“THE ROLE OF CODES OF CONDUCT FOR
LEGAL PROFESSIONALS IN THE EFFORT TO
ELIMINATE THE CULTURE OF CORRUPTION ”
Charles A. Caruso
Regional Anti-Corruption Advisor
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I. The United Nations Convention Against
Corruption (UNCAC) ‘purposes and objectives’
clause requires that signatories “promote and
strengthen measures to prevent and combat
corruption more efficiently and effectively”.
This anti-corruption missive is crucial in view
of the fact that, as many argue, corruption is
embedded in the everyday functioning of many
governments thus earning it a place in the
culture of those countries thus governed.
What is puzzling about this argument is not the
occurrence and frequency of individual acts
of corruption, but that this is often taken to be
the status quo by the public at large. Indeed, it
is a fact that in some cultures corruption is not
only tolerated and expected, but encouraged
Thus, one of the purposes and objectives of
the Convention must be to install measures
that counter the ‘Culture of Corruption.’
Individual acts of corruption cannot be
eliminated so long as men and greed exist
simultaneously. However, the ‘culture of
corruption’ can be destroyed so long as there
are people determined to do so.
It is first necessary to define the phrase
‘culture of corruption’; a phrase best defined
by example.
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A. When the Foreign Corrupt Practices
Act (FCPA, 1977) was passed (a law which
for practical purposes applies only to acts
committed by American citizens or
residents connected to American business
interests abroad (thus, at the time, giving it
little if any chance of extra-territorial
jurisdiction) it was criticized by some as an
American encroachment into the affairs of
other nations. There must therefore have
been those governments that felt there
was a right invested in their public officials
to receive remuneration in the form of illicit
payments; that it was a part of their culture
that this practice exist.
B. The object of this presentation is to
provide sufficient information to its
consumers to assist them in determining
how they wish to deal, if at all, with the
issue of professional codes of conduct for
the judiciary and prosecutorial services.
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II. The culture of corruption cannot be
countered in the absence of an ‘Ordered
Society’ which has at its disposal mechanisms
that protect it against its organic antagonists –
foremost amongst which one must number
corruption.
A. An ‘Ordered Society’ cannot exist
without the ‘Rule of Law’;
B. the ‘Rule of Law’, either in the private
or public sense, cannot exist absent a
competent and trusted ‘Criminal Justice
System’;
C. a competent and trusted ‘Criminal
Justice System’ cannot exist without
‘Judicial and Prosecutorial Regimens’ free
from corruption both in perception and
reality; that is, an independent judiciary
functioning symbiotically with an
independent prosecution service;
D. ‘Judicial and Prosecutorial Regimens’
free from corruption, both in perception
and reality, cannot exist unless there first
exist ‘Standards of Professional
Responsibility’ with which those regimens
can comply and against which they can be
measured;
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III. Why have Standards of Professional
Responsibility? The Convention itself, as well
as sound policy reasons, dictate that such
standards be utilized.
A. UNCAC— Article 8(1) of the
Convention requires that each signatory
promote “integrity, honesty and
responsibility among its public officials”
and Article 8(2), that each signatory “shall
endeavor to apply, within its own
institutional and legal systems, codes or
standards of conduct for the correct
honourable and proper performance of
public functions.”
B. UNCAC – Article 8(3) requires that
each state party take note of the United
Nations International Code of Conduct for
Public Officials as well as other relevant
initiatives of international, regional and
multilateral organizations.
C. The UNCAC also contains mandates
specific to the judicial and prosecutorial
services of its signatories.
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1. UNCAC, Article 11(1), requires that
signatories “shall … take measures to
strengthen integrity and to prevent
opportunities for corruption among
members of the judiciary.
“Such measures may include rules with
respect to the conduct of members of
the judiciary.”
2. UNCAC, Article 11(2), provides
that the same measures may be
introduced and applied to the
prosecution service where it does not
form a part of the judiciary.
