CBA Record November-December 2022

Paragraph [6] of the Preamble & Scope explains the use of the words “may” and “should” in the new Code and provides that where one of those terms is used, the conduct that is being addressed is left to the personal and professional discretion of the judge or candidate, and that no disciplinary action should be taken for actions or inactions that are taken within the bounds of that discretion. Paragraph [6] also points to the dif ference between the Canons and Rules: while the Canons state principles of judi cial ethics that judges must observe, any disciplinary action must be connected to the violation of a Rule. Terminology New definitions mirror those in the ABA’s Model Code. New definitions include “contribution,” “domestic partner,” “impending matter,” “independence,” “impropriety,” “integrity,” “judicial can didate,” “must,” “shall,” “nonpublic infor mation,” and “personally solicit.” Canon 1 The new Code’s Rule 1.2 (Promot ing Confidence in the Judiciary) largely restates provisions in the current Code’s Rule 62, which requires judges to conduct themselves in a manner that promotes public confidence in the judiciary, as well as avoid both impropriety and the appear ance of impropriety. However, the current Code lacked definitions for both “impro priety” and the “appearance of impropri ety.” This is remedied in the new Code, which defines “impropriety” in the Termi nology section, and “appearance of impro priety” in Rule 1.2’s Comment [5]. While seemingly minor, this change adds clarity to judges seeking to interpret the Code. Canon 2 Canon 2 contains several notable changes. Rule 2.3 (Bias, Prejudice, and Harass ment) requires judges to perform their judicial and administrative duties in a way that is free from bias or prejudice. The new Code’s Paragraph (B) now provides that “A judge shall not, in the perfor mance of judicial duties, by words or con

duct manifest bias or prejudice or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, preg nancy, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or other sub ject to the judge’s direction and control to do so.” Paragraph (B) now adds sev eral categories of impermissible bases for the manifestation of bias, prejudice, or harassment: “gender,” “gender identity,” “ethnicity,” “marital status,” “pregnancy,” and “political affiliation.” Rule 2.10 (Judicial Statements on Pending and Impending Cases) includes two new developments. Paragraph (D) expressly allows judges to make public comments on proceedings in which the judge is a party. Paragraph (E) expressly allow judges to respond either directly or through a third party to allegations that are made in the media or otherwise that concern a judge’s conduct in a matter. Other changes in Canon 2 are as follows: • Rule 2.7 (Responsibility to Decide) expressly requires judges to be avail able to hear and decide matters that come before the court, and to avoid unwarranted disqualifications.

• Rule 2.8 Paragraph (C) (Decorum, Demeanor, and Communication with Jurors) prohibits judges from either praising or criticizing jurors for their verdicts, other than in a court order or in an opinion in a proceeding. • Rule 2.12 (Supervisory Duties) con tains changes in both Paragraphs (A) and (B). Paragraph (A) requires that judges require court staff, court offi cials, and others that are subject to the judge’s direction and control to act in a manner that is consistent with the judge’s own obligations under this Code. Paragraph (B) requires that judges who have supervisory author ity over other judges take reasonable measures to ensure that the super vised judges properly discharge their judicial duties and responsibilities, which includes the prompt disposi tion of matters. • Rule 2.14 (Disability and Impair ment) now requires that a judge who has knowledge (defined as having “actual knowledge of the fact in ques tion,” which can be inferred by the circumstances) that a judge or lawyer’s performance is impaired by drugs, alcohol, or a mental, emotional, or physical condition take appropriate action to help the impaired person address the issue, which can include

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