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ETHICS DILEMMAS ­ HYPOTHETICAL SCENARIOS

Monday, June 21, 11 AM ­ 12:30 PM (Tudor 7, 8) Tuesday, June 22, 11 AM ­ 12:30 PM (Tudor 7, 8) Welcome to Ethics Dilemmas, a cooperative effort by CCAT, the ABA and NAALJ. Today's program will be led by our discussion leaders: Michele Juteau, Commission des lésions professionnelles du Québec (Employment Injury Appeals Tribunal) and President of CCAT, Canada; R. Bryan McDaniel, Louisiana Division of Administrative Law, ABA and NAALJ, U.S; and, Edwin L. Felter, Jr., Colorado Division of Administrative Hearings, ABA, and NAALJ, U.S.

The goals of this ethics training are to raise the consciousness of those who serve as leaders in administrative law, and to rededicate adherence to the highest standards of professional conduct, competence, fairness, social justice, diligence and civility. This portion of the continuing legal education program focuses on a series of hypothetical scenarios involving complex ethical dilemmas dramatized. After the scenario is presented, audience members are encouraged to participate in the discussion period. Relevant provisions of judicial ethics codes are included in the materials in Part II. [NOTE: All references to the Code of Judicial Conduct are references to the American Bar Association "Model Code of Judicial Conduct" (1990, 2000 Ed.). References to Canadian General Principles are references to the "General Principles of Conduct for Members of Federal Administrative Tribunals (June 1999)]. Due to time constraints, only selected scenarios and questions will be covered. Discussion may be limited to cover as many scenarios as possible. Please read each scenario before the discussion, listen to the discussion leaders, and get involved in the discussion. Enjoy!

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TABLE OF CONTENTS

PART I (Scenarios)

Scenario No. 1 (Ex Parte Knowledge) Scenario No. 2 (Ex Parte Communications, Unwritten Agency Policy) Scenario No. 3 (Public Speaking) Scenario No. 4 (Bias) Scenario No. 5 (Public Appearances) Scenario No. 6 (The Line Between Developing The Record And Advocating) Scenario No. 7 (Employment) Scenario No. 8 (Community Involvement) Scenario No. 9 (Ex Parte Communications) Scenario No. 10 (Informal Contacts) Scenario No. 11 (Disciplinary Responsibilities: The Burnt Out Attorney) Scenario No. 12 (Collegiality, Conflict, Or...?) Page 3 4,5 6 6,7 7,8 8,9 9,10 10 11 11,12 12 12,13

PART II (Relevant Provisions From Judicial Ethics Codes)

Scenario No. 1 (Ex Parte Knowledge) --U.S. --Canada Scenario No. 3 (Public Speaking) ­U.S. --Canada Scenario No. 4 (Bias) ­U.S. --Canada Scenario No. 6 (Developing the Record) Scenario No. 9 (Ex Parte Communications) ­U.S. --Canada Scenario Nos. 11,12 (Disciplinary Responsibilities - Collegiality) -- U.S. ` -- Canada All Scenarios (Independence, Appearance of Propriety, Bias, Conflict) ­U.S. --Canada 14,15 15-18 18 19 -21 21 21-24 24 24,25 25-27 27 27-31 32 33-36

ETHICS BIBLIOGRAPHY (U.S. and Canada)

37-39

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PART I

ETHICS SCENARIOS

SCENARIO NO. 1

EX PARTE KNOWLEDGE You are having lunch in City Park one sunny afternoon, when someone familiar passes by on his bike. It bothers you because you know that you recognize him but cannot place his face. On Tuesday morning, you settle yourself at the bench to continue a workers' compensation hearing that commenced two months ago. The claimant is claiming that, as a result of falling on the job after tripping over an unmarked obstruction, he is unable to do even the simplest of everyday activities, such as walking his dog and getting his morning paper in the driveway. All of a sudden it hits you that the claimant is the person you saw riding his bike through City Park this weekend. Questions 1. What do you do? 2. Should you disqualify yourself despite the time you've spent hearing the evidence at the last full day hearing?

3. Should you disqualify yourself and offer to be an impartial witness for the parties when one of your colleagues hears the case? Are there problems with this? If so, what problems. 4. Should you say nothing and just set your weekend observation aside in your mind? 5. Should you disclose what you saw over the weekend and leave the next move to the parties? Should you indicate that you will entertain a motion for your disqualification? After you have made the disclosure, what if the parties don't move for your disqualification, indicating that they feel you can be fair and impartial despite your observation?

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SCENARIO NO. 2

EX PARTE COMMUNICATIONS, UNWRITTEN AGENCY POLICY A. Abel and Better are ALJs in the hearings unit of the Department of Important Programs. Both attend a meeting where the department's director of Policy, Information and Programs advises that it is the department's policy to interpret a certain rule in a specific way. No written statement of policy or interpretation is issued. The meaning of the rule in question is placed at issue in a motion filed in a case being handled by ALJ Abel. In response to the motion, the department's lawyer submits an argument that the ALJ is obliged to follow the agency's policies, indicating that the agency's interpretation of its own rules is entitled to great deference. Judge Abel's best reading of the rule and law indicates that the department's interpretation of the rule is incorrect and in conflict with the statutory and case law, which require another interpretation.

Question 1. (a) (b) (c) (d) (e) What should Judge Abel do? Rule according to the interpretation as stated in the meeting. Rule according to his best reading of what the law requires. Put the interpretation as stated in the meeting on the record, and interpret the rule as so stated. Put the interpretation as stated in the meeting on the record, and rule according to his best reading of what the law requires. Put the interpretation as stated in the meeting on the record, and permit the parties to file arguments on whether he should change the previous ruling.

B.

Assume Judge Abel rules based on his reading of what the law requires. The next day, Chief Judge V. Best tells Judge Abel that the department's director of Policy Enforcement and Protection has complained that Judge Abel is not following agency policy. Chief Judge Best suggests to Judge Abel that it is not too late to change his preliminary ruling so that it will be in accord with agency policy.

Question 2. Does Chief Judge Best's statement constitute counseling of an ALJ performing his duties? appropriate

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(a) (b) (c)

Yes, the Chief Judge's duty to supervise an employee is paramount. No, the Chief Judge may not attempt to influence the outcome of the case, except as allowed by law. Maybe, each situation must be evaluated according to its specific facts.

3.

