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Controversial judicial ethics proposals just released by an American Bar Association commission define “gift” to a judge for the first time, and set strict, publicly accessible reporting requirements. Critics, however, lament that the proposed rules don’t go far enough, and won’t prevent judges from going on junkets sponsored by corporations and other special-interest groups. If adopted in their present form at the ABA’s annual meeting in August 2005, the revisions will also prohibit gifts by lawyers who appeared before a judge within the preceding five years, or who might in the foreseeable future. But loans and fellowships-if not obtained by a judge or his or her family by reason of the judge’s status-would not be considered gifts, and would not be reportable. Critics weigh in Attorney Douglas Kendall, director of Community Rights Counsel, a Washington-based public interest law firm, criticized the commission for not establishing a “bright-line rule-a gift limitation or an outright prohibition” against accepting junkets. “The problem is that corporations and other interested parties are shaping judicial education by paying for lavish trips that wine, dine and attempt to indoctrinate judges,” he said “What we got in the revision was that a judge should consider this and that before accepting a junket, but it’s unlikely, based on experience, that it will change very much.” The provisions’ commentary cautions judges not to attend events that may cast doubt on their impartiality and independence, and sets out factors that judges should consider, such as the funding source of the seminar. “There’s been a similar test in place for federal judges, but it hasn’t prevented the practice of junkets for judges from flourishing,” added Kendall. “If judges need education, taxpayers and the states ought to pay for it-we don’t need to privatize it.” Ethics scholar Steven Lubet, a Northwestern University School of Law professor, disagrees with Kendall. “It’s all good,” he said of the proposed revisions. “The question is whether they go far enough. Some will say that there should be stricter rules about attending educational programs, depending on sponsorship. [But] unless you enact a set of crippling restrictions, there’s always the problem that someone will evade them . . . .I’m not saying there is no need for stricter rules, just that they can’t be crafted at the level of the American Bar Association.” Lubet added that those issues are best addressed locally. Lubet praised the reporting requirements of the gift provisions, including junkets, which mandate accessibility and encourage posting on the Internet. He expressed concern that loans need not be reported, although he said that many states require the reporting of some loans. Stanford Law School Professor Deborah Rhode said most junkets are far more recreational than educational. “No one seems to be looking for fundamental change [in the code],” she asserted. “And part of the reason is that the ABA represents the profession and not the public. And its members benefit from disproportionate access to judges.” The new rules are the latest installment in the ABA’s year-long effort to refresh its Model Code of Judicial Conduct. Commission Chair Mark Harrison of Phoenix’s Osborn Maledon, asserted that the purpose of publishing the draft ( www.abanet.org/judicialethics/home.html) was to encourage people to review, evaluate and comment on it. “This is an evolving process-I doubt what’s out there now will be what’s presented to the House of Delegates,” he said. He added that the commission had struggled to create a bright-line rule for attending educational seminars, but that it was not possible to come up with one that would cover all situations. “We think that the transparency of the new reporting requirement will make judges think twice about what seminars they choose to attend . . . The rules are designed to give judges guidance in making their determinations, as well as setting out a basis for discipline if it is warranted,” Harrison noted. The ABA model code is advisory. States and the federal courts adopt their own rules.

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