<< COB00001 >>
IN THE UNITED STATES DISTRICT COURT
FOR TuB DISTRICT OF COLUMBIA
ELOUISE PEPION COBELL et al.,	)
		)
	Plaintiffs,	)
		)
	v.	)	Case No. l:96CV01285
	)	(Judge Lamberth)
GALE A. NORTON, Secretary of the Interior,	)
et al	)	Special Master Alan Balaran
	)
Defendants.	)
GOVERNMENTtS OPPOSITION TO SPECIAL MASTER'S
PROPOSED RETENTION OF ANNE H.S. FRASER, ESO. TO ASSIST THE
SPECIAL MASTER WITH MOTIONS FOR ORDERS TO SHOW CAUSE.
	By letter dated October II, 2002, Exhibit I hereto, the government notified the Special
Master of its opposition to the proposed retention of Anne H.S. Fraser, Esq., to assist him with the
motions for orders to show cause which the Court has referred to the Special Master. On October
16, 2002, the Special Master directed the government to set forth with specificity the factual, legal
or ethical bases for its objections. See Exhibit 2.
	Ms. Fraser is currently representing the plaintiff in Young v. Ashcroft, E.E.O.C. I00-A2-
7097X, Agency No. JP-0l-05, an administrative case in active litigation before the E.E.O.C. Ms.
Fraser's client is pursuing a claim against a component of the Department of Justice, and Attorney
General John Ashcroft in his official capacity is the named Respondent. While the government
does not know Ms. Fraser's fee arrangements with her client, if her fees are dependent in any way
on the outcome of the proceeding, she would have a financial stake in the outcome of the E.E.O.C.
proceeding.
<< COB00002 >>
	The Special Master proposes to hire Ms. Fraser, presumably in the capacity of a law clerk,
to assist him in his review of the motions to show cause which have been referred by the Court.'
The motions to show cause allege contemptuous conduct by at least twelve present or former
employees of the Department of Justice, in both their official and individual capacities. Moreover,
the Department of Justice is representing all respondents in their official capacity. Therefore, if
she is hired, Ms. Fraser would be acting as a neutral assisting a review of claims against the
Department of Justice and current and former Department of Justice personnel, while she is
actively litigating another case in which the Department of Justice is both counsel and defendant.
	The Special Master's letter of October 16, 2002 states that it does not appear that Ms.
Fraser has "any actual or potential conflict of interest in that she is not being asked to, nor will she
be required to, advance any two or more adverse positions on behalf of any client in connection
with this engagement. See Rule 1.7 of the D.C. Bar Rules." The Special Master errs in viewing
the issue as whether Ms. Fraser will have a conflict of interest as an attorney. Since she will be
retained as a neutral to assist the Special Master in performing an adjudicatory function, the
relevant test is whether she will have a conflict of interest in her role as a judicial officer or as an
advisor to a judicial officer. Consequently, the proper question is whether, under the above
described circumstances, statutes and ethical codes applicable to judicial officers and their staff
disqualify Ms. Fraser from assisting the Special Master is his review of contempt motions against
the Department of Justice while she is prosecuting a separate administrative case against the
Department.
	The Special Master has not precisely detailed what he contemplates Ms. Fraser's duties
would be. This memorandum addresses Ms. Fraser~ s suitability to assist on the motions to show
cause. However, the government reserves its position on the general question of whether it is
appropriate for the Special Master to retain an attorney to assist him, as a law clerk or in some
other capacity.
-2-
<< COB00003 >>
	The D.C. Circuit determined in Jenkins v. Sterlacci, 849 F.2d 627, 632 (D.C. Cir. 1988),
that on matters of conflict of interest, a special master is held to the standards applicable to the
conduct ofjudges. A judge is disqualified in any proceeding in which his or her impartiality
might reasonably be questioned. 28 U.S.C. § 455 (a). Section 455(a) focuses on what is revealed
to the parties and to the public, as opposed to the existence in fact of any bias or prejudice. Hall v.
Small Business Administration, 695 F. 2d 175, 178 (5th Cir. 1983) . Canon 3(C)(1) of the
American Bar Association Code of Judicial Conduct for United States Judges, which has been
approved by the Judicial Conference, also provides that a judge shall disqualify himself or herself
in a proceeding in which the judge's impartiality might reasonably be questioned.2 The Code is
Exhibit 3 hereto.
	While the Special Master, unlike a judge, see 28 U.S.C. § 454, is not prohibited from
maintaining a law practice, he could not, while the motions to show cause are pending before him,
prosecute or defend a separate case against a party to the show cause proceedings, as such
representation would violate section 455(a) and Canon 3(C)(1). In Jenkins 'j. Sterlacci, 849 F.2d
627 (D.C. Cir. 1988), a special master appointed to determine damages represented a party in an
unrelated administrative appeal. A law firm representing a party in the action pending before the
special master also participated in the administrative appeal, on behalf of a party whose interests
were adverse to the party represented by the special master. The court found that the special
master's dual role as an adjudicator of damages claims by a party represented by the law firm and
as an advocate in the administrative case against the interests of the law firm created a conflict of
interest and an appearance of impropriety. 849 F.2d at 632, 633. The court noted that special
masters, unlike judges, are often practicing attorneys, and stated:
	2 Canon 3(C)(l) applies to special masters.
-3-
<< COB00004 >>
They therefore may wear different hats depending upon the professional function
they are performing from one day to the next. In one matter they may be required to
observe the impartial decorum of a decisionmaker, while in another they may be
call upon to assume the perspective, and the partiality, of an advocate. This duality
of roles places a burden on the special master with an active law practice..., it is
sufficient, and necessary, that an individual who accepts an appointment as a
special master scrupulously avoid any undertaking, as an advocate or otherwise,
that would tend or appear to compromise his impartiality as a decisionniaker.
849 F.2d at 632.~ Thus, the Special Master could not prosecute or defend a separate cause against
the Department of Justice while the motions to show cause are pending before him. His law clerks
and staff are bound by the standards applicable to him. Hall, 695 F. 2d at 179 (5th Cir. 1983)
("the clerk is forbidden to do all that is prohibited to the judge."); Hamid v. Price Waterhouse, 51
F.3d 1411, 1416 (9th Cir. 1995) ("if the clerk has a possible conflict of interest, it is the clerk, not
the judge, who must be disqualified," quoting Hunt v. American Bank & Trust Co., 783 F. 2d 1011,
1016 (11 Cir. 1986)). Indeed, Ms. Fraser's retention and participation in this case as a law clerk
to the Special Master in evaluating claims against the Department of Justice while she is
representing a party adverse to the Department of Justice in the administrative litigation would
raise serious issues as to whether the Special Master could continue to evaluate the motions for
orders to show cause. See Hall, 695 F.2d at 176-77 (magistrate recused because he permitted his
law clerk to continue to work on the case after she started employment negotiations with plaintiffs'
counsel).
	~	Under the facts of the Jenkins case, the Court determined that the conflict of interest had
been waived. The law firm entered its appearance in the administrative proceeding after the
special master filed his appearance, thus, the Court concluded, creating the appearance of
impropriety by its own actions. 489 F.2d at 632, 633. Moreover, the firm did not move to
disqualify the special master until he had issued his report. Id. at 634. Here, the Department of
Justice objected at the first available opportunity to a potential conflict of interest created by the
contemplated retention of Ms. Fraser, and the appearance of impropriety is not created by any
action of the Department of Justice.