D. Sound policy considerations for
establishing codes of conduct include,
inter alia, the fact that:
1. publishing codes or standards of
professional responsibility provides
the concerned government entities
with the minimum guidelines with
which they must comply;
2. such codes or standards of
conduct supply the concerned
institutions with standards against
which they can measure their
performance;
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3. publishing written codes or
standards of professional
responsibility for both the judiciary and
the prosecution services establishes a
‘public conscience’ that is immutable
and a matter of public record;
4. codes or standards of professional
responsibility establish a minimum
standard of conduct; a lowest common
denominator of acceptable
professional behavior thus limiting the
possibility that public servants can
effectively claim ignorance of conduct
the public will not tolerate;
5. published codes or standards of
professional responsibility define for
each signatory to the Convention the
quality and nature of the judicial and
prosecutorial services of their treaty
partners and thereby provide:
a) confidence in each other's
competence and integrity to
provide the level of cooperation
necessary to meet their respective
treaty obligations;
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b) a written standard by which
each party to the Convention
announces to the other what it
expects in terms of reciprocal
professional standards.
6. published standards of
professional responsibility provide the
public with a straightforward and
easily understood mechanism by which
they can gauge the conduct of their
judicial and prosecutorial officers; one
far more comprehensible and easily
consumed than the arcane statutes
generally found in the criminal law;
7. published codes of conduct can
give affirmative instruction to members
of the profession while those codes
setting out criminal sanctions provide
no positive guidance;
8. written standards provide a
training mechanism for members
entering the judicial or prosecutorial
professions;
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9. written standards provide a
framework from which lawmakers can
work to legislate the civil and criminal
sanctions which they may wish to bring
to bear upon members of the judicial
and prosecutorial services;
10. clearly defined standards of
professional conduct provide
protection to public servants against
charges of misconduct that are
arbitrary and capricious;
11. the open and conspicuous adoption
of standards of professional
responsibility signals the serious
commitment of a concerned
government to meet its Convention
responsibilities and its unwavering
expectation that its treaty partners do
the same;
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12. the open and conspicuous adoption
of internationally acceptable standards
of professional responsibility
demonstrates the serious commitment
of the concerned government to
become integrated into the world
economy as well as into the
international community of nations that
abide the rule of law;
13. publishing such standards advises
treaty partners and the members of the
world economy that corrupt customs
once accepted as a part of a State’s
culture are no longer tolerable and will
no longer be tolerated.
E. The first casualty of corruption is the
legal system -- the courts and the
prosecutors. Thus, it is axiomatic that
however well-intentioned and elegantly
drafted, legal rules and statutes outlawing
various corrupt acts will be rendered
ineffective by insincere and corrupted
judges and public prosecutors.
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1. In a democracy, the enforcement of
judicial decrees and orders ultimately
depends upon the public co-operation.
The level of co-operation, in turn
depends upon a widely held perception
that both judges and public
prosecutors perform their public
duties with integrity and competence.
2. A code of ethics, constructed by
members of these professional groups
instills the public confidence
necessary to insure public
endorsement and cooperation.
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IV. The Standards of Professional
Responsibility and Statement of the Essential
Rights and Duties of Prosecutors (1999)
A. The background and nature of these
Standards, adopted to “promote and
consolidate those rules and principles
generally recognized at an international
level as necessary to achieve an adequate
and independent” prosecution service,
renders them particularly suited to the
demands of the UNCAC in that:
1. they were adopted and published
by the International Association of
Prosecutors, established at the United
Nations offices, Vienna, 1995 and they
are thus affiliated with the Convention
sponsor – a fact that lends them
unquestionable legitimacy in terms of
enabling legislation;
2. they are an extension of the United
Nations generated ‘Guidelines on the
Role of Prosecutors’ (1990), an
international document which has been
in existence for 15 years;
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3. 40 jurisdictions, internationally,
have committed themselves to working
within the Standards, including Laos,
the US, Korea, Canada, Australia,
Ukraine, Ireland, and Cyprus; various
countries, various legal systems
4. they are the product of a
professional association comprised of
only prosecutors from 90 countries
representing over 200,000 members of
the profession;
5. they are an amalgamation of the
ethics codes of the major legal systems
of the world, being the work of
prosecutors from the major legal
systems of the world;
6. they were constructed with the
major United Nations civil rights
documents in mind, i.e., the Universal
Declaration of Civil Rights and the
International Covenant on Civil and
Political Rights.
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7. under the UNCAC cooperation is
mandated between governments thus
requiring that prosecutors from
different countries work together. In
order to insure effective cooperation
prosecutors must have the same
general standards under which they
operate and some method of
evaluating their professional
performance.
