Working Paper No. 06-43:
Judicial Ethics, The Appearance of Impropriety, and the Proposed New ABA Judicial Code
Date Posted: 2006
We sometimes think, loosely, that ethics is good and that therefore more is better than less. But more is not better than less, if the "more" exacts higher costs, measured in terms of vague rules that impose unnecessary and excessive burdens. Overly-vague ethics rules impose costs on the judicial system and the litigants, which we should weigh when determining whether to impose ill-defined and indefinite ethics prohibitions on judges. Unnecessarily imprecise ethics rules allow and tempt critics, with minimum effort, to levy a plausible and serious charge that the judge has violated the ethics rules. Overuse not only invites abuse with frivolous charges that have the patina of legitimacy, but also may eventually demean the seriousness of a charge of being unethical.
The ABA is now revising its Model Code of Judicial Conduct. Most states and the federal courts follow the ABA Model Code in enacting their own judicial rules. The ABA is proposing to take what is now merely the title to a rule and make it a separate rule. Proposed Rule 1.02 provides: "A judge shall avoid impropriety and the appearance of impropriety." This proposed rule, however, does not really define "impropriety" or what is an "appearance" of an "impropriety." Apparently, it is wrong to do something that is not wrong but "appears" wrong, as "perceived by a reasonable person with knowledge of the circumstances to impair the judge's ability to carry out judicial responsibilities with independence, integrity, impartiality, and competence." But if the person really had knowledge of the circumstances, he or she would know whether the conduct was really wrong or not. Proponents of a rule that forbids judges from engaging in the "appearances of impropriety" argue that the rule promotes, in the view of the lay public, the integrity of the judges. On the contrary, the power to unfairly criticize a judge as violating the appearances of impropriety serves to bring the judiciary in disrepute. Granted, not all rules can be written with crystal clarity, but many can be. The phrase, "appearance of impropriety" certainly offers a reason why the frames drafted some rules as broadly as they did. But it is too vague to be a rule.