-4-
<< COB00005 >>
	The Special Master's October 16, 2002 letter requests the government to state the basis for
its objections to retention of Ms. Fraser "so that I may fully evaluate your claim." The letter
indicates that the Special Master may believe that he has discretion to retain Ms. Fraser, despite
the government's opposition. If so, the Special Master's position is not correct. Ms. Fraser is
disqualified unless the government waives the conflict of interest, and the government has chosen
not to waive the conflict. Moreover, neither the Special Master nor Ms. Fraser has made a full
disclosure, on the record, concerning the basis for disqualification, as required by 28 U.S.C. §
455(3) and Canon 3(D) of the American Bar Association Code of Judicial Conduct for United
States Judges. See Jenkins, 849 F.2d at 633 (stating that the special master was ethically required
to make such a disclosure, citing § 455(e), Canon 3(D) and Canon 1 l.A-C of the American
Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes (1977)). We do
not know Ms. Fraser's fee arrangement in the E.E.O.C. proceeding, the precise role she would
fulfill in assisting the Special Master on the motions for orders to show cause, or the basis for her
compensation in the show cause proceedings. Moreover, what information we do have was not
provided on the record. However, the rather limited information that is available is sufficient to
demonstrate that Ms. Fraser is disqualified from participating in proceedings on the motions to
show cause.
-5-
<< COB00006 >>
Respectfully submitted,
ROBERT D. McCALLUM, JR.
Assistant Attorney General
STUART B. SCHIFFER
Deputy Assistant Attorney General
J.	CHRISTOPHER KOHN
MICHAEL F. HERTZ
Directors
SANDRA P. SPOONER
Deputy Director
D.C. Bar No. 261495
Dodge Wells
Senior Trial Counsel
D.C. Bar No. 425194
Tracy L. Hilmer
D.C. Bar No. 421219
Trial Attorney
Commercial Litigation Branch
Civil Division
P.O. Box 261.
Ben Franklin Station
Washington, D.C. 20044
(202) 307-0474
DATED:	October 23, 2002
-6-
<< COB00007 >>
CERTIFICATE OF SERVICE
	I certify that on October 23, 2002 I served the foregoing Government's Opposition to
Special Master's Proposed Retention ofAnne IlLS. Fraser, Esq. to Assist the Special Master with
Motions for Orders to Show Cause in the manner stated upon the persons listed on the attached
service list.
<< COB00008 >>
By Hand Delivery and by facsimile:	By first-class mail, postage prepaid, or by
	facsimile pursuant to written agreement:
Alan L. Balaran, Esq.
Special Master	Mary Lou Soller, Esq.
1717 Pennsylvania Ave., NW	Adam Feinberg, Esq.
12th Floor	Miller & Chevalier
WashingtQn, DC 20006	655 15th Street, N.W., Suite 900
(202) 986-8477	Washington, D.C. 20005
	By First Class Mail
By facsimile, pursuant to written agreement:	Counsel for Chester Mills and Terence
	Virden
Keith Harper, Esq.
Native American Rights Fund	Earl J. Silbert, Esq.
1712 N Street, N.W.	Robert A. Salerno, Esq.
Washington, D.C. 20036-2976	Adam Hoffinger, Esq.
(202) 822-0068	Piper Rudnick LLP
Counsel for Plaint ifs	1200 19th Street, N.W., 7th Floor,
	Washington, D.C. 20036
Dennis M Gingold, Esq.	By Fax: 202-223-2085
Mark Kester Brown, Esq.	Counsel for John Cruden, Jack Haugrud
1275 Pennsylvania Avenue, N.W.	and Sarah Himmelhoch
Ninth Floor
Washington, D.C. 20004	David S. Krakoff, Esq.
(202) 318-2372	Alessio D. Evangelista
Counselfor Plaint ifs	Beveridge & Diamond, P.C.
	1350 I Street, N.W.
and by U.S. Mail upon:	Suite 700
	Washington, D.C. 20005-3311
Elliott Levitas, Esq.	By Fax: 202-789-6190
1100 Peachtree Street, Suite 2800	Counsel for Daryl White
Atlanta, GA 30309-4530
Counsel for Plaint ifs	Amy Berman Jackson, Esq.
	Trout & Richards
Copy by Facsimile and U.S. Mail upon:	1100 Connecticut Avenue, N.W.
	Suite 730
Joseph S. Kieffer, III, Esq.	Washington, D.C. 20036
Special Master Monitor	By Fax: 202-463-1925
420 7~ Street, N.W.	Counsel for Edith Blackwell
Apartment 705
Washington, D.C. 20004
(202) 478-1958
—I—
<< COB00009 >>
/
Michael Bromwich, Esq.	Barbara Van Gelder, Esq.
Anne Perry, Esq.	Eric Lyttle, Esq.
Fried Frank Harris Shriver & Jacobson	Wiley, Rein & Fielding LLP
1001 Pennsylvania Avenue, N.W.	1776 K Street, N.W.
Suite 800	Washington, D.C. 20006-23 04
Washington, D.C. 20004-2505	By Fax: 202-719-7049
By Fax: 202-639-7008	          and
Counsel for Sharon Blackwell	Erika C. Birg, Esq.
	Paul, Weiss, Rifkind, Wharton & Garrison
B. Michael Raub, Esq.	1615 L Street, NW, Suite 1300
Julie Campbell, Esq.	Washington, DC 20036
Manatt, Phelps & Phillips, LLP	By Fax: 202-223-7421
1501 M Street, N.W.	Counsel for James Eichner
Suite 700
Washington, D.C. 20005	Roger Zuckerman, Esq.
By Fax: 202-463-4394	Leslie Kieman, Esq.
Counsel for Neal McCaleb	William Taylor, Esq.
	Zuckerman, Spader, Goldstein, Taylor &
Barry Boss, Esq.	Kolker, LLP
Asbill, Junkin, Moffitt & Boss	1201 Connecticut Avenue, N.W.
1615 New Hampshire Ave., N.W.	Suite 700
Suite 200	Washington, D.C. 20036
Washington, D.C. 20009	By First Class Mail
By Fax: 202-332-6480	Counsel for Robert Lamb and Hilda Manuel
Counsel for Stephen Swanson
	Christopher Mead, Esq.
William H. Briggs, Jr., Esq.	London & Mead
Marc E. Rindner, Esq.	1225 19th Street, N.W.
Ross, Dixon & Bell	Suite 320
2001 K Street, N.W.	Washington, D.C. 20036
Washington, D.C. 20006-1040	By Fax: 202-785-4280
By Fax: 202-662-2190	Counsel for Ken Rossman
Counsel for Phillip BrooAs
	Robert Luskin, Esq.
William Gardner, Esq.	Patton Boggs
Morgan, Lewis & Bockius	2550 M St., Suite 500
1111 Pennsylvania Avenue, N.W.	Washington, D.C. 20037-13 50
Washington, D.C. 20004	By Fax: 202-457-6315
By Fax: 202-739-3001	Counsel for Edward Cohen, Bruce Babbit
Counsel for Willa Perlmutter	and John Leshy
-2-
<< COB00010 >>
Plato Cacheris, Esq.	Herbert Fenster, Esq.
John F. Hundley, Esq.	Jane Ann Neiswender, Esq.
Sydney I. Hoffinann, Esq.	MoKenna, Long & Aidridge, LLP
Baker & McKenzie	370 Seventeenth Street, Suite 4800
815 Connecticut Avenue, N.W.	Denver, Colorado 80202
Washington, D.C. 20006	By Fax: 303-6344400
By Fax: 202-775-8702	By Fax: 202-496-7756
Counsel for John Berry and Glen	Counsel for Gale Norton
Schumaker
	James Johnson, Esq.
