In a time when money is flowing into judicial elections, the ABA has finally passed a resolution designed generally to address the often problematic results and appearances when lawyers and litigants contribute or otherwise expend significant sums of money to elect or retain a judge.  The ABA’s Judicial Division had defeated an earlier, more detailed resolution to address when judges should recuse themselves because the lawyers or litigants appearing before them had made significant campaign contributions or independent expenditures for (or against) those judges.  Although diluted, the new ABA Resolution 105C is still a step in the right direction because it addresses four key areas of improvement and urges training to address these often difficult disqualification questions:

RESOLVED, That the American Bar Association urges that states and territories adopt judicial disqualification and recusal procedures which: (1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge; and

RESOLVED FURTHER, That the American Bar Association urges all states and territories to provide guidance and training to judges in deciding disqualification/recusal motions.

The latest issue of The Professional Lawyer was just published, and Prof. Ben Cooper (Mississippi) included a good article on how to deal with the divisive issue of whether judges should be permitted to “friend” lawyers and litigants on Facebook, and if so, what disclosure obligations result.  Prof. Cooper’s article can be found here, and the abstract follows:

A wave of recent judicial ethics opinions from the states and the ABA offers direction on navigating the ethical minefield of social media use by judges. The author, an ethics professor, surveys opinions on point and argues that although they provide helpful guidance on a number of issues, they fall short in terms of providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media “friend.”