Mandatory Code of Ethics for State Judges Unveiled : Law: Rules ban joining clubs--except Boy Scouts--that discriminate against gays. Gifts from lawyers also barred.

TIMES LEGAL AFFAIRS WRITER

The California Supreme Court unveiled a mandatory code of ethics for state judges Thursday, including a ban on joining clubs that discriminate against gays and a prohibition against accepting gifts--even a lunch--from anyone with business before their court.

The code would end the once-common practice of lawyers buying lunch for judges and would require judges to make broad disclosures of even casual friendships and other relations with attorneys and litigants in cases they hear.

"The judges are well-aware that this was going to be mandatory and that their conduct will be scrutinized more closely than in the past," said Court of Appeal Justice Charles S. Vogel, who headed a panel that wrote the new code. "I think they can live with all these rules."

Although some judges may bristle at the ban on gifts, especially meals, Vogel was unconcerned. "I don't think any judge is going to go hungry," he said.

Judges previously governed themselves under a voluntary code of ethics. But Proposition 190, a judicial reform measure passed by voters in 1994, required the state high court to adopt the first set of mandatory rules for all state judges.

The new code adds sexual orientation to a judicial ban on membership in clubs that discriminate on the basis of race, gender and religion.

But the rule is likely to disappoint some activists because it exempts the Boy Scouts of America, a group that some gays wanted included, and other nonprofit youth and religious groups and military organizations.

The court's announcement of the code came on the same day the justices unanimously decided that the California Commission on Judicial Performance imposed too severe a punishment on a Santa Barbara judge.

The commission, which will be enforcing the new code, recommended publicly censuring the judge after it found that he failed to cooperate immediately in a police investigation, was rude to litigants and made an anti-Semitic remark.

But Vogel said the court's decision did not necessarily send a mixed message because it was made under the old advisory code. The new code governs conduct off and on the bench and requires judges to report misconduct by other judges and attorneys, he noted.

"Maybe they didn't feel they had the rules," said Vogel, who had not yet read Thursday's court decision.

While balking at the severity of discipline for the Santa Barbara judge, the Supreme Court approved new restrictions likely to rankle some judges. The mandatory code, which takes effect Jan. 15, prohibits judges from accepting any gift from anyone who has appeared before them or may in the future.

"It certainly restricts the right of judges to go to lunch on the lawyers' ticket," Vogel said. "I have former partners who will never appear in my court, but they never pick up the tab anyway. But you have to be extra careful."

The new rules also require judges to disclose to lawyers and their clients any information that could suggest a judicial conflict of interest, even if the judges do not believe they should be disqualified from hearing a case.

"That puts a burden on judges when they are handling a matter of any kind," Vogel said. "This is a pretty broad standard."

To comply, judges should consider disclosing the existence of mutual friends with one of the lawyers or litigants, even if the judge and that person have only occasional social contact and never go to each other's homes, Vogel said.

Judges also are barred from commenting on any pending case, even if it is on appeal. They cannot be disciplined for a mistake in law under the new code but will face punishment if they regularly ignore the law in making decisions, such as refusing to give standard instructions to jurors.

The new rules, based in large part on a model code of the American Bar Assn., do give judges some leeway. They will be allowed to appear as guests of honor, speakers and award recipients as long as they do not use the prestige of office to solicit money or members for a group.

Los Angeles Superior Court Judge John Farrell, who has fought a ban on joining clubs that discriminate against gays, said he was glad the Boy Scouts were exempted from the new prohibition but sees it as more "political" than practical.

Farrell, the father of a Boy Scout, had feared a change that would force judges to choose between their Scouting activities with their sons and their jobs on the bench. He questioned whether there were any clubs besides the Boy Scouts and the military that have restrictions based on sexual orientation.

The San Fernando judge also said the prohibition on all gifts might spark confusion because judges may be taken out by former classmates or friends who are lawyers. "Unfortunately, they have let some open questions on what some of these things mean," Farrell said.

Vogel, asked about Farrell's criticism, replied jovially: "He is very much of a Boy Scout." He said judges will have to disclose to all parties if one of the lawyers in a case is a former classmate or friend or, assuming a lesser relationship, if that lawyer purchased the judge lunch in the past. The rule also may eventually be interpreted to apply to lawyers with business pending before the court.

Traditional rules of courtesy that once might have obliged men to pay for a woman's meal are not recognized in the new set of ethics. Vogel, a grandfather, said with a laugh that in his youth a man was not considered a gentleman unless he paid for the woman's meal.

But "if there are any women of that generation on the bench now," he said, "and they are out to lunch with some lawyers who have or will be appearing before them, they better split the check."

Vogel also agreed with Farrell that the ban on membership in clubs that discriminate against gays was intended to express disapproval of such conduct more than affect any one organization.

He said the committee exempted the Boy Scouts because it wanted to ensure that parents could enjoy Scouting activities with their sons. Although Vogel could not readily identify any nonexempt organizations with such restrictions, he said some may exist.

"There are a number of lawyers who are homosexuals, and as far as the committee could discern, there is a segment of society that may in fact have discriminated against people because they are homosexuals," Vogel said.

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