How the Judiciary Changed Conduct Rules to Pierce Culture of Confidentiality

Chief Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit. Credit: Diego M. Radzinschi / NLJ

Responding to complaints that the culture of the federal judiciary makes it difficult for employees to lodge complaints of misconduct, the Judicial Conference on Tuesday promulgated significant changes to the code of judicial conduct that govern judges and court employees.

“We are not done,” said Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, who met with reporters after the conference acted. “We won’t be done until we do everything we can do.”

Garland said a range of new procedures, including anonymous reporting, employee hotlines, and enhanced training will be deployed to enable law clerks and other court employees to seek guidance and register complaints without fear of retaliation.

Perhaps the most significant change is relegating the pervasive tradition of confidentiality between judges and their clerks to secondary status, eclipsed by the importance of enabling clerks to complain if their bosses behaved inappropriately.

In December 2017, a handbook for federal law clerks that said “law clerks owe judges complete confidentiality in case-related matters” was amended to make it clear that nothing in the handbook prevented clerks or other employees from reporting judicial misconduct.

The importance of confidentiality in judges’ chambers “does not and cannot extend to issues of misconduct and the reporting of misconduct,” Garland said Tuesday.

It was confidentiality that Judge Alex Kozinski invoked to silence clerks who were victims of his sexually charged interactions with female clerks, until some went public in 2017. He abruptly retired in December 2017, issuing a statement that “It grieves me to learn that I caused any of my clerks to feel uncomfortable.”

The scandal shook the judicial branch and prompted Chief Justice John Roberts Jr., who presides over the Judicial Conference, the judiciary’s policymaking arm, to launch an overhaul in the way the judiciary operated as the #MeToo movement spread across the nation.

The most tangible result of Roberts’ effort came Tuesday with the first changes in the judiciary’s code of conduct in five years. The code does not bind Supreme Court justices, though at a congressional hearing last week, Justice Elena Kagan said Roberts was considering the creation of a conduct code exclusively for the nation’s highest court.

The key additions to the conduct code and official commentary on the code, as well as the rules for judicial-conduct and judicial-disability proceedings, which took effect immediately, include:

• A requirement that judges should perform their duties “with respect for others and should not engage in behavior that is harassing, abusive, prejudiced or biased.”

• “A judge should not retaliate against those who report misconduct. A judge should hold court personnel under the judge’s direction to similar standards.”

• “Nothing in these Rules concerning the confidentiality of the complaint process or the Code of Conduct for Judicial Employees concerning use or disclosure of confidential information received in the course of official duties prevents judicial employees from reporting or disclosing misconduct.”

• “A judge should practice civility, by being patient, dignified, respectful and courteous, in dealings with court personnel, including chambers staff.”

• “A judge should take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this code.”

 

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