May 13, 2020 Ethics

Viewing Judicial Ethics Through a New Lens

By Marla N. Greenstein

An earlier Judges’ Journal Judicial Ethics column (vol. 55, no. 4) looked at judicial ethics and Tribal Courts. That column illustrated the varying approaches that Tribal Courts have taken to define their ethical principles. In particular, we noted that

the Navajo Code includes concepts foreign to the ABA Model, including such characteristics as “humility” and “harmony.” In strong contrast to this approach, the Nottawaseppi Huron Band of Potawatomi Court has adopted a Code that is based on the ABA Model with few wording changes and little accommodation to an alternative philosophy.

The various articles in this issue exemplify the benefit in considering new approaches to problem solving that uses Native American traditions and values as a complement to our established Anglo-American structures. A greater challenge is also considering the differing ethical values and strictures.

It is helpful to consider not only the differing premises under the differing systems, but also those that are common to both. Similar to Lauren van Schilfgaarde’s article outlining “Indigenizing Professional Responsibility” for lawyers in Tribal Courts, judges in state and federal systems need to be aware of similar concerns in the Tribal judiciary. While van Schilfgaarde notes that “Tribal Courts must balance adoption of Anglo systems while staying true to traditional values and forms of dispute resolution,” so too must our local, state, and federal judiciary honor and be aware of the values that govern Tribal Courts.

While we are accustomed to prohibitions on ex parte communications to preserve due process and the integrity of the impartiality of the adversarial system, some Tribal Court processes may value collaborative results as the goal above an individual impartial decision maker. The article describing the Yurok Tribe Fishing Court is a good example of this alternative view of justice.

A common link, established in all the articles, is the goal to ensure confidence in the fairness of the process and a sense of justice in the result. We see that the Yurok Tribal Court must not only ensure rights to natural resources, but also ensure peace and harmony. Confidence in that court’s outcomes will thereby emphasize accommodation and fairness more likely than penalty and fairness.

Our ethical rules reflect our values and priorities. As Tribal Courts interact more and more with our local, state, and federal courts, concurring values and differing priorities will need to be acknowledged and, at times, negotiated and accepted. We have come to recognize the benefits of relaxed procedural requirements in various therapeutic court settings and matters involving children. Working with Tribal Courts will require looking at judicial ethics through a new lens. The vision will always be fairness and justice, but the focal point is likely to be a bit different.

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Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at mgreenstein@acjc.state.ak.us.