he should act upon such ex parte applications only where the necessity for quick action is clearly shown; if this be demonstrated, then he should endeavor to counteract the effect of the absence of opposing counsel by a scrupulous cross-examination and investigation as to the facts and the principles of law on which the application is based, granting relief only when fully satisfied that the law permits it and the emergency demands it. He should remember that an injunction is a limitation upon the freedom of action of defendants and should not be granted lightly or inadvisedly. One applying for such relief must sustain the burden of showing clearly its necessity and this burden is increased in the absence of the party whose freedom of action is sought to be restrained even though only temporarily.
17. Ex parte Communications.
A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.
While the conditions under which briefs of argument are to be received are largely matters of local rule or practice, he should not permit the contents of such brief presented to him to be concealed from opposing counsel. Ordinarily all communications of counsel to
the judge intended or calculated to influence action should be made known to opposing counsel.
Delay in the administration of justice is a common cause of complaint; counsel are frequently responsible for this delay. A judge, without being arbitrary or forcing cases unreasonably or unjustly to trial when unprepared, to the detriment of parties, may well endeavor to hold counsel to a proper appreciation of their duties to the public interest, to their own clients, and to the adverse party and his counsel, so as to enforce due diligence in the dispatch of businesss before the court. 19. Judicial Opinions.
In disposing of controverted cases, a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooked serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion of arbitrary conclusion, promotes confidence in his intellectual integrity and may contribute useful precedent to the growth of the law.
It is desirable that Courts of Appeals in reversing cases and granting new trials should so indicate their views on questions of law argued before them and necessarily arising in the controversy that upon the new trial counsel may be aided to avoid the repetition of erroneous positions of law and shail not be left in doubt by the failure of the court to decide such questions.
But the volume of reported decisions is such and is so rapidly increasing that in writing opinions which are to be published judges may well take this fact into consideration, and curtail them accordingly, without substantially departing from the principles stated above.
It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusions and the consequent influence of judicial decision. A judge should not yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal. Except in case of conscientious difference of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort.
20. Influence of Decisions Upon the Development of the Law.
A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of law and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may become a precedent unsettling accepted principles and may have detrimental consequences beyond the immediate controversy. He should administer his office with a due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law.
21. Idiosyncrasies and Inconsistencies.
Justice should not be moulded by the individual idiosyncrasies of those who administer it. A judge should adopt the usual and expected method of doing justice, and not seek to be extreme or peculiar in his judg ments, or spectacular or sensational in the conduct of the court. Though vested with discretion in the imposition of mild or severe sentences he should not compel persons brought before him to submit to some himiliating act or discipline of his own devising, without authority of law, because he thinks it will have a beneficial corrective influence.
In imposing sentence he should endeavor to conform to a reasonable standard of punishment and should not seek popularity or publicity either by exceptional severity or undue leniency.
In order that a litigant may secure the full benefit of the right of review accorded to him by law, a trial judge should scrupulously grant to the defeated party opportunity to present the questions arising upon the trial exactly as they arose, were presented, and decided, by full and fair bill of exceptions or otherwise: any failure in this regard on the part of the judge is peculiarly
CANONS OF JUDICIAL ETHICS
worthy of condemnation because the wrong done may be irremediable.
A judge has exceptional opportunity to observe the operation of statutes, especially those relating to practice, and to ascertain whether they tend to impede the just disposition of controversies; and he may well contribute to the public interest by advising those having authority to remedy defects of procedure, of the result of his observation and experience.
24. Inconsistent Obligations.
A judge should not accept inconsistent duties; nor incur obligations, pecuniary or otherwise, which will in any way interfere or appear to interfere with his devotion to the expeditious and proper administration of his official functions.
25. Business Promotions and Solicitations for Charity. A judge should avoid giving ground for any reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute, either to the success of private business ventures, or to charitable enterprises. He should, therefore, not enter into such private business, or pursue such a course of conduct, as would justify such suspicion, nor use the power of his office or the influence of his name to promote the business interests of others; he should not solicit for charities, nor should he enter into any business relation which, in the normal course of events reasonably to be expected, might bring his personal interest into conflict with the impartial performance of his official duties.
26. Personal Investments and Relations.
A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in the court; and, after his accession to the Bench, he should not retain such investments previously made, longer than a period sufficient to enable him to dispose of them without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties.
