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January 01, 2014 Judicial Ethics

Judicial Innovations Lead to Inevitable Ethics Questions

By Marla N. Greenstein

The strength of a defined Code of Judicial Conduct is also its limitation. When judges seek to implement innovative procedures or adopt creative solutions to administrative problems, inevitably they ask, but can I do it ethically? Typically, a judge can, but it may require thoughtful new adaptive approaches.

Judges who were among the first faced with a request for a lawyer to provide limited representation were undoubtedly faced with a quandary. While recognizing the need for the party to benefit from a lawyer’s wisdom and skills, judges also need to assure that lawyers fulfill their ethical duties in representing clients zealously. Similar issues arise in the “lawyer launch pads” and “incubators” described in the Fisher article. And judges willing to take on unpaid clerks must inquire as to the source of the clerk’s stipend to ensure conflicts are not created.

When looking at the various innovative approaches for providing access to the justice system outlined by articles in this issue, judges should keep Rule 2.5 of the 2007 Model Code of Judicial Conduct in mind. That rule requires judges to perform both judicial and administrative duties “competently and diligently.” The programs described by Stong, Fisher, and Mosten all enhance judges’ abilities to fulfill the purpose of Rule 2.5 as set out in the commentary:

[4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

How should a judge balance the need for creativity implied by the commentary to Rule 2.5 and the ethical constraints imposed by many other sections of the Code? One solution, that used by the programs outlined in this issue, is to address the issue directly through court rule changes, legislation, or court administrative orders. When addressed systemically, the ethical concerns can be acknowledged and cured. Written orders or rules can clearly outline the purpose of the innovation and the boundaries under which they will operate. Another solution, for judges in jurisdictions that provide advisory ethics opinions, is to make full use of this option. While risking the possibility of an opinion that will disprove of a proposed creative accommodation, the issues will be clear and the judge will know how best to proceed.

Examples of advisory opinions addressing innovative efforts by judges last year include a Colorado opinion (2013-02) finding that a juvenile court judge may participate in the contracting process selecting parents’ counsel eligibility and a Florida opinion (2013-010) allowing a judge to create public service announcements soliciting foster parent volunteers and use the courts’ technology department to create the ads but not request certain media outlets broadcast the ads.

Given budget constraints and increasing family issues brought to the courts, innovation will be required to fulfill the obligations under Rule 2.5. Advisory opinions will be needed more than ever before to address this changing landscape, providing clear lanes between which innovative judges can navigate.