In response to a protest resignation from a top official
this month, the American Bar Association decided last
week to reinstate a key requirement in its Model Code
of Judicial Conduct. Three years ago, HALT
persuaded the ABA to retain a relatively modest rule
that would make it mandatory for judges to
avoid “impropriety or the appearance of impropriety.”
The ABA included the standard in several drafts of its
revised Model Code. But after three years of public
hearings on the issue, Robert Tembeckjian, Chief
Counsel for the New York Commission on Judicial
Conduct, found secretly inserted language—just days
before the ABA’s final vote—that no longer made it
mandatory for judges to avoid “impropriety or the
appearance of impropriety.” Instead, it would simply
have been advisable—transforming the language into
a virtually meaningless standard and in turn, making it
harder to discipline abusive judges.
Protesting the ABA’s secret dilution of the standard,
Tembeckjian resigned from his post on an ABA
advisory council. “This is a monumental mistake,” he
said in his resignation letter. “This backstage
last-minute revival of a bad idea is disconcerting and
mystifying.” Questioned later, Tembeckjian stated, “I
decided it was something I couldn’t live with, so I
resigned. People should know what is happening
before it is too late.”
In 2003, HALT urged the ABA to clarify the
ambiguous “appearance of impropriety”
standard. “Requiring judges to ‘avoid conduct that
undermines public confidence in the judiciary’ would
have provided clearer guidance than simply telling
them to ‘avoid the appearance of impropriety,’”
explained HALT Senior Counsel Suzanne M.
Blonder. “But the answer is to clarify the meaning of
the standard—not to further dilute the rule.”
Calling for greater transparency in the process,
Blonder stated: “It’s a shame that it took a top official’s
protest resignation to bring to light the ABA’s actions.
The process for revising the code should have been
transparent and open to public view at all times.”
HALT’s vocal support for stronger ethics requirements
in the Model Code, coupled with Tembeckjian’s
resignation and a call from the Conference of Chief
Judges last week, ultimately convinced the ABA to
restore the “appearance of impropriety” standard.
“We’re pleased that the commission acknowledged
its error and revived the requirement,” stated
Blonder. “The next step is for states to add teeth and
clarification to this critical standard.”