He should not utilize information coming to him in a judicial capacity for purposes of speculation; and it detracts from the public confidence in his integrity and the soundness of his judicial judgment for him at any time to become a speculative investor upon the hazard of a margin.
27. Executorships and Trusteeships.
While a judge is not disqualified from holding executorships or trusteeships, he should not accept or continue to hold any fiduciary or other position if the holding of it would interfere or seem to interfere with the proper performance of his judicial duties, or if the business interests of those represented require investments in enterprises that are apt to come before him. judicially, or to be involved in questions of law to be determined by him.
28. Partisan Politics.*
While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another. He should avoid making political speeches, making or soliciting payment of assessments or contributions to party funds, the public endorsement of candidates for political office and participation in party conventions.
He should neither accept nor retain a place on any party committee nor act as party leader, nor engage generally in partisan activities.
Where, however, it is necessary for judges to be nominated and elected as candidates of a political party, nothing herein contained shall prevent the judge from attending or speaking at political gatherings, or from making contributions to the campaign funds of the party that has nominated him and seeks his election or reelection.
• Amended August 31, 1933 and September 20, 1950.
A judge should abstain from performing or taking part in any judicial act in which his personal interests are involved. If he has personal litigation in the court of which he is judge, he need not resign his judgeship on that account, but he should, of course, refrain from any judicial act in such a controversy.
30. Candidacy for Office.*
A candidate for judicial position should not make or suffer others to make for him, promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he should not announce in advance his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that if chosen, he will administer his office with bias, partiality or improper discrimination.
While holding a judicial position he should not become an active candidate either at a party primary or at a general election for any office other than a judicial office. If a judge should decide to became a candidate for any office not judicial, he should resign in order that it cannot be said that he is using the power or prestige of his judicial position to promote his own candidacy or the success of his party.
If a judge becomes a candidate for any judicial office, he should refrain from all conduct which might tend to arouse reasonable suspicion that he is using the power or prestige of his judicial position to promote his candidacy or the success of his party.
He should not permit others to do anything in behalf of his candidacy which would reasonably lead to such suspicion.
31. Private Law Practice.
In many states the practice of law by one holding judicial position is forbidden. In superior courts of general jurisdiction, it should never be permitted. In inferior courts in some states, it is permitted because the county or municipality is not able to pay adequate living compensation for a competent judge. In such cases one who practises law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success.
He should not practise in the court in which he is a judge, even when presided over by another judge, or appear therein for himself in any controversy.
If forbidden to practise law, he should refrain from accepting any professional employment while in office. He may properly act as arbitrator or lecture upon or instruct in law, or write upon the subject, and accept compensation therefor, if such course does not interfere with the due performance of his judicial duties, and is not forbidden by some positive provision of law. 32. Gifts and Favors.
A judge should not accept any presents or favors from litigants, or from lawyers practising before him or from others whose interests are likely to be submitted to him for judgment.
33. Social Relations.
It is not necessary to the proper performance of judicial duty that a judge should live in retirement or seclusion; it is desirable that, so far as reasonable attention to the completion of his work will permit, he continue to mingle in social intercourse, and that he should not discontinue his interest in or appearance at meetings of members of the Bar. He should, however, in pending or prospective litigation before him be particularly careful to avoid such action as may reasonably tend to awaken the suspicion that his social or business relations or friendships constitute an element in influencing his judicial conduct.
34. A Summary of Judicial Obligation.
In every particular his conduct should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private political or partisan influences; he should administer justice according to law, and deal with his appointments as a public trust; he should not allow other affairs or his private interests to interfere
As amended August 31, 1933.
AMERICAN BAR ASSOCIATION
with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
35. Improper Publicizing of Court Proceedings.*
Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted.
Provided that this restriction shall not apply to the broadcasting or televising, under the supervision of the
Adopted September 30, 1937; amended September 15, 1952 and February 5, 1963.
court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.
36. Conduct of Court Proceedings.*
Proceedings in court should be so conducted as to reflect the importance and seriousness of the inquiry to ascertain the truth.
The oath should be administered to witnesses in a manner calculated to impress them with the importance and solemnity of their promise to adhere to the truth. Each witness should be sworn separately and impressively at the bar or the court, and the clerks should be required to make a formal record of the administration of the oath, including the name of the witness. • Adopted September 30, 1937.
