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June 2008

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This article is in the news archives --- for current news go to the Third Branch News.

 

Judge Gordon J. Quist Giving Advice on Ethics Seldom Simple


Judge Gordon J. Quist was appointed to the U.S. District Court for the Western District of Michigan in 1992. A member of the Judicial Conference Committee on Codes of Conduct since 2000, he became chair of the Committee in 2004.

Q: Both your Committee—the Committee on Codes of Conduct—and the Judicial Conference Committee on Judicial Conduct and Disability have been active revising the codes and rules. Some confusion may exist in the public’s mind on the relative roles of both of these committees. How do you differentiate between their functions?

A: The Committee on Codes of Conduct helps judges and other employees of the Judicial Branch by advising them regarding the principles in the Codes of Conduct and how, in our judgment, to conform to the Canons within the Code. If we receive an inquiry from a judge, for example, we treat the inquiry with the same degree of confidence as an attorney would treat a communication with a client. We do not engage in, or assist in, disciplinary proceedings. That is the responsibility of the chief judges of the circuits and the Committee on Judicial Conduct and Disability. Discipline in the federal Judiciary is governed by federal statute, 28 U.S.C. §§ 351-364.

We also make recommendations to the Judicial Conference regarding the Code and the regulations regarding gifts, outside employment, and honorariums. We are also proactive in that we publish advisory opinions on a broad range of judicial and employee issues.

Q: Over the last year, the Committee conducted a comprehensive review of the Code of Conduct. What prompted the review?

A: As a matter of history, the Committee has always reviewed its Code after the American Bar Association adopts and recommends its Model Code. So we simply decided to take another look at our Code in light of changes made by the ABA. Now there seems to be some concern among judges that we simply follow the ABA in developing our own Code. This is not the case.

The ABA has developed a more detailed regulatory approach in its Model Code. Regulations tend to be black and white. Our Canons are guiding principles by which judges should abide. We will help judges do that by rendering formal and advisory opinions as specific situations arise. In other words, we try to get the whole Judiciary to adhere to and aspire to achieve these principles, recognizing that there are vast areas of judgment. The ethical principles can be complex in their application, and we cannot foretell and give advice regarding the ethics of every possible situation that judges might confront in the future and make regulations regarding situations of which we are ignorant.

As to complexity, for example, let’s say that my spouse is a certified public accountant with an accounting firm; the firm is not a party to a securities fraud case before me, but an accountant from her firm is going to testify as an expert. Can I sit on the case? Would it make a difference if she were an employee as distinguished from a partner in the firm? What if she were a partner but agreed not to share in any income received by the firm for its work on the case? Must I recuse if my spouse acts as a headhunter for law firms that appear before me and is paid fees that are in the tens of thousands of dollars, and which fees are consistent with fees for similar work by others? Can a federal judge accept an appointment by a governor to sit on the board of a state university? Can a judge attend a primary caucus to help determine a party’s nominee for president? I could go on and on.

Q: Is the Committee proposing a wholesale overhaul of the Codes of Conduct, or some tweaking?

A: Our Committee engaged in an extensive comparison of the proposed ABA Model Code and our current Code, and examined oral and written suggestions that we have received from time to time from judges and others. Our proposed Code includes many valuable clarifications, expansions, updates, and improvements. Although the Committee does not propose to adopt the three-part format, organization, and numbering of the revised ABA Model Code, the Committee does propose to combine our current Canons 4, 5, and 6 into a new Canon, along the lines of the ABA Model Code’s organization. We think that our proposal will improve and update the ethical guidance contained in the Code of Conduct for United States Judges.

I think that when all is said and done, however, after an enormous amount of work by our Committee, and especially the subcommittee assigned the task, there are no startling substantive changes.

Q: The public was asked to comment on the proposed revisions. What was the general public reaction?

A: On the whole, I think that the public reaction, including that of the ABA (www.uscourts.gov/library/codeOfConduct/comments.cfm), was quite favorable. All criticisms and suggestions were carefully considered, and some are being proposed to the entire Committee for adoption at our June meeting. We cannot, however, please everyone.

Q: What is being done to educate judges and employees about ethics? I understand you’ve been particularly active in this area.

A: An important goal is to better educate the Judiciary regarding the Codes of Conduct and gift regulations and to let them know the help that this Committee can offer. I think that we have been very successful in doing that. The Federal Judicial Center now puts us on its programs regularly, and we are well received. This is quite different from the situation during my first years as a Committee member. So I am really grateful to FJC Director Judge Rothstein, Bruce Clarke, Mary Kelley, and others at the FJC.

