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July 2009

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


An Interview with Judge M. Margaret McKeown: Interpreting the Code

Judge M. Margaret McKeown was appointed to the U.S. Court of Appeals for the Ninth Circuit in 1998. A member of the Judicial Conference Committee on Codes of Conduct since 2001, she was named chair in 2008. She also represented the federal Judiciary as a member of the ABA Commission that, in 2007, issued the revised ABA Model Code of Judicial Conduct.

Q:Would you tell us about the scope of the work of the Judicial Conference Committee on Codes of Conduct?

A:Our primary role is to be an ethics service center and sounding board for judges and judicial employees. The Committee interprets the Codes of Conduct for judges, judicial employees, and federal defenders. The Committee also drafts and interprets the regulations on gifts and outside earned income and honoraria.

We are the go-to committee for developing ethics policy for the Judiciary, although we are not involved in developing disciplinary policies related to misconduct. Our goal is to make sure that the ethics guidelines for judges and employees effectively protect the integrity of the Judiciary, but do so in a reasonable fashion that does not impose unnecessary restrictions.

The key project this year has been to finalize revisions to the Code of Conduct for United States Judges. The revised Code was adopted by the Judicial Conference in March and became effective on July 1. We rolled it out on the J-Net in a complete package, with the new Code, a revised Compendium of Selected Opinions, and a revised set of approximately 100 revised advisory opinions that are consistent with the new Code.

Q: What is the process for getting an opinion from the Committee?

A: We try to provide timely and thoughtful ethics advice to individual judges and employees. For example, if a judge asks a question and requests a formal response, the judge will receive a confidential letter opinion within three weeks at most. If a judge needs an expedited opinion, we can do that. We’ve even responded overnight in an urgent situation. During the past year, we issued over 100 letter opinions. All of the letter opinions are confidential, as is all of our advice.

Judges and employees can also call or e-mail us for an informal opinion. We usually can provide an informal response on the spot or with some minimal additional research. I personally field several hundred calls a year from judges, clerks, and employees; the other 14 Committee members also respond to many inquiries. In addition, our Committee counsel, Robert Deyling, and his colleagues in the AO’s General Counsel Office, handle many of the calls. We receive about 500-600 informal requests every year.

Brief summaries of our letter opinions are included in the Compendium.

Q: As the chair, what are your objectives and goals for the Committee?

A: My main goal is for the Committee to be responsive to the Judiciary’s ethics needs and to serve as an early alert system for emerging issues. That means continuing to respond in a timely manner to questions from individual judges and employees, providing clear and useful guidance, and stepping up our training and education efforts. For example, after Congress passed legislation restricting judges’ honorary memberships in clubs, we answered many inquiries on an individual basis, then quickly converted our advice into our newest advisory opinion, Advisory Opinion No. 47. Similarly, when an issue emerged in early spring 2009 regarding the propriety of judges hiring associates who are deferred from law firms to serve as unpaid externs, we revised Advisory Opinion No. 83 relating to payments to law clerks and externs.

Q: Your Committee can advise, but how binding are these opinions on judges?

A: They’re called advisory opinions for a reason; the language that we use in the opinions is that the recommendation is the “considered judgment” of the Committee, and of course the individual may take a different view. We are not in the discipline business. I prefer to call us, if you will, the “Dear Abby Committee.” A judge can call us and get advice, but we are completely separate, and have no reporting or relationship to the Committee on Judicial Conduct and Disability. That separation makes our Committee a safe harbor for confidential advice. I find that judges want to do the right thing. They wouldn’t call us if that weren’t the case.

Q: Your Committee is unique in that you probably have more judges contacting you daily than any other committee. Why is that? Whom does the Committee advise?

A: It is no surprise that judges are in touch with us on an ongoing basis. Ethics is part of the fabric of being a judge. Sometimes a judge has worked through an issue, but just wants a sounding board or a second opinion. Other times there is a totally sui generis, novel issue that nobody has seen before, so the judge needs guidance on how to respond. Many times judges call in the middle of trial on recusal issues, and they need immediate advice. We pride ourselves on giving virtually instantaneous service on this type of an inquiry and responding immediately to informal phone or e-mail requests.

One of my projects has been to analyze and catalog the inquiries so we can target our training to these topics. For example, we receive many questions about letters of recommendation, recusal, participation in legal education and training activities, limitations on fund-raising, law clerk bonuses, and employee and law clerk extracurricular activities. We make sure that we regularly address these issues in our ethics training for judges and judicial employees, and that our published guidance on these issues is current and thorough.

