Just Conduct: Regulating Bench-Bar Relationships

Abstract

In this Article, I examine relationships between the American legal profession and judiciaries through the lens of judicial conduct regulation. Close relationships between bench and bar have been theorized to increase the political efficacy of these related institutions, but the increased political efficacy can be used to undermine as well as to support liberal democratic values. I argue that the legal profession’s ongoing involvement in defining and regulating permissible judicial conduct has eroded the legitimacy and independence of both institutions. Through the twentieth-century process of judicial conduct regulation reform, the profession increased its own power at the expense of judicial power. Through the resulting codes of judicial conduct, the profession ensured that special and more lenient standards would apply to lawyers’ interactions with judges. The result has been a challenge to core liberal democratic values through problematic appearances, problematic contacts, and excessively close relationships between bench and bar. I argue that these relationships should be voluntarily reconditioned to ensure that strong and independent judiciaries are supported by a strong and independent profession.