What should Judge Abel do in response to Chief Judge Best's suggestion? Change the previous ruling (either in an order reconsidering the previous ruling on Judge Abel's own motion, or verbally on the record at the hearing of the case)? Not take any action to change the ruling? Put the Chief Judge's statement on the record, and change the ruling? Put the Chief Judge's statement on the record, and not change the ruling? Put the Chief Judge's statement on the record, and permit the parties to file argument on whether he should change the previous ruling?

(a)

(b) (c) (d) (e)

C.

Assume Judge Abel does not change his ruling. The Chief Judge determines that Judge Abel is not handling the case appropriately, takes the case from him, and assigns it to Judge Better, with directions to follow the interpretation of the rule as stated by the policy director.

Question 4. (a) (b) (c) What should Judge Better do? Enter an order changing the previous ruling as directed by the Chief Judge. Enter an order putting on the record Chief Judge Best's statement to her, and changing the ruling. Enter an order putting on the record Chief Judge Best's statements to her both individually and in the ALJ meeting, and changing the ruling. Enter an order putting on the record Chief Judge Best's statements to her both individually and in the meeting, and permitting the parties to file arguments on whether she should change the previous ruling. None of the above.

(d)

(e)

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SCENARIO NO. 3

PUBLIC SPEAKING A judge is asked to speak to a law firm on how to handle cases before his agency. Some of the ethical questions include the following: Questions 1. Does it matter whether the judge limits his/her remarks to purely procedural rather than substantive issues? Does it matter whether the law firm has cases pending before the judge? Would it make a difference if the audience included other law firms or lawyers from the public and private sector? Does it matter whether the law firm is large or a sole practitioner? Does the right to freedom of speech have any affect on this situation?

2.

3.

4. 5.

SCENARIO NO. 4

BIAS (Look Inward)

"A prejudice is a vagrant opinion without visible means of support." -----Ambrose Bierce (U.S., 19th Century) "Prejudice is a great labor saving device ­ it enables you to form an opinion without having to dig up the facts." -----Laurence J. Peter (Canada) "Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions." ----Justice Cory (Canada) The Department of Regulation and Licenses (DORL) issues casino licenses. When a license is denied, the applicant is entitled to a hearing before an administrative tribunal. As an administrative tribunal member, you are assigned

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the case of Mr. Body Good a well-known sympathizer with a criminalized bikers club, the "Bandidos." Recently, The Provincial Legislative Assembly passed a law providing that the Department may deny a license, based on a criminal conviction and/or character grounds. A review of the file shows that Mr. Good has never been convicted but he stills has some personal and business contacts with the Bandidos. A few years ago, your daughter was injured in a shooting involving two members of that club. She became disabled from that injury. Your husband (wife) is an active member of an association fighting for better compensation for victims of crime (VICOMP), and you are part of a close family. He (she) has made many public appearances to expose the point of view of victims' families. Even though you are not a member of VICOMP, your spouse often prevails on you to work as a volunteer for the association. Of course, you do this willingly as your contribution to the community. Questions 1. What, as judges, do you do in each situation?

2. Would you consider revealing your daughter's history to the parties?

3. Would you disqualify yourself in this case? If so, what reasons, if any, would you state? 4. As an administrative tribunal member, would you consider ending your volunteer work with VICOMP?

SCENARIO NO. 5

PUBLIC APPEARANCES A. In the course of a panel discussion on law reform at the State Bar Association annual meeting, an Administrative Law Judge, one of the panel members, is urged to comment on recently enacted legislation. Personally he feels strongly critical of the new law, and is tempted to suggest that the changes demonstrate that the legislators needed glasses to fix their myopic vision.

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Questions 1. Is it appropriate for the judge to comment on the new laws? Should he use the colorful language that expresses his true views? 2. Does it matter if the legislation has nothing to do with the tribunal or its mandate? B. A judge was formerly the vice-chair of a public interest group that is known for its partisan views and aggressive public awareness activities. The judge has been asked by the group to speak at a conference that it is sponsoring. The judge, because of her expertise, has been asked to speak generally on issues relating to those issues that are before the tribunal and has not been asked to speak about any specific case. Members of the media will be present and time has been scheduled for a question and answer period.

Question Should the judge accept the invitation?

SCENARIO NO. 6

THE LINE BETWEEN DEVELOPING THE RECORD AND ADVOCATING A. A particular issue in a case can (and perhaps should) mean an instant win for a party. In this case, a party, "Mr. Self-Help," has the burden of proof and appears for the hearing without counsel and does not raise the issue.

Questions 1. From an ethical standpoint, how far can the ALJ go to take up this issue on his/her own or to nudge Self-Help to do so? The ALJ should do nothing, and let the chips fall where they may. The ALJ has a duty to see that the record is complete, especially if this is a benefits case, must raise the issue in order to do this, and should do this straightforwardly at the appropriate time, asking the parties to address the issue. The ALJ can clarify the record but should not "fill gaps" in the necessary elements of the claimant's case, especially if the case does not involve public benefits or other "entitlement." The ALJ can avoid the problem to an extent, by summarizing the issues in the case as he or she understands them, at the beginning of the hearing, and asking the parties if there are any others that he or she may have omitted.

(a) (b)

(c)

(d)

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B.

Neither represented party in your proceeding refers to an appellate decision that goes to the heart of the case and would make a significant difference in its outcome, depending upon the specific facts.

2. (a) (b)

Does the ALJ act unethically by eliciting this information? Yes, the ALJ should stay out of it and let the parties do their own argument. No, an attorney has an ethical duty to inform the court of case law opposed to a party's position, and the ALJ should point this out, noting that he or she is aware of the case, and asking for argument on the relevance and application of the case law in the instant case.

SCENARIO NO. 7

EMPLOYMENT Edith Biaf is an administrative tribunal member with the Canadian RadioTelevision and Telecommunications Commission (CRTC). She is hearing a case brought by a long-distance telephone company (LDC), complaining about a local telephone company's (LC's) entrance into the long distance market. During the litigation, LDC requested documents from LC that LC insisted were sensitive trade secrets. Tribunal Member Biaf reviewed the documents in camera and ruled that they were undiscoverable, privileged, trade secrets. During a break in the hearing, the attorney representing LDC mentions to Edith Biaf that his law firm is hiring attorneys with telecommunications experience. Edith has considerable experience in telecommunications law and is interested in applying with the firm. Questions 1. (a) (b) (c) (d) Which of the following statements is correct? Edith should not pursue the position. Edith would be free to pursue the position if CRTC consented. Edith would be free to pursue the position if CRTC and LC consented. Edith may pursue this matter only when the pending proceeding is over.

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2.

