Quite a bit of controversy arose at the ABA’s midyear meeting over the wording of the long standing Model Code of Judicial Conduct. One group sought to move “appearance of impropriety” language out of the rule and into the scope section. This would have precluded the possibility of judges being disciplined for the mere appearance of impropriety in states adopting the model rule. The ABA delegates finally decided on maintaining the stricter traditional language:
As approved by the House, Rule 1.2 (Promoting Confidence in the Judiciary) states: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety.”
Kentucky’s Judicial Code of Conduct also follows the stricter traditional rule.
CANON 2: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES
This rule is then detailed more fully in the Code. More than anything, maintaining this language sends a message to the public that they can expect the highest ethical standards from their judges. I suppose it also serves as a reminder to the judiciary of the publics expectations for them. I have not researched this so I invite input from those with knowledge, but I suspect it a very rare event that a judge would actually be disciplined solely for the appearance of impropriety. If it is used, I expect that there was actually more than appearance involved but the actual impropriety could not be pinned down.
For the foregoing reasons, I think it wise to leave the language of the rule intact. It does create hurdles at times – especially with an elected judiciary. However, overcoming those hurdles helps the best rise to the top. I interned for a judge that now sits on the Kentucky Supreme Court (I won’t mention her name) during the campaign. I was pleased to see how much energy she put into avoiding even the appearance of impropriety. This helped bolster my faith in the vast majority of those sitting behind the bench.