Wednesday, October 11, 2006
Posted by Alan Childress
It struck me -- in reading today both Jeff’s advice from Warren Buffett and Mike’s note of the uncertainty in applying the Rule 11 standard to 11th Circuit litigation that was deemed frivolous but the lawyer used her discretion to stick with the client -- that the tangential intersection between these two posts touches on a good question on "reforming" the Model Code of Judicial Coduct. An ABA proposal (new Rule 1.02) would turn the "appearance of impropriety" heading into an actual rule -- and obviously invites lots of satellite litigation not over whether the judge actually did anything wrong, or would do anything wrong, but instead whether he or she would look like he or she would do something wrong. In effect the ABA is proposing to make Buffett’s folksy saw pitched to business people including their PR (public relations) concerns -– Don’t do it if it’d irk readers of the newspaper’s front pages -– and turn it into an actual rule of conduct for judges. Worse, a rule for advocates to seek disqualification of judges without having to show a potential breach of any specific rule.
The "appearance of impropriety" test, growing new teeth in the judicial context, suffers from the same target-audience dilemma Jeff raised for Warren’s advice. Here, does that mean the front page of the L.A. Daily Journal for lawyers and the other judges, or the front page of the N.Y. Daily News for subway riders? Even just the "looks like" test for lawyers invites trouble, given their perceived ethical duty to try to disqualify a judge if that's best for their client. I have no issue with it as general guidance and a caution to judges (as it seems to be now in its heading format): an inquiry they should make themselves and choose to err on the side of caution. Subway riders matter, and perception ought to be considered by judges in applying their ethical rules. But a test that makes judges recuse themselves if the general public would feel queasy, whatever its PR value, may be practically unworkable in certain situations where a bit more nuanced analysis reveals that the judge has done nothing wrong by traditional standards and has no significant risk of doing so in this particular situation. Do we really want to pay the price for that amorphous inquiry in a much larger number of cases? Those costs are well analyzed in an excellent article by Ronald Rotunda (George Mason U., right, though his webpage features Spock) , in which he tackles the issue highly logically. (It's forthcoming in Hofstra Law Review and is on SSRN here; find it also 4th on Jeff’s latest top ten list, without a bullet.) Rotunda’s abstract starts by scoffing: "We sometimes think, loosely, that ethics is good and that therefore more is better than less."
Even if those costs do not overwhelm, I wonder if the PR value to the profession and judiciary would be real or worth whatever costs do arise. More after the fold.
As to the public relations value of the proposals, I think a lot more motions filed questioning judges' ethics, along with many of them having to be denied even under the 'appearance' test, virtually invites a public perception that the judiciary is rampant with bias and conflicts -- but is protecting its own (a point examined by Rotunda, in addition to the burdens of a vague standard). Because opinions won’t be able to cite a specific rule of compliance to justify remaining in the case, it’ll be a PR battle of discretionary views as to what is an "appearance of impropriety." I don’t think either the public or the profession is a winner in that ephemeral debate.
It seems as though the ABA will have come full circle if it makes this change. One of the reasons it abandoned its Model Code for lawyers with its rules+"ethical considerations" (and even its own perceived "appearance of impropriety" test at least as developed in case law) was to give clearer guidance and less Chamber of Commerce rhetoric. The Model Rules try to tell where the line is. Of course that does not end the application of discretion and good judgment in practicing generally and in applying the MR specifically. Mike’s post on Rule 11 reminds us of yet another area where a debate over the actual test to apply to the attorney’s conduct is really a battle over the use of good judgment and ethical discretion. Whether she was right or wrong, the plaintiff’s attorney was clearly applying judgment and not a hard and fast rule. I don’t deny that being professional is all about using judgment. I just deny it is helped by "standards" to guide that judgment which are based more on perception than reality. Especially in the judicial context, there is no substitute for good judgment – yet the imposition of a standardless "appearance" standard is not about maximizing judgment but rather mystifying it.
To the extent "appearance of impropriety" is a helpful inquiry for judges and a guiding principle in their own discretionary and professional judgment, it already finds its place in the current judicial rules. That’s where it belongs, and in the hearts of good-faith judges everywhere. But not in the endless pages of motions lawyers will file understandably seeking litigation advantage at every turn. At bottom, I would have thought the ABA would have learned from its own experience in rule-making, and wish they’d listen a little less to the Daily News headlines.