Lawyer Group Raising Bar on Gifts to Judges

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 for judges.

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 portion.

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 Cheney personally.

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.