R. Christopher Cook, Esq.	Jamie Levitt, Esq.
Jones Day Reaves & Pogue	Morrison & Foerster
51 Louisiana Aye, N.W.	1290 Sixth Avenue
Washington, D.C. 20001-2113	New York, NY 10104
By Fax: 202-626-1700	By Fax: 212-468-7900
Counsel for Michael Carr	Counsel for Sabrina McCarthy
Kathleen E. Voetker, Esq.	E. Lawrence Barcella, Jr.
1101 Connecticut Avenue, N.W., Suite 1000	Scharn Robinson, Esq.
Washington, D.C. 20036	Paul, Hastings, Janofsky & Walker LLP
By Fax: 202-835-2202	1299 Pennsylvania Avenue, N.W.
Counsel for James Douglas	Washington, D.C. 20004-2400
	By Fax: 202-508-9700
Martha Rogers, Esq.	Counsel for William Myers
Leon Rodriguez, Esq.
Ober, Kaler, Grimes & Shriver	Stephen M. Byers, Esq.
1410 H Street, N.W., Suite 500	Miguel Rodriguez, Esq.
Washington, D.C. 20005	Crowell & Moring
By Fax: 202-408-0640	1001 Pennsylvania Avenue, N.W.
Counsel for Timothy Elliott	Washington, D.C. 20004-2595
	By Fax: (202)628-5116
Lisa Kemler, Esq.	Counsel for Dominic Nessi
John Kenneth Zwerling, Esq.
Zwerling & Kemler	Jefferson M. Gray, Esq.
108 North Alfred Street	Arent Fox Kintner Plotkin & Kahn, PLLC
Alexandria, VA 22314	1050 Connecticut Avenue, N.W.
By Fax: 703-684-9700	Washington, D.C. 20036
Counsel for Deborah Maddox and Terry	By Fax: 202-857-6395
Steele	Counsel for Ken Paquin and Ken Russell
-3-
<< COB00011 >>
Elizabeth Wallace Fleming, Esq.	Hamilton P. Fox UL, Esq.
1715 - 15th Street, N.W., #25	Kathleen M. Devereaux, Esq.
Washington, D.C. 20009	Gregory S. Smith, Esq.
By First Class Mail	Sutherland, Asbill & Brennan LLP
Counsel for Michael Rossetti	1275 Pennsylvania Avenue, N.W.
	Washington, D.C. 20004-24 15
Jeffrey D. Robinson, Esq.	By Fax: 202-637-3593
Dwight Bostwick, Esq.	Counsel for Charles Findlay
Melissa MeNiven, Esq.
Baach, Robinson & LeWiS	Thomas E. Wilson, Esq.
One Thomas Circle, Suite 200	John A. Ordway, Esq.
Washington, D.C. 20005	Berliner, Corcoran & Rowe, LLP
By Fax: 202-466-5738	1101 17th Street, N.W., Suite 1100
Counsel for Lois Sch&ffer and Anne Shields	Washington, D.C. 20036
	By First Class Mail
Russell D. Duncan, Esq.	Counsel for John Most
Coburn & Schertler
1150 18th Street N.W., Suite 850	Larry A. Nathans, Esq.
Washington, D.C. 20036	Robert W. Biddle, Esq.
By Fax: 202-628-4145	Bennett & Nathans, LLP
Counsel for David Shilton and John Bryson	210 East Lexington Street, Suite 301
	Baltimore, MD 21202
Michael Goodstein, Esq.	By First Class Mail
Deanna Chang, Esq.	Counsel for David Shuey
Resolution Law Group, P.C.
5335 Wisconsin Avenue, Suite 350	Eugene R. Fidell, Esq.
Washington, D.C. 20015	Matthew S. Freedus, Esq.
By Fax: 202-686-4843	Feldesman, Tucker, Leifur, Fidell & Bank LLP
Counsel for Tom Clark	2001 L Street, N.W., 2nd Floor
	Washington, D.C. 20036
Stanley Brand, Esq.	By Fax: 202-293-8103
Andrew D. Herman, Esq.	Counsel for James Simon
Brand & Frulla
923 Fifteenth Street, N.W.
Washington, D.C. 20005
By First Class Mail
Counsel for Peter Coppelman
-4-
<< COB00012 >>
U.S. Department of Justice
	Civil Division
MFH:THilmer	Atty: Tracy L Hilmer
DJ: 145-7-1468	Tel: (202) 307-0474
	Post Office Box 261
	Benjamin Franklin Station
	Washington. D.C. 20044
	October 11, 2002
By Facsimile (202)986-8477
Alan L. Balaran, Esq.
Special Master
1717 Pennsylvania Ave., NW
12th Floor
Washington, DC 20006
	Re:	Cobell v. Norton, Civ. Action No. 96-1285 (RCL) (D.D.C.)
Dear Mr. Balaran:
	This will respond to our telephone conversation last week in which you mentioned that you
were considering hiring Anne Fraser, Esq. to assist you with the show cause motions that the Court has
referred to you. You informed me that Ms. Fraser is representing the plaintiff in a matter before the
EEOC known as Young v. Ashcroft and asked if the Government or individual counsel would object to
her participation in these proceedings. I contacted the Department of Justice attorney who is defending
the case to learn its status. She informed me that the case is in active litigation and that there are no
settlement proposals currently under discussion. This circumstance is sufficient to raise at least the
appearance of a conflict of interest, and the Government believes it is not appropriate for Ms. Fraser to
serve as an assistant to you in these proceedings.
	I have informed individual counsel of your proposal, and they may contact you separately with
their own views.
	Sincerel	-,
TracyL. 1 er
Trial At rney
Commercial Litigation Branch
cc (by fax): Attached service list
EXHIBIT 1
Gov'ts Opposition to SM's
<< COB00013 >>
Oct—16—02 21:16	Frau—TIE LAV OFFICE OF ALAN BALAFAN	ZOZOSCS4TT	T—145 PD~/02 F—lOB
	L&1w 0fI,CL
	ALAN L. J3ALARAN, ~L.LC.	I7I7PSNVL~AAV~,.N~
	ATh.4r~INw~ M~ 3Q	TW1LPTk~ rWOa
	WA$~t4CTOti, tzc. ~
	TeLePHONE ~
	~AX ~ ~444~7
	Otobcr 16, 2002	a-~s~zt	,ia~
VIA FACSYNt11.~ AN]) FIZ~ST-CLASS POSTAGE
Tracy L Hilmer, Esq.
Commercial Litigation Branch/Civil Division
United States Department otXhtstice
P.O. Box 26)
Ben Franklin Station
Washington, D.C. 20044
Re: Cobell v. Norton
CA No. 96-1285 (RCL) (D.D.C..)
Dear Ms. Illirner:
	Your letter of October 11,2002 states that you object to my engagement of Anne H. S.
Fraser, Bsq. to assist rue with the show cause motions assigned to me by Judge Royce C.
Larnbcrth on September 1.7,2002. You assert as grounds that this would create thc "appearance
of a conflict of interest" because Ms. Fraser is representing a party in litigation (Vounc v.
~h~mfl. E.EO.C. l00-A2-7097X, Agency No. JP-0l -05) against the Office of Justice
Pwgramn. an agency of the Depanznent otlustice. in which Attorney General John Ashcroft in
his official capacity is the named Respondent.
	it does not appear from my review of this matter that Ms. Fraser has any actual or
potential conflict of interest in that ~he is no; being auiced to, nor will she be required to, advancc
any two or more adverse positions on behalf of any client in connection with this engagement.