I might add that our inquiries are not limited to judges. We talk to law clerks, staff attorneys, federal defenders, and court staff as well.

We also get calls from lawyers and the public, but it’s not within the scope of our work to provide opinions outside the Judiciary. We do, though, participate in ethics programs sponsored by bar associations and other organizations.

Q: What is the Committee doing to educate judges and judicial employees about ethics?

A: In the last few years we’ve really increased our participation in formal training at judicial meetings, particularly through programs with the Federal Judicial Center. At the various national meetings of district judges, magistrate judges, and bankruptcy judges, our Committee members offer interactive ethics presentations. Through the FJC, we also provide training for new judges and provide training for law clerks, staff attorneys, clerks, and judicial assistants.

We’ve participated in district conferences that include both judges and attorneys. Lawyers are very interested in knowing about recusal, for example. They also want to know what’s okay for the judge to do with the bar and in the community. In other cases, we have highlighted ethics issues in bench/bar/press meetings. We tailor our training to the audience and our programs range from video vignettes to teaching ethics through country and western music. We have made the offer to all the chief judges that we’re happy to participate in circuit or district judicial conferences. I repeat that offer here, for chief judges and also for clerks of court.

We also send out periodic updates to all judges on breaking ethics issues, like the club membership legislation. And, on the J-Net, we provide an array of ethics resources for judges and judicial employees, including a quiz, where judges can put all of that ethics guidance to the test!

Q: There have been several recent changes to the Code of Conduct for U.S Judges. How do these changes affect judges? How are the changes being implemented?

A: Overall, the new Code will be very familiar to judges. I think it’s best to characterize the revisions as an update, a clarification in some cases, and a few new additions. The revision process took several years and the draft code was vetted through public and judicial comment. The last major revision was 17 years ago.

The most significant structural change relates to outside activities. Canon Four covered law-related activities and Canon Five covered community activities. The Code now combines all outside activities into a single canon, the new Canon Four. We found it made more sense to collapse the canons.

Q: How do the changes to the Code of Conduct relate to the ABA Code?

A: There’s a good story behind the answer to that question. Let me digress a bit to give some context to the relationship between the federal code and the ABA code. The ABA Code came about because of a federal judge and a baseball scandal in 1919. The incident was called the Black Sox Scandal, and some readers may know it from seeing the movie Eight Men Out. What happened was that eight members of the White Sox threw the 1919 World Series. To clean up the game, baseball team owners decided to appoint someone reputable to be the first baseball commissioner. Who better to appoint than a federal judge? The owners chose Judge Kenesaw Mountain Landis. His appointment provoked the question: Is there any conflict in doing both jobs? As it turned out, there was no comprehensive ethics code to answer that question. So the Chief Justice asked the ABA to draft a code, and in 1924, the ABA adopted the Canons of Judicial Ethics. Both federal and state judicial codes since then are derived from those principles.

In 2007, the ABA Code went through what I would term a wholesale revision. Our Code remains advisory and aspirational. The Committee carefully reviewed the substantive changes made by the ABA and adopted some of those revisions. The new Code also included necessary clarification and some revisions suggested by federal judges and the public. The bottom line is that we’ve retained—and we hope, refined—a Code that is appropriate for federal judges.

Q: What’s on the horizon? Will there be additional revisions to the Codes? New publications?

A: We will be putting out an updated version of the publication, Ethics Essentials for Judges, and revising the pamphlet for law clerks, Maintaining the Public Trust. We’re producing a video for new judges, and then we plan to tackle the employee code to see if it needs any revisions.

In terms of big ethics issues on the horizon, the challenges posed by Internet usage are critical. For example, one issue relates to the tension between judges’ Internet use in connection with information related to pending cases and the restriction on ex-parte contact. Another issue concerns confidentiality, particularly with respect to law clerks and judicial employees. Approximately 200 million people are on Facebook, and it’s fair to say that most clerks and many employees are on various social networking sites. This trend is not going to change. These sites pose a serious concern about how judicial employees can participate on these types of sites without compromising confidentiality obligations or detracting from the dignity of the courts. We have created programs for law clerks and judges that put these issues on the table for discussion.

One thing I can say, especially with the Internet—the ethics arena is never static.