News
Release
April
30, 2010
Contact: Steve
Davis, Court Communications Officer, (515)725-8058
Court
Updates and Strengthens Ethical Rules for Iowa Judges
Des
Moines, April 30, 2010—
Today, the Iowa Supreme Court approved extensive amendments
to the Iowa Code of Judicial Conduct, the ethical rules for Iowa
judges. The court's action constitutes the first comprehensive rewrite of
the Iowa Code of Judicial Conduct since the 1970s. This revision brings
the Iowa Code of Judicial Conduct closely in line with the 2007 American Bar
Association Model Code of Judicial Conduct (2007 ABA Model Code). The Iowa
revision is designed to update, clarify, and strengthen judicial ethical
rules.
"The
Code of Judicial Conduct serves an important public purpose. It helps to
keep our courts fair and impartial by providing guidance to judges in
maintaining high standards of conduct. It also serves as a basis for discipline
if and when a judge fails to maintain those high standards," said Iowa Supreme
Court Chief Justice Marsha Ternus.
Chief
Justice Ternus added: "The new Code closely parallels the 2007 ABA
Model Code, which was carefully designed to provide prudent, clear, and
well-reasoned guidance to judges. The court is confident that the Model
Code provides the best framework within which to guide the ethical conduct of
Iowa judges."
The
National Conference of Chief Justices supports adoption of the 2007 Model Code
as a foundation upon which states can improve and clarify standards of conduct
for the judiciary. In addition to Iowa, twelve states have revised their
codes of judicial conduct based, in whole or in part, upon the 2007 ABA Model
Code, nine states have revisions based on the model code pending, and 20 states
are in the process of reviewing the model code for adoption.
Prior
to the adoption of the new Iowa Code, the court established a 13-member
committee to study the 2007 ABA Model Code and make recommendations to the
court regarding adoption of this code in Iowa. After completing its study,
the committee recommended that the court adopt the 2007 ABA Model Code except
where deviation was necessary to comply with Iowa law. After receiving the
committee's recommendation, the court released proposed rules for public
comment. The court later adopted some of the changes suggested through the
public comment process.
Justice
Mark Cady, who co-chaired the committee, noted: "The new Iowa Code of
Judicial Conduct retains longstanding ethical principles and rules that are
essential for maintaining high standards of judicial conduct. In addition,
the revised Code has many new rules. Some of the new rules address issues
related to changes in the court environment such as the emergence of drug
courts and the significant increase in the number of self-represented
litigants. A number of the new rules augment fundamental principles and
provide guidance tailored for a range of situations. Some new rules
address recent developments in the law. All of these changes reinforce the
high ethical standards expected of and maintained by Iowa's judges."
Key
Substantive and Structural Changes to the Iowa Code of Judicial Conduct
Structural
Features
· Unlike the old Code, the new Code
contains a preamble that describes the overarching objectives of
the code, a scope section that explains the relationships between
Canons, Rules and Comments, a terminology section that serves as
a glossary, and an application section that establishes when
various rules apply to a judge or a judicial candidate.
· The new Code retains the same
overarching principles, known as Canons, as before, but
reorganizes and renumbers some of the Canons for the end result of four canons
instead of seven. New Canon 1 is a combination of the previous Canons 1
and 2. New Canon 2 was Canon 3 in the old Code. New Canon 3 is a
combination of previous Canons 4, 5, and 6. New Canon 4 was Canon 7 in the
old Code.
· Unlike the old Code, the new Code
contains Comments. There is a Comment for each Rule. A
Comment provides explanatory information, and sometimes, examples of permitted
or prohibited conduct. The purpose of Comments is to provide guidance in
interpreting and applying the rules. The Comments also serve as
aspirations for judicial conduct.
Substantive
Changes
· Appearance of Impropriety (Rule
51:1.2). Avoiding
the "appearance of impropriety" is a long standing canon of judicial
conduct. It has long been the subject of criticism for being too
vague. To help address this problem, the new Code contains a test that
defines when conduct violates the "appearance of impropriety." This test,
which is in a Comment, was derived from commentary in the 1990 ABA Model
Code. It describes the appearance of impropriety as: "whether the conduct
would create in reasonable minds a perception that the judge violated this Code
or engaged in other conduct that reflects adversely on the judge's honesty,
impartiality, temperament, or fitness to serve as a judge."