What should Edith do if the attorney actively solicits her to apply for the job? Nothing then, but pursue the position after the litigation is over. Disclose the conversation to her tribunal chair. Disclose the solicitation to the parties, and if the parties and their attorneys agree in the record of the proceeding that she should not be disqualified, she may participate in the proceeding. Withdraw from the case. After the litigation, LDC approaches Edith about working in their general counsel's office doing litigation in Nunavut. May Edith work for LDC? Edith may work for LDC without any restrictions. Edith may not work for LDC because of her exposure to privileged LC information. Edith may work for LDC, but may have to limit her involvement in certain matters.

(a) (b) (c)

(d) 3.

(a) (b) (c)

SCENARIO NO. 8

COMMUNITY INVOLVEMENT A judge (tribunal member) who was recently appointed wishes to continue cochairing a popular golf tournament that raises money for the homeless. Her tournament co-chair is a close friend, a lawyer who often appears as counsel before the tribunal. The charity that will benefit from the fundraising has nothing to do with the mandate of the tribunal. The judge (tribunal member) had disclosed her interest in this charity when she was appointed. Questions 1. Is there an ethical issue involved here? Is there a conflict, actual or potential? Should the judge (tribunal member) continue with the charity event? If so, under what circumstances? Should judges (tribunal members) participate as fundraisers for charitable causes?

2.

3.

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SCENARIO NO. 9

EX PARTE COMMUNICATIONS Questions 1. If no one is available to field a call from an attorney in an upcoming matter, is it proper for the judge to discuss a continuance when the attorney requesting the continuance was injured in an accident on the way to the hearing? Can a judge answer an attorney's question when it only concerns a procedural question such as what proper format for a joint prehearing order? Does a prohibition against ex parte communication with a party cover every type of communication or only those that pertain to the merits of the case?

2.

3.

SCENARIO NO. 10

INFORMAL CONTACTS A. One of the judges (members) of your tribunal likes to interject humor into her work, especially when she is the presiding judge of a panel. Most of the time, her jokes or remarks are harmless. However, the last few times that you have been on a panel with her, you have been rather uncomfortable because some of her attempts at humor have fallen flat and, in some cases, have been completely inappropriate. The most recent event involved a situation where the judge said to an expert witness: "You must be the under-achiever of the group because your colleagues all have degrees from Harvard and Yale and you don't."

Question 1. As a colleague to this judge, what do you do, if anything?

B.

You are in an elevator with two colleagues and a number of people unknown to you. Your colleagues begin talking about a case on which they sat that morning and which they found very boring. They also did not

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think much of the lawyer representing one of the parties, and they exchanged uncomplimentary remarks about his performance. They did not mention the case name, but gave enough details about the case that if one of the other elevator passengers wanted, they could make the connection and identify the parties. Question 2. What, if anything, do you say to your colleagues?

SCENARIO NO. 11

DISCIPLINARY RESPONSIBILITIES: THE BURNT OUT ATTORNEY An attorney who has practiced before you for years has, in the past six months, developed a chronic habit of failing to meet discovery deadlines or follow procedural orders, failing to conduct necessary discovery, and arriving for hearings late. This attorney recently missed the response deadline on a dispositive motion. You are certain that her behavior has had an adverse effect on her clients' interests. You are very concerned about this pattern. Question What, if any, ethical obligation do you have to address this attorney's behavior?

SCENARIO NO. 12

COLLEGIALITY, CONFLICT, OR ...? ABC Accounting is a party in a case before your tribunal. One of your fellow judges, who is also a good friend, is hearing the case. You are at lunch together and, since it is tax season, you tell her about all the difficulties you are having sorting out your income tax this year. The judge tells you that she has a great accountant with whom she has worked for years and suggests that you give him a call. The accountant is with ABC. You ask if that is a problem, given the judge's participation in the current proceeding. She tells you the accountant is not participating in any way in the case, so she is not worried. Further, the accountant has been working with her for so long and she trusts him to such a degree that she just could not bear finding another accountant. The judge asks you not to say anything to anyone.

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Questions 1. 2. What should you do? Has your colleague read and responded to the situation appropriately? Do you have a duty to report if your colleague fails to act?

3.

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PART II

[Only selected scenarios have references to code provisions]

RELEVANT JUDICIAL ETHICS CODE PROVISIONS SCENARIO NO. 1

EX PARTE KNOWLEDGE Relevant Judicial Ethics Provisions (U.S.) · Canon 3. E (1) (a), A judge should disqualify himself or herself in a proceeding in which...a judge has personal knowledge of disputed evidentiary facts concerning the proceeding.... Is Canon 3. E (1) (a) similar to Rule 3.7 of the RULES OF PROFESSIONAL CONDUCT, which requires a lawyer to withdraw if the lawyer is likely to be a necessary witness in the proceeding? Canon 3. B (7). A judge should accord to every person who is legally interested in a proceeding, or his or her lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable...if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. Canon 3. B (5). A judge shall perform judicial duties without bias or prejudice.... Canon 3.E (1) (a). A judge should disqualify himself or herself in a proceeding in which...a judge has personal knowledge of disputed evidentiary facts concerning the proceeding.... See Inquiry Concerning Baker, 813 So. 2d 36 (Fla. 2002). The judge sought out independent communications from computer consultants and experts concerning the determination of fair market value of modifications made to software [The Florida Supreme Court stated: "Counsel are entitled to try the case in the courtroom and not to be told, after the fact,

·

·

· ·

·

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that the judge has already sought out and received input from other sources." The Court went on to indicate that such ex parte communications not only lend to a finding of reversible error but may directly violate a judicial canon. Excerpts of Relevant General Principles of Conduct for Members of Federal Administrative Tribunals (Canada) II. GENERAL CONDUCT ISSUES 1. Conflict of Interest And Bias Statement of Principle: Members should strive to conduct themselves in a manner that does not create bias nor raise a reasonable apprehension of bias. Explanation: Bias is a lack of neutrality or impartiality on the part of a decision-maker regarding an issue to be decided. A biased decision-maker is predisposed to decide in a party's favour or to a party's detriment, based on considerations that are improper and extraneous to the evidence, law or argument before the decision-maker. Bias may be actual or perceived. Perceived bias is as damaging to the decisionmaking process as actual bias. Bias may manifest itself in the conduct of a member, in the member's personal associations and interests or in the structure of the decision-making process. Bias is antithetical to the integrity of any decision-making process. It is an undesirable quality which members should seek to eliminate. Decision-makers should strive to decide every case impartially.