See R.ule 1.7 of the D.C. Bar Ru1c~. She would not be functioning as an advocate in any way in
this matter and it is not clear to me how any position she may assert in her pending case on behalf
of a client could conflict with her obligations as a neutral in this ease.
	Your assertion that my intended use of Ms. Fraser's services creates the appearance of a
conllict is. at this point, condusoiy. Please set faith, with specificity, all factual, legal or ethical
bases for yvur objection that my use of Ms. Fraser's services creates rha appearance of a conflict
of intcrcst, in a writing and provide it to me on or before Wednesday. October 23, 2002, so that I
may fully evaluate ~nIr claim.
/
I
'—. ~C~an L Balaran
Special Maner
EXHIBIT 2
Gov'ts Opposition to SM's
O~nt~ ,.f ~ H V V.-'.e~..
<< COB00014 >>
CHAPTER I. CODE OF CONDUCT FOR UNITED STATES JUDGES
CONTENTS
Introduction
Canon 1.	A Judge Should Uphold the Integrity and Independence of the
Judiciary
Canon 2.	A Judge Should Avoid Impropriety and the Appearance of
Impropriety in All Activities
Canon 3.	A Judge Should Perform the Duties of the Office Impartially and
Diligently
Canon 4.	A Judge May Engage in Extra-Judicial Activities To Improve the
Law, the Legal System, and the Administration of Justice
Canon 5.	A Judge Should Regulate Extra-Judicial Activities To Minimize the
Risk of Conflict with Judicial Duties
Canon 6.	A Judge Should Regularly File Reports of Compensation Received
for Law-Related and Extra-Judicial Activities
Canon 7.	A Judge Should Refrain from Political Activity
Compliance with the Code of Con~uct
Applicable Date of Compliance
Checklists for Financial and Other Conflicts of Interest (PDF)
CHAPTER I. CODE OF CONDUCT FOR UNITED STATES JUDGES~
Introduction
This Code applies to United States Circuit Judges, District Judges, Court of International Trade
Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges. Certain
provisions of this Code apply to special masters and commissioners as indicated in the
"Compliance" section. In addition, the Tax Court, Court of Appeals for Veterans Claims, and
Court of Appeals for the Armed Forces have adopted this Code. Persons to whom the Code
applies must arrange their affairs as soon as reasonably possible to comply with the Code and
should do so in any event within one year of appointment.
The Judicial Conference has authorized its Committee on Codes of Conduct to render advisory
opinions concerning the application and interpretation of this Code only when requested by a
EXHIBIT 3
Gov'ts Opposition to SM's
<< COB00015 >>
judge to whom this Code applies. Requests for opinions and other question#~ concerning this
Code and its applicability should be addressed to the Chairman of the Committee on Codes of
Conduct as follows: Chairman, Committee on Codes of Conduct
do General Counsel
Administrative Office of the
United States Courts
One Columbus Circle, N.E.
Washington, D.C. 20544
(202) 502-1 100
CODE OF CONDUCT FOR UNITED STATES JUDGES~
CANON 1
A JUDGE SHOULD UPHOLD THE INTEGRITY
AND INDEPENDENCE OF THE JUDICIARY
An independent and honorable judiciary is indispensable to justice in our society. A judge should
participate in establishing, maintaining, and enforcing high standards of conduct, and should
personally observe those standards, so that the integrity and independence of the judiciary may be
preserved. The provisions of this Code should be construed and applied to further that objective.
COMMENTARY
Deference to the judgments and rulings of courts depends upon public confidence in the integrity
and independence ofjudges. The integrity and independence of judges depend in turn upon their
acting without fear or favor. Although judges should be independent, they should comply with
the law, as well as the provisions of this Code. Public confidence in the impartiality of the
judiciary is maintained by the adherence of each judge to this responsibility. Conversely,
violation of this Code diminishes public confidence in the judiciary and thereby does injury to
the system of government under law.
The Canons are rules of reason. They should be applied consistent with constitutional
requirements, statutes, other court rules and decisional law, and in the context of all relevant
circumstances. The Code is to be construed so as not to impinge on the essential independence of
judges in making judicial decisions.
<< COB00016 >>
The Code is designed to provide guidance to judges and nominees for judicial office. The Code
may also provide standards of conduct for application in proceedings under the Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 332(d)(l), 372(c)),
although it is not intended that disciplinary action would be appropriate for every violation of its
provisions. Whether disciplinary action is appropriate, and the degree of discipline to be
imposed, should be determined through a reasonable application of the text and should depend
on such factors as the seriousness of the violation, the intent of the judge, whether there is a
pattern of improper activity, and the effect of the improper activity on others or on the judicial
system. Many of the proscriptions in the Code are necessarily cast in general terms, and it is not
suggested that disciplinary action is appropriate where reasonable judges might be uncertain as to
whether or not the conduct is proscribed. Furthermore, the Code is not designed or intended as a
basis for civil liability or criminal prosecution. Finally, the purpose of the Code would be
subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
CANON 2
A JUDGE SHOULD AVOID
IMPROPRIETY AND THE APPEARANCE
OF IMPROPRIETY IN ALL ACTIVITIES
A. A judge should respect and comply with the law and should act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow family, social, or other relationships to influence judicial conduct or
judgment. A judge should not lend the prestige of the judicial office to advance the private
interests of others; nor convey or permit others to convey the impression that they are in a special
position to influence the judge. A judge should not testify voluntarily as a character witness.
C. A judge should not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, religion, or national origin.
COMMENTARY
Canon 2A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by
judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect
to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might
be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The
prohibition against behaving with impropriety or the appearance of impropriety applies to both
<< COB00017 >>
	the professional and personal conduct ofajudge. Because it is not practicable to list all
prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by
judges that is harmful although not specifically mentioned in the Code. Actual improprieties
under this standard include violations of law, court rules or other specific provisions of this
Code. The test for appearance of impropriety is whether the conduct would create in reasonable
minds, with knowledge of all the relevant circumstances that a reasonable inquiry would
disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity,
impartiality, and competence is impaired.
Canon 2B. The testimony of a judge as a character witness injects the prestige of the judicial
office into the proceeding in which the judge testifies and may be misunderstood to be an official
testimonial. This Canon, however, does not afford the judge a privilege against testifying in
response to an official summons. Except in unusual circumstances where the demands ofjustice
require, ajudge should discourage a party from requiring the judge to testify as a character
witness.
A judge should avoid lending the prestige of judicial office for the advancement of the private
interests of the judge or others. For example, ajudge should not use the judge's judicial position
to gain advantage in litigation involving a friend or a member of the judge's family. In contracts
for publication of a judge's writings, ajudge should retain control over the advertising to avoid
exploitation of the judge's office.
A judge should be sensitive to possible abuse of the prestige of office. A judge should not initiate
the communication of information to a sentencing judge or a probation or corrections officer but
may .provide to such persons information in response to a formal request. Judges may participate
in the process of judicial selection by cooperating with appointing authorities and screening
committees seeking names for consideration, and by responding to official inquiries concerning a
person being considered for a judgeship.
