Arkansas Supreme Court ethics order baffles some in legal ranks

Some judges and lawyers reported confusion Thursday about revised ethics rules issued by the Arkansas Supreme Court, including whether judicial candidates should continue to avoid learning who donates to their campaigns.

The court's 18-page order didn't make clear which of the old rules had been changed, which had stayed the same and which had been deleted.

For example, the order didn't include any reference to the ethics advice that candidates refrain from knowing who their donors are or how much they donated, but a revised version of the Arkansas Code of Judicial Conduct posted online contains the old code's language.

The Code of Judicial Conduct rules posted by the Arkansas Judiciary and updated as of Thursday say judicial candidates "should, as much as possible, not be aware of those who have contributed to the campaign," to reduce potential disqualification and avoid the appearance of impropriety.

The Administrative Office of the Courts received calls from circuit judges Thursday asking, "How are we supposed to know what's changed?" said J.D. Gingerich, the office's director.

A lawyer at Gingerich's office was working on an update that will show what's different, line by line, Gingerich said. He hopes to have that finished today.

The revised rules apparently rejected two key recommendations from the state's largest lawyer association, which has been studying ways to improve trust in the impartiality of the judicial system.

One of those recommendations by the Arkansas Bar Association concerned the advice to avoid knowledge of donors and donations -- advice that critics say sustains a fiction.

Those critics say it's nearly impossible for judicial candidates to be unaware of major donors, because the candidates often attend their fundraisers, meet potential donors and sometimes sign their campaign fundraising reports. The campaign finance reports are public record posted by the Arkansas secretary of state's office.

The Arkansas Supreme Court's per curiam order issued Thursday did not specifically refer to Rule 4.4, Comment [3A], concerning campaign practices. Per curiam refers to a unanimous decision.

The bar association recommended a rule whereby judicial candidates may be aware of donors but must consider whether that awareness would result in the appearance of impropriety or in disqualification.

The other recommendation sought to require judges to disclose on the record why they disqualify themselves from a particular case -- if one of the parties involved asks. Those reasons could be, for example, campaign contributions from parties involved, family or business ties to the case, or other matters that threaten the appearance of fairness and impartiality.

Judges now decide whether or not to provide that information. Case dockets often, but not always, show recusals without any reasons.

The Supreme Court's order on Thursday kept the old wording saying judges "may disclose."

Chief Justice Howard Brill did not respond to questions about Thursday's order.

Arkansas Bar Association officials said they had not had time Thursday afternoon to closely study which of the association's requests had been incorporated or rejected.

Bar association President Denise Hoggard said she had passed the rule changes on to the task force that studied such matters and to governing members of the bar association for review.

"We follow the will of the court, and I'm pleased they have issued an order," she said.

"Dark money" spending in elections and large campaign contributions -- particularly from lawyers who try cases before those judges -- spurred the bar association this year to devise proposed changes to judicial ethics rules. The association submitted its proposals to the high court in July.

Three Arkansas Supreme Court candidates in the past three years have been attacked by advertising purchased by groups that don't have to disclose their donors -- such contributions being known as dark money. All three candidates lost their races.

An Arkansas Democrat-Gazette series in January reported that six firms of lawyers who work together on class-action cases were among the biggest campaign donors since 2009 to current, elected Supreme Court justices.

The lawyers had won eight cases before the Supreme Court in that time, the newspaper found. Court records didn't show any losses.

The bar association's House of Delegates will debate today in Little Rock whether to support an effort to appoint Arkansas Supreme Court justices instead of the current system of staggered, statewide elections.

A Section on 12/16/2016

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