Commentary The rules regarding bias come from the precept nemo judex in sua causa ­ one cannot be judge in one's own case. In the court system, this has traditionally been construed to disqualify judges if they had any pecuniary or other personal interest, direct or indirect, in a matter given to them to decide. It is based on the presumption that any such interest would, if not actually incline the judge in favour of the party with whom his or her interests were aligned, then at least give rise to the appearance of such bias.

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The acceptable standard of impartiality varies, depending on the nature of the decision-maker, the nature of the decision and the explicit statutory intention of Parliament. Courts have identified five common situations that will attract an allegation of bias or reasonable apprehension of bias: a) where the member has a material interest in the outcome of the case (for example, where the member or a person related to the member could benefit or suffer financially because of the decision); b) where the member has an association or prior involvement with one of the parties (for example, where the member is related to or closely involved with a party, a witness or counsel appearing in the case); c) prior participation by the member in the process or a related process (for example, if the member previously represented one of the parties now appearing before the tribunal on the same matter or on a similar matter); d) actual conduct that shows bias or hostility (for example, a member who makes public statements which suggest that he or she has made up his or her mind on the outcome before having heard all of the parties); e) where the institutional structure of the decision-making environment brings undue influence to bear upon the member or fetters the member's undistracted consideration of issues (for example, compulsory "consultation" sessions among members; members' remuneration being controlled by one of the parties). 3. Impartiality and Objectivity Statement of Principle: Members should not prejudge a case. Explanation: Members of a tribunal may hold tentative views on matters in issue, but they should be open to persuasion and alternative points of view. Commentary: Partiality can arise when a member is influenced by previous interests or previous association with an organization or cause. For example, a tribunal member might be appointed because he or she was known to represent certain interests. This member should be careful to base his or her decision in a 16

particular case on the evidence and arguments presented in that case and not simply in accordance with the views of the matter that he or she may have held previously. To avoid allegations of prejudgment, members should refrain from expressing opinions in public that might cast doubt on their impartiality and objectivity. Beyond the contents of their written reasons for a decision, members should not publicly express any opinion about a case within the jurisdiction of the tribunal, or give explanations regarding any case they have heard and decided. III. SPECIFIC CONSIDERATIONS Pre-hearing Conduct 1. Contacts prior to commencement of proceedings Statement of Principle: Members should be cautious in their contacts prior to the commencement of proceedings and should avoid ex parte communications in any matter that could be expected to come before the tribunal. Explanation: A reasonable apprehension of bias may arise where members have commented on any matter before a tribunal, or where a member communicates with only a prospective party or witness prior to the commencement of proceedings. These communications could be viewed as influencing the proceedings. (See also: III.5 Ex parte dealings)

Commentary: Members should avoid being placed in situations where they are asked to comment on the procedure to be followed or on the merits of any matter that may come before their tribunal. Some ways of doing this are: refer requests for information through the established channels in your tribunal so that the request is placed on a public file, copied to those with an interest and officially answered; where there has been contact that may lead to the appearance of bias on a particular file, the member should consider avoiding the assignment to that file or withdrawing from it. Ex parte communications should be avoided. Where it is desirable to hold separate pre-hearing meetings with parties before the commencement of 17

proceedings, the purpose of the meetings should be clear and take place with the full knowledge and agreement of all parties according to pre-determined rules or guidelines. Under no circumstances should a member privately seek out evidence on their own, for example, to "verify" facts or to lay a "trap" against a witness, as this would likely create a reasonable apprehension of bias.

SCENARIO NO. 3

PUBLIC SPEAKING Relevant Judicial Ethics Provisions (U.S.) · Canon 3.A (9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing...(emphasis supplied) This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court....

Commentary: The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.... · Canon 4.B A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.

Commentary: To the extent that time permits, a judge is encouraged to do so (speak, write, lecture, etc.), either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.

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Relevant General Principles (Canada) 1. Conflict of Interest and Bias Statement of Principle: Members should strive to conduct themselves in a manner that does not create bias nor raise a reasonable apprehension of bias. Explanation: Bias is a lack of neutrality or impartiality on the part of a decision-maker regarding an issue to be decided. A biased decision-maker is predisposed to decide in a party's favour or to a party's detriment, based on considerations that are improper and extraneous to the evidence, law or argument before the decision-maker. Bias may be actual or perceived. Perceived bias is as damaging to the decisionmaking process as actual bias. Bias may manifest itself in the conduct of a member, in the member's personal associations and interests or in the structure of the decision-making process. Bias is antithetical to the integrity of any decision-making process. It is an undesirable quality which members should seek to eliminate. Decision-makers should strive to decide every case impartially. Commentary: The rules regarding bias come from the precept nemo judex in sua causa ­ one cannot be judge in one's own case. In the court system, this has traditionally been construed to disqualify judges if they had any pecuniary or other personal interest, direct or indirect, in a matter given to them to decide. It is based on the presumption that any such interest would, if not actually incline the judge in favour of the party with whom his or her interests were aligned, then at least give rise to the appearance of such bias. The acceptable standard of impartiality varies, depending on the nature of the decision-maker, the nature of the decision and the explicit statutory intention of Parliament. Courts have identified five common situations that will attract an allegation of bias or reasonable apprehension of bias:

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a) where the member has a material interest in the outcome of the case (for example, where the member or a person related to the member could benefit or suffer financially because of the decision); b) where the member has an association or prior involvement with one of the parties (for example, where the member is related to or closely involved with a party, a witness or counsel appearing in the case); c) prior participation by the member in the process or a related process (for example, if the member previously represented one of the parties now appearing before the tribunal on the same matter or on a similar matter); d) actual conduct that shows bias or hostility (for example, a member who makes public statements which suggest that he or she has made up his or her mind on the outcome before having heard all of the parties); e) where the institutional structure of the decision-making environment brings undue influence to bear upon the member or fetters the member's undistracted consideration of issues (for example, compulsory "consultation" sessions among members; members' remuneration being controlled by one of the parties). 3. Impartiality and Objectivity Statement of Principle: Members should not prejudge a case. Explanation: Members of a tribunal may hold tentative views on matters in issue, but they should be open to persuasion and alternative points of view. Commentary: Partiality can arise when a member is influenced by previous interests or previous association with an organization or cause. For example, a tribunal member might be appointed because he or she was known to represent certain interests. This member should be careful to base his or her decision in a particular case on the evidence and arguments presented in that case and not simply in accordance with the views of the matter that he or she may have held previously. To avoid allegations of prejudgment, members should refrain from expressing opinions in public that might cast doubt on their impartiality and objectivity. Beyond the contents of their written reasons for a decision, members should not

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publicly express any opinion about a case within the jurisdiction of the tribunal, or give explanations regarding any case they have heard and decided.