B. The construction of the Standards is such
that they can be used as a framework from
which a model particularly suitable to
individual countries can be adapted.
1. They are a short, clear and concise
distillation of principles considered
important by prosecutors from all of
the major systems in the world.
2. Because they have been adopted
so widely, they have legitimacy within
the international community and thus
will have legitimacy within the national
jurisdiction.
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3. They were constructed with a view
toward the principle that it is a
“necessity that the public has trust in
the integrity of the criminal justice
system” and thus, they are particularly
appropriate for the Convention.
C. The construction of the Standards is
complete and yet allows the various legal
systems to adopt the Standards with its 6
component parts without compromising
the particulars of its own judicial order. It
adroitly addresses the inherent difficulty in
creating a system of behavioral guidelines;
the challenge of creating a set of
standards that at once are sufficiently
restrictive to proscribe undesirable
behavior and yet are sufficiently flexible to
allow for an independent organization.
1. The six fundamental principals of
prosecution are discussed in terms
general enough to allow for tailoring to
the specific needs of a particular
country while at the same time insuring
that the most important concepts are
not overlooked.
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a) Professional Conduct and its
most critical components are
highlighted;
1) the absolute need to be,
and to be seen to be,
consistent, independent and
impartial is mandated;
2) without consistency and
predictability the system
cannot have legitimacy;
3) the system must not only do
justice, as, if not more
importantly, it must be seen to
be doing justice.
4) the public is never more
personally involved with its
government than it is when it
becomes involved with its
criminal justice system and if
there is no confidence in that
system and its institutions,
there will be an erosion of
confidence in the government
in its entirety.
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b) Prosecutorial Independence,
one of the main differentiations
between the accusatorial and
inquisitorial legal systems, is
stressed and yet all of the varying
legal systems, inquisitorial,
accusatorial, soviet, etc. are
accommodated. Provision is made
for all levels of prosecutorial
discretion.
1) Prosecutorial discretion,
one of the main characteristics
of prosecutorial independence,
will only be tolerated and be
seen to be wisely exercised if it
is fully explicable, fully
transparent and exercised in a
consistent fashion. Both the
Opportunity Principle and the
Legality Principle are
considered in the Standards.
2) Allowing other parties or
branches of government to
have a say in the exercise of
prosecutorial discretion,
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such as in the German or Italian
systems (which are moving
away from such interference) is
a mistake. It detracts from
strict accountability of the
prosecutor and leaves open the
possibility of ulterior motivation
on the part of others not
responsible as professional
prosecutors.
c) Impartiality as a concept
speaks for itself. The discretion to
prosecute or not is the most likely
place to find corruption. The
nature of this decision requires that
it be left solely in the hands of the
prosecutor. However, his reasons
for prosecuting or declining to
prosecute must be transparent and
public. The decisions as to these
matters must be SEEN to be fair as
well as actually being fair. Witness
the ICC example of prosecutorial
guidelines.
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d) Proper Prosecutorial Role – The
standards contemplate:
1) the prosecutor as the
minister of justice;
2) emphasize the need for the
prosecutor to protect the rights
of the accused;
3) that a prosecutor has the
right to, and must, strike hard
blows, but he must never strike
foul ones
e) Cooperation — The Standards
are particularly suited to the needs
of the Convention inasmuch as the
Convention is based on the premise
that corruption is an international
phenomenon (Preamble) and that
there must be international
cooperation between the parties
(see Chapter IV of the Convention)
including mutual legal assistance,
extradition, etc.
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f) Empowerment – The other side
of sanctioning prosecutors, this
insures they are protected in order
to allow them to do their jobs. It
insures that public prosecutors are
not targeted for retribution by
those they prosecute. This is
particularly appropriate for the
Convention inasmuch as the
targets of prosecutors in
corruption cases are often highly
placed public officials. This
Principle:
1) insures a prosecutor
cannot be fired for doing his job
– McDade Amendment;
2) insures the physical safety
of the prosecutor and his
family;
3) insures the economic
independence of the
prosecutor by protecting
his/her salary;
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4) insures a fair evaluation of
job performance and fair
hearings in the event a
prosecutor is called up on
charges.
2. The protection of prosecutors from
those well placed in government and
private industry is one of the most
important aspects of the Statement
and particularly suited to the
Corruption Convention. It insures the
independence of the prosecutor.
