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Post by Deleted on Oct 29, 2014 7:24:17 GMT -5
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Post by bartleby on Oct 29, 2014 7:38:24 GMT -5
Several Judges in our office teach a roundtable at the annual CLE on Social Security Disability in our state. We discuss best practices, what we look for in a case, whether we would like briefs, and new Reg's or policies. We do not recieve anything (profit) for our efforts, hopefully we are attempting to smooth the process for some and air our gripes of others... Violation? No. we apply for and recieve prior approval froim the Agency. Oh, and we have to use our own time, ie, leave to go and do this noble thing..
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Post by gary on Oct 29, 2014 7:45:22 GMT -5
The reg robg cites does not prohibit the teaching itself, but rather receiving compensation from a source other than the Government for the teaching. That's why bartleby's illustration is not at all problematic.
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Post by dudeabides on Oct 29, 2014 8:02:23 GMT -5
Good question. Several rules apply, of course. I highly recommend the ABA Model Code of Judicial Conduct Annotated (second edition - $95 of my own money). Also, ABA has a confidential hotline where you can get access to judicial ethical research and advice.
Relevant rules include
ABA Model Code Rule 2.11 - Disqualification in any proceeding where the judges impartiality might reasonably be questioned. The "appearance of partiality" issue is huge and is discussed annotated and discussed at p 231-273.
ABA Model Code Rule 3.1 Participatation in Extrajudicial activities. The discussion at page 337 "Permissible Extrajudicial Conduct - Speaking, Writing and Teaching" has some good stuff. One good cite: "A judge may speak at a CLE . . . provided he refrains from giving legal advice, showing bias, or making comment on pending or impending cases and avoids presenting on a topic such as a trial strategy, which could raise questions regarding his impartiality" Colo Adv Op 2008-3(2008). I think this is basically correct.
You can come up with lots of (other) interesting and nuanced fact patterns and problems, but I think that legal teaching is a good thing for judges to do, but very carefully, in a neutral way, to a neutral, public audience.
The AUDIENCE for the presentation is relevant. Some cases hold that it is OK to teach for an industry group, provided that you are also available to teach to the adversary groups. [2 ex parte wrongs make a right?] Personally, I would only teach at a CLE event that was open to all members of the Bar or at a law school, not to law firms or trade group or industry associations.
Note also, 28 USC 455 - The appearance of impartiality is the key federal statute.
Sure, the Federal law and regulations concerning Federal EEs provide SOME baseline relevant requirements (don't take gifts, don't go on junkets), but when you become a JUDGE, you are subject to MUCH stricter ethical requirements.
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Post by hopingforalj on Oct 29, 2014 9:08:21 GMT -5
I routinely appear in front of an ALJ that gave a lecture at a CLE, and it did not appear, nor has appeared to be problematic in my humble opinion.  |
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Post by Deleted on Oct 29, 2014 12:08:55 GMT -5
Bartlby sounds like he may be describing a bar function, or a bar section conference, at which the ALJ's present for no compensation. That sounds a lot more like particpating in a legal organization and seems fine to me as well.
Hypothetical: A national CLE company has contacted an ALJ. They wish to hire him/her to teach a CLE on presenting a succsessufl social security disability case. Other presenters will be notable claimants' representatives in the area. The brochure will indicate the ALJ's name, title, and work experience as an ALJ for SSA.
§ 2635.807(b) Reference to official position. An employee who is engaged in teaching, speaking or writing as outside employment or as an outside activity shall not use or permit the use of his official title or position to identify him in connection with his teaching, speaking or writing activity or to promote any book, seminar, course, program or similar undertaking, except that:
(1) An employee may include or permit the inclusion of his title or position as one of several biographical details when such information is given to identify him in connection with his teaching, speaking or writing, provided that his title or position is given no more prominence than other significant biographical details;
With those additional details, prohibited activity, or not?
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Post by dudeabides on Oct 29, 2014 12:38:57 GMT -5
I say prohibited.
You seem to be citing to a regulation applicable to FEDERAL EES.
ALJs are not just federal EEs, they are judges - subject to far more stringent ethical duties.
Commericial enterprize. For profit vendor. ALJ gets paid. Subject: How to prepare/submit a successful claim. Not mere commentary on the law and general education. This is a "HOW TO" course. Not appropriate.