SCENARIO NO. 4

BIAS Relevant Legal and Judicial Ethics Provisions (U.S.) ·

Canon 2. A. A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 3. A judge shall perform the duties of judicial office impartially and diligently. Canon 3. A (7). A judge should accord to every person who is legally interested in a proceeding...full right to be heard according to law....

· ·

Relevant General Principles (Canada) 1. Conflict of Interest And Bias Statement of Principle: Members should strive to conduct themselves in a manner that does not create bias nor raise a reasonable apprehension of bias. Explanation: Bias is a lack of neutrality or impartiality on the part of a decision-maker regarding an issue to be decided. A biased decision-maker is predisposed to decide in a party's favour or to a party's detriment, based on considerations that are improper and extraneous to the evidence, law or argument before the decision-maker. Bias may be actual or perceived. Perceived bias is as damaging to the decisionmaking process as actual bias. Bias may manifest itself in the conduct of a member, in the member's personal associations and interests or in the structure of the decision-making process.

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Bias is antithetical to the integrity of any decision-making process. It is an undesirable quality which members should seek to eliminate. Decision-makers should strive to decide every case impartially. Commentary: The rules regarding bias come from the precept nemo judex in sua causa ­ one cannot be judge in one's own case. In the court system, this has traditionally been construed to disqualify judges if they had any pecuniary or other personal interest, direct or indirect, in a matter given to them to decide. It is based on the presumption that any such interest would, if not actually incline the judge in favour of the party with whom his or her interests were aligned, then at least give rise to the appearance of such bias. The acceptable standard of impartiality varies, depending on the nature of the decision-maker, the nature of the decision and the explicit statutory intention of Parliament. Courts have identified five common situations that will attract an allegation of bias or reasonable apprehension of bias: a) where the member has a material interest in the outcome of the case (for example, where the member or a person related to the member could benefit or suffer financially because of the decision); b) where the member has an association or prior involvement with one of the parties (for example, where the member is related to or closely involved with a party, a witness or counsel appearing in the case); c) prior participation by the member in the process or a related process (for example, if the member previously represented one of the parties now appearing before the tribunal on the same matter or on a similar matter); d) actual conduct that shows bias or hostility (for example, a member who makes public statements which suggest that he or she has made up his or her mind on the outcome before having heard all of the parties); e) where the institutional structure of the decision-making environment brings undue influence to bear upon the member or fetters the member's undistracted consideration of issues (for example, compulsory "consultation" sessions among members; members' remuneration being controlled by one of the parties).

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7. Courtesy, Discretion and Integrity Statements of Principle: Members should treat each person who appears before them with dignity and respect. Members should conduct themselves generally with reserve, courtesy and discretion. Members should endeavour to maintain the integrity of the decision-making process. Explanation: The actions of a tribunal member should be irreproachable. Irreproachable behaviour can be described as including patience, courtesy, attentiveness, understanding and discretion. Members should always be sensitive to potential bias concerns being raised and accordingly should adopt a demeanour that will avoid raising any reasonable apprehension of bias. Commentary: In proceedings, members should conduct themselves in a manner that is courteous, patient, fair and respectful to all hearing participants and observers, their language, customs, rights, opinions and beliefs while ensuring that the proceedings are orderly and efficient. Members should require similar conduct of others present at a hearing. It is also important that the presiding member maintain control over the proceedings to ensure parties have an equal and fair opportunity to present their case, that the hearing unfolds expeditiously and that the public interest is well served. The display of conduct or behaviour such as hostile comments, undue aggression towards one of the parties or their counsel, insulting comments or tone of voice in posing a question, statements which could be interpreted as discriminatory, impatience or inattentiveness could seriously impair a party's right to a fair hearing and raise bias concerns. Although every party should be treated equally, there is a fine line to be drawn where too much patience, courtesy and timidity could lead to the public interest not being well served. Although members can instill confidence in the decision-making process by ensuring that the parties are provided with a fair and reasonable opportunity to being heard, it is also important for members to keep the hearing flowing at a reasonable pace and to discourage protracted arguments and submissions that delay the proceeding unnecessarily. For example, during a hearing, parties should not be permitted to ramble on or to go off on tangents on matters that are irrelevant to the issue under consideration.

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Members should conduct hearings in a firm but courteous manner and should likewise require courteous behaviour from all participants. Mutual respect among parties should be fostered; unprofessional or contemptuous conduct should not be tolerated and should be dealt with firmly. It is always important to maintain control of the hearing. At the beginning of the hearing, it is good practice to set out the schedule the tribunal intends to maintain and to abide by this schedule as much as possible. Punctuality is of importance, and tribunal members should strive to start and finish on time and to abide by the time allotted when taking a recess. The personal convenience of members should not interfere with the proper conduct of a hearing. Where a member becomes aware of a colleague's conduct that may threaten the integrity of the tribunal or its process, the member should advise the presiding member or the chair as may be appropriate.

SCENARIO NO. 6 THE LINE BETWEEN DEVELOPING THE RECORD AND ADVOCATING

Schoenberger, Alan, "The Active Administrative Law Judge: Is There Harm in an ALJ Asking?" 18 J. NAALJ 399 (1998). Wright, "Comments on "The Active Administrative Law Judge: Is There Harm in an ALJ Asking?" 20 J. NAALJ 337 (2000). Dwyer, Joan L., "Fair Play the Inquisitorial Way: A Review of the Administrative Appeals Tribunal's Use of Inquisitorial Procedures," 22 J. NAALJ 81 (2002) [Australia].

SCENARIO NO. 9

EX PARTE COMMUNICATIONS Relevant Ethics Provisions (U.S.) · CANON 3.B (7) .... A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning pending or impending proceedings except that: (a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided: 24

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all the parties of the substance of the ex parte communication and allows an opportunity to respond.

Excerpt from Commentary: Certain ex parte communication is approved by Section 3B (7) to facilitate scheduling, and other administrative purposes an to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B (7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B (7) (a) and 3B (7) (b) regarding a proceeding pending or impending before the judge.

