REPORT OF COMMITTEE ON JUDICIAL ETHICS

To The Colorado Bar Association:

Your Committee on Judicial Ethics appointed pursuant to a resolution passed at the meeting of the Colorado Bar Association, held at Colorado Springs on the fourth day of August, 1923, submit the following as its report.

We call attention to the fact that a committee on judicial ethics was appointed by the American Bar Association in January, 1922, in accordance with the resolution of the Executive Committee of that Association. It immediately set to work, and in January, 1923, submitted a preliminary report in the form of a draft of canons of judicial ethics. This draft was published in the Feb ruary number, 1923, of The American Bar Association Journal, and criticisms and suggestions were invited. The draft was widely discussed by the bar, the public, and press generally, and many suggestions and criticisms received by that committee. There after the same were redrafted and submitted at the 46th annual meeting of the Association held at Minneapolis in August, 1923, with a recommendation by the committee itself that the report be referred to the judicial section of the Association, and that the chairman of that section be authorized to appoint a committee to consider the proposed code on behalf of the judicial section, and that the latter be requested to submit to the committee its recommendations and criticisms: that the committee be continued until the following year and make another report affected, as it may be, by the recommendations of the judicial section.

The official record of the proceedings of the last annual meeting of the American Bar Association, held at Philadelphia in June, 1924, are not at hand at this date, but we are informed that the committee made a further report, but that the Association took no definite action.

In view of this extended and thorough consideration of the proposed canons by our national Association, we respectfully recom

mend that action be deferred by this Association until final action. has been taken by it.

We believe, however, that a useful purpose would be served by an informal consideration and discussion of the proposed canons as now drafted, a copy of which we submit herewith, in order that the members of the bar may be fully informed in respect thereto. These proposed canons consist of certain ancient precedents, a preamble and 34 canons, and are as follows:

ANCIENT PRECEDENTS.

"And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him.

"Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's; and the cause that is too hard for you, bring it unto me, and I will hear it."-Deuteronomy, I, 16-17.

"Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous."-Deuteronomy, XVI, 19.

"We will not make any justiciaries, constables, sheriffs or bailiffs, but from those who understand the law of the realm and are well disposed to observe it."-Magna Charta XLV.

"Judges ought to remember that their office is jus dicere not jus dare; to interpret law, and not to make law, or give law."

"Judges ought to be more learned than witty; more reverend than plausible; and more advised than confident. Above all things, integrity is their portion and proper virtue."

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"Patience and gravity of hearing is an essential part of justice; and an over speaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the bar, or to show quickness of conceit in cutting off evidence or counsel too short; or to prevent information by questions though pertinent."

"The place of justice is a hallowed place; and therefore not only the bench, but the foot pace and precincts and purprise thereof ought to be preserved without scandal and corruption." * -Bacon's Essay "of Judicature."

CANONS OF JUDICIAL ETHICS APPROVED BY THE
AMERICAN BAR ASSOCIATION.

PREAMBLE.

In addition to the Canons for Professional Conduct of Lawyers which it has formulated and adopted, the American Bar Association, mindful that the character and conduct of a judge should never be objects of indifference, and that declared ethical standards tend to become habits of life, deems it desirable to set forth its views respecting those principles which should govern the personal practice of members of the judiciary in the administration of their office. The Association accordingly

adopts the following canons, the spirit of which it suggests as a proper guide and reminder for judges, and as indicating what the people have a right to expect from them.

The assumption of the office of judge casts upon the incumbent duties in respect to his personal conduct which concern his relation to the state and its inhabitants, the litigants before him, the principles of law, the practitioners of law in his court, and the witnesses, jurors and attendants who aid him in the administration of its functions.

2. THE PUBLIC INTEREST.

Courts exist to promote justice, and thus to serve the public interest. Their administration should be speedy and careful. Every judge should at all times be alert in his rulings and in the conduct of the business of the court, so far as he can, to make it useful to litigants and to the community. He should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants.

It is the duty of all judges in the United States to support the Federal Constitution and that of the state whose laws they administer; in so doing, they should fearlessly observe and apply fundamental limitations and guarantees.

4. AVOIDANCE OF IMPROPRIETY.

A judge's official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his every day life, should be beyond reproach.

He should be temperate, attentive, patient, impartial, and, since he is to administer the law and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.

