The Code of Judicial Conduct for federal judges and the parallel Code of Judicial Conduct template for state judges, as modified by the states, both recognize the propriety of judges engaging in extrajudicial activities that are consistent with their role as judges. They also counsel judges to avoid impropriety and the appearance of impropriety in those activities. We do not want our judges to hide in an ivory tower; we want them to behave as judges while giving us the benefit of their experience. And, while we want judges to interact with the bar and the public, lawyers must be aware of the limitations on such judicial contacts. Federal and state judicial standards differ for a variety of reasons.

A distinguished panel at the Federalist Society’s upcoming 2020 National Lawyers Convention, sponsored by the Professional Responsibility and Legal Education Practice Group, will consider how various jurisdictions evaluate and enforce judges’ activities in order to maintain public confidence in the judiciary. Mr. William Hodes, Judge Thomas B. Griffith, and Judge William H. Pryor will participate in this discussion, moderated by Judge Gregory G. Katsas.

Recently, a draft advisory opinion from the Judicial Conference’s Committee on Codes of Conduct suggesting that federal judges ought not to be members of the Federalist Society or the American Constitution Society, but may be members of the American Bar Association, became public. That advisory opinion was based less on the actual activities of those organizations than on a belief that the public participation of judges in those organizations would contribute to a public perception that judges are not impartial. The draft opinion was withdrawn, but the questions it raised linger.

At the very least, the withdrawal of the draft opinion returns the standards applicable to the extrajudicial activities of federal judges to those set forth in the Code of Conduct for United States Judges that became effective March 12, 2019. Canon 4 of those standards allows federal judges to engage in extrajudicial activities that are consistent with the obligations of judicial office. More specifically, Canon 4(A)(3) permits a judge to “participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds.”  Canon 2C limits that permission by prohibiting membership in an organization that “practices invidious discrimination.” The draft advisory opinion would have added filigree to the general rule.

The Professional Responsibility and Legal Education Practice Group’s NLC panel will consider some fundamental questions that swirl around the extrajudicial activities of judges, including those raised by the now withdrawn draft advisory opinion. For example, what are the core values that support the federal and state rules, and how and why do they differ? How should we evaluate public confidence in the judiciary? Is public confidence in the judiciary capable of empirical evaluation or a matter of a priori judgment? Whose judgment matters? An average person’s? A reasonable person’s? A reasonable lawyer’s? A regulator’s, as she applies one of these constructs? What rules apply to a judge’s membership, officeholding, or participation in an organization, or to the judge’s public writing or speaking?

To hear experts discuss these important issues, please join us on Tuesday, November 10, 2020, at 12:30 pm. Registration information is available here.