Rule 1.2. is based on the language in ABA Model Code Rule 1.2.7 This

language expands the second phrase of 1993 Canon 2(A), which directed that a

judge “shall act at all times in a manner that promotes public confidence in the

integrity and impartiality of the judiciary.” The reference that a judge “shall

avoid impropriety and should avoid the appearance of impropriety” is new,

although covered by other provisions in the 1993 Code.8

The Comments to Rule 1.2 of the ABA Model Code (2011 ed.) state:

[1] Public confidence in the judiciary is eroded by improper

conduct and conduct that creates the appearance of impropriety.

This principle applies to both the professional and personal

conduct of a judge.

[2] A judge should expect to be the subject of public scrutiny that

might be viewed as burdensome if applied to other citizens, and

must accept the restrictions imposed by the Code.

[3] Conduct that compromises or appears to compromise the

independence, integrity, and impartiality of a judge undermines

public confidence in the judiciary. Because it is not practicable to

list all such conduct, the Rule is necessarily cast in general terms.

[4] Judges should participate in activities that promote ethical

conduct among judges and lawyers, support professionalism

7 The title in the ABA version is “Promoting” rather than “Promotion of” Confidence in the

Judiciary.

8 See 1993 Canons 1, 3(B)(6), 4(B), 4(C)(3), and 4(D)(2) addressing appearance issues with the

directive “should” or “may” that are addressed to the reasonable exercise of a judge’s discretion.

ate in activities that promote ethical

conduct among judges and lawyers, support professionalism

7 The title in the ABA version is “Promoting” rather than “Promotion of” Confidence in the

Judiciary.

8 See 1993 Canons 1, 3(B)(6), 4(B), 4(C)(3), and 4(D)(2) addressing appearance issues with the

directive “should” or “may” that are addressed to the reasonable exercise of a judge’s discretion.

within the judiciary and the legal profession, and promote access

to justice for all.

[5] Actual improprieties include violations of law, court rules or

provisions of this Code. The test for appearance of impropriety is

whether the conduct would create in reasonable minds a

perception that the judge violated this Code or engaged in other

conduct that reflects adversely on the judge’s honesty, impartiality,

temperament, or fitness to serve as a judge.

[6] A judge should initiate and participate in community outreach

activities for the purpose of promoting public understanding of and

confidence in the administration of justice. In conducting such

activities, the judge must act in a manner consistent with this Code.

The 1993 Advisory Committee’s Note to Canon 2 and 2(A) stated:

Canon 2 requires judges to serve the basic purpose of

maintaining public confidence in the judiciary by avoiding

impropriety and the appearance of impropriety in all of their

activities, both professional and personal. Because of the

inevitability of “constant public scrutiny,” a judge must “accept

restrictions on the judge’s conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely and

willingly.” ABA Model Code (1990), Commentary to Section 2A.

judiciary by avoiding

impropriety and the appearance of impropriety in all of their

activities, both professional and personal. Because of the

inevitability of “constant public scrutiny,” a judge must “accept

restrictions on the judge’s conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely and

willingly.” ABA Model Code (1990), Commentary to Section 2A.

Canon 2A makes clear that the obligation includes both the

duty of respect for and compliance with law and the avoidance of

“irresponsible and improper conduct . . . that is harmful though not

specifically mentioned in the Code. Actual improprieties under this

standard include violations of law, court rules, or other provisions

of this Code. The test for appearance of impropriety is whether the

conduct would create in reasonable minds a perception that the

judge’s ability to carry out judicial responsibilities with integrity,

impartiality and competence is impaired.” Id.

In a number of cases, the Supreme Judicial Court has held

that the virtually identical provisions of Canon 2A of the 1974 Code

were violated by conduct that violated one or more of the specific

provisions of other canons. See, e.g., Matter of Kellam, 503 A.2d

1308, 1310 ([Me.] 1986); Matter of Benoit, 523 A.2d 1381,1382

(Me. 1987). In Matter of Cox, 553 A.2d 1255, 1256, 1258 (Me.

1989), the Court articulated the reasoning for this conclusion,

noting that the purpose of former Canon 3A(1), (4), to assure

“fairness in the administration of justice” was in furtherance of the

goal of Canon 2 to sustain public confidence in the judiciary and

holding that a trial judge’s violation of former Canon 3A(1), (4), by

direct participation in plea negotiations “strikes at the heart of the

public’s perception of impartiality.” The Court has also found

particular conduct to be in direct violation of Canon 2A. See Matter

of Ross, 428 A.2d 858 (Me

ce” was in furtherance of the

goal of Canon 2 to sustain public confidence in the judiciary and

holding that a trial judge’s violation of former Canon 3A(1), (4), by

direct participation in plea negotiations “strikes at the heart of the

public’s perception of impartiality.” The Court has also found

particular conduct to be in direct violation of Canon 2A. See Matter

of Ross, 428 A.2d 858 (Me. 1981) (imposing sentence without

hearing, seeking to influence a witness in judicial disciplinary

hearing); Matter of Cox, 532 A.2d 1017 (Me. 1987) (angry

conversation with police officer concerning traffic violation by

judge’s son was “appearance of impropriety”).

Avoiding Abuse of the Prestige of Judicial Office

A judge shall not abuse the prestige of judicial office to advance the personal or

economic interests of the judge or others; nor shall a judge convey or permit

others to convey the impression that any person or organization is in a special

position to influence the judge.