Canon 2C. Membership of a judge in an organization that practices invidious discrimination
gives rise to perceptions that the judge's impartiality is impaired. Canon 2C refers to the current
practices of the organization. Whether an organization practices invidious discrimination is often
a complex question to which judges should be sensitive. The answer cannot be determined from
a mere examination of an organization's current membership rolls but rather depends on how the
organization selects members and other relevant factors, such as that the organization is
dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest
to its members, or that it is in fact and effect an intimate, purely private organization whose
membership limitations could not be constitutionally prohibited. See New York State Club Ass'n.
Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of
Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 5. Ct. 1940, 95 L.
Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d
<< COB00018 >>
462 (1984). Other relevant factors include the size and nature of the organization and the
diversity of persons in the locale who might reasonably be considered potential members. Thus
the mere absence of diverse membership does not by itself demonstrate a Violation unless
reasonable persons with knowledge of all the relevant circumstances would expect that the
membership would be diverse in the absence of invidious discrimination. Absent such factors, an
organization is generally said to discriminate invidiously if it arbitrarily excludes from
membership on the basis of race, religion, sex, or national origin persons who would otherwise
be admitted to membership.
Although Canon 2C relates only to membership in organizations that invidiously discriminate on
the basis of race, sex, religion or national origin, a judge's membership in an organization that
engages in any invidiously discriminatory membership practices prohibited by applicable law
violates Canons 2 and 2A and gives the appearance of impropriety. In addition, it would be a
violation of Canons 2 and 2A for a judge to arrange a meeting at a club that the judge knows
practices invidious discrimination on the basis of race, sex, religion, or national origin in its
membership or other policies, or for the judge to use such a club regularly. Moreover, public
manifestation by a judge of the judge's knowing approval of invidious discrimination on any
basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the
integrity and impartiality of the judiciary, in violation of Canon 2A.
When a judge determines that an organization to which the judge belongs engages in invidious
discrimination that would preclude membership under Canon 2C or under Canons 2 and 2A, the
judge is permitted, in lieu of resigning, to make immediate and continuous efforts to have the
organization discontinue its invidiously discriminatory practices. If the organization fails to
discontinue its invidiously discriminatory practices as promptly as possible (and in all events
within two years of the judge's first learning of the practices), the judge should resign
immediately from the organization.
CANON 3
A JUDGE SHOULD PERFORM THE DUTIES
OF THE OFFICE IMPARTIALLY AND DILIGENTLY
The judicial duties of a judge take precedence over all other activities. In performing the duties
prescribed by law, the judge should adhere to the following standards:
A.	Adjudicative Responsibilities.
(1) A judge should be faithful to and maintain professional competence in the law, and should
<< COB00019 >>
not be swayed by partisan interests, public clamor, or fear of criticism.
(2)	A judge should hear and decide matters assigned, unless disqualified, and should maintain
order and decorum in all judicial proceedings.
(3)	A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses,
lawyers, and others with whom the judge deals in an official capacity, and should require similar
conduct of those subject to the judge's control, including lawyers to the extent consistent with
their role in the adversary process.
(4)	A judge should accord to every person who is legally interested in a proceeding, or the
person's lawyer, full right to be heard according to law, and, except as authorized by law, neither
initiate nor consider ex parte communications on the merits, or procedures affecting the merits,
of a pending or impending proceeding. A judge may, however, obtain the advice of a
disinterested expert on the law applicable to a proceeding before the judge if the judge gives
notice to the parties of the person consulted and the substance of the advice, and affords the
parties reasonable opportunity to respond. A judge may, with consent of the parties, confer
separately with the parties and their counsel in an effort to mediate or settle pending matters.
(5)	A judge should dispose promptly of the business of the court.
(6)	A judge should avoid public comment on the merits of a pending or impending action,
requiring similar restraint by court personnel subject to the judge's direction and control. This
proscription does not extend to public statements made in the course of the judge's official duties,
to the explanation of court procedures, or to a scholarly presentation made for purposes of legal
education.
B.	Administrative Responsibilities.
(1)	A judge should diligently discharge the judge's administrative responsibilities, maintain
professional competence in judicial administration, and facilitate the performance of the
administrative responsibilities of other judges and court officials.
(2)	A judge should require court officials, staff, and others subject to the judge's direction and
control, to observe the same standards of fidelity and diligence applicable to the judge.
(3)	A judge should initiate appropriate action when the judge becomes aware of reliable evidence
<< COB00020 >>
indicating the likelihood of unprofessional conduct by a judge or lawyer.
(4) A judge should not make unnecessary appointments and should exercise that power only on
the basis of merit, avoiding nepotism and favoritism. A judge should not approve compensation
of appointees beyond the fair value of services rendered.
(5)	A judge with supervisory authority over other judges should take reasonable measures to
assure the timely and effective performance of their duties.
C.	Disqualification.
(1)	A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality
might reasonably be questioned, including but not limited to instances in which:
(a)	the judge has a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge
previously practiced law served during such association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness;
(c) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor
child residing in the judge's household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be affected
substantially by the outcome of the proceeding;
(d)	the judge or the judge's spouse, or a person related to either within the third degree of
relationship, or the spouse of such a person:
(i)	is a party to the proceeding, or an officer, director, or trustee of a party;
(ii)	is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the outcome
of the proceeding; or
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
(e) the judge has served in governmental employment and in such capacity participated as
counsel, advisor, or material witness concerning the proceeding or has expressed an opinion
<< COB00021 >>
concerning the merits of the particular case in controversy.
(2)	A judge should keep infonned about the judge's personal and fiduciary financial interests, and
make a reasonable effort to keep informed about the personal financial interests of the judge's
spouse and minor children residing in the judge's household.
(3)	For the purposes of this section:
(a)	the degree of relationship is calculated according to the civil law system; the following
relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great
grandparent, great grandchild, sister, brother, aunt, uncle, niece and nephew; the listed relatives
include whole and half blood relatives and most step relatives;
(b)	"fiduciary" includes such relationships as executor, administrator, trustee, and guardian;
(c)	"financial interest" means ownership of a legal or equitable interest, however small, or a
relationship as director, advisor, or other active participant in the affairs of a party, except that:
(i)	ownership in a mutual or common investment fund that holds securities is not a "financial
interest" in such securities unless the judge participates in the management of the fund;
(ii)	an office in an educational, religious, charitable, fraternal, or civic organization is not a
"financial interest" in securities held by the organization;
(iii) the proprietary interest of a policy holder in a mutual insurance company, or a depositor in a
mutual savings association, or a similar proprietary interest, is a "financial interest" in the
organization only if the outcome of the proceeding could substantially affect the value of the
interest;
(iv) ownership of government securities is a "financial interest" in the issuer only if the outcome
of the proceeding could substantially affect the value of the securities.
(d)	"proceeding" includes pretrial, trial, appellate review, or other stages of litigation.
(4)	Notwithstanding the preceding provisions of this Canon, if a judge to whom a matter has
been assigned would be disqualified, after substantial judicial time has been devoted to the
matter, because of the appearance or discovery, after the matter was assigned to him or her, that
he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her
household, has a financial interest in a party (other than an interest that could be substantially
<< COB00022 >>
affected by the outcome), disqualification is not required if the judge, spouse or minor child, as
the case may be, divests himself or herself of the interest that provides the grounds for the
disqualification.
D.	Remittal of Disciualification.
A judge disqualified by the terms of Canon 3C( 1), except in the circumstances specifically set
out in subsections (a) through (e), may, instead of withdrawing from the proceeding, disclose on
the record the basis of disqualification. If the parties and their lawyers after such disclosure and
an opportunity to confer outside of the presence of the judge, all agree in writing or on the record
that the judge should not be disqualified, and the judge is then willing to participate, the judge
may participate in the proceeding. the agreement shall be incorporated in the record of the
proceeding.
