By Lance J. Rogers
Law firms would be required to monitor and report all financial donations and “other support” that the firm's employees and lawyers make in judicial elections under a proposed lawyer conduct rule released Dec. 28 for comment by the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Standing Committee on Professional Discipline.
If adopted, new Model Rule of Professional Conduct 5.1A would require firms to keep detailed records of “all financial and other support provided, directly or indirectly to any judge or judicial candidate running for election.” (See box)
The recommended change is part of a larger package of proposed reforms that includes multiple amendments to the Model Code of Judicial Conduct and a proposed model court rule mirroring the language in draft Rule 5.1A.
A public hearing will be held on the proposed amendments on Feb. 3 at the ABA's 2012 midyear meeting in New Orleans. Those interested in testifying at the hearing should contact Natalia Vera at email@example.com.
At its 2011 annual meeting, the ABA House of Delegates approved Resolution 107 on judicial disqualification and directed the ABA ethics committee and the professional discipline committee to consider “on an expedited basis” whether the judicial conduct and lawyer conduct rules should be amended to provide better guidance on the issues of disclosure and disqualification.
According to the report accompanying Resolution 107, “there is an urgent need for States to have in place prompt, effective, and transparent disqualification procedures.”
The report explains that the U.S. Supreme Court decisions in Caperton v. A.T. Massey Coal Co., 77 U.S.L.W. 4456, 25 Law. Man. Prof. Conduct 290 (U.S. 2009), and Citizens United v. Fed. Election Comm'n, 78 U.S.L.W. 4078 (U.S. 2010), strongly signaled the importance of curbing the mischief of excessive campaign support and of allaying the public's suspicion that election contributions are compromising judicial integrity.
The resulting package of proposed reforms includes modifications to the Model Code of Judicial Conduct which clarify that in deciding whether to disqualify themselves, judges must consider not only whether a lawyer has made financial contributions to the judge's campaign but also whether the lawyer lent “other support” that was “substantially important to the judge's most recent campaign.”
A proposed amendment to the Terminology section of the model judicial code explains what types of activities will qualify as “other support:”
In the context of judicial campaigns, “support” includes such assistance that a reasonable person would believe is intended to influence the election or defeat of a particular judicial candidate, such as fund-raising, letter-writing, emailing, assisting in telephone banks, managing (including directing or supporting the management of) a campaign, endorsing a judge's candidacy, getting-out-the-vote efforts, and other advocacy services.
Proposed comments  through  to Rule 2.11 of the model judicial code set out factors for a judge to consider when evaluating whether financial or nonfinancial support requires disqualification: (1) the amount or value of campaign contributions; (2) the source of the contribution; and (3) the timing and history of the donor's contribution or support.
Proposed comment  advises that judges should take into account “the visibility and public impact of the contribution or other support” when weighing the significance of the support.
The importance of winning the public's confidence is a strong theme running through the proposals. In the accompanying report, the committees referenced the need to improve “both the reality and public perception” of fairness and impartiality in the court system.
“That focus has been sharpened because of intense public scrutiny and criticism in several highly publicized cases of refusals by judges to recuse themselves in circumstances where the judge's impartiality might reasonably be questioned,” the commentary says.
Proposed Model Rule 5.1A, requiring law firm managers to keep tabs on the judicial election activity of the firm's lawyers, sets out alternative reporting requirements.
One option would require the law firm to report the collected campaign contribution and support statistics data to an agency designated by court rule.
The other alternative would require lawyers appearing before an elected judge “to inform the judge of the aggregate financial or other support the lawyer, the lawyer's firm, or other lawyers or employees in the firm have provided to the [most recent] election campaign of the judge.”
Full text of the proposals is available on the ABA website at http://www.americanbar.org/content/dam/aba/migrated/cpr/ethics/20111228_scepr_draft_proposed_amendments_and_hearing_notice_dec_2011.authcheckdam.pdf.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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