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V. The Bangalore Principles (2002) are a
compilation of rules, based, inter alia, on
human rights principles, through which the
international community has expressed its
notion of the minimum standards of conduct
required of judges. The purpose, as well as
the challenge, of the Principles is to help to
eradicate judicial corruption and insure
integrity in the judiciary while at the same time
allowing it to operate effectively and free from
the influence of extra-judicial concerns.
A. While it was a common myth that a
person chosen to be a judge was a person
who would not require guidance from a
specified code, that mistaken thought has
been overtaken by the fact that:
1. experience has proven that judges
are as fallible as others;
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2. judges have been encouraged to
become involved in common
experiences along with the rest of
society as a means of better
understanding the population whom
they serve. As a result they have
become more exposed to situations
wherein their conduct can be
corrupted.
B. The Bangalore principles are designed
to:
1. “provide guidance to judges and to
afford the judiciary a framework for
regulating judicial conduct”;
2. assist the general public to better
understand and support the judiciary;
3. supplement the national rules of
law and standards of conduct which
bind judges.
C. The legitimacy of the Principles
derives from the fact that they are a
compendium of the core principles of 32
judicial conduct codes from around the
world representing all of the major legal
systems of the world.
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D. The Bangalore Principles were
adopted formally in November of 2002 by
an international group of judges at the
Hague consisting of judges from every
major legal system in the world as well as
judges from the international tribunals and
the International Court of Justice.
E. They have been endorsed by the UN
Commission on Human Rights and the
Council of Europe.
F. In short they have an international seal
of approval from the United Nations that
makes them impregnable to charges of
regional or systemic bias. They are
politically safe for any member state of the
UN.
G. The Principles have been formulated
by judges and have not been subject to
amendment by governments or other nonjudicial officers thereby giving them
greater legitimacy with the judiciaries
utilizing them.
H. The Principles cover the six core
values considered as essential for a
robust independent and impartial
judiciary:
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1. Judicial Independence – The
Principles recognize the most
important precept of judicial
independence and the reasons for it;
the need to reinforce public confidence
in the judiciary which is fundamental to
the maintenance of judicial
independence;
2. Impartiality – The principles
describe a basic regimen whereby, not
only bias, but the appearance of bias
can and must be avoided.
a) The subject of disqualification,
one of the most problematic of
ethical questions for judges, is
thoroughly discussed,
b) The problematic area of the
appearance of bias as opposed to
actual bias is reviewed,
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c) This provision includes
a proscription against
communications concerning
a proceeding including
communications from lawyers, law
teachers, and other persons who
are not participants in the
proceeding.
3. Integrity – The Principles
reinforce the adage that justice
must not only be done, it must
be seen to be done.
a) This portion of the Principles
mandates that judges must
regulate their personal activities
such that they do not risk a conflict
with their judicial responsibilities.
1) This also applies to a
judges' personal finances. A
judge must recuse himself from
matters wherein he has a
financial interest or wherein
any member of his family or
close associates have a
financial interest.
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i) This Principle also applies
the prohibition against
'willful ignorance' to the
judiciary.
ii) The judge must be aware
of not only his own finances
but those of his family
members as well.
2) A judge must also not
accept appointments in any of
the other branches of
government.
3) A judge must refrain from
political activity.
f) Propriety – A judge shall avoid
impropriety and the appearance of
impropriety.
1) This is the first concept
outlined in this section of the
Principles and possibly the
most important.
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A concrete outline of permitted
activities is provided which can
be adjusted to fit the needs of
countries of all judicial models.
The Principles should define
‘impropriety’ as either actual or
perceived improprieties and
both are prohibited.
2) Actual improprieties under
this standard include violations
of law, court rules or other
specific provisions of the
Principles. The test for the
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.
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3) The family and social
relationships of the judge are
included in those things that the
judge must insure maintain the
perception of propriety.
4) The groups to which a judge
belongs must be such as to
avoid any perception of
impropriety; i.e., clubs with
members who appear regularly
before the court.
