Justice be authorized, in his discretion, to designate one or more representatives of the Conference to present the views of the federal judiciary to that Committee, if requested."

At the same time the Court Administration Committee, pursuant to resolution No. 2 of June 10, 1969 submitted a form of financial statement and a procedure to be followed in its preparation and filing. The Committee recommended that the form and suggested procedure be circulated among all federal judges for their comment. The Conference agreed. Thereafter the Conference, in March 1970, after the Committee had considered all suggestions received, approved a new reporting form which required.

"that all federal judges, including judges in senior status performing some judicial services, report every six months, commencing with the period ending June 30, 1970, for the preceding six months, as to monies received from extrajudicial services, gifts, payments of excess expenses, positions held in business or other organizations and participation in cases where the judge had any financial interest."

The Conference also indicated that no other financial reporting was to be required, whether of assets and liabilities, or otherwise, pending completion of the report of the American Bar Association.

Accompanying approval of the reporting form was a requirement that copies be filed with the judicial council of the circuit and with the office of the clerk of the court of which the judge is a member, "where they shall be made available to the public immediately."

Meanwhile, the Chief Justice took two steps to create institutional means to deal with the concerns of the judiciary. The first, in accordance with the October 1969 resolution of the Conference, was to appoint a receiving committee with whom copies of the reports were to be filed. The committee was officially called the "Review Committee." 1

The second step was taken against the background of unfavorable public reaction to the suspension of the June 1969 resolution and in recognition of the need for the federal judiciary to develop some capacity to deal with ethical issues while awaiting the results of the revision of the canons by the American Bar Association. Accordingly, on December 5, 1969 the Chief Justice created a sevenmember Interim Advisory Committee on Judicial Activities. He said in part in his letter to the members of the Judicial Conference:

"I have concluded to appoint an interim advisory committee on judicial conduct with two primary responsibilities and one which is important but secondary. It will probably consist of five or six United States judges. Its duties would be (a) to give informal advisory opinions to Circuit Judicial Councils, when requested, on matters presented to the Councils in the area of judicial conduct and nonjudicial activities of judges; (b) to respond to requests from individual judges concerning nonjudicial activities; and (c) to report on such requests and responses to the Conference and to the Committee on Court Administration now dealing with development of standards."

The creation of the Conference's third committee on ethical issues did not take place until more than two years after the events above described. Anticipating American Bar Association approval of the Traynor Committee report on Standards of Judicial Conduct at the association's next annual meeting, the Judicial Conference in April 1972 established a joint committee consisting of

1 The original members of the Review Committee were: Edward A. Tamm, U.S. Court of Appeals for the District of Columbia Circuit. Washington, D.C., Chairman: Chief Judge Alfred A. Arrai. U.S. District Court, Denver, Colorado; and Chief Judge Frank M. Johnson, U.S. District Court, Montgomery, Alabama. The membership of the committee was subsequently enlarged to include Edward T. Gignoux, U.S. District Court. Portland, Maine: William Wayne Justice, U.S. District Court, Tyler, Texas; and Bernard M. Decker, U.S. District Court, Chicago. Illinois.

2 The original members of the Committee were: Elbert P. Tuttle, U.S. Court of Appeals for the Fifth Circuit, Atlanta, Georgia, Chairman: Harry A. Blackmun, U.S. Court of Appeals for the Eighth Circuit, Rochester, Minnesota (now Associate Justice of the Supreme Court of the United States); Frank M. Coffin (now Chief Judge). U.S. Court of Appeals for the First Circuit, Portland, Maine: Chief Judge Roszel C. Thomsen (now Senior Judge). U.S. District Court, Baltimore, Maryland (now Chairman, Standing Committee on Rules of Practice and Procedure, and thus no longer serving on the committee): William J. Jameson, U.S. District Court, Billings, Montana; William B. Jones (now Chief Judge). U.S. District Court, Washington, D.C.; and Robert Van Pelt (now Senior Judge), U.S. District Court, Lincoln, Nebraska.