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereupon to stir up strife and put money in his pocket? A moral tone ought to be enforced in the profession which would drive such men out of it."
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
COMPOSITION AND JURISDICTION*
"Ethics and Professional Responsibility
This Committee, which shall consist of eight members, shall:
(1) Express its opinion, on its own initiative or when requested to do so by any member of the bar or by any officer or committee of a state or local bar association, concerning proper professional or judicial conduct, provided that an opinion shall not be issued on questions pending before courts. An opinion shall be rendered only upon the concurrence of a majority of the members of the Committee.
(2) Make its issued opinions known to the legal pro
• As defined by the By-Laws of the American Bar Association, Article X, Section 7(i), adopted August, 1969. Formerly called the Standing Committee on Professional Ethics.
1. The name of the Committee is the Standing Committee on Ethics and Professional Responsibility of the American Bar Association.
2. The purpose of the Committee is to advise members of the bar upon the ethical propriety of their contemplated professional or judicial conduct, to advise officers and appropriate committees of bar associations as to the ethical propriety of past, as well as contemplated, professional or judicial conduct of members of such associations and others under their jurisdiction, and to recommend appropriate amendments to the Code of Professional Responsibility and the Canons of Judicial Ethics.
3. The Committee will issue opinions of two kinds: Formal Opinions and Informal Opinions. Formal Opinions are opinions upon subjects which the Committee determines to be of widespread interest and will be published in full in the American Bar Association Journal and subsequently in bound volumes. Informal Opinions will be issued to the inquirers, in letter form, will be summarized in the American Bar Association Journal, and subsequently will, with identification removed, be made available in full upon request.
4. A later Formal Opinion overrules earlier Formal Opinions or Informal Opinions with which it is necessarily in conflict. A later Informal Opinion overrules earlier Informal Opinions with which it is necessarily in conflict, but does not overrule an earlier Formal Opinion.
5. Upon written request, the Committee will issue an Informal Opinion to any member of the bar who is a member of the American Bar Association on the propriety of professional or judicial conduct in which he proposes to engage when the proposed conduct is specifically described in the inquiry. The Committee will not issue an opinion for the benefit of a non-member of
Adopted October 17, 1969, with an effective date of January 1, 1970; as amended February 20, 1970. ... This sentence of Rule 6 shall be in effect only until January 1, 1972.
fession by periodic publication in summary or complete form and by providing copies of opinions upon request, to any member of the bar.
(3) Upon request, advise or assist state and local bar associations in their activities with respect to the interpretation of the Code of Professional Responsibility and the Canons of Judicial Ethics.
(4) Make recommendations for amendment to or clarification of the Code of Professional Responsibility or the Canons of Judicial Ethics when they appear to be advisable.
(5) Adopt and amend such rules as it may from time to time deem desirable concerning the methods and procedures to be used in expressing opinions. Such rules and amendments shall be effective when approved by the Board of Governors. The rules may be altered or abrogated by the Board of Governors or the House of Delegates."
the American Bar Association except on request of his state or local bar association. An Informal Opinion will be based solely upon the facts as stated in the inquiry, and if those facts are considered by the Committee to be inadequate for the purpose, the inquirer will be so advised.
6. The Code of Professional Responsibility, as amended from time to time, will provide the standard to be applied by the Committee in formulating opinions pertaining to professional conduct. Where the standard of conduct under that Code differs from that established by the preexisting Canons of Professional Ethics of the American Bar Association, this will be stated in the opinion.*** Opinions on judicial conduct will be issued under existing Canons of Judicial Ethics of the American Bar Association as amended from time to time.
7. Opinions of the Committee issued prior to the effective date of the Code of Professional Responsibility shall continue in effect to the extent that they are not inconsistent with a specific provision of that Code and may be used as an appropriate guide in interpreting the Code of Professional Responsibility.
8. All opinions shall be adopted at a called meeting by majority vote of the members of the Committee except that between meetings, the Committee may adopt Formal Opinions by a vote of six members and Informal Opinions by a vote of five members, unless a member specifically requests that the opinion be held for action at a called meeting of the Committee.