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Post by sealaw90 on Oct 29, 2014 12:51:44 GMT -5
robg,
It's the compensation that is really the issue, not the teaching or the mention of the position and title of the ALJ (as long as it it given no more prominence thn any other instructor.
The good ol' Office of Government Ethics regualtions are always helpful when your agency isn't. See 5 CFR 2636.
Even if you are allowed to keep the payment, it must be reported on your financial disclosure form.
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Post by gary on Oct 29, 2014 14:50:54 GMT -5
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Post by privateatty on Oct 29, 2014 15:40:21 GMT -5
bartleby's Bar scenario is the only one I would be comfortable with. While Art III Judges can teach and accept compensation, they are not Agency employees subject to an over-enthusiastic ethics attorney or one from the OGC. Who needs the headache and for what price glory?
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Post by Deleted on Oct 30, 2014 7:50:17 GMT -5
Wasn't there a push at one time or another, or at least a discussion, of a code of conduct for ALJ's? Poor memory, here. Interesting and frustrating at the same time. An ethical question, which ought to be fairly straightforward, produces a number of potential and plausible solutions. The core problem seems, to me, to be that an ALJ doesn't really know where he/she stands on any given thing, at any given time, do we? Shall we look at rules that govern Federal employees, or Article III judges, or bar rules, etc.? Even the ethics officers I contacted seem to not really know for sure where the lines are. So, to further complicate our hypothetical: You, as an ALJ become aware of another ALJ who may or may not be receiving compensation for teaching a CLE for a private company on a subject related to our employment. You consult with your Regional ethics officer, who feels it is not a problem. What responsibilities, if any, do you have to continue to ask questions about the permissibility of the conduct? |
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Post by Deleted on Oct 30, 2014 7:58:34 GMT -5
Does anyone have a link as to where this form (SSA-520) might be found? It must be hidden well. It is resisting all efforts. Complicated by the fact that each agency seems to have its own version of the 520? (HHS-520?) Also, not to be confused with the Request for Review of Decision/Order of the ALJ, the "HA-520". Good grief, Charlie Brown.
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Post by Friant on Oct 30, 2014 8:09:57 GMT -5
I received a written ethics opinion on this same subject from another agency. I was specifically advised that, per section 2635.807, I may not receive compensation from any source other than the Government for teaching that related to my official duties. I was instructed that I could teach for compensation on subjects within my discipline or inherent area of expertise even though the teaching dealt generally with a subject within my agency's areas of responsibilities.
It's treading a fine line, but I believe the focus is "relates to your official duties." Therefore, it may be permissible to be compensated for teaching on disability law generally but not how you, as an ALJ, process cases and make decisions.
This is a minefield and potentially subject to different interpretations by different people. Therefore, I recommend you request a written ethics opinion from the appropriate official before proceeding. As long as you disclose all of the relevant facts, this will give you safe harbor.
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Post by bartleby on Oct 30, 2014 8:27:28 GMT -5
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Post by luckylady2 on Oct 30, 2014 9:01:53 GMT -5
I received a written ethics opinion on this same subject from another agency. I was specifically advised that, per section 2635.807, I may not receive compensation from any source other than the Government for teaching that related to my official duties. I was instructed that I could teach for compensation on subjects within my discipline or inherent area of expertise even though the teaching dealt generally with a subject within my agency's areas of responsibilities. It's treading a fine line, but I believe the focus is "relates to your official duties." Therefore, it may be permissible to be compensated for teaching on disability law generally but not how you, as an ALJ, process cases and make decisions. This is a minefield and potentially subject to different interpretations by different people. Therefore, I recommend you request a written ethics opinion from the appropriate official before proceeding. As long as you disclose all of the relevant facts, this will give you safe harbor. Yeah, I looked at this in the context of another agency, and in my particular office they were very, very conservative in their approach while other colleagues in comparable offices got the green light - much of it depended upon the supervisor's take on things. You'd be wise to get an opinion specific to you and your immediate situation. |
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Post by usnjudge on Oct 30, 2014 9:03:27 GMT -5
Dude - I think SSA OGC would tell you that the Judicial Canons do not apply to Agency ALJs. How they reach this decision is perplexing. I totally concur, an ethics opinion from a DAEO is highly recommended for any outside activity.
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Post by luckylady2 on Oct 30, 2014 10:51:30 GMT -5
Does anybody else remember the Government ethics training video in which they kept cycling back to singing Day O (the Banana Boat song)?
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