Our success can be shown in numbers. When I became chair, the Committee was issuing about 35 formal written opinions per year; now we are issuing about 100 formal opinions per year. In addition, we answer about 500 oral inquiries per year.

We also have published several booklets. For example, our booklet “Ethics Essentials,” (www.uscourts.gov/library/ethicsessentials.pdf) provides guidance on the most common ethics questions that new judges tend to ask, and provides examples of common ethics situations facing judges.

There is no doubt that the Judiciary is much more aware of, and concerned about, its ethical responsibilities. Of course, some of this awareness and concern comes from publicity in the media. Judges want to see their names in the news only if it is positive news.

Q: As chair, you’ve seen several new ethics initiatives. Can you tell us about some of these initiatives and how they are progressing?

A: From my first meeting as a member of the Committee many years ago, the issue of expense-paid attendance at a privately funded seminar has been an issue. Some judges feel that judges should be able to attend; some judges feel that judges should not attend; and some judges feel that the issue is not worth the fight. I think that the combination of Advisory Opinion 67 with a new disclosure rule should relieve parties who believe that a judge may have been prejudiced by attending such a seminar.

The new disclosure rule, which was proposed to the Judicial Conference by the Judicial Branch Committee, prohibits a judge from going to a privately funded seminar unless full disclosure regarding the seminar is placed on the Judiciary’s website. Then, Advisory Opinion 67 tells a judge what to consider before deciding whether to go to the seminar. Then, if the judge does go to the seminar, the judge must report the attendance on the local court’s website. With all of this information, any party can inform a judge that it thinks the judge might have been prejudiced by attendance and move for the judge’s recusal.

Upon recommendation of our Committee, the Judicial Conference has instituted a mandatory financial conflict screening policy which is progressing very well. It was our responsibility to make sure that the circuits had proper plans, and every one does. I met with the circuit executives, and they have all implemented the policy and plans.

Also, upon our recommendation, Congress has amended the Internal Revenue Code to allow a judge to postpone the capital gains on the sale of property that when otherwise the judge would either have to recuse or pay the capital gains tax. Now the judge can sell the disqualifying property, usually stock, and reinvest the proceeds without immediately paying the tax. We have adopted regulations implementing this law.

Q: You’ve said the Committee is neither a police force nor an adjudicator of a person’s ethics. Does that mean the Code of Conduct is simply advisory in nature for federal judges?

A: I wish that you hadn’t used the word “simply.” It is not always simple, and our advice is almost always followed. Essentially, the answer is, “Yes.” However, the Code, in many important respects, tracks the recusal statute, 28 U.S.C. § 455, which is not advisory. The statute is mandatory.

Q: Your committee responds to formal and informal requests for advice about whether particular behavior is ethically appropriate. The formal requests usually generate an advisory opinion. What do you see as some of the Committee’s most significant recent published advisory opinions?

A: Well, the formal requests for advice from judges do not generally lead to advisory opinions issued to the Judiciary as a whole. We distinguish between “formal opinions” and “advisory opinions.” Formal opinions are personal, confidential, written opinions that we render to individuals. We reserve advisory opinions for those matters that we see often or which in the Committee’s judgment are important enough to merit an advisory opinion. Advisory opinions are published on the J-Net and on the Judiciary’s public website at www.uscourts.gov/guide/advisoryopinions.htm. Advisory opinions are not confidential; they are available to the public. While we can issue a formal letter to an inquirer in about 17 days, it often takes years to settle on an advisory opinion. Good examples of the recent advisory opinions regard teaching at government or privately sponsored programs [Adv. Op. No. 105 and No. 108 ] (www.uscourts.gov/guide/vol2/105.html) (www.uscourts.gov/guide/vol2/108.html) and when recusal should be considered because of a spouse’s employment or business [Adv. Op. No. 107] (www.uscourts.gov/guide/vol2/107.html). Of course, the revision of Advisory Opinion 67, regarding privately funded seminars, is also very important.

We also give what we call “informal advice,” which is usually a confidential response by a staff member or individual member of the Committee to a telephone or email inquiry.

Q: You’re nearly at the end of your current term as Committee chair. Any unfinished business or projects you wished you’d had time for?

A: Not really. We have accomplished a lot in these past eight years, and I have had a great time. There is still a lot to be done, but I truly believe that these Committees regularly need new blood and new ideas. I will leave the Committee with the satisfying knowledge that judges really do want to get it right.