Relevant General Principles (Canada)

1. Contacts prior to commencement of proceedings Statement of Principle: Members should be cautious in their contacts prior to the commencement of proceedings and should avoid ex parte communications in any matter that could be expected to come before the tribunal. Explanation: A reasonable apprehension of bias may arise where members have commented on any matter before a tribunal, or where a member communicates with only a prospective party or witness prior to the commencement of proceedings. These communications could be viewed as influencing the proceedings. (See also: III.5 Ex parte dealings) Commentary: Members should avoid being placed in situations where they are asked to comment on the procedure to be followed or on the merits of any matter that may come before their tribunal. Some ways of doing this are:

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refer requests for information through the established channels in your tribunal so that the request is placed on a public file, copied to those with an interest and officially answered; where there has been contact that may lead to the appearance of bias on a particular file, the member should consider avoiding the assignment to that file or withdrawing from it. Ex parte communications should be avoided. Where it is desirable to hold separate pre-hearing meetings with parties before the commencement of proceedings, the purpose of the meetings should be clear and take place with the full knowledge and agreement of all parties according to pre-determined rules or guidelines. Under no circumstances should a member privately seek out evidence on their own, for example, to "verify" facts or to lay a "trap" against a witness, as this would likely create a reasonable apprehension of bias. 5. Ex parte dealings Statement of Principle: Tribunal members should never meet privately with one party in the absence of other parties or hold private interviews with witnesses. Explanation: Once the hearing has commenced, all communications should be public, as there is a real danger that any contact between the parties and decision-makers will be perceived as influencing the decision and raising the issue of bias. Commentary: During the course of the hearing, the members should not hold private meetings or consultations in the absence of all the parties. Members should not receive, or appear to receive, evidence from one party without disclosing it to all other parties and giving them an opportunity to comment. Also, members should avoid sharing substantive information concerning matters under consideration by the panel with any party or person without the full knowledge of all the parties; even personal fact-finding by a member of which parties are unaware is inappropriate. This type of conduct may demonstrate bias and may be grounds for disqualification. A tribunal may have guidelines about social contact generally with persons who may come before it, but the circumstances are more sensitive in the event of proceedings. Members should refrain from socializing with lawyers and witnesses during the course of a hearing; this temptation arises most frequently 26

when hearings are being held in a remote location and many of the participants are from out of town and there are few facilities such as hotels and restaurants. Such social contact may give rise to apprehension of bias. One may assume that the member, while socializing, heard submissions in the absence of other parties. When hearings are conducted in office buildings in which members encounter parties and witnesses in the hallways and elevators, discussion of the case should be avoided. Discussion of the case should also be avoided when travelling on public transit.

SCENARIO NOS. 11,12 DISCIPLINARY RESPONSIBILITIES - COLLEGIALITY

Relevant Judicial Ethics Provisions (U.S.) · · Canon 1 A judge shall uphold the integrity and independence of the judiciary. Canon 3.E (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: .... Canon 5 A judge or judicial candidate shall refrain from inappropriate political activity.

·

Relevant General Principles (Canada) 2. Independence Statements of Principle: Members should fulfill their duties and responsibilities free of influence from any person, interest group or the political process. Members should apply the principle of independence in decision-making; accordingly, they should not be influenced by extraneous considerations. Members should decline offers of gifts, hospitality and other benefits, other than those of minimal value, offered by parties who have an interest in matters that may come before the tribunal.

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Explanation: The criteria for independence is the freedom to decide according to one's own conscience and opinions. For that reason, decision-makers should not allow any outside influences to interfere with their decisions. Commentary: Many tribunals face the challenge of seeking to balance the need for independence of decision-making with the need for ensuring good decisions by facilitating consistency and providing opportunities for consultation. Some tribunals have an internal consultation process to promote consistency in decision-making. This process exists where the public interest and policy considerations are important for effective regulation. These consultations and discussions among the members can enhance the decision-making process and can also enable members to take advantage of their colleagues' expertise and experience when rendering a decision. (See also: III.6 - Post-hearing Conduct). At the same time, tribunals should not adopt a formalized system of decisionmaking that could result in forcing members to adopt positions with which they do not agree. (See also: V.B.3 -Institutional Bias). A process of consultation that would hinder a member in deciding as he or she sees fit in a particular case is damaging to the principles of adjudicative independence. Compulsory consultation creates an appearance of a lack of independence, therefore all consultations involving members regarding the ultimate decision in a case should be voluntary. Any process for consultation should not impede the member in deciding the case as he or she sees fit and should ensure a clear distinction between the panel who has heard the matter and the other members of the tribunal. Tribunal members should make decisions free from any influence from those who appoint them or pay their salaries. Members should exercise their own powers of judgment, as they assume full responsibility of the ultimate decision. In the case of Ministers, for example, the Ethics Counsellor has published principles for "Dealings with Quasi-Judicial Tribunals" that remind Ministers that they must not intervene or appear to intervene before a tribunal in relation to any matter that requires a quasi-judicial decision, unless authorized by law to do so. Typically, it is the chair who ensures the appropriate communications between the tribunal and the Minister and between the tribunal and department. Decision-makers are entitled to change their minds whether as a result of discussion with colleagues or due to their own independent reflection on the matter. However, decision-makers should not change their minds in order to please another person or against their better judgment.

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With respect to gifts, hospitality and other benefits, members should refer to the provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders and to the code of conduct for their own tribunal for specific advice. If uncertain, a member should consult with the chair or the Ethics Counsellor. 5. Ex parte dealings Statement of Principle: Tribunal members should never meet privately with one party in the absence of other parties or hold private interviews with witnesses.

Explanation: Once the hearing has commenced, all communications should be public, as there is a real danger that any contact between the parties and decision-makers will be perceived as influencing the decision and raising the issue of bias. Commentary: During the course of the hearing, the members should not hold private meetings or consultations in the absence of all the parties. Members should not receive, or appear to receive, evidence from one party without disclosing it to all other parties and giving them an opportunity to comment. Also, members should avoid sharing substantive information concerning matters under consideration by the panel with any party or person without the full knowledge of all the parties; even personal fact-finding by a member of which parties are unaware is inappropriate. This type of conduct may demonstrate bias and may be grounds for disqualification. A tribunal may have guidelines about social contact generally with persons who may come before it, but the circumstances are more sensitive in the event of proceedings. Members should refrain from socializing with lawyers and witnesses during the course of a hearing; this temptation arises most frequently when hearings are being held in a remote location and many of the participants are from out of town and there are few facilities such as hotels and restaurants. Such social contact may give rise to apprehension of bias. One may assume that the member, while socializing, heard submissions in the absence of other parties. When hearings are conducted in office buildings in which members encounter parties and witnesses in the hallways and elevators, discussion of the case should be avoided. Discussion of the case should also be avoided when travelling on public transit.

