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July 27, 2021 Ethics

The Impact of COVID-19 on Judicial Ethics

By Marla N. Greenstein

Courthouses closed, remote hearings, masking and social distancing orders; this is the new world that judges have navigated over the last year and a half. Not known generally for their flexibility, judges were challenged to adapt, accommodate, and facilitate. Judges faced the same stresses as the general population, compounded by the additional stresses of court procedures that were as novel as the coronavirus.

As courts moved to remote hearings and mask mandates, judges who were resistant to the new arrangements and made their resistance known were subject to discipline. Most notably, in Tennessee, a judge received a public reprimand for not complying with the distancing and capacity limitations in the courtroom. (Public reprimand of Judge Hinson, Dec. 15, 2020, File B20-83360.)

Remote hearings, in themselves, created challenges for all participants, including judges. While many judges have accommodated telephonic appearances over the years, the need to adjust to new technologies was unique in this environment. Judges and court staff explored needed accommodations using Zoom and similar platforms that would allow real-time video participation and closely simulate in-person hearings. All participants were aware of the need to isolate witnesses from the virtual courtroom until the appropriate time, provide the ability for presentation of written materials, and supply the required public access. Inadvertent ex parte communications were a constant concern, and an occasional reality.

Virtual jury trials provided their own unique challenges. In addition to their usual concerns, judges had the added responsibility to ensure that the technological safeguards were in place to isolate the jurors from the virtual courtroom as appropriate. Where those safeguards occasionally failed, motions for mistrials were a more frequent occurrence. But where does the need to accommodate these sudden changes create ethics issues for judges doing their best?

Where there are clear failures to review protocols and an unwillingness to follow recommended procedures, a judge will be accountable. Rule 2.5 of the ABA Model Code of Judicial Conduct requires judges to “perform judicial and administrative duties, competently and diligently.” So too, judges under that same rule must “cooperate with other judges and court officials in the administration of court business.” Competence in this environment includes the necessary technological competence to facilitate court proceedings. So too, the multitude of special orders outlining special pandemic procedures require adherence and cooperation with the changing requirements of those orders. And where court staff are charged with ensuring technological safeguards, judges cannot blindly rely on staff. Rule 2.12 implies that judges do need to remind court staff, at a minimum, of the responsibilities and requirements imposed by the code.

Virtual hearings have also presented challenges for judges seeking to maintain decorum, as required under Rule 2.8. While judges can easily view the demeanor of lawyers and litigants in a live courtroom, a virtual courtroom is a more difficult venue. Judges may feel reluctant to “mute” a lawyer or attorney after warnings. Or a judge may too frequently exercise that technological option. When to question the decorum of court participants is also a new quandary. We have all been entertained by media accounts of parties appearing in various settings and states of dress and with creative screen names.

Lastly, the pandemic has taken a mental health toll on even the best adjusted among us. Judges are no exception. Depression and increased use of substances “to cope” are a reality. So too, lawyers appearing in court are subject to the same risks. This environment calls for an increased awareness of the availability of local lawyer assistance programs and the corresponding need for referrals. Rule 2.14 makes these referrals an ethical obligation, not merely the right thing to do.

These lessons will be with us well beyond this health emergency. Perhaps the largest lesson, well beyond judicial ethics, is our shared human vulnerability and our need to care for all who tend to our justice system.

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By 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 [email protected].