Existing Judicial Ethics Rules Protect Public Interest

Judges who attend privately funded educational programs are guided by appropriate ethical guidelines, Judge William L. Osteen (M.D. NC) told a House subcommittee last month.

Osteen testified before the House Judiciary Subcommittee on Courts, the Internet, and Intellectual Property in his capacity as chairman of the Judicial Conference Committee on Codes of Conduct. The hearing focused on federal judicial disqualification and misconduct statutes.

In his opening remarks, subcommittee chair Representative Howard Coble (R-NC) said "On the whole, I believe that the federal Judiciary is functioning well, but no branch of the government is immune from evaluation. The point of this hearing is to take the ethical temperature of the Third Branch and determine what, if anything, should be done to improve upon its current record."

"While judges should avoid the appearance of impropriety in all activities, judges should not remove themselves from learning opportunities, which benefit both judges and litigants," Osteen told the subcommittee. "A judge can best fulfill the obligation of this responsibility by maintaining an active, personal interest in mind-improving experiences."

Advisory Opinion No. 67, which was originally issued by the Codes of Conduct Committee in 1980, states that it would be improper for a judge to participate in a seminar if the sponsor, or source of funding, is involved or likely to be involved in litigation, and the topics covered in the seminar are likely to be related to the subject of the litigation. If there is a reasonable question concerning the propriety of participation, the judge should take the necessary steps to satisfy himself or herself that there is no impropriety.

Osteen noted that there is no evidence that the advisory opinion is inadequate to address concerns that may arise, nor is there proof that judges are being improperly influenced in their decisions after attending privately funded seminars. The Chief Justice, the Judicial Conference, the Board of the Federal Judicial Center, the Federal Judges Association, and the Federal Bar Association all have opposed legislative proposals dealing with this topic.

"Let me suggest that in the modern day of proliferating litigation, some caused by Congressional enactment, some by increased population, and some by the nimble minds of a litigious society, seminars are a necessity," Osteen said. "This would be true even if some presentations are not balanced in content. Judges are constantly faced with unbalanced presentations in the course of litigation and early on recognize that the law contains more ponderables than absolutes. The fact that some presentations are not balanced should not prevent exposure to new and innovative and sound reasoning," he said.

Furthermore, Osteen noted, in recent years the Judiciary has redoubled its efforts to assist judges in discharging their recusal obligations. Computer-assisted automated conflicts screening has been put in place; federal rules are being amended to require disclosure of corporate parents in litigation; model checklists have been developed to assist judges in preparing recusal lists; and increased ethics training has been provided to judges.

"The Judiciary has set imposing and adequate standards for judicial education which have been successful over a long period of time," Osteen said. "Courts have affirmed the opportunity for judges to acquire knowledge, and lawyers with federal trial experience have endorsed the educational opportunity programs."

Also testifying at the hearing were Professor Arthur D. Hellman of the University of Pittsburgh School of Law; Douglas T. Kendall, Executive Director of the Community Rights Counsel; and Washington attorney Michael J. Remington, who served as Director of the National Commission on Judicial Discipline and Removal.