Conflicting Laws, Evolving Ethics

Judges addressing the issues in cases before them may be required to make factual determinations that are unsettled in the scientific evidence presented. The Garcia/Stout article highlights the forensic challenges and the varying standards that various testing labs use. However tempting, judges are prohibited from independently investigating facts in a matter. Model Code of Jud. Conduct r. 2.9(C) (Am. Bar Ass’n 2020). However, it remains crucial that judges be aware of questions that exist and scientific information that will be required from expert sources. Any extrajudicial scientific information that a judge will rely on should be disclosed to the parties to allow meaningful review and opportunity to provide any alternative information.

A more difficult challenge is presented to a judge who must evaluate, in any individual case, the legal and societal norms that apply. For example, the question of whether a parent who acknowledges routinely using legal recreational marijuana is treated any differently from one who acknowledges social drinking is both a legal determination and one that requires a judge to perform all duties “fairly and impartially.” Judges must “apply the law without regard to whether the judge approves or disapproves of the law in question.” Model Code of Jud. Conduct r. 2.2, cmt. [2] (Am. Bar Ass’n 2020).

Finally, the ethical obligations of a judge in either personally using legal marijuana or in observing lawyers who do remains tied to the continuing criminality under federal law. The ethics opinions uniformly conclude that as officers of the court, lawyers and judges must comply with all laws of our country. Nicely summarized in the Rendleman article focusing on the role of lawyers in advising legal marijuana businesses, the tension exists for the professional ethics of lawyers and judges. My state has a long-established “right to privacy” that includes the right to limited personal use of marijuana in the home. Ravin v. State, 537 P.2d 494 (Alaska 1975). The Alaska Commission on Judicial Conduct nonetheless concluded that as long as marijuana remains a scheduled prohibited substance under federal law, personal use by a judge is a violation of the Alaska Code of Judicial Conduct. Alaska Comm’n on Jud. Conduct Advisory Op. #2018-01 (Oct. 9, 2018). Regardless of the breadth of our recent state legislation, judges are obligated to follow and uphold “the law,” which includes federal laws.

Of course, the landscape of laws in this area is constantly changing. Will what seems to be an inevitable change in the federal law concerning marijuana change our ethics advice to judges and lawyers to refrain from personal use? Likely it will differ by state, as perceptions of use can also create the appearance of impropriety issues for judges. But if I had to predict, we are on the road to eventually treat marijuana use by lawyers and judges the way we treat alcohol use. Responsible personal use in appropriate safe settings will be an acceptable norm; behavior resulting from abuse will result in disciplinary sanctions. The ethics will evolve with the times, but we are in that moment of change where the landscape requires judges to constantly find their footing.