· Bias, Prejudice and Harassment (See
Rule 51:2.3). The old
Code required that judges refrain from manifesting bias or prejudice based upon
sex, race, national origin or ethnicity. The new Code adds harassment to
the types of prohibited conduct and expands the list of prohibited bases of
discrimination by adding religion, gender, disability, age, sexual orientation,
marital status, socioeconomic status, or political affiliation.
·
Ex
Parte Communications (Rule 51:2.9). Another
long standing ethical rule is the prohibition against "ex parte" communications—any
communication made to a judge outside the presence of all the parties or their
lawyers regarding a pending or impending case. As a general proposition,
the old Code prohibited a judge from initiating or considering ex parte
communications without exception. In line with the 2007 ABA Model Code,
the new Code takes a more pragmatic and common sense approach to the question
of ex parte communications by expanding the rules to accommodate a variety of
situations. The new Code expressly prohibits a judge from undertaking an
independent factual investigation. It also provides guidance for judges
who inadvertently receive ex parte communications. The new Code permits a
judge to engage in non-substantive, ex parte communications for scheduling,
administrative, or emergency purposes. It also authorizes a judge to, with
the consent of the parties, confer separately with the parties and their
lawyers in an effort to settle matters pending before the judge. The new
Code expressly allows a judge to consult with court staff whose functions are
to aid the judge with carrying out his or her adjudicative duties. A judge
may also consult with other judges so long as the judge makes an effort to
avoid receiving factual information not in the record.
· Statements about Pending Cases (Rule
51:2.10). Like
the old Code, the new Code of Conduct restricts judges from making public
statements about a pending or impending case. The limitation in the old
Code was, for the most part, unconditional. In contrast, the new Code
adds provisions to accommodate varying situations and expressly authorizes
comments in certain circumstances. The new Code permits a judge to comment
on any proceeding in which the judge is a litigant in a personal
capacity. It also allows a judge to respond directly or through a third
party to allegations in the media or elsewhere concerning the judge's conduct
in a matter.
· Disqualification (Rule 51:2.11). With regard to judicial
disqualification or recusal from a case, the new Code includes the same
longstanding rules that were in the old Code, as well as a couple new
rules. One of the new rules requires disqualification when the judge's
"participation in a matter or proceeding would violate due process of law as a
result of a campaign contribution or an independent campaign expenditure by a
person whose donors are associated or affiliated with a party or counsel appearing
before the court." This particular rule is in response to the United State
Supreme Court 2009 decision in Caperton v. A.T. Massey Coal.
· Responding to Judicial or Attorney
Misconduct (Rule 51:2.15). The
new Code tightens the rules regarding action a judge must take when the judge
knows or has information indicating that another judge or a lawyer has
committed an ethical violation. Appropriate action varies with the
circumstances.
· Extrajudicial and Personal Activities
(Canon 3). Canon 3 of
the new Code is a merger of the previous Canons 4, 5 and 6. As such, it
covers authorization for judges to engage in activities to improve the law, the
legal system and the administration of justice and offers guidance regarding
extra judicial activities such as work with charities, financial and business
dealings, and compensation for quasi-judicial activities. The new Code
carries forward most of the rules regarding extrajudicial and personal
activities from the old Code and adds additional rules.
· Participation in Charitable, Civic,
Religious, and Law-Related Activities (Rule 51:3.7). This rule contains some significant
changes. The old Code completely forbade judges from raising funds for
organizations, including non-profit charitable, educational, civic, and
religious organizations. The new Code allows a judge to solicit
contributions for these types of organizations, but only from members of the
judge's family, or from other judges over whom the judge does not exercise any
supervisory authority. Under the old Code a judge could not give
investment advice to any organization. The new Code permits a judge to
participate in the management and investment of such an organization's
funds. The old Code forbade judges from being speakers or guests of honor
at any fund-raising events of any organization. In contrast, the new Code
explicitly allows a judge to appear or speak at law-related fund-raising
events, but continues to prohibit participation in fund-raising events that are
not law-related events. The new Code includes a new provision that
encourages judges to provide leadership in increasing pro bono service by
lawyers. The new Code contains another new provision expressly stating
that judges may participate in public outreach activities such as developing
public education programs, engaging in activities that promote the fair
administration of justice, and assisting in advisory committees and community
collaborations devoted to improvement of the legal system and the
administration of justice.
· Fiduciary Positions (Rule
51:3.8). The new
Code carries forward the prohibitions in the old Code against judges serving in
fiduciary positions such as executors, trustees, and guardians. In
addition, the new Code adds a strict requirement that newly appointed
judges who were serving in these positions before their appointment withdraw
from any prohibited fiduciary activities as soon as reasonably practicable, but
no later than six months after becoming a judge.