Thereafter, on November 6, 1973 the committee was enlarged by the appointment of the three following members: Cornelia G. Kennedy, U.S. District Court, Detroit, Michigan: James Lawrence King, U.S. District Court, Miami, Florida; and Frank J. McGarr, U.S.. District Court, Chicago, Illinois.

the members of the Review Committee and the Advisory Committee on Judicial Activities and charged it with the responsibility of "reporting back to the Judicial Conference on the feasibility of adopting this report as applying to all federal judges and determine whether any additional standards may be needed in the federal system." The chairman of the two committees were appointed to serve as co-chairmen of the combined committee. Subsequently, the Chief Justice named to the Joint Committee Chief Judge Irving R. Kaufman, Second Circuit, and District Judge Edward T. Gignoux of Maine, who were then serving as members of the ABA Committee under Chief Justice Traynor.3

III. Operation of the committees

Each of the three committees has evolved its own approach, suitable to the functions it performs. While each is a separate group and reaches its decisions independently, all members of the Review and Advisory Committees, with the addition of Chief Judge Kaufman, meet together twice annually as the Joint Committee. There is thus collegial discussion of major issues in a group composed of one Supreme Court Justice, four circuit judges, and eleven district judges, coming from nine of the eleven circuits. An understanding of how issues are presented to the committees and how they are resolved is deemed of sufficient importance for inclusion in this review. Occasionally, judges have not been aware of the modes of access to the committees or the opportunity for exchange of views.

1. The review committee

A. METHODS OF OPERATION

The Review Committee commenced its operation in 1970 by circulating to all judges the reporting form prepared by the Court Administration Committee and approved by the Conference. The first reports were to cover the six-month period ending June 30, 1970. Consistent with the Judicial Conference directive that the reports "be at all times kept confidential [by the Review Committee] except to the extent that the panel concludes that they should be brought to the attention of the Judicial Conference . . ." returns were made directly to the Chairman of the Review Committee. In this way they would not pass through the hands of any administrative personnel of the court system. Also the reports were to be considered by the Review Committee in executive session. This procedure safeguarded the process of Committee review even though the reports themselves were public documents on file with the clerk in each court. Subsequently, in a series of resolutions the Judicial Conference defined the role of the Review Committee and the scope of its operations.

Although there was general compliance with the requirement of filing these first reports of extra-judicial income by judges, the Conference in October 1970 directed that henceforth the names of judges failing to report be published in its reports. The Conference provided further that "In the event the judge declines to make a report on grounds of conscience, he shall be advised that, if desired, such fact will be noted in the published report."

From the outset the Review Committee adopted the procedure of having its Chairman communicate with reporting judges to request clarification of any items contained in their reports which were not clear, calling attention to relevant provisions of the Code of Judicial Conduct or resolutions of the Judicial Conference of which the reporting judge may have been unaware. This procedure was designed to achieve factual accuracy in the Committee's reports to the Conference as well as fostering an awareness of applicable standards.

Following adoption of the Code of Judicial Conduct for United States Judges by the Conference in April 1973, the reporting requirement was extended to cover full-time bankruptcy judges and full-time United States magistrates. Simultaneously the Conference directed the Committee "to pose questions to the Advisory Committee without disclosing the identity of the reporting judge when reports contain information justifying such inquiry.”

2. The advisory committee on judicial activities

The Advisory Committee issued its first five advisory opinions on January 26, 1970. At that time it announced that it would use the American Bar Association's then existing canons of judicial ethics as the basis for its advisory opinions until the new code was completed.

3 Judge Gignoux subsequently became a member of the Review Committee. See footnote 2. Only 38 judges initially neglected to file reports within the specified time limit out of 544 judges required to file as of Aug. 1, 1970.

The Committee at its first meeting concluded, following the Chief Justice's suggestion, that it would render advisory opinions only when requested by a Judicial Council of a circuit or by a federal judge. The Committee also concluded at its first meeting that it would not render opinions on questions of law and that in its advisory opinions it would refrain from identifying the particular judge or judges who made requests or about whose activities inquiry was made.

At the October 1972 meeting of the Judicial Conference the Committee's activities were broadened to include the rendering of advisory opinions to fulltime magistrates and full-time referees (now bankruptcy judges). At the April 1973 meeting of the Judicial Conference the Code of Judicial Conduct of the American Bar Association was approved with certain modifications and when the report of the Advisory Committee on Judicial Activities was presented to that meeting the Conference concluded that the Advisory Committee should continue in existence but should no longer be termed an interim committee. At the same meeting it was concluded that the Committee should reply to inquiries not only from federal judges but from all bankruptcy judges and magistrates whether full-time or part-time appointees. Opinions of the Advisory Committee were to be issued only upon written inquiry.

In answering these inquiries the Committee is limited by the resolutions of the Judicial Conference of the United States, by the Code of Judicial Conduct, as adopted by the Judicial Conference, and by the statutes enacted by the Congress of the United States. The Committee does not undertake to construe a statute, but will not refrain from construing a canon even though the language of the canon parallels the statute. In such case, however, the Committee will call attention to the statute.

