|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.
Responding 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
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 firstname.lastname@example.org.