9. The Committee will not issue opinions on questions of law, or pertaining to conduct which is the subject of pending litigation.
10. The Committee will not issue opinions involving past conduct or the conduct of someone other than the inquirer unless the request is from an ethics, grievance or similar committee, or chief officer of a bar association of which the person whose conduct is the subject of the inquiry is a member or to which he has formally applied for membership. In determining whether such conduct is involved, the Committee may look to outside sources.
STANDING COMMITTEE ON PROFESSIONAL GRIEVANCES
COMPOSITION AND JURISDICTION *
This Committee shall consist of seven members chosen at large from the members of the Association. The Committee shall:
(1) Formulate and recommend methods for the effective enforcement of ethics and high standards of conduct in the practice of law as a profession; develop and recommend improved disciplinary methods and procedures; cooperate with the disciplinary tribunals or committees established by bar associations, courts or other public authorities.
(2) (a) upon their request advise or assist state and local bar associations in their activities in respect to the professional conduct of lawyers; (b) make such investigations of professional conduct and abuses in connection with the practice of law as it may deem advisable or as may be directed by the House of Delegates or the Board of Governors;
(c) furnish information and make recommendations on the foregoing subjects to the House of Delegates, the Board of Governors or the appropriate Committees and Sections of the Association;
An defined by the By-Laws of the American Bar Association, Article X, Section 7(w). Amended August 1961 and August 1969.
I. Jurisdiction of the Committee
provided however, that this Committee may refer any complaint for investigation, hearing and report to the appropriate tribunal or committee within a state, or to the appropriate state or local bar association.
(3) Be authorized to consider all information as to the professional conduct and the judicial conduct of any member of the Association (excepting matters of judicial decision or judicial discretion), and to proceed in accordance with rules adopted and approved, as provided in subparagraph (4) of this section, upon its own motion or upon complaint. After a hearing thereon, conducted by this Committee at which the accused member shall have been given reasonable opportunity to be present and be heard in his own defense, this Committee only shall recommend to the Board of Governors the censure, public or private, or the suspension or expulsion of the member; and the censure, suspension or expulsion shall become effective on approval of these recommendations by the Board of Gov
(4) Be authorized to adopt such rules as it may deem desirable concerning the methods and procedures to be used in making investigations, in the hearing of complaints and the taking of testimony; such rules not to become effective until approval by the Board of Governors. The rules may be altered or abrogated by the House of Delegates."
RULES OF PROCEDURE *
The Committee's jurisdiction is limited to members of the Association.
1. Any complaint against a member of the Association alleging unethical conduct may be investigated by the Committee or may be referred by it to the appropriate state or local bar association, court or other public authority. 2. A complaint shall be in writing and shall state the facts in sufficient detail to afford the respondent an opportunity to reply thereto. If the complainant is a lawyer, the provision of the Code of Professional Responsibility or the Canons of Judicial Ethics, as the case may be, alleged to have been violated shall be specified. 3. When jurisdiction is retained by the Committee, a copy of the complaint shall be furnished promptly to the respondent, who then shall have thirty (30) days to reply, answering each allegation of the complaint.
4. If the Committee finds that probable cause exists that the complaint is meritorious, the complaint shall be referred to a special ad hoc hearing panel of three members of the Association, to be appointed by the President; however, the respondent may waive his right to the appoint
Adopted February 20, 1970.
ment of such a hearing panel and request a hearing by a subcommittee of the Committee, consisting of one or more members of the Committee appointed by the chairman. The hearing body created pursuant to either of these methods shall not be bound by the ordinary rules of evidence, but the substantive rights of the respondent and the complainant shall at all times be protected. The findings of the hearing body shall be submitted in writing to the Committee for such recommendation to the Board of Governors of the Association as the Committee may determine.
5. Any recommendation of the Committee shall be by majority vote of the Committee.
6. Upon dismissal of a complaint, the Committee shall give prompt notification to both the complainant and the respondent.
7. Upon reaching a decision other than dismissal of the complaint, the Committee shall submit its recommendation in writing to the Board of Governors, with a copy to the respondent. Notice to the complainant shall await final action by the Board of Governors.
8. Until final disposition of a complaint, all matters relating thereto shall be confidential.
The entire record of a complaint over which the Committee retains jurisdiction shall be preserved in the Committee's files at the American Bar Center.