5) The professional and nonprofessional activities in which
a judge may participate are
limited,
(a) a judge may not
practice law
(b) a judge may not accept
gifts in relation to anything
done or to be done or
omitted to be done in
connection with his or her
duties or functions,
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(c) a judge may write,
lecture, teach and
participate in activities
concerning the law, the
legal system, the
administration of justice or
related matters.
g) Equality – The principle of
equal treatment of all who appear
before the court is emphasized
with particular stress on the need
to avoid decisions based upon
nationality; a principle of growing
importance in international
jurisprudence, i.e., the example of
the Ukrainian president intervening
before the court and reminding it to
consider Ukrainian interests
h) Competence and Diligence –
The requirement for selection on
the basis of merit is emphasized
along with the need for continuing
legal education that
complements the need for
competence on the bench,
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1) The Principles emphasize in
this provision the necessity of a
judge disposing of matters in a
prompt and efficient manner. A
system that does not do this will
not effectively address the
needs of its constituents and
thus will fail.
2) The system that takes years
to effect a simple eviction leads
to vigilantism and violence;
Indian landlord-tenant example
3) The Principles mandate
that a judge keep abreast of
legal developments and
participate in training to do so.
J. A country which adapts the principles
mandates that its judiciary form a
mechanism by which to enforce the
principles. Some of the questions
surrounding the formation of such a
mechanism are:
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1. Should the principles adopted be in
the form of codes of conduct,
guidelines or just principles?
2. Should the principles adopted be
mandatory or voluntary?
3. Should the responsibility for
formulating and enforcing the
principles be in the judiciary,
legislature, the executive or a
combination of the three?
4. While the Bangalore Principles do
not prescribe any particular
mechanism for implementation of the
Principles why should these rules not
be enforced by an independent anticorruption agency?
5. Who should decide on the
sanctions to be imposed?
6. Should judges be forced to declare
their assets before, during and after
they take the bench? This possibility is
not mentioned in the Principles.
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VI. An Independent Judiciary – It is senseless
to discuss codes of conduct for the legal
profession, the judiciary in particular, without
first discussing the need for an independent
judiciary. Thereafter conceptualizing
mechanisms or codes to insure that that
judiciary maintains its independence and
functions effectively makes sense. Recall that
in order for a functioning criminal justice
system to exist, a sine qua non of a rule of law
society, it must contain an independent
judiciary. It must always be emphasized that
judicial independence to be respected must
be seen as existing to protect the impartiality
of judicial decisions and not the personal
interests of the judges.
A. What is an independent judiciary and
why must it exist?
1. An independent judiciary must
exist by virtue of the edict of the UN
Congress on the Prevention of Crime
and the Treatment of Offenders, the
Basic Principles on the Independence
of the Judiciary and the Universal
Declaration of Human Rights (1948).
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2. An independent judiciary is
described by the Conference of the
Chief Justices of Asia and the
Pacific in what has come to be know as
the Beijing Statement of Principles of
the Independence of the Judiciary
(1995). It requires amongst other
attributes:
a) a judicial selection process that
insures competence, integrity and
independence;
b) judges who enjoy security of
tenure;
c) judges who enjoy adequate
remuneration;
d) jurisdiction over all matters of a
justiciable nature
e) a competent system of
administration separate from the
executive and the legislative
bodies;
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f) adequate resources to fund its
operations.
B. The primary function, the ‘Why’, of an
independent judiciary is two-fold:
1. it protects the people from
excesses of the executive and the
legislative branches;
2. it protects the legislative and
executive branches from the excesses
of each other while protecting itself
from the excesses of the other two;
3. it cannot do neither of these things if
it is subject to influence or coercion by
either one or both of the other two.
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C. Oversight of the Judiciary – The object
of judicial oversight is to formulate a
method with which to detect judicial
corruption accurately, to investigate it
fairly and to eradicate it effectively without
eroding an independent judiciary. You can
have all of the codes of conduct in the
world, however, unless there is an
effective enforcement mechanism,
properly placed within the governmental
structure, they will be ineffective.
1. Criminal Sanctions – An
independent judiciary must always be
subject to criminal sanctions in
instances where the conduct of the
judiciary has been of a criminal nature;
i.e., where bribery or other high crimes
and misdemeanors are concerned.
The imposition of these must sanctions
must always be subject to safeguards
to insure the independence of the
judiciary and protect it from spurious
prosecutions. An independent
judiciary can never allow its members
to be immune from prosecution.