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Post-hearing Conduct 6. Post-hearing deliberations and rendering decisions Statements of Principle: "He who hears must decide". Members should avoid undue delay in delivering their decisions. Explanation: The work of a member of an administrative tribunal does not end when the hearing is over; it is necessary that the decision-maker reach a decision based on the evidence and representations that were made, and communicate that decision to the parties and the public. Each tribunal will have its own process for decision-making and reasons writing, but the following elements apply to all quasi-judicial decision-making processes: - the decision-maker must hear and consider all of the evidence and representations; - the decision-maker must not fetter his/her decision with pre-determined policies or previously held views; - the decision-maker must not delegate his/her decision-making responsibility to anyone else; - the decision-maker must not allow anyone else to usurp his/her decisionmaking responsibility. Simple fairness to the parties suggests that a decision-maker should not unduly delay the length of time it takes to reach a decision; the maxim "justice delayed is justice denied" is equally true in the field of administrative law. Just as important as the decision itself is the articulation of that decision. Some statutes require written reasons and some tribunals have rules regarding the provisions of written and oral reasons. In general, at common law, there is no requirement to provide written reasons, except in certain circumstances (where the decision has an important significance on an individual or where there is a statutory right of appeal). However, there are many good reasons for issuing them. Written reasons for decision not only explain the decision to the immediate parties to the matter that was before the tribunal, but serve to educate the tribunal's client community, the public at large and the reviewing authority (if any). The tribunal is in the best position to know why it reached the conclusion it did, and what evidence, criteria and arguments it took into account in reaching that conclusion. It can only be helpful to all concerned to understand the rationale for a particular decision.

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Commentary: The outcome of any hearing is a decision: the parties have brought their case before the decisionmaker in order to obtain a final resolution of a particular issue. It is therefore incumbent on tribunal members to exercise their statutory authority to make a determination in matters that are properly brought before them. Indeed, in the common law, an extraordinary remedy (mandamus) exists to enable citizens to compel a publicly appointed decision-maker to carry out his or her statutory duty. It is improper for a member to conduct his or her own private investigation or research into a matter; the decision must be based on the evidence and arguments made during the public proceeding. For example, suppose an issue that arose during a proceeding piqued a member's interest. Instead of following up on it during the hearing and affording the parties an opportunity to expand on the issue, the member went to the library after the hearing and located a particularly relevant article on the subject. If the member then based the decision in the case on the article, it would be most unfair to the parties who participated in the hearing, as they had no opportunity to read the article or to respond to the opinions expressed by its author. In some instances, it may be appropriate for a member to consult with other members of his or her tribunal on policy matters that arose during a hearing. For example, it is possible that a tribunal's previous decisions have created a body of jurisprudence that has essentially become the tribunal's "policy" with respect to how a particular issue will be handled. However, on the specific facts of the particular case before the member, the application of an existing policy may be inappropriate. In such instances, it may perhaps be time to rethink the tribunal's previous policy direction. In such cases, it would be a good idea for the member to canvass the views of his or her colleagues on the larger policy issue, as long as the member does not ask his or her colleagues what the decision should be.

31

ALL SCENARIOS INDEPENDENCE, APPEARANCE OF PROPRIETY, BIAS, CONFLICT

Relevant Legal and Judicial Ethics Provisions (U.S.) · · ·

Canon 1. A judge should uphold the integrity and independence of the judiciary. Canon 2. A judge should avoid impropriety and the appearance of impropriety in all the judge's activities. Canon 2. A. A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2. B. A judge should not allow family, social, or other relationships to influence the judge's judicial conduct or judgment. Canon 3. A judge shall perform the duties of judicial office impartially and diligently. Canon 3. A (7). A judge should accord to every person who is legally interested in a proceeding...full right to be heard according to law.... Canon 3. A (9). A judge should abstain from public comment about a pending or impending proceeding...This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of court. Canon 3. E (1) (a). A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to, bias or prejudice based on race, gender, religion, national origin.... Canon 3. E (1). A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) a judge has a personal bias or prejudice concerning a party.... A judge is encouraged to participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality....

· · · ·

·

·

·

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·

Canon 5. A judge should refrain from political activity inappropriate to his or her judicial office.

As an interesting sidelight, the U.S. Supreme Court recently held that a prohibition may not be placed on judicial candidates with regard to expressing views on legal and political issues in dispute. Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002), reversing in part, 247 F. 3d 854 (8th Cir. 2001). Relevant General Principles (Canada) 2. Independence Statements of Principle: Members should fulfill their duties and responsibilities free of influence from any person, interest group or the political process. Members should apply the principle of independence in decision-making; accordingly, they should not be influenced by extraneous considerations. Members should decline offers of gifts, hospitality and other benefits, other than those of minimal value, offered by parties who have an interest in matters that may come before the tribunal.

Explanation: The criteria for independence is the freedom to decide according to one's own conscience and opinions. For that reason, decision-makers should not allow any outside influences to interfere with their decisions. Commentary: Many tribunals face the challenge of seeking to balance the need for independence of decisionmaking with the need for ensuring good decisions by facilitating consistency and providing opportunities for consultation. Some tribunals have an internal consultation process to promote consistency in decision-making. This process exists where the public interest and policy considerations are important for effective regulation. These consultations and discussions among the members can enhance the decision-making process and can also enable members to take advantage of their colleagues' expertise and experience when rendering a decision. (See also: III.6 - Post-hearing Conduct). At the same time, tribunals should not adopt a formalized system of decisionmaking that could result in forcing members to adopt positions with which they do not agree. (See also: V.B.3 -Institutional Bias). A process of consultation that

33

would hinder a member in deciding as he or she sees fit in a particular case is damaging to the principles of adjudicative independence. Compulsory consultation creates an appearance of a lack of independence, therefore all consultations involving members regarding the ultimate decision in a case should be voluntary. Any process for consultation should not impede the member in deciding the case as he or she sees fit and should ensure a clear distinction between the panel who has heard the matter and the other members of the tribunal. Tribunal members should make decisions free from any influence from those who appoint them or pay their salaries. Members should exercise their own powers of judgment, as they assume full responsibility of the ultimate decision. In the case of Ministers, for example, the Ethics Counsellor has published principles for "Dealings with Quasi-Judicial Tribunals" that remind Ministers that they must not intervene or appear to intervene before a tribunal in relation to any matter that requires a quasi-judicial decision, unless authorized by law to do so. Typically, it is the chair who ensures the appropriate communications between the tribunal and the Minister and between the tribunal and department. Decision-makers are entitled to change their minds whether as a result of discussion with colleagues or due to their own independent reflection on the matter. However, decision-makers should not change their minds in order to please another person or against their better judgment. With respect to gifts, hospitality and other benefits, members should refer to the provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders and to the code of conduct for their own tribunal for specific advice. If uncertain, a member should consult with the chair or the Ethics Counsellor. 3. Impartiality and Objectivity Statement of Principle: Members should not prejudge a case. Explanation: Members of a tribunal may hold tentative views on matters in issue, but they should be open to persuasion and alternative points of view. Commentary: Partiality can arise when a member is influenced by previous interests or previous association with an organization or cause. For example, a tribunal 34

