California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 1999
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News
Legal specialist exam set Aug. 19
Sullivan to take reins at Stanford Law School
Only two appointed members remaining on State Bar board
Legal services board has five vacancies
Davis taps Michael Kahn
State Bar honors Justice Mosk with Witkin Medal
Board tentatively approves budget based on dues of $384
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Opinion
If it distracts, so be it
Let's cut back on jury service
Limit bar to admissions and discipline
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From the President - Door to justice must be open
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Letters to the Editor
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Law Practice - Preparing for a successful mediation
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Appointments - Apply to serve on a bar committee
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Legal Tech - DSL speeds up Internet - at a reasonable price
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New Products & Services
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MCLE Self-Study
Taxes and long-term care
Self-Assessment Test
MCLE Calendar of Events
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Trials Digest
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Discipline
Ethics Byte - Fiduciary duties basis for all rules
Attorney nabbed at State Bar offices for soliciting murders
Attorney Discipline
Ethics for the 21st Century - A canon for the future
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Public Comment

DISCIPLINE

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A canon for the future
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By DAVID M.M. BELL
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The Supreme Court of California announced March 5 that it has amended Canon 6D of the Code of Judicial Ethics, effective immediately. Canon 6D, which governs the conduct of individuals serving as temporary judges, referees or court-appointed arbitrators, has been revised completely. The amended canon is a major step forward for the administration of justice in California.

To understand the nature and process of the amendment to Canon 6D, some history is necessary. In January 1996, the Supreme Court requested the State Bar to consider a proposed new rule of professional conduct to regulate a member's conduct as a court-appointed temporary judicial officer. The proposed rule was recommended because the Commission on Judicial Performance does not have disciplinary jurisdiction over members of the bar who serve as temporary judicial officers, even though the Code of Judicial Ethics regulates such members' activities.

In January 1997, the State Bar filed proposed new Rule of Professional Conduct 1-710 (Member as Temporary Judge, Referee or Court-Appointed Arbitrator) with the court for approval. Proposed new rule 1-710 is a "mechanical" rule, intended to fill a regulatory gap by permitting the State Bar to discipline members who serve as temporary judicial officers and who violate Canon 6D. It would add no additional duties for members beyond those found in Canon 6D.

During development of proposed new rule 1-710, concern was raised that portions of former Canon 6D were problematic and chilling, in that they contained standards appropriate to full-time judges that were onerous when applied to members serving as temporary judicial officers (for example, the canon severely restricted temporary judicial officers' relationships, communications and financial dealings). This concern is not just academic, but goes directly to the administration of justice in California. Members serving as temporary judges each year represent the equivalent of more than 50 full-time judge positions in California.

David BellResponding to this concern, the State Bar Committee on Professional Responsibility and Conduct (COPRAC) worked extensively with the California Judges Association (CJA) to develop balanced amendments to Canon 6D intended to insure the fair and proper administration of justice by members serving as temporary judges.

The Supreme Court then appointed a special advisory committee that considered and further refined the joint COPRAC/CJA draft.

In appointing members to its advisory committee, the Supreme Court took two important steps to achieve continuity in the amendment process. First, it appointed Justice Charles Vogel of the Second District Court of Appeal as chair of the advisory committee. Justice Vogel chaired an earlier Supreme Court advisory committee that redrafted the entire Code of Judicial Ethics (approved by the court in 1996) and that first recommended promulgation of a rule of professional conduct governing members serving as temporary judicial officers.

Second, the Supreme Court appointed two members, Hon. David Rothman (ret.) and myself, who participated in developing the joint COPRAC/CJA draft. This approach helped the advisory committee better understand the history and issues relating to Canon 6D, and facilitated its work. The court approved the advisory committee's draft, after circulating it for public comment and making minor revisions.

Although new Canon 6D is too complex and lengthy to be discussed in meaningful detail here, it is a great improvement over the old canon (it can be found at www.courtinfo.ca.gov). It preserves the fair and proper administration of justice, while modifying strict rules that are unduly onerous and chilling when applied to members who serve as judicial officers on a temporary basis only.

It creates separate and reasonable time frames under which specific rules apply. It is written in a much more understandable form.

Members who serve as temporary judicial officers should be pleased with the amended canon and with the thoughtful, cooperative process that produced it. The regulatory gap will be closed once the court approves proposed rule 1-710.

David M.M. Bell, now in private practice, formerly was State Bar director of professional competence, overseeing rule development and the Ethics Hotline. He can be reached at dmbell@dnai.com.