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a) there should be no criminal
prosecution unless there is first an
impeachment process to protect
the judiciary from the excesses of a
politically motivated prosecutor
subject to pressures from the
executive;
b) there should be no impeachment
process unless it is subjected to
rigorous safeguards, i.e., subject to
vote in a bicameral legislature or
subject to a super majority vote.
c) there should be neither a threat
nor the reality of criminal
prosecution while a judge is on the
bench, i.e., no criminal
prosecution before impeachment
d) thus the code for criminal
sanctions included within the
oversight of the judiciary is the
same criminal code that applies to
the citizenry in general. No one is
above the law, particularly
members of the judiciary.
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2. Non-Criminal Sanctions – Not all
misconduct by members of the
judiciary is criminal. By far the
majority of the objectionable conduct
is non-criminal and due to
incompetence, non-judicially tempered
private actions, lack of training, poor
judgment, etc.
a) the executive and legislative
branches MUST not be able to use
investigations as retaliation for
unpopular decisions or to exert
subtle pressure on judges through
hints or threats of investigation;
Thus All Non-Criminal
Investigations of the Judiciary Must
Be Conducted By the Judiciary
Itself.
1) this can be done through
the offices of the Chief Justice
of the Supreme Court as it is
done in most of the countries in
the Asian and Pacific countries;
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2) it cannot be done effectively
by the executive because it
thus provides an outside threat
to the independence of the
judiciary, i.e., judges pleasing
politicians to avoid
investigation;
3) it avoids the appearance
that a judge may be deciding in
favor of a popular politician or
political position to avoid
investigation or the threat of
investigation.
b) to preserve judicial
independence, non-criminal
investigations of the judiciary
should be left primarily to the
judicial branch. Such investigative
authority provides too ready a tool
to harass judges whose judicial
opinions are not consistent with the
wishes of political leaders.
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c) the conference of Chief
Justices of the US, Thailand,
Indonesia, Laos and the Philippines
cited as examples first the budget
and then the harassment of
justices through impeachment.
3. a suggested regimen for noncriminal sanctions and an effective
enforcement mechanism would be:
a) the creation of a judicial
councils comprised of judges at
the Supreme Court level chaired by
the Chief Justice of the Supreme
Court; or more appropriately
where there are regional levels of
courts, a council of those judges
chaired by the Chief Judge of the
Regional Court;
b) the creation of a judicial code
of conduct to be enforced by that
council;
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1) all complaints first come to
the Chief Judge of that court
who screens them to
determine, if the facts of the
complaint are taken as true, is
this a matter for the council;
2) if the Chief Judge finds this
to be the case, he refers the
case to the council for
investigation to determine if the
accused: Has engaged in
conduct prejudicial to the
effective and expeditious
administration of the business
of the court; this standard
insures that complaints about
personal conduct that do not
reflect on the court are not
used to harass judges.
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3) if the investigation,
conducted by an appointed
panel of local judges, reveals
culpability on the part of the
accused judge, the Chief Judge
may: take such action as is
appropriate to assure the
effective and expeditious
administration of the business
of the courts within his control.
4) if criminal conduct is
discovered, the matter may be
referred for impeachment
proceedings
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Case Studies
JUDICIAL CONDUCT COMMISSION V JUDGE X
During the course of civil litigation, Judge X accepted
favorable pricing arrangements from various business
establishments owned and operated by Mr. Y, an
individual who during the course of the litigation and
afterwards was in personal contact with Judge X. The
evidence at the hearing before the Judicial Conduct
Commission was that Judge X received substantial
financial benefits in the form of discounts and favorable
prices for the purchase of automobiles and repairs from
Y, who owned a car dealership, and who was a litigant in
favor of whom the judge previously had awarded a
substantial monetary judgment.
Specifically, it is alleged that, in 1986, Judge X presided
over a court trial in litigation entitled Security Pacific
National Bank v. Y, and a related cross-action, and
entered a $5 million judgment in favor of Y, reserving
jurisdiction to determine attorney fees and costs on
appeal. While the case was pending on appeal, Judge X
contacted Y regarding the purchase of a Mercedes
automobile. In March 1989, Y sold a used Mercedes to
Judge X, personally handling the transaction. He set the
sales price at $20,537, which, according to the evidence
"appeared to be favorable" to Judge X.
