Ethics in Times of Crisis

Vol. 52 No. 4

Marla N. Greenstein is Executive Director of the Alaska Commission on Judicial Conduct, a position she has held since 1989.  Ms. Greenstein served from 1996-97 as Chair of the ABA Judicial Division Lawyers Conference.  Ms. Greenstein also serves as Secretary of the Board of the Association of Judicial Disciplinary Counsel. She is a graduate of Loyola University of Chicago School of Law and holds an undergraduate degree in American Government and Philosophy from Georgetown University.

Judges and lawyers prefer to address issues in a methodical, rational, and structured manner. Whether interpreting statutes, applying case law, or addressing a professional ethical issue by looking toward established codes of conduct, structure aids decision making. From the articles in this issue, it is clear that when disaster strikes, the path to effective survival is equally through planned methodical means once the traditional physical framework is disrupted.

The various authors agree on key points: plan, prioritize, and cooperate. While the Code of Judicial Conduct is never suspended, its key provisions can also assist in planning and resolving issues when faced with a disaster. When planning and prioritizing, judges should be guided by Rule 2.5 of the ABA Model Code of Judicial Conduct: (A) A judge shall perform judicial and administrative duties competently and diligently. (B) A judge shall cooperate with other judges and court officials in the administration of court business.

The mandates to prioritize and identify critical court functions are consistent with the requirement to perform judicial and administrative duties competently. A failure to prioritize could easily lead to delay of critical judicial decisions while those that would not be harmed by delay are addressed. So, too, “diligence” in times of crisis may mean expanded hours or creative ways to handle court proceedings.

Virtually all the plans laid out in the articles also require a high degree of cooperation, not only with fellow judges but also with court personnel and outside agencies. What cooperation means in times of normalcy changes as the demands change in times of crisis. Judges may need to take on some clerical tasks and may need to work with individuals who are not familiar with their work style or court process. So, too, while the Code only mentions cooperation with court officials, times of crisis might demand cooperation with the greater community in finding alternative court sites or office facilities.

Extraordinary situations may also demand extraordinary sensitivity to the fundamental concepts of “fairness” and “accessibility.” Where court facilities are in temporary or unfamiliar facilities, extra care should be devoted to ensure that standards of confidentiality and communications are in place. Ex parte communications with lawyers or parties may be more likely in unfamiliar facilities. If traditional means of communicating with parties are disrupted, extra thought should be given to ensure that the communications are simultaneous. In some instances, law firms will be equally affected as the courthouses. In those situations, addresses of record may not be useful and alternative means of contacting the lawyers will need to be established. And should the inevitable situation arise where one party gets notice that the other does not, fair procedures to address those situations should be in place. The fairness in the rigidity of a structured normal environment will not necessarily translate into fairness in a courthouse during a time of crisis.

As John Ort’s article notes, “Keeping our courthouses open and operational in times of crisis is fundamental to maintaining the rule of law and protecting individual rights.” By keeping basic ethical precepts in the forefront, judges can ensure that courts in times of crisis are courts that continue to promote public confidence in the independence, integrity, and impartiality of the judiciary. (Canon 1)

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