DISPUTE RESOLUTION
Judicial Ethics and Judicial Settlement Practices

By John C. Cratsley

The time has arrived for the enactment of explicit ethical rules in the Model Code of Judicial Conduct governing judicial settlement activity in civil cases. This article proposes one simple ethical rule—that any judge who undertakes settlement activity be barred from ultimately trying the case if settlement fails—as well as other more detailed ethical rules.

Judges should be required to obtain the written consent of all parties before proceeding.

Current inadequate proposals. By 1990, the drafters of the past two versions of the ABA Model Code of Judicial Conduct had made two basic decisions about judicial involvement in settlement activity: First, they endorsed the judicial settlement role, and second, they left decisions about disqualification to the individual judge and the attorneys under very broad standards.

Insofar as these issues were revisited in the recently approved ABA version of the Model Code, there are at least three changes that I do not think go far enough to address the problem. These changes are found in the February 2007 revision to the ABA Model Code of Judicial Conduct.

First, the commentary to former Canon 3B(8) has been placed in the text of Rule 2.6, “Ensuring the Right to be Heard,” and has been revised to read: “A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.” This places the obligation to avoid coercive settlement practices on the judge rather than on an evaluation of the perceptions of the participating parties. It also changes the permissive “should not” to the mandatory “shall not.”

Second, the text of former Canon 3B(7)(d) on the role of ex-parte communications in judicial settlement activity is now found in Rule 2.9(A)(4). It reads, “A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.” The word “mediate,” found in the 1990 version, has been eliminated.

Third, the new Rule 2.6, entitled “Ensuring the Right to be Heard,” has proposed comments [2] and [3]. Comment [2] provides that the judge has an important role in overseeing the settlement of disputes but must be careful not to undermine the parties’ right to be heard according to law. Further, when participating, the judge “should keep in mind the effect that the judge’s participation in settlement discussions may have . . . on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful.” When deciding on a appropriate settlement practice for a particular case, the judge should consider “(1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions; (2) whether the parties and their counsel are relatively sophisticated in legal matters; (3) whether the case will be tried by the judge or a jury; (4) whether the parties participate with their counsel in settlement discussions; (5) whether any parties are unrepresented by counsel; and (6) whether the matter is civil or criminal.” Comment [3] provides that the judge must be mindful of the effect that settlement discussion can have on the appearance of their objectivity and impartiality.

These three changes, because they retain the language of judicial discretion so broadly interpreted by appellate courts, offer no real solution.

Choices for change. The simplest and most straightforward change to the Model Code should be the prohibition of any trial judge who conducts settlement activity from conducting the trial of the case when settlement efforts fail.

Another straightforward ethical rule would require the judge to first obtain the written consent of all the parties before proceeding. This would follow delivery by the court to all counsel and their clients of a written description of the settlement process.

A third, more complex change would be a requirement that judges who undertake settlement activity follow the ethical standards for dispute resolution conduct imposed by rule or statute in that state.

Finally, the Model Code should require that any judge who undertakes settlement activity in civil cases, whether using mediation or another ADR technique, have the same training that court rules or statutes require a third-party neural to have when undertaking that same type of dispute resolution activity in connection with a pending court case.

Concerns with proposals. At least three concerns may be raised with my proposals. First, there is the longstanding judicial belief that pretrial settlement activity is entirely consistent with proceeding to conduct a jury, but not a nonjury trial. Second, there are administrative problems when a judge who had been handling a case for a long time has to step aside and the court must find another judge to try the case because his or her settlement efforts failed. Third, there is the obvious problem of distinguishing between cases where a judge’s settlement activity is sufficient to bar the judge from trying the case and cases where it is so minimal that common sense would allow the judge to proceed to conduct the trial.

As to the first concern, there are many occasions in which a judge conducting a jury trial makes decisions that could be understood as real or perceived outcomes of the prior settlement conversations. Decisions about the empanelment process, such as whether a potential juror’s answers to a question show bias or whether a peremptory challenge was properly exercised, as well as decisions about evidentiary rulings, the motion for directed verdict, and the proper jury instructions are all instances in which one side or the other may feel the content of the settlement discussions influenced the judge’s decision.

If you also consider the role of judicial demeanor during a jury trial, it should be obvious that there really is no meaningful distinction between jury and nonjury trials when you are concerned about the real or perceived impact of judicial opinions expressed in the pretrial settlement meetings.

With respect to the administrative problems caused by last-minute changes in trial assignments owing to failed settlement discussions, it is easy, but not entirely satisfactory, to say that such problems are simply a modest price to pay for the improved public perception of fairness when judges who are involved in settlement activity do not go on to preside over the same case at trial.

There are a variety of approaches that make good administrative sense. One is the so-called buddy system, in which judges are teamed from the beginning, with the understanding that one will do the settlement activity and the other the trial should settlement fail. Another is the matching of a state trial judge with a federal mediator judge. A third involves the selection of senior or retired judges to serve as the exclusive panel of judges for settlement. A fourth approach is for judges to swap trials.

Regarding how to tell when a judge’s settlement activities trigger these ethical requirements, the most straightforward approach would be to say in both the rule and the commentary that these rules impact any and all settlement efforts by judges who are assigned to try the very same case.

The Honorable is a justice of the Massachusetts Superior Court.

Copyright 2007

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This article is an abridged and updated version of one that originally appeared on page 16 of Dispute Resolution, Summer 2006 (12:4). For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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