COMMENTARY
Canon 3A(3). The duty to hear all proceedings fairly and with patience is not inconsistent with
the duty to dispose promptly of the business of the court. Courts can be efficient and businesslike
while being patient and deliberate.
The duty under Canon 2 to act in a manner that promotes public confidence in the integrity and
impartiality of the judiciary applies to all the judge's activities, including the discharge of the
judge's adjudicative and administrative responsibilities. For example, the duty to be respectful of
others includes the responsibility to avoid comment or behavior that can reasonably be
interpreted as manifesting prejudice or bias towards another on the basis of personal
characteristics like race, sex, religion, or national origin.
Canon 3A(4). The proscription against communications concerning a proceeding includes
communications from lawyers, law teachers, and other persons who are not participants in the
proceeding, except to the limited extent permitted. It does not preclude a judge from consulting
with other judges, or with court personnel whose function is to aid the judge in carrying out
adjudicative responsibilities. A judge should make reasonable efforts to ensure that this provision
is not violated through law clerks or other staff personnel.
An appropriate and often desirable procedure for a court to obtain the advice of a disinterested
expert on legal issues is to invite the expert to file a brief amicus-curiae.
<< COB00023 >>
Canon 3A(5). In disposing of matters promptly, efficiently and fairly, a judge must demonstrate
due regard for the rights of the parties to be heard and to have issues resolved without
unnecessary cost or delay. A judge should monitor and supervise cases so as to reduce or
eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage
and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to
have their controversy resolved by the courts.
Prompt disposition of the court's business requires a judge to devote adequate time to judicial
duties, to be punctual in attending court and expeditious in determining matters under
submission, and to insist that court officials, litigants and their lawyers cooperate with the judge
to that end.
Canon 3A(6). The admonition against public comment about the merits of a pending or
impending action continues until completion of the appellate process. If the public comment
involves a case from the judge's own court, particular care should be taken that the comment does
not denigrate public confidence in the integrity and impartiality of the judiciary in violation of
Canon 2A. This provision does not restrict comments about proceedings in which the judge is a
litigant in a personal capacity, but in mandamus proceedings when the judge is a litigant in an
official capacity, the judge should not comment beyond the record.
"Court personnel" does not include the lawyers in a proceeding before a judge. The conduct of
lawyers is governed by the rules of professional conduct applicable in the various jurisdictions.
Canon 3B(3). Appropriate action may include direct communication with the judge or lawyer
who has committed the violation, other direct action if available, and reporting the violation to
the appropriate authorities.
Canon 3B(4). Appointees of the judge include officials such as referees, commissioners, special
masters, receivers, guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by
the parties to an appointment or an award of compensation does not relieve the judge of the
obligation prescribed by this subsection.
Canon 3C(l)(d)(ii). The fact that a lawyer in a proceeding is affiliated with a law firm with
which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under
appropriate circumstances, the fact that "the judge's impartiality might reasonably be questioned"
under Canon 3C(l), or that the lawyer-relative is known by the judge to have an interest in the
law firm that could be "substantially affected by the outcome of the proceeding" under Canon
3C(l)(d)(iii) may require the judge's disqualification.
<< COB00024 >>
NOTE: In September 1985, the Judicial Conference approved a form developed by the Advisory
Committee on Codes of Conduct entitled "Notice Concerning Waiver of Judicial
Disqualification" and authorized its distribution for consideration and possible adoption by the
courts. The form is reprinted below.
NOTICE CONCERNING WAIVER OF JUDICIAL
DISQUALIFICATION
FROM:	The Clerk		Date_______________
TO:	XXXIX	XXXX (Counsel)
	(Counsel)
	XXXIX
RE:	ABCv.	____________
	DEF, Case
	No.
Canon 3D of the Code of Conduct provides (with exceptions not pertinent to this case) that when
ajudge is disqualified in a proceeding because "the judge's impartiality might reasonably be
questioned", the judge may participate in the proceeding if all the parties and lawyers, after notice
of the basis for the disqualification, agree in writing to waive the disqualification under a
procedure independent of the judge's participation.
Unless a waiver is obtained from all parties and all counsel, Judge _________________ intends to
disqualify' in this proceeding because of these circumstances:
If you and your client(s) wish to waive the judge's disqualification, letters to that effect from you
and from your client(s) must be sent to me within ______ days of the date of this Notice. The
letters should not be sent to the judge and copies should not be sent to other counsel. If all parties
and all counsel submit such letters, this Notice and all responses will be made part of the record,
as required by Canon 3D, and the judge will continue participation in the proceeding. If a waiver
is not received from all parties and all counsel, this Notice and any responses will be kept under
seal by the clerk and not shown to the judge, nor will the judge be informed of the identity of any
party or lawyer who declined to waive the disqualification. If the disqualification is not waived,
the case will be reassigned to another judge.
<< COB00025 >>
CANON 4
A JUDGE MAY ENGAGE
IN EXTRA-JUDICIAL ACTIVITIES TO IMPROVE THE LAW,
THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE
A judge, subject to the proper performance ofjudicial duties, may engage in the following law-
related activities, if in doing so the judge does not cast reasonable doubt on the capacity to decide
impartially any issue that may come before the judge:
A.	A judge may speak, write, lecture, teach, and participate in other activities concerning the law,
the legal system, and the administration of justice.
B.	A judge may appear at a public hearing before, or otherwise consult with, an executive or
legislative body or official on matters concerning the law, the legal system, and the
administration ofjustice to the extent that it would generally be perceived that a judge's judicial
experience provides special expertise in the area. A judge acting pro se may also appear before or
consult with such officials or bodies in a matter involving the judge or the judge's interest.
C.	A judge may serve as a member, officer, or director of an organization or governmental
agency devoted to the improvement of the law, the legal system, or the administration ofjustice.
A judge may assist such an organization in planning fund-raising activities and may participate in
the management and investment of funds, but should not personally participate in public fund-
raising activities. A judge may make recommendations to public and private fund-granting
agencies on projects and programs concerning the law, the legal system, and the administration
ofjustice. A judge may solicit funds from other judges over whom the judge does not exercise
supervisory or appellate authority. A judge shall not personally participate in membership
solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-
raising mechanism.
D.	A judge should not use to any substantial degree judicial chambers, resources, or staff to
engage in activities permitted by this Canon.
COMMENTARY
<< COB00026 >>
Canon 4. As a judicial officer and person specially learned in the law, a judge is in a unique
position to contribute to the improvement of the law, the legal system, and the administration of
justice, including revision of substantive and procedural law and improvement of criminal and
juvenile justice. To the extent that the judge's time permits, the judge is encouraged to do so,
either independently or through a bar association, judicial conference, or other organization
dedicated to the improvement of the law. Within the boundaries of applicable law, see, e.g., 18
U.S.C. § 953, ajudge may express opposition to the persecution of lawyers and judges anywhere
in the world if the judge has ascertained, after reasonable inquiry, that the persecution is
occasioned by conflict between the professional responsibilities of the persecuted judge or lawyer
and the policies or practices of the relevant government.
Canon 4C. Service on the board of a public, as well as private, law school is permissible.
A judge may attend fund-raising activities of a law-related organization although the judge may
not be a speaker, guest of honor, or featured on the program of such an event.
