Vol. 37, Number 3 —March 2005

I N T E R V I E W

Committee's Advice Guides Judges:  An Interview with Judge Gordon J. Quist

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: What is the primary role of the Committee on Codes of Conduct?

A: The Committee is not a police force nor an adjudicator of a person's ethics. The Committee's role is to give its best advice to judges and other employees of the Judiciary who inquire about whether particular behavior is ethically appropriate. We are like lawyers giving legal advice to clients. All of our advice is confidential, similar to attorney-client confidentiality. We also write and publish materials to assist the Judiciary in maintaining the high standards of conduct we and the public expect.

Q: How do you provide this advice?

A: The Committee receives 60 to 70 formal, written requests for advice every year, plus hundreds of in formal telephone or email inquiries. We respond to all of them. Formal requests receive a written advisory opinion from the Committee, usually in about three weeks. Most informal inquiries are answered almost immediately. I have found that many judges work out the issues in their own minds as they discuss them with me.

One very effective way of finding advice is through the published advisory opinions in the Guide to Judiciary Policies and Procedures. The advisory opinions (and other published materials on ethics) are available on the J-Net and the Judiciary's website at www.uscourts.gov. So far, 104 opinions have been published addressing topics of widespread and recurring interest. For example, Advisory Opinion 96 discusses ethical considerations arising when a judge serves as a fiduciary of an estate or trust. Advisory Opinion 101 summarizes advice about disqualification due to debt interests. Advisory Opinion 67 discusses the inquiry judges should make in determining whether it would be appropriate to attend a particular educational seminar that is funded by someone other than the Judiciary. This opinion was recently expanded and updated to provide more comprehensive guidance to judges.

Q: Several media stories about the revisions to Advisory Opinion 67 criticized the opinion on the grounds that the ethical standards were materially weakened. Is that accurate?

A: Absolutely not! I do not believe that the revised opinion would permit the attendance at any seminar where attendance would not have been permitted in the original opinion. The revisions to Opinion 67 were made to respond to various alleged shortcomings in the original opinion. For example, the revised opinion corrected outdated citations to the Judiciary's gift regulations, which had been amended and renumbered in 2003, and expanded the discussion of relevant issues that should be considered before accepting an invitation to a seminar.

We are doing our best to correct any mistaken impression that someone might have that we somehow weakened the Committee's previous advice. I urge judges not to rely on published criticism about the revised opinion but to read and apply it yourselves before accepting any invitation to one of these seminars.

The fundamental ethics guidance in Advisory Opinion 67 remains the same. Like the original opinion, the revised opinion recognizes that judges may attend private educational seminars and accept reimbursement of expenses in some circumstances but not in others. For example, a judge should not attend a seminar if the sponsor is a litigant before the judge and the topics covered relate to the litigation. But seminars about history or the arts, sponsored by non-profit entities not involved in litigation, generally do not raise ethical concerns. The revised opinion includes a more detailed discussion of factors judges ought to consider before an invitation is accepted. It also advises judges to seek relevant information needed to assess these factors. If there is any question about whether attendance would be appropriate, the judge may seek advice from the Committee.

Q: What factors should judges consider in deciding whether to attend a private educational seminar?

A: There are six key factors. Judges are advised to evaluate these and other factors to determine—based on the totality of circumstances—whether there is a reasonable question about the propriety of attending the seminar.

First , the identity of the seminar sponsor. A seminar sponsored by a university out of its general funds or sponsored by a bar association would raise fewer concerns than one sponsored by a for-profit corporation or a law firm.

Second , the nature and source of seminar funding. When no contributor provides more than a small portion of costs, there is little reason for concern about the identity of contributors, but an entity that contributes substantial funding should be evaluated much like a sponsor.

Third , whether a sponsor or source of substantial funding is, or is likely to be, a party or attorney before the judge. This should be examined separately because, even if a particular issue is not before the judge, the seminar could be considered an inappropriate gift being given to the judge.

Fourth , the seminar subject matter should also be examined separately. Is the seminar about an issue that is pending before the judge? As an obvious example, it would be improper for a judge to attend a seminar on a subject that is pending before the judge and a substantial contributor or sponsor of the seminar is a party or attorney in the case.

Fifth , the nature of expenses paid or reimbursed—whether they are reasonable in amount and go to education, not recreation.

Sixth , whether public disclosures are made about the seminar's sources of funding and curriculum. If public disclosures are not made, the judge should make further inquiries, and the information obtained by the judge will be public.

Q: How can or should judges obtain necessary information about seminars?

A: Much of the information needed to evaluate a seminar should be available from the invitation, the curriculum materials, and the sponsor's web site. Some information—such as information about the nature and source of seminar funding—may need to be requested directly from the sponsor. If sufficient information is not forthcoming, or if the information provided does not resolve the judge's questions about the propriety of attending, the judge should not attend.

Q: What do you expect will be the practical effect of revised Advisory Opinion 67?

A: As a practical matter, the revised advisory opinion should greatly assist judges in determining whether attendance at a particu lar seminar is proper. For example, few ethics concerns should arise where a seminar is sponsored by a university out of its general funds and where the university is not, and is not likely to be, a party before the judge. Ethical concerns are also minimized when the seminar subject matter—for example, world events, philosophy, or American history—does not relate to litigation before the judge or is not controlled by contributors. And reservations about the source of funding for the seminar can be resolved either by ascertaining the identity of contributors or by ensuring that contributions do not give cause for concern; for example, where no corporate donor provides more than a small percentage of the sponsor's funding.

Q: One more question about private seminars. Is it true that the revisions to Advisory Opinion 67 dropped the requirement that judges must make disclosures on their annual financial disclosure reports about seminar benefits they receive?

A: No. The federal statute governing judges' annual financial disclosure reports requires judges to disclose information about reimbursements they receive from private entities. However, this statute, as interpreted by the Judicial Conference Committee on Financial Disclosure, does not require the value of reimbursements to be disclosed. Judges remain obligated to disclose the information required by statute on their annual financial disclosure reports, such as the source and a description of the benefits provided.

Q: I understand the American Bar Association is overhauling its Model Code of Judicial Conduct. What effect will that have on the Code of Conduct for U.S. Judges?

A: We are very interested in the ABA project because we have historically considered corresponding revisions to our Code of Conduct following each major revision of the ABA Model Code. The federal Judiciary has three representatives working with the ABA Commission on its project.

Substantial changes have been proposed in the numbering, organization, and content of the ABA Model Code. Among the proposals under consideration are some designed to regulate judges' solicitation and acceptance of gifts, including judges' acceptance of benefits associated with attending private educational seminars. So far, these proposals incorporate some of the concepts and language of the federal Judiciary's ethics guidelines. They are generally consistent with our approach in these areas, though there are some differences. For example, some ABA proposals are more restrictive than federal law, so that judges subject to the ABA Code might be prohibited from accepting gifts permitted by the federal gift statute.

The Committee plans to take a fresh look at whatever proposals are adopted by the ABA. We will then decide whether and to what extent changes should be recommended in the Code of Conduct for U.S. Judges.