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Top officials of the federal judiciary are up in arms over an American Bar Association inquiry into the hot-button issue of whether judges should be barred from attending seminars sponsored by interest groups. For the past 15 months, the ABA’s influential Standing Committee on Ethics and Professional Responsibility has been privately debating the question and considering issuing an opinion that would give federal and state judges guidance on whether to attend such meetings. When federal judges got wind of the deliberations in March, they asked to see draft proposals but were denied, instead hearing a verbal summary of what was being discussed. Based on that summary, U.S. Magistrate Judge James Glazebrook of the U.S. District Court for the Middle District of Florida, chairman of the National Conference of Federal Trial Judges, reported to his members that the draft opinion was “wholly unsatisfactory” because it would discourage judges from attending virtually any seminar sponsored by a group that has a point of view. Since then, the unrest on the bench about the ABA effort has escalated in part out of concern that the committee’s opinion could be used against sitting judges by litigants in recusal motions, or by politicians in confirmation hearings. The ABA committee’s opinions interpreting model codes of conduct, while not binding, are often influential. The judges’ unease culminated in a sharply worded June 6 memo by Leonidas Ralph Mecham, director of the Administrative Office of the U.S. Courts. The angry memo, directed to Chief Justice William Rehnquist and the entire Judicial Conference, the policy-making arm of the judiciary, accuses the ABA committee of “secret activities” on the issue and of “relying almost entirely” in its deliberations on Douglas Kendall, founder and executive director of Community Rights Counsel. Community Rights Counsel is a Washington, D.C.-based environmental interest group that first raised the seminar issue three years ago. Then, in 2000, the group released a major report on the issue that listed the names of more than 200 federal judges who traveled to resorts for seminars sponsored by business interests, including those with an interest in takings and other land-use issues. The group’s findings also figured in the recent controversy over the nomination of D. Brooks Smith to the 3rd U.S. Circuit Court of Appeals. Smith ranked high on the group’s list of judges who attended sponsored seminars. Kendall’s organization, Mecham wrote, has a “very clear-cut philosophical and economic agenda, seeking to advance the interests of its financial contributors who are largely unknown” to the ABA committee. Mecham also said the ABA committee is on the verge of unveiling “with great public relations and media fanfare” an opinion that would regard attendance at most reimbursed seminars as an ethics violation. Last week, ABA President Robert Hirshon fired back, denying Mecham’s allegations. He insisted that the ABA committee’s deliberations are far from over and says no announcement is planned anytime soon. He added that the Community Rights Counsel has had no involvement in the committee’s work. “I don’t even know who this Kendall is,” Hirshon said. He also said it is standard procedure for the committee to keep its draft opinions private. “I don’t know where Mr. Mecham got his information, but it is clearly erroneous,” Hirshon said in an interview. “His memo in a very aggressive way takes misstatements and disseminates them to raise the fear level of federal judges.” Hirshon, a partner at Drummond Woodsum & MacMahon in Portland, Maine, says the standing committee will receive input on the issue from an advisory committee of judges at the ABA’s annual meeting in Washington, D.C., in August. “Action is not imminent, but maybe by creating this controversy, Mr. Mecham will have speeded things up,” says Hirshon, who calls Mecham’s reaction “mystifying. His better course of action would have been to give me a call to run those things by me. I’m very accessible.” Mecham declined to comment beyond his memorandum. CRC RILED JUDGES For his part, Kendall says he believes he has not influenced the ABA committee, and says his only contact has been to inquire several times about the committee’s progress. “CRC’s funders are not corporate litigants, and we do not provide weeklong trips to resort for federal judges,” says Kendall, listing the Soros Foundation and the Deer Creek Foundation among his group’s backers. “You’d expect Mr. Mecham would do a rudimentary fact check before sending a memorandum to the chief justice. If this is reflective of how the AO functions, the office needs much closer scrutiny,” says Kendall. Kendall riled federal judges with his 2000 report, which triggered embarrassing media coverage — including an ABC News segment that showed judges golfing in Tucson, Ariz., during a seminar sponsored by George Mason University’s Law and Economics Center. The controversy prompted Sens. John Kerry, D-Mass., and Russ Feingold, D-Wis., to sponsor legislation in 2000 that would prohibit judges from accepting “anything of value in connection with a seminar” and allow judges to attend only balanced seminars that the government would screen and pay for. The Judicial Conference and Rehnquist himself spoke out forcefully against the legislation, and the bill died. JUDGES WANT ‘DUE PROCESS’ The tenor of Mecham’s memo came as no surprise to those who know him. The AO director has a history of striking back at perceived attacks on the prerogatives of federal judges. But others in the federal judiciary, speaking in more tempered tones, are also wary of the ABA’s deliberations. “We’re not getting due process,” says Richard Arnold, an influential judge on the 8th U.S. Circuit Court of Appeals. “We don’t know what the bar is considering, but it is probably more restrictive. I’m not convinced we need anything like that.” Arnold and other federal judges insist that the issue of sponsored seminars is adequately covered by an advisory opinion issued by the Judicial Conference Committee on Codes of Conduct in 1980. That opinion states that attending seminars, even ones that emphasize a particular viewpoint, “serves the public interest,” but advises that “it would be improper to participate in such a seminar if the sponsor, or source of funding, is involved in litigation or likely to be so involved, and the topics covered in the seminar are likely to be in some manner related to the subject matter of the litigation.” Arnold says he set forth his views on the ABA’s deliberations in a letter last week to Marvin Karp, a Cleveland lawyer who chairs the ABA’s ethics standing committee. U.S. District Judge William Osteen Sr. of the Middle District of North Carolina, who chairs the Judicial Conference committee on codes of conduct, also wrote to Karp, telling him it would be “a disservice to the ABA and judges throughout the country” if the ABA committee put out an ethics opinion without “full and fair consideration of all the issues involved.” Karp, partner in the Cleveland firm Ulmer & Berne, says he has received numerous letters and phone calls from federal judges voicing concern. “I’ve been surprised at the sound and fury,” says Karp. “And the idea that we’re in league with that organization [Community Rights Counsel] is appalling.” The committee’s inquiry began before he became chair last year, Karp says, but he believes the public “hue and cry” over the issue of sponsored seminars triggered the investigation. But Karp emphasizes that if any opinion does emerge from the committee, it will be aimed at giving guidance not only to federal judges but to state judges as well, who may be faced with conflicting codes and standards. “We want to be helpful to judges.” Karp also predicts that “if we do issue an opinion, it will be as different as night and day from the draft opinion.” Federal judges say they hope the committee’s opinion won’t treat judges like children. “Judges think they are grownups, and they are trained to assess arguments and information,” Judge Arnold says, explaining why judges are so concerned about the prospect of new ethical constraints. “They will not be duped by martinis and whatever else the Community Rights Counsel thinks goes on there.”

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