Lending the Seal and Robe to The Pursuit of Fair Patent Reform.

A post on patently-o remarked about Chief Judge Michel’s efforts in providing comment and analysis to legislators considering reforms to the Patent Act.  It linked to a June letter from “Chambers” of the “Chief Judge” which criticizes a proposed revision on damages apportionment, and it closes with an offer to explain his “May letter to the Chairman”.  Since the letter is fairly pointed, it provoked inquiry into the appropriateness or limits on a sitting Judge communicating views, as a Judge, on pending legislation.  As with so many ethical issues, there are canons, comments and considerations, but then, few answers.

The general rule, applied to our federal judiciary, is permissive:

“A judge may … consult with, an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area.”  Canon 4 (same text adopted in Delaware).

Even under that permissive version, this Canon of the “Code provides very limited circumstances under which a judge may consult with or participate in the other branches of government.”  Georgia Ethics Op. No. 233.

The version of Canon 4, in Ohio, New York and Arizona, negates the near-identical permissive statement, generally, subject to a pro se exception.

(C)(1) A judge shall not … consult with an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.

The California version takes that further, and adds to the pro se exception:

(1) A judge shall not … officially consult with an executive or legislative body or public official except on matters concerning the law,* the legal system, or the administration of justice or in matters involving the judge’s private economic or personal interests.

The New Jersey version allows the Judge to “consult” but, only when the subject of the legislation is part of his judicial duties.

C. A judge may … otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice with which the judge is charged with responsibility by the Rules of Court.

Some states place the issue under the broader topic of “extra-judicial” activities, and others slot it under the even-broader matter of “avoiding the appearance of impropriety.”

“A judge who spends a significant amount of time speaking out on legislative issues during the legislative session could be perceived as allowing those activities to interfere with the judge’s judicial duties, and could be seen as attempting to exploit the judge’s position.”  “A judge could not, for instance, … express an opinion on how a statute might be interpreted by the judge.”  Utah Ethics Advisory Committee Informal Opinion 01-1 (January 25, 2001).

Where then does this leave the question – should the Chief Judge lend his title to any particular legislative initiative?  IMO, it is troublesome.  So many commentators have divided the legislative proposals between those favored by one sector of the patenting community, or another.  To support one proposal nearly necessitates a disclaimer against the appearance that the Judge is aligned with one camp, and not the other.  To argue that text in a proposed statute has “shortcomings” and that it would result in “massive” expense, in “vastly more complicated” proceedings, and a “period of great uncertainly,” etc., may, or may not, be objective commentary from the Chief.