January 01, 2013 Judicial Ethics

Ethical Challenges When Addressing Emerging Legal Issues

By Marla N. Greenstein

For many readers of The Judges’ Journal, this may be your first exposure to the possibility of seeing “human trafficking” in your courtroom. While the law is in constant flux, judges rightly expect that the changes will be addressed by legislatures in the form of new statutes. Once changes are made to the criminal law, it is the role of the prosecutor to address those changes in their charging documents. But in our world, the local assistant prosecutor may not be as informed as the judge on changes in the law. So too, the community expects judicial involvement in solving current social issues.

As discussed in previous columns, judges do have a role in educating the public and providing community service. So it is not surprising that when a Nevada judge asked whether the judge could serve on a board of directors for a nonprofit organization dedicated to raising awareness of human trafficking, the answer was “yes.” (Nevada Standing Comm. on Judicial Ethics & Election Practices, Advisory Op. JE09-005, Sept. 22, 2009.) The judge served in the family court division and would work on events that would focus on the problem of exploitation of juveniles for prostitution but would not engage in fund-raising or membership recruitment. Citing Nevada Canon 4C(4), which parallels the ABA 2007 Model Code Rule 3.7, the Committee noted that “the complete separation of the judiciary from the community is neither possible nor wise,” subject to restrictions that would cast doubt on the impartiality or integrity of the judiciary. Here the judge would be involved only in educational activities about “human slavery and trafficking consistent with settled international legal conventions.” The judge would not sit on any criminal prosecutions involving human trafficking.

More difficult is determining what role, if any, an educated judge can play in policy development addressing emerging issues such as human trafficking. We know that the Code permits judges to appear before legislative bodies concerning “the law, the legal system, or the administration of justice.” (2007 Code Rule 3.2.) So it is likely permissible for a judge to testify as to how new laws addressing human trafficking would be handled by existing court resources, taking care not to address likely outcomes in specific cases. The Leidholdt article on page 16 suggests that judges may be able to direct victims of human trafficking to appropriate assistance programs. Conveying the perceived need for assistance programs is also likely an acceptable area for judicial involvement.

The biggest ethical challenge for an individual judge is in the context of a specific court case before the judge. Judges may be aware that an individual defendant should have been charged as a trafficker and was not. Children in a family dispute may appear to be trafficked. When these situations arise, judges will be tempted to act affirmatively to address these issues. In each situation, the judge must take care to maintain impartiality and not take on the role of an advocate. Often an inquiry to the appropriate advocate as to whether a concern has been addressed or facts developed can guide and address the issue. In some contexts, the judge can take no action in the courtroom.

While frustrating in the early stages of emerging legal issues, by vigilantly guarding the impartiality of the court, the court’s voice will ultimately be stronger. Judges can and should engage in educational activities that engage the community. While it may take a long time until human trafficking has the same recognition as domestic violence in our country’s courtrooms, ethics and justice require that judges patiently maintain their impartiality on the bench while working earnestly to educate their communities.