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Judgement
In the present case, the formal charges allege facts
involving petitioner's active solicitation of a favorable
transaction, involving the purchase of an automobile, from
a litigant at the same time the litigant's case was pending
before the court. It is alleged that, shortly after awarding
a $5 million dollar judgment in favor of Y in the Security
Pacific v. Y litigation, while retaining jurisdiction for a
limited purpose (attorney fees and costs) pending appeal,
Judge X contacted Y seeking to purchase a Mercedes,
and ultimately purchased such a vehicle from this litigant
at a price that appeared to be unduly favorable to
petitioner.
Seeking out and accepting a favorable transaction under
these circumstances clearly would denote a lack of
integrity, as well as corruption and conduct contrary to
the moral standards required of the judicial office. Readily
inferable from these allegations is that the judge was
attempting to receive favors for past deeds, purposefully
taking advantage of the power and prestige of his judicial
office, and wrongfully using his office to procure a benefit
for himself. Petitioner's alleged misconduct violated
several canons of judicial conduct, particularly the
proscription against acceptance of gifts from litigants
whose interests have come, or are likely to come, before
the judge (canon 4 D(5)), as well as the more general
proscription against conduct that may create an
appearance of special influence over the judge (canon 2
B) or that erodes public confidence in the integrity or
impartiality of the judiciary (canon 2 A).
JUDICIAL QUALIFICATIONS COMMISSION
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V
JUDGES X & Y
On September 24, 1991, a federal grand jury handed
down a fourteen-count indictment that charges Judges X
& Y with, on various occasions, corruptly requesting,
soliciting, accepting or agreeing to accept pecuniary
benefit to influence the performance of their judicial
duties, conspiring with others to improperly affect the
outcome of court cases assigned to other judges, and
participating in ex parte communications and financial
transactions with defense attorneys appearing in cases
before them. In addition, the indictment further alleges
that Judge X participated in a conspiracy to commit the
murder of a confidential informant.
Following the grand jury's indictment, on September 26,
1991, the JQC served on the petitioners an Order to Show
Cause why the JQC should not recommend that they be
suspended from their judgeships without compensation.
The JQC combined the order to show cause proceeding
with the notice of investigation proceeding.
On October 10, 1991, the JQC sent its report and
recommendation by certified mail to the petitioners'
chambers, and by regular mail to their home and
attorneys. On October 15, 1991, this Court issued an
Order suspending the petitioners without compensation
pending final disposition of the inquiry. The petitioners
filed a Motion for Rehearing and a Motion to Vacate the
proceedings because they asserted that the suspension
violated their due process right of an opportunity to be
heard.
Judgement
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Although the petitioners have not been convicted of any
crimes here, we think it is significant that a grand jury
indicted them. The grand jury's indictments carry an
indicia of reliability because the charges are made by an
independent body that bases its findings on sworn
testimony. Thus, we hold that the grand jury indictment
provides probable cause that the petitioners have
engaged in misconduct making them unfit to serve.
The grand jury indictment charges the petitioners with
criminal misconduct that affects the public's confidence
in the judiciary. The fourteen-count indictment alleges
that the petitioners accepted money to influence the
outcome of cases before their courts, and engaged in
racketeering, extortion, and conspiracy to commit
extortion, in relation to the performance of their judicial
duties. In the report and recommendation to this Court,
the JQC found that the petitioners effectiveness as judges
had been adversely affected by public knowledge, from
widely circulated news reports, of the petitioners' alleged
criminal misconduct. The criminal allegations against the
petitioners shake the foundation upon which a free
society is built: a fair, just, and independent judiciary Few
events are more egregious and derogatory to the image
or perception of the judiciary than for one of its members
to be charged with selling its decisions.
The removal of these judges from the bench is not
punishment for a crime, nor is suspension, nor is the
withholding of pay. The purpose of the removal
proceedings, and all related aspects of those
proceedings, is to regulate the judiciary, to protect the
public from dishonest judges, to prevent proven dishonest
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judges from doing further damage, and above all to
assure the public that the judiciary is worthy of its trust.
That purpose, clearly regulatory, is achieved not only by
the removal proceeding itself, but also by the immediate
suspension of the judge without pay. Were pay to be
resumed before the removal proceedings were
completed, public confidence in the judiciary would
without doubt be weakened.
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