CANON 5
A JUDGE SHOULD REGULATE
EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE
THE RISK OF CONFLICT WITH JUDICIAL DUTIES
A.	Avocational Activities. A judge may write, lecture, teach, and speak on non-legal subjects,
and engage in the arts, sports, and other social and recreational activities, if such avocational
activities do not detract from the dignity of the judge's office or interfere with the performance of
the judge's judicial duties.
B.	Civic and Charitable Activities. A judge may participate in civic and charitable activities that
do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial
duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational,
religious, charitable, fraternal, or civic organization not conducted for the economic or political
advantage of its members, subject to the following limitations:
(1)	A judge should not serve if it is likely that the organization will be engaged in proceedings
that would ordinarily come before the judge or will be regularly engaged in adversary
proceedings in any court.
(2)	A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic
<< COB00027 >>
organization, or use or permit the use of the prestige of the judicial office for that purpose, but
the judge may be listed as an officer, director, or trustee of such an organization. A judge should
not personally participate in membership solicitation if the solicitation might reasonably be
perceived as coercive or is essentially a fund-raising mechanism.
(3)	A judge should not give investment advice to such an organization, but may serve on its
board of directors or trustees even though it has the responsibility for approving investment
decisions.
C.	Financial Activities.
(1)	A judge should refrain from financial and business dealings that tend to reflect adversely on
the judge's impartiality, interfere with the proper performance ofjudicial duties, exploit the
judicial position, or involve the judge in frequent transactions with lawyers or other persons
likely to come before the court on which the judge serves.
(2)	Subject to the requirements of subsection (1), a judge may hold and manage investments,
including real estate, and engage in other remunerative activity, but should not serve as an
officer, director, active partner, manager, advisor, or employee of any business other than a
business closely held and controlled by members of the judge's family. For this purpose,
"members of the judge's family" means persons related to the judge or the judge's spouse within
the third degree of relationship calculated according to the civil law system, any other relatives
with whom the judge or the judge's spouse maintains a close familial relationship, and the spouse
of any of the foregoing.
(3)	A judge should manage investments and other financial interests to minimize the number of
cases in which the judge is disqualified. As soon as the judge can do so without serious financial
detriment, the judge should divest himself or herself of investments and other financial interests
that might require frequent disqualification.
(4)	A judge should not solicit or accept anything of value from anyone seeking official action
from or doing business with the court or other entity served by the judge, or from anyone whose
interests may be substantially affected by the performance or nonperformance of official duties;
except that a judge may accept a gift as permitted by the Judicial Conference gift regulations. A
judge should endeavor to prevent a member of a judge's family residing in the household from
soliciting or accepting a gift except to the extent that a judge would be permitted to do so by the
Judicial Conference gift regulations.
(5)	For the purposes of this section "members of the judge's family residing in the judge's
household" means any relative of a judge by blood or marriage, or a person treated by a judge as
a member of the judge's family, who resides in the judge's household.
<< COB00028 >>
(6)	A judge should report the value of any gift, bequest, favor, or loan as required by statute or by
the Judicial Conference of the United States.
(7)	A judge is not required by this Code to disclose his or her income, debts, or investments,
except as provided in this Canon and Canons 3 and 6.
(8)	Information acquired by a judge in the judge's judicial capacity should not be used or
disclosed by the judge in financial dealings or for any other purpose not related to the judge's
judicial duties.
D.	Fiduciary Activities. A judge should not serve as the executor, administrator, trustee,
guardian, or other fiduciary, except for the estate, trust, or person of a member of the judge's
family, and then only if such service will not interfere with the proper performance of judicial
duties. "Member of the judge's family" means any relative of ajudge by blood, adoption, or
marriage or any other person treated by a judge as a member of the judge's family.
As a family fiduciary a judge is subjected to the following restrictions:
(1)	The judge should not serve if it is likely that as a fiduciary the judge will be engaged in
proceedings that would ordinarily come before the judge or if the estate, trust or ward becomes
involved in adversary proceedings in the court on which the judge serves or one under its
appellate jurisdiction.
(2)	While acting as a fiduciary a judge is subject to the same restrictions on financial activities
that apply to the judge in his or her personal capacity.
E.	Arbitration. A judge should not act as an arbitrator or mediator or otherwise perform judicial
functions in a private capacity unless expressly authorized by law.
F.	Practice of Law. A judge should not practice law. Notwithstanding this prohibition, a judge
may act pro se and may, without compensation, give legal advice to and draft or review
documents for a member of the judge's family.
G.	Extra-judicial Appointments. A judge should not accept appointment to a governmental
committee, commission, or other position that is concerned with issues of fact or policy on
matters other than the improvement of the law, the legal system, or the administration ofjustice,
unless appointment of a judge is required by Act of Congress. A judge should not, in any event,
accept such an appointment if the judge's governmental duties would interfere with the
performance ofjudicial duties or tend to undermine the public confidence in the integrity,
impartiality, or independence of the judiciary. A judge may represent the judge's country, state, or
locality on ceremonial occasions or in connection with historical, educational, and cultural
<< COB00029 >>
activities.
H. Chambers, Resources, and Staff A judge should not use judicial chambers, resources, or staff
to engage in activities permitted by this Canon, except for uses that are de minimis.
COMMENTARY
Canon 5A. Complete separation ofajudge from extra-judicial activities is neither possible nor
wise; a judge should not become isolated from the society in which the judge lives.
Canon 5B(1). The changing nature of some organizations and of their relationship to the law
makes it necessary for a judge regularly to reexamine the activities of each organization with
which the judge is affiliated to determine if it is proper for the judge to continue the judge's
relationship with it. For example, in many jurisdictions charitable hospitals are now more
frequently in court than in the past. Similarly, the boards of some legal aid organizations now
make policy decisions that may have political significance or imply commitment to causes that
may come before the courts for adjudication.
Canon 5B(2) and (3). A judge may attend fund-raising activities of the organization although the
judge may not be a speaker, a guest of honor, or featured on the program of such an event. Use of
an organization's letterhead for fund-raising or membership solicitation does not violate Canons
5B(2) and (3) provided the letterhead lists only the judge's name and position in the organization,
and, if comparable designations are listed for other persons, the judge's judicial designation.
Canon 5C. Canon 3 requires a judge to disqualify in any proceeding in which the judge has a
financial interest, however small; Canon 5 requires a judge to refrain from engaging in business
and from financial activities that might interfere with the impartial performance of the judge's
judicial duties; Canon 6 requires a judge to report all compensation received for activities outside
the judicial office. A judge has the rights of an ordinary citizen with respect to financial affairs,
except for limitations required to safeguard the proper performance of the judge's duties. A
judge's participation in a closely held family business, while generally permissible, may be
prohibited if it takes too much time or involves misuse ofjudicial prestige or if the business is
likely to come before the judge's court. Owning and receiving income from investments do not as
such affect the performance of a judge's duties.
Canon 5C(4). Reimbursement or direct payment of travel expenses may be a gift and, if so, its
acceptance is governed by Canons 5C(4) and (5). A judge or employee may receive as a gift
travel expense reimbursement including the cost of transportation, lodging, and meals, for the
<< COB00030 >>
judge and a relative incident to the judge's attendance at a bar-related function or at an activity
devoted to the improvement of the Law, the legal system, or the administration of justice.
Canon 5D. Mere residence in the household ofajudge is insufficient for a person to be
considered a member of the judge's family for purposes of this Canon. The person must be
treated by the judge as a member of the judge's family.
Canon 5D(1). The Applicable Date of Compliance provision of this Code qualifies this
subsection with regard to a judge who is an executor, administrator, trustee, or other fiduciary at
the time this Code becomes effective.