· Practice of Law (Rule 51:3.10). Like the old Code, the
new Code prohibits judges from practicing law. However, the new Code adds
a small exception to the rule. It allows a judge to, without compensation,
give legal advice and draft or review documents for a member of the judge's family,
but it prohibits them from serving as the family member's lawyer in any
forum.
· Gifts (Rule 51:3.13). The court moved the gift rules
for judges from Chapter 22 of the Iowa Court Rules to Chapter 51 (Code of
Judicial Conduct). Gift restrictions on court employees continue to be
located in Chapter 22. With regard to substance, the new Code deviates somewhat
from the 2007 ABA Model Code on the topic of gifts. The reason for this
deviation is to retain gift restrictions that are substantially similar to
Iowa's statutory gift law (See Chapter 68B of the Iowa Code). Nonetheless,
there are two new provisions in the new Code taken from the 2007 ABA Model
Code. One new rule explicitly identifies circumstances when it is
permissible for a judge and family members of the judge to receive gifts,
bequests, and other things of value from donors who are not "restricted
donors." Another new rule is a broad restriction that prohibits a judge as
well as certain members of the judge's family from accepting or soliciting a
gift or other things of value "if acceptance would appear to a reasonable person
to undermine the judge's independence, integrity, or impartiality." This
general prohibition applies to any type of gift from anyone, including persons
who are not "restricted donors."
· Campaign and Political Activities
(Canon 4). Canon
4 was Canon 7 in the old Code. Canon 4 carries forward nearly all of the
rules from old Canon 7 regarding political activity and campaign
conduct. In addition, the new Code augments these rules with extensive
lists of political and campaign activities that are prohibited or
permissible.
· Political and Campaign Activities in
General (Rule 51:4.1). This
rule contains a series of general prohibitions that apply to all sitting
judges, including those seeking to be retained in office, and to candidates for
appointment to the bench. Nearly half of these prohibitions are new to the
Iowa Code of Judicial Conduct. The new rules include, among others, a
prohibition against: use of campaign contributions for the private benefit of
the judge or candidate, use of court staff or resources in a campaign,
personally accepting or soliciting campaign contributions except through a
campaign committee, and seeking or using endorsements from a political organization. The
court added a prohibition against participation in a caucus and a prohibition
against soliciting or accepting a campaign contribution from a court employee
or another judge.
· Activities of Judicial Candidates in
Retention Elections (Rule 51:4.2). This
rule adds further restrictions on the activities of judicial candidates seeking
retention during public election campaigns. However, such candidates are
exempt from certain restrictions in Rule 51:4.1. Most of the provisions in
this rule are new. For example, surplus campaign contributions held by a
committee after an election must be contributed to the Interest on Lawyer Trust
Account (IOLTA) Program, which are used to provide civil legal services to the
poor. Another new restriction requires a judge who is seeking retention to
review and approve the content of all the candidate's campaign statements and
materials before their dissemination. This rule carries forward the rule
from the old Code that authorizes a judge seeking retention to establish a
campaign committee to obtain support and campaign funds. This rule,
however, has been modified from its previous version. The old Code required that a judge face "active
opposition" to retention before the judge could form a campaign
committee. The new Code does not retain this requirement. This
provision mirrors the corresponding provision in the 2007 ABA Model Code. (The
ABA eliminated the "active opposition" requirement in 1990.) In addition,
this provision in the new Code is in line with Iowa's campaign finance law,
which allows a judge seeking retention to establish a campaign committee. (See
Chapter 68A of the Iowa Code.)
· Candidates for Appointment to
Judicial Office (Rule 51:4.3). For the first time, the Iowa Code of
Judicial Conduct addresses the activities of candidates for appointment to
judicial office. The new Code allows a candidate to communicate with the
nominating commission or appointing authority. It also allows the
candidate to seek endorsements from any person or organization other than a
partisan political organization.
· Campaign Committees (Rule 51:4.4). The new Code, also for the first time,
regulates the activities of campaign committees established by judges seeking
retention. The judicial candidate is responsible for ensuring that his or
her campaign committee complies with applicable ethical rules and state
laws. The candidate must direct the committee to solicit and accept only
such campaign contributions as are permissible by law, and to comply with all
statutory requirements for disclosure and divestiture of campaign
contributions.
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2010
Iowa Supreme Court
1111 East Court Avenue
Des Moines, IA 50319
515-281-3952