member might be appointed because he or she was known to represent certain interests. This member should be careful to base his or her decision in a particular case on the evidence and arguments presented in that case and not simply in accordance with the views of the matter that he or she may have held previously. To avoid allegations of prejudgment, members should refrain from expressing opinions in public that might cast doubt on their impartiality and objectivity. Beyond the contents of their written reasons for a decision, members should not publicly express any opinion about a case within the jurisdiction of the tribunal, or give explanations regarding any case they have heard and decided. 8. Collegiality Statement of Principle: Members should foster a collegial approach in performing their official duties and responsibilities; accordingly, they should assist colleagues through the exchange of views, information and opinions in a spirit of respect for the special skills and qualities of each member of the tribunal. Explanation: A good working environment is generally conducive to good morale and therefore productivity. As a means of meeting the tribunal's responsibilities, members should nurture good working relationships with each other and share their experiences, knowledge and views. A collegial approach is conducive to instilling confidence and maintaining integrity of the decision-making process. Commentary: A spirit of collegiality does not preclude members from respectfully disagreeing with the position taken by a colleague. If one member of a panel finds his or her colleague's conduct in a hearing inappropriate, that member is advised to request an adjournment to express his or her concerns to the colleague off the record. Mutual respect for each other's views is important. Tolerance and acceptance of each other's opinions is conducive to the expression of views and concerns and fosters a positive working environment. Efforts should be made to resolve divergent views on operational procedures and internal conflicts quickly, as these could lead to serious discord detrimental to the workplace climate. This in turn could seriously impair the tribunal's ability to fulfil its mandate. For example, disagreement on the chair's apportionment of work among members or on the chair's assignment of hearings should be raised with the chair so it may be resolved at the first opportunity. Where a member questions the appropriateness of a policy, procedure or standard, the member should raise that issue with colleagues and the chair in the appropriate forum. 35

Tribunal members should make themselves available on a timely basis for consultation or caucus discussions initiated by a member on any policy, legal or procedural issue. In discussions and consultations with other members, a member should always conduct himself of herself in a manner demonstrating respect for the views and opinions of colleagues. A member should not comment publicly on a decision of a colleague or on the manner in which another member has conducted himself or herself during a hearing.

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ETHICS BIBLIOGRAPHY (U.S. and CANADA)

U.S.

· Felter, Edwin L., Jr., "Special Problems of State Administrative Law Judges," 53 AD. L. REV. 403 (2001) [re-published in 8-10 LAW AND JUSTICE: JOURNAL OF THE UNITED LAWYERS ASSOCIATION 41 (2001-2003), New Delhi, India]; "Litigants Without Lawyers," 25 THE COLORADO LAWYER 23 (June 1996), published by the Colorado Bar Association, Denver, Colorado. Lubet, Steven, "Judicial Ethics and Private Lives," 79 NORTHWESTERN U.L.REV. 983 (1984/85). Rothrock, Alexander R., "Ex Parte Communications with a Tribunal: From Both Sides," 29 THE COLORADO LAWYER 55 (April 2000). Schoenberger, Alan, "The Active Administrative Law Judge: Is There Harm in an ALJ Asking?" 18 J. NAALJ 399 (1998). Shaman, Lubet and Alfini, JUDICIAL CONDUCT AND ETHICS, 3rd Ed., 2001, Michie Law Publishers; Charlottesville, Virginia. Wright, "Comments on "The Active Administrative Law Judge: Is There Harm in an ALJ Asking?" 20 J. NAALJ 337 (2000). THE JUDGE'S BOOK, 2nd Ed., 1994, The American Bar Association and the National Judicial College. THE MODEL CODE OF JUDICIAL CONDUCT (1990, 2000 Ed.), American Bar Association. Williams and Sampson, HANDBOOK FOR JUDGES, 1984, American Judicature Society, Des Moines, Iowa.

· · · · · · · · ·

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CANADA

· · · · · · · · · · · A MANUAL FOR ONTARIO ADJUDICATORS, Society of Ontario Adjudicators and Regulators, Rev. Ed., 2000. CANADIAN INTERNET JUDICIAL ETHICS SOURCES http://www.cjc-ccm.gc.ca/english/publications.htm http://www.cm.gouv.qc.ca/Index.asp?Lang=En&action=Role http://www.cjc-ccm.gc.ca/english/publications.htm http://www.cm.gouv.qc.ca/Index.asp?Lang=En&action=Role http://www.ccat-ctac.org/en/conferences/docs/2003_daley.pdf http://www.cjc-ccm.gc.ca/english/publications/ethic_e.pdf COMMENTARIES ON JUDICIAL CONDUCT, Canadian Judicial Council, Les Editions Yvon Blais, inc., 1991. Fauteux, Gérald, LE LIVRE DU MAGISTRATE, Ministre des Approvisionnements et Services Canada, 1980. GENERAL PRINCIPLES OF CONDUCT FOR MEMBERS OF FEDERAL ADMINISTRATIVE TRIBUNALS (June 1999), www.strategis.ic.gc.ca/epic/internet/inoec-bce.nsf/en/h_oe01260e.html Morissette, Yves-Marie, "Les fonctions respectives de la déontologie et de la justice naturelle dans la justice administrative, DÉVELOPPEMENTS RÉCENTS EN DROIT ADMINISTRATIF ET CONSTITUTIONNEL, Service de la Formation Permanente, Barreau du Québec, No. 119, Les Éditions Yvon Blais, Inc., 1999. PROPOS SUR LA CONDUITE DES JUGES, Conseil Canadien de la Magistrature, Les Éditions Yvon Blais, Inc., 1991. THE ETHICS COUNSELLOR, www.strategis.ic.gc.ca/epic/internet/inoec-bce.nsf/en/Home 38

·

· ·

· Wilson, J.O., A BOOK FOR JUDGES, Canadian Judicial Council, 1980. AUSTRALIA

· Dwyer, Joan L., "Fair Play the Inquisitorial Way: A Review of the Administrative Appeals Tribunal's Use of Inquisitorial Procedures," 22 J. NAALJ 81 (2002).

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