Microsoft Judge's Fate Not Surprising

ByCatherine Valenti

June 29, 2001 -- The much-talked-about removal of the federal judge from the remainder of the Microsoft antitrust case comes as no surprise to the legal community.

The U.S. Court of Appeals said it removed Judge Thomas Penfield Jackson from the Microsoft case because of the judge's many controversial statements about the case and the company that have appeared in the media.

"For judges, the appearance of impropriety we just can't have," says Eileen Libby, associate ethics council for the American Bar Association. "The only remedy is having him step down."

Judge Jackson violated various legal codes of conduct by talking to the press about the Microsoft case, often referring to Microsoft executives in disparaging ways, according to the court of appeals ruling. In one instance, the federal judge was quoted in The New Yorker comparing Microsoft chairman and co-founder Bill Gates to Napoleon and calling Microsoft executives immature.

At the time Jackson's comments were published, legal experts predicted that Jackson would pay a hefty price for speaking to the press. George Washington University law professor Bill Kovacic told ABCNEWS in February that Jackson's comments would spell removal from any further part in the case.

"He's not going to have a part in the sequels, he's finished," Kovacic said.

Breaking the Code

Though Microsoft's aggressive courtroom tactics may have irked Judge Jackson, talking about it to the press — especially while the trial is still going on — is a violation of The Code of Conduct for United States Judges.

Adopted in 1973 by the Judicial Conference of the United States, this code prescribes ethical norms to ensure the integrity of the federal judicial system. In making statements to the press, Jackson violated Canon 3A (6), which says judges should avoid public comment on the merits of a pending or impending action.

Jackson also violated Canon 2, which states that a judge should avoid impropriety and the appearance of impropriety in all activities.

In its ruling Thursday, the court of appeals said, "Rather than manifesting neutrality and impartiality, the reports of the interviews with the District Judge convey the impression of a judge posturing for posterity, trying to please the reporters with colorful analogies and observations bound to wind up in the stories they write."

Keeping Up Appearances

Legal sources say even though Jackson may not be biased in the Microsoft case, by making explicit comments in the press about the trial and the company, the judge gave the impression that he is not neutral.

"By talking to reporters before the case is actually done, what you've done is created the appearance of bias which would make further proceedings look questionable," says Dana Hayter, antitrust and Intellectual property lawyer with Fenwick & West LLP.

While the code of conduct is not directly enforceable by punishments, it is often common to disqualify judges found in violation of the codes. Legal experts say being taken off the Microsoft case is probably punishment enough for the judge, and that he'll probably not have any more sanctions taken against him.

"When a court delivers the sort of opinion it delivers here, that's a pretty public rebuke," says Donald Falk, partner at Mayer, Brown & Platt in Palo Alto, who predicts that Jackson will continue to preside over other cases until he retires.

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