When an inquiry is received, either by the Chairman of the Committee or by the Administrative Office of the United States Courts, a copy is immediately sent to each Committee member. Sometimes the Chairman of the Committee, when the inquiry is made to him, makes his comment upon it when he mails the inquiry to the other members. The members then express in writing their views of a proper answer to the inquiry, which is circulated by mail among all members of the Committee. If it is a matter which can be answered by a letter from the Chairman, the Chairman prepares a reply which again is circulated to the members of the Committee. If approved, the reply signed by the Chairman is then sent as an unpublished opinion to the person making the inquiry. On occasion the Committee concludes that its opinion is of such general interest that it should be published. In that event the Chairman designates a member of the Committee to make the first draft of the formal opinion. These are sometimes circulated by mail and on other occasions have been held until one of the semiannual meetings of the Committee, at which time there is the benefit of open discussion and changes, if needed, can be more easily made. The Committee has found to date that it needs to meet approximately twice a year to avoid undue delay in answering those inquiries which need to be resolved by open discussion. To date the Committee has published 47 formal opinions. A larger number of inquiries have been answered by letter. Frequently it is necessary only to call attention of the judge to a canon or the reporter's commentary thereon, or to a formal opinion, thus bringing into play the Committee's consistently maintained position that the decision must remain within the conscientious discretion of each judge, and that it has no authority to impose sanctions.

3. The joint committee on the code of judicial conduct

The report of the Traynor Committee resulted in ABA approval of a Code of Judicial Conduct at its annual meeting in August 1972. The Bar Association expressed the desire that the new Code be adopted in all jurisdictions, local, state and federal, with minimum changes necessary to meet local conditions. The Joint Committee on Standards of Judicial Conduct for federal judges determined to comply with the expressed hope of the ABA and undertook to examine the new Code with a view of adopting its provisions to the extent possible. In doing so the Committee reviewed all existing statutes, rules and resolutions of the Judicial Conference pertaining to judicial ethics and judicial conduct.

The Committee's deliberations resulted in a report to the April 1973 session of the Conference recommending adoption of the Code of Judicial Conduct with certain modifications. It was made clear, however, that the adoption of the Code did not abrogate or modify any conflicting provisions of statutes or resolutions of the Conference except that in the event the Code provisions were more restrictive than previous resolutions, the Code would control. The Conference, however, asked that further study be given to Canon 7 of the Code relating to political activities

of judges. A revised Canon 7 was submitted and approved by the Conference at its next session.

On advice of the Committee the Conference also directed the preparation of a manual to contain the Code of Judicial Conduct for United States Judges, the opinions of the Advisory Committee on Judicial Activities and a well-designed index and cross index. The manual was subsequently approved by the Conference for distribution to all federal judges, bankruptcy judges, and magistrates.

1. The review committee

B. SCOPE OF PAST ACTIVITIES

In its review of the reports of extra-judicial income the Review Committee has endeavored to prepare summaries for the Judicial Conference that identify types of situations which may prompt Conference amendments to the Code of Judicial Conduct and Conference resolutions, or suggestions to the Judicial Councils of the Circuits. The Committee has also recommended changes in the reporting forms and procedures, eliminating items of reporting which are considered to be no longer necessary in view of statutory or other changes and simplifying the preparation of the form. In correspondence with those required to report, the Committee has given helpful advice on the substance of the reports and frequently has requested additional information to clarify individual reports. Replies to inquiries such as these frequently show activities of judges, sketchily reported on the form, to be completely proper and have enabled the Committee to eliminate at least 100 situations which were potential sources of adverse publicity. This activity on the part of the Committee has required the writing of 150 to 200 letters a year. It is a task the Committee has gladly undertaken to forestall unwarranted criticism of individual judges. Its files contain numerous letters of appreciation for the assistance rendered.

The Committee, however, has not undertaken to evaluate the propriety of any judge's activity nor has it expressed a desire to do so. As authorized by the Judicial Conference, the Review Committee has submitted to date and received answers from the Advisory Committee on 40 separate inquiries, fifteen of which have resulted in formal opinions by the Advisory Committee published for the information of all federal judges.

The Review Committee's semi-annual reports to the Judicial Conference present in summary form various problems and incipient problems identified in the reports. Occasionally there have been obvious violations of the Code, although the number has decreased in each reporting period. The incidence of affiliation with business activities in contravention of Canon 5C of the Code of Judicial Conduct and the 1963 resolution of the Judicial Conference relating to business activities has virtually disappeared. Participation in charitable and other nonprofit organizations, an activity expressly permitted by the Code, has been regularly reported to the Conference in view of the requirement that these activities should not interfere with the performance of judicial duties. The incidence of judges serving in fiduciary capacities in estates and trusts has also been reported to the Conference, although the number has also diminished.

