Is the Appearance of Impropriety an Appropriate Standard for Disciplining Judges in the Twenty-First Century?

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In February 2007, the American Bar Association ("ABA") revised its Model Code of Judicial Conduct, including significant changes in both form and substance. 1 The adoption of the 2007 Judicial Code concluded a three-and-a-half year revision process by the ABA Joint Commission to Evaluate the Model Judicial Code ("Commission").2 During the revision process, the Commission solicited comment on a number of provisions that had provoked extensive discussion and controversy in Commission hearings and meetings, including a provision in the 1990 Judicial Code that admonished judges to avoid not only impropriety, but also the appearance of impropriety. 3

The majority of commentators supported retaining the admonition to avoid even the appearance of impropriety, including enforcing this admonition through judicial discipline. 4 Nevertheless, the Commission went back and forth on the question. First, the Commission sided with those who urged it to retain the appearance of impropriety standard;5 then it changed course, siding with those who urged its elimination.6

In February 2007, the Commission issued its Report to the ABA House of Delegates. In that report, the Commission recommended retaining the admonition to judges to avoid the appearance of impropriety, but only in the language of Canon 1 itself, not in one of the several black-letter rules under Canon 1.7 In addition, the Commission drafted commentary clarifying that judges could not be disciplined under the Canons alone; rather, only the rules themselves were subject to enforcement. 8

Then on February 7, 2007-just days before the ABA House of Delegates was to meet and vote on the Commission's Final Report-the Conference of Chief Justices of the states' highest courts weighed in on the appearance of impropriety question. It did so in the strongest possible terms, adopting a resolution opposing the Commission's Final Report due to its failure to provide for enforcement of the prohibition on creating the appearance of impropriety.9 In addition, the Conference of Chief Justices intimated that if the Commission failed to amend its proposed code, as the Conference suggested, then the chief justices would not lend their support for the new code, thereby making it unlikely that it would be adopted in more than a few states.10

Not surprisingly, the Commission backed down and revised its report. As a result, the ABA House of Delegates quickly approved the newly revised report." Currently, just two years later, nine state courts have already adopted the 2007 Code, an additional seven state courts are reviewing reports in which adoption of the Code has been recommended, and another twenty-two jurisdictions have committees reviewing the Code. 12

In its present form, Canon 1 states: "A Judge Shall Uphold and Promote the Independence, Integrity, and the Impartiality of the Judiciary, and Shall Avoid Impropriety and the Appearance of Impropriety."' 13 In addition, Rule 1.2, entitled "Promoting Confidence in the Judiciary," states that "[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."' 4

All of the state courts in which the 2007 Judicial Code has either been adopted or recommended appear to have retained the appearance of impropriety as an enforceable standard, in accordance with the view of the Conference of Chief Justices. 15 Thus, in one sense, it seems that the debate is over, and the proponents of the appearance of impropriety standard have prevailed.

Nevertheless, the opponents of the appearance of impropriety standard have raised a number of important objections, and in my view, the supporters have not yet fully explained why the appearance of impropriety standard should be retained in a judicial disciplinary code for the twenty-first century. My purpose in this Article is to explain why I believe that the criticisms leveled against the appearance of impropriety standard for judges are unwarranted. 16

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