Canon 5D(2). A judge's obligation under this Code and the judge's obligation as a fiduciary may
come into conflict. For example, a judge should resign as trustee if it would result in detriment to
the trust to divest it of holdings whose retention would place the judge in violation of Canon
5C(3).
Canon 5F. This prohibition refers to the practice of law in a representative capacity and not in a
pro se capacity. A judge may act for himself or herself in all legal matters, including matters
involving litigation and matters involving appearances before or other dealings with legislative
and other governmental bodies. However, in so doing, a judge must not abuse the prestige of
office to advance the interests of the judge or the judge's family.
Canon 5G. Valuable services have been rendered in the past to the states and the nation by
judges appointed by the executive to undertake important extra-judicial assignments. The
appropriateness of conferring these assignments on judges must be reassessed, however, in light
of the demands on judicial resources created by today's crowded dockets and the need to protect
the courts from involvement in extra-judicial matters that may prove to be controversial. Judges
should not be expected or permitted to accept governmental appointments that could interfere
with the effectiveness and independence of the judiciary.
The dangers attendant upon acceptance of extra-judicial governmental assignments are ordinarily
less serious where the appointment ofajudge is required by legislation. Such assignments
ordinarily do not involve excessive commitments of time, and they typically do not pose a
serious threat to the independence of the judiciary.
A code of conduct ought not compel judges to refuse, without regard to the circumstances, tasks
Congress has seen fit to authorize as appropriate in the public interest. Although legislatively
prescribed extra-judicial assignments should be discouraged, where Congress requires the
<< COB00031 >>
appointment of a judge to perform extra-judicial duties, the judge may accept the appointment
provided that the judge's services would not interfere with the performance of the judge's judicial
responsibilities or tend to undermine public confidence in the judiciary.
CANON 6
A JUDGE SHOULD REGULARLY FILE
REPORTS OF COMPENSATION RECEIVED
FOR LAW-RELATED AND EXTRA-JUDICIAL ACTIVITIES
A judge may receive compensation and reimbursement of expenses for the law-related and extra-
judicial activities permitted by this Code, if the source of such payments does not give the
appearance of influencing the judge in the judge's judicial duties or otherwise give the
appearance of impropriety, subject to the following restrictions:
A. Compensation. Compensation should not exceed a reasonable amount nor should it exceed
what a person who is not a judge would receive for the same activity.
B. Expense Reimbursement. Expense reimbursement should be limited to the actual costs of
travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion,
by the judge's spouse or relative. Any payment in excess of such an amount is compensation.
C. Public Reports. A judge should make required financial disclosures in compliance with
applicable statutes and Judicial Conference regulations and directives.
COMMENTARY
Additional restrictions on the receipt of compensation by judges are imposed by the Ethics
Reform Act of 1989 and regulations promulgated by the Judicial Conference thereunder. That
Act and those regulations should be consulted before a judge enters into any arrangement
involving the receipt of compensation. The restrictions so imposed include, but are not limited
to: (1) a prohibition against receiving "honoraria" (defined as anything of value received for a
speech, appearance, or article), (2) a prohibition against receiving compensation for service as a
director, trustee, or officer of a profit or nonprofit organization, (3) a requirement that
compensated teaching activities receive prior approval, and (4) a 15% limitation on the receipt of
"outside earned income."
CANON 7
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A JUDGE SHOULD REFRAIN FROM
POLITICAL ACTIVITY
A. A judge should not:
(1)	act as a leader or hold any office in a political organization;
(2)	make speeches for a political organization or candidate or publicly endorse or oppose a
candidate for public office;
(3)	solicit funds for or pay an assessment or make a contribution to a political organization or
candidate, attend political gatherings, or purchase tickets for political party dinners, or other
functions.
B. A judge should resign the judicial office when the judge becomes a candidate either in a
primary or in a general election for any office.
C. A judge should not engage in any other political activity; provided, however, this should not
prevent a judge from engaging in the activities described in Canon 4.
COMPLIANCE WITH THE CODE OF CONDUCT
Anyone who is an officer of the federal judicial system authorized to perform judicial functions
is ajudge for the purpose of this Code. All judges should comply with this Code except as
provided below.
A. Part-time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but
is permitted by law to devote time to some other profession or occupation and whose
compensation for that reason is less than that of a full-time judge. A part-time judge:
(1)	is not required to comply with Canons 5C(2), D, E, F, and G, and Canon 6C;
(2)	except as provided in the Conflict-of-Interest Rules for Part-time Magistrate Judges, should
not practice law in the court on which the judge serves or in any court subject to the appellate
jurisdiction of the court on which the judge serves, or act as a lawyer in a proceeding in which
the judge has served as a judge or in any other proceeding related thereto.
B. Judge Pro Tempore. A judge pro tempore A judge pro tempore is a person who is appointed to
act temporarily as a judge or as a special master.
(1)	While acting as such, a judge p~ tempore is not required to comply with Canons 5C(2), (3),
D, E, F, and G, and Canon 6C; further, one who acts solely as a special master is not required to
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comply with Canons 4C, SB (except the first sentence thereof), 5C(4), and 7.
(2) A person who has been a judge pro tempore should not act as a lawyer in a proceeding in
which the judge has served as ajudge or in any other proceeding related thereto.
C. Retired Judae. A retired judge who is retired under 28 U.S.C. §§ 37 1(b) or 372(a), or who is
recalled to judicial service, should comply with all the provisions of this Code except Canon 5G.
but the judge should refrain from judicial service during the period of an extra-judicial
appointment not sanctioned by Canon 5G. All other retired judges who are eligible for recall to
judicial service (except those in Territories and Possessions) should comply with the provisions
of this Code governing part-time judges. A senior judge in the Territories and Possessions must
comply with this Code as prescribed by 28 U.S.C. § 373(c)(5) and (d).
APPLICABLE DATE OF COMPLIANCE
Persons to whom this Code becomes applicable should arrange their affairs as soon as reasonably
possible to comply with it and should do so in any event within the period of one year following
appointment. If, however, the demands on the person's time and the possibility of conflicts of
interest are not substantial, such a person may continue to act, without compensation, as an
executor, administrator, trustee, or other fiduciary for the estate or person of one who is not a
member of the person's family, if terminating such relationship would unnecessarily jeopardize
any substantial interest of the estate or person and the judicial council of the circuit approves.
I.	The Code of Conduct for United States Judges was initially adopted by the Judicial Conference on April 5, 1973,
and was known as the "Code of Judicial Conduct for United States Judges." At its March 1987 session, the Judicial
Conference deleted the word "Judicial" from the name of the Code. Substantial revisions to the Code were adopted
by the Judicial Conference at its September 1992 session. Section C. of the Compliance section, following the code,
was revised at the March 1996 Judicial Conference. Canons 3C(3)(a) and 5C(4) were revised at the September 1996
Judicial Conference. Canon 3C(l)(c) was revised at the September 1999 Judicial Conference. The Compliance
Section was clarified at the September 2000 Judicial Conference.
2.	Procedural questions may be addressed to: Office of the General Counsel, Administrative Office of the United
States Courts, Thurgood Marshall Federal Judiciary Building, Washington, D.C., 20544, (202-502-1100).
3.	This Code governs the conduct of United States Circuit Judges, District Judges, Court of International Trade
Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges. In addition, certain provisions
of this Code apply to special masters and commissioners as indicated in the "Compliance" section.