Certain other obvious violations of the Code of Judicial Conduct have been quickly remedied following Committee inquiry. In several instances judges have resigned appointive posts on federal, state and local governmental bodies, such as a highway commission or a presidential commission, as soon as Canon 5G, prohibiting such activity, has been brought to their attention. Similarly resignations from fiduciary positions in nonfamily related estates and trusts have been promptly forthcoming. Business affiliations have been changed in such a way that judges are not involved in management.

The review of reports of service by judges as fiduciaries in estates and trusts has required an unusual amount of time. Frequently the reports, as originally submitted, fail to contain sufficient information to indicate whether or not the trust or estate is family related, thus precipitating correspondence. Often there has been a failure to indicate Judicial Council approval to serve as a fiduciary, as required by Conference resolution. In some instances the reports indicate that income has been received for service rendered as fiduciaries in nonfamily related estates and trusts-a violation of the Canons and Conference resolutions. The amount of money involved has almost invariably been minimal.

Recently the Committee recommended, and the Judicial Conference approved, a change in procedures to eliminate the need to obtain Judicial Council approval for service as a fiduciary in a family related estate or trust, if the relationship

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is within the third degree of consanguinity or affinity, as calculated under the civil law system. Other changes in reporting advocated by the Committee and approved by the Conference include a modification that eliminates the need to report the amount or value of a gift received from a member of a judge's immediate family, including his spouse, children, parents, etc.; and the complete elimination of the need to report on "participation in cases." The change in the requirement of reporting gifts or bequests to a large extent protects the privacy of gifts and bequests among family members. The section on "participation in cases" was dropped in view of a recent statutory change in title 28, United States Code, § 455, which automatically disqualifies a judge in any proceeding in which he has a financial interest, "however small."

2. THE ADVISORY COMMITTEE

An exhaustive analysis of the opinions issued to date is unnecessary. Each judge, magistrate and bankruptcy judge has a copy. Certain general observations, however, should be made.

In the first group of opinions filed, and ever since when appropriate, the Committee has emphasized that nonjudicial activities of a judge should never be allowed to interfere with the prompt and proper performance of judicial duties by the judge.

The Committee has consistently emphasized that judges can best regulate their own conduct and that "the judge concerned is the one best able to measure the impact of these canons," that the ultimate decision must be "his decision," and that the judges involved "are better able to determine" the application of the principles of conduct which must be in accord with "the good judgment of each individual." Only recently the premise again has been repeated that "the deci sion in each case must remain within the conscientious discretion of each judge."

In interpreting the Code of Judicial Conduct the Committee has made frequent reference to the admonition that the judge's action must not only be free from impropriety but also free from the appearance of impropriety.

Judges need not be reminded, but laymen reading this history may not know, that the Committee did not write the Code of Judicial Conduct. It did not draft the statutes enacted by the Congress. It is not the intention of the Committee and is not within its assigned duties to prescribe rules of conduct for other judges. Its duty is only to interpret upon request the applicable rules of conduct adopted by the Judicial Conference of the United States.

At the March 1974 meeting of the Judicial Conference the Review Committee stated that the most frequent problem before it concerned the definition of the term "fiduciary activities." It is thus not surprising that a large number of the advisory opinions have concerned such activities. Even a larger number have discussed the question of disqualification of the judge and the circumstances under which he or she is or is not disqualified. It has been necessary to discuss what constitutes a financial interest either of the judge or of the judge's spouse. Closely allied to what is a financial interest has been the question of the business activities of a judge and of a judge serving as an officer or director of a business. The propriety of outside compensation for nonjudicial activities and its amount has frequently required the consideration of the Committee.

More opinions have concerned charitable and service organizations and the judge's activity therein than any other single subject. Notwithstanding the specific prohibition on the solicitation of funds for such organizations the Committee on occasion has found it necessary to remind judges of that ban on their activities. There has likewise been before it the question of the judge engaging in political activities and belonging to political clubs, and whether or not a judge or spouse can be a member of a governmental commission. Many other canons have also been discussed.

8. THE JOINT COMMITTEE

The task initially assigned to the Joint Committee was the examination of the ABA Code of Judicial Conduct and the formulation of standards of conduct for federal judges based upon the Code. Its work was basically completed when the Judicial Conference adopted the Code for federal judges. Yet circumstances have required the Committee to remain alert to events that may possibly affect the Code. In this regard the Committee has recommended editorial changes in the Code. submitted a revision on Code provisions relating to disqualification required by Congressional revision of section 455 of Title 28, United States Code, and reviewed legislation pending in Congress which relates to matters covered in the Code.