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RESOLVED, That the American Bar Association urges the Supreme Court of the United States to adopt with dispatch a binding code of ethics for the justices of the Supreme Court of the United States, comparable to the code of ethics imposed upon other federal judges adopted by the Judicial Conference, the Code of Judicial Conduct for United States Judges.
FURTHER RESOLVED, That the American Bar Association urges federal, state, local, and territorial bar associations to adopt their own resolutions urging the Supreme Court of the United States to adopt a code of judicial ethics binding on justices of the Supreme Court.
ABA/KCBA Resolution 400, Adopted February 6, 2023.
This call for a binding Supreme Court code of ethics by the American Bar Association was long overdue and we would still be waiting for the ABA to speak out on this issue were it not for a team of thoughtful and tenacious attorneys in our legal community. The passage of the United States Supreme Court (SCOTUS) Ethics resolution was truly a team effort, with multiple KCBA members playing a critical role in the process. For this reason, KCBA awarded the Friend of the Legal Profession Award to the entire team on June 20, 2023. The SCOTUS Ethics Resolution team includes KCBA members Kathleen Hopkins of the Real Property Law Group, the KCBA Delegate to the ABA House of Delegates, James Williams of Perkins Coie, the ABA delegate for the entire State of Washington, Neal Black of Adkins Black, retired Seattle attorney Llewelyn (Llew) Pritchard, Tom Fitzpatrick of Talmadge Fitzpatrick, and three out-of-state attorneys who fully supported the KCBA team: Lucian Pera, Mark Shickman, and Lorie Miller.
At first glance, this proposal seems sensible and not particularly controversial. Attorneys practice subject to a code of ethics and the justices are all attorneys. Judicial officers also operate subject to an ethical code applicable to judicial officers. And employees of the United States are also expected to comply with the ethics rules applicable to federal employees. However, there was some spirited debate and some clear opposition at the February 6, 2023 ABA midyear meeting, when the KCBA resolution was presented. Fortunately, Kathleen Hopkins and others began strategizing long before the ABA ever received word of the KCBA resolution.
In October 2022, Hopkins began discussions in earnest about pursuing a resolution from KCBA to be presented to the ABA. Hopkins has been actively involved with the ABA, so she knew whom to call upon for assistance with an ABA ethics resolution for the SCOTUS. Hopkins had discussed with Llew Pritchard that SCOTUS were the only judges or lawyers in the entire country not bound by a code of conduct and that KCBA should do something about it. Hopkins reached out to Tom Fitzpatrick for expertise in drafting a resolution, since Fitzpatrick is one of the drafters of the Federal Code of Judicial Conduct. Fitzpatrick prepared an initial draft and continued to lend his expertise and support to Hopkins throughout the project. Attorney Lucian Pera, from Memphis, also a nationally-recognized ethics expert, continued to work on Fitzpatrick’s draft, and also assisted with negotiations with the ABA Center for Professional Responsibility leaders and staff, along with the ABA Judicial Division, to minimize objections.
Ultimately, the proposal to the KCBA Board of Trustees included the call for a binding code of ethics applicable to SCOTUS. The concern being that any resolution which did not call for a binding code of ethics would be aspirational and have little practical effect. At the January 18, 2023 meeting, the KCBA Board approved a resolution seeking a binding code of ethics for SCOTUS, which had important effect during later debate and informal lobbying. Hopkins expected opposition to the binding obligation in the KCBA resolution, but she concluded this also put the ABA delegates who supported the resolution in a strong position when others sought to rewrite the resolution, striking the term “binding” from the resolution. Since the KCBA Board had approved this particular resolution, Hopkins reasoned that delegates to the ABA lacked the authority to change the content without approval by the KCBA Board.
As the date for the ABA midyear meeting approached, Hopkins concluded she would not be able to attend the meeting and formally see the process through to a final vote. Her husband developed a life-ending illness and she needed to stay with him in Seattle. They discussed the resolution and how important it was to them both, so Hopkins kept her laptop with her and continued to orchestrate the process from her husband’s bedside.
Hopkins continued to work with attorney Mark Schickman and Llew Pritchard. In the months leading up to the ABA meeting they contacted their ABA network of former and future ABA presidents and other leaders throughout the legal community for their support. Schickman acted as the advanced “floor manager” organizing commitments to attend the ABA meeting, speak out in favor of the resolution and file the necessary advanced paperwork. Attorney Lorie Miller provided on-site guidance and day-of assistance as floor manager during the ABA meeting, corralling over 30 people who had agreed in advance to speak in support of the resolution.
However, someone still needed to attend in Hopkins’s place, so KCBA Board Member Neal Black stepped forward and jumped into the fray in early February 2023. Upon his arrival for the ABA meeting, Black received significant pressure to drop the term “binding” from the language in the resolution. Assurances were made that if that term were stricken, there would be little resistance and the resolution was sure to pass. Black held firm to the language approved by his fellow Board members, as did James Williams.
Hopkins describes Williams’s on-site lobbying and presentation of the resolution to the numerous caucuses and committees in the days leading up to the meeting as “masterful.” If you have not yet had the opportunity to watch the eloquent and persuasive argument Williams presented in in his role as the head of the entire Washington State delegation, you will find his full speech here.1
Immediately following Williams’s call for a binding code of ethics, there was a motion to table the discussion—indefinitely. That motion was not successful because of the careful planning, the thoughtfully drafted language in the KCBA resolution, the months of planning and gathering of support, and because a group of attorneys saw a problem and set about finding a way to fix that problem.
Should there be any lingering doubt whether there is a problem, one need only look to recent coverage of the extravagant trips and travel received by Justices Thomas and Alito and provided by persons with business before SCOTUS. The work of the SCOTUS Ethics team exemplifies strategic, thorough and effective advocacy on an issue which affects us all. Thank you for your important contributions.
1 https://www.americanbar.org/news/reporter_resources/midyear-meeting-2023/house-of-delegates-resolutions/400/.