He should exhibit an industry and application commensurate with the duties imposed upon him.

7. PROMPTNESS.

He should be prompt in the performance of his judicial duties, recognizing that the time of litigants, jurors, and attorneys is of value and that habitual lack of punctuality on his part justifies dissatisfaction with the administration of the business of the court.

8. COURT ORGANIZATION.

He should crganize the court with a view to the prompt and convenient dispatch of its business and he should not tolerate abuses and neglect by clerks, and other assistants, who are sometimes prone to presume too much upon his good natured acquiescence by reason of friendly association with him.

It is desirable tco, where the judicial system permits, that he should cooperate with other judges of the same court, and in other courts, as members of a single judicial system, to promote the more satisfactory administration of justice.

9. CONSIDERATION FOR JURORS AND OTHERS.

He should be considerate of jurors, witnesses and others in attendance upon the court.

10. COURTESY AND CIVILITY.

He should be courteous to counsel, especially to those who are young and inexperienced, and also to all others appearing or concerned in the administration of justice in the court.

He should also require, and, so far as his power extends, enforce on the part of clerks, court officers and counsel, civility and courtesy to the court and to jurors, witnesses, litigants and others having business in the court.

11. UNPROFESSIONAL CONDUCT OF ATTORNEYS AND COUNSEL.

He should utilize his opportunities to criticize and correct unprofessional conduct of attorneys and cousellors, brought to his attention; and, if adverse comment is not sufficient corrective, should send the matter at once to the proper investigating and disciplinary authorities.

12. APPOINTEES OF THE JUDICIARY AND THEIR COMPENSATION. Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments.

While not hesitating to fix or approve just amounts, he should be most scrupulous in granting or approving compensation for the services or charges of such appointees to avoid excessive allowances, whether or not excepted to or complained of. He cannot rid himself of this responsibility by the consent of counsel.

13. KINSHIP OR INFLUENCE.

He should not act in a controversy where a near relative is a party, and, if such a course can reasonably be avoided, he should not sit in litigation where a near relative appears before him as counsel; he should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person.

14. INDEPENDENCE.

He should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.

15. INTERFERENCE IN CONDUCT OF TRIAL.

He may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust

disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone.

He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.

16. EX PARTE APPLICATIONS.

He should discourage ex parte hearings of applications for injunctions and receiverships where the order may work detriment to absent parties; he should act upon such ex parte applications only where the necessity for quick action is clearly shown; if this be demonstrated, then he should endeavor to counteract the effect of the absence of opposing counsel by a scrupulous cross examination and investigation as to the facts and the principles of law on which the application is based, granting relief only when fully satisfied that the law permits it and the emergency demands it. He should remember that an injunction is a limitation upon the freedom of action of defendants and should not be granted lightly or inadvisedly. One applying for such relief must sustain the burden of showing clearly its necessity, and this burden is increased in the absence of the party whose freedom of action is sought to be restrained even though only temporarily.

17. EX PARTE COMMUNICATIONS.

He should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.

While the conditions under which briefs of arguments are to be received are largely matters of local rule or practice, a judge should not permit the contents of such briefs presented to him to be concealed from opposing counsel. Ordinarily all communications of counsel to the judge intended or calculated to influence action should be made known to opposing counsel.

18. CONTINUANCES.

Delay in the administration of justice is a common cause of complaint; counsel are frequently responsible for this delay. A judge, without being arbitrary or forcing cases unreasonably or unjustly to trial when unprepared, to the detriment of parties, may well endeavor to hold counsel to a proper appreciation of their duties to the public interest, to their own clients, and to the adverse party and his counsel, so as to enforce due diligence in the dispatch of business before the court.

19. JUDICIAL OPINIONS.

In disposing of controverted cases, a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooking serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion or arbitrary conclusion, promotes confidence in his intellectual integrity, and may contribute useful precedent to the growth of the law.

It is desirable that courts of appeal in reversing cases and granting new trials should so indicate their views on questions of law argued before them and necessarily arising in the controversy that upon the new trial counsel may be aided to avoid the repetition of erroneous positions of law and shall not be left in doubt by the failure of the court to decide such questions.

But the volume of reported decisions is such and is so rapidly increasing that in writing opinions which are to be published judges may well take this fact into consideration, and curtail them accordingly, without