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August 04, 2023 Judicial Ethics

Ethical Responsibilities and Judicial Security

By Marla N. Greenstein

Security issues and needs can seem to conflict with some ethical responsibilities under the ABA Model Code of Judicial Conduct. Whether there are personal threats made by a party in a case, a perceived threat by actions of a participant in the courtroom, or merely financial disclosure requirements, security concerns can conflict with the norms that are in place when security is not a concern.

For obvious public policy reasons, a judge is not disqualified from hearing a matter if a party threatens violence against the judge. While a judge might recuse from a divorce proceeding where the judge has personal prior knowledge of violent behavior of a spouse outside of the courthouse, where a party to a divorce threatens violence after the judge has been assigned the matter, recusal is no longer the “ethical” option. The personal knowledge that is relevant to the proceedings and requires recusal under Rule 2.11(A)(1) no longer applies once a judge has accepted a case without disqualifying factors and is later threatened by a party.

So, too, judges who routinely review search warrant applications may become aware of safety and security issues affecting fellow judges. Comment (2) to Rule 3.5 recognizes the necessary exception to the prohibition of using nonpublic information where it is necessary to protect the health or safety of court personnel or other judges. Care must be taken to preserve the confidential nature of the underlying information while also alerting appropriate security authorities and the judge who is at risk. Perhaps the judge who is approving the search warrant should not be the same judge who contacts law enforcement. By having a thoughtful procedure in place, these situations can protect the confidentiality of the process and the safety of court personnel as well.

Rule 3.15 requires judges to publicly report compensation and gifts. To be meaningful and relevant, the disclosures need a degree of specificity that rightfully should take into consideration judicial security concerns. The physical location of a home or vacation spot, while possibly relevant to a disqualification concern of a party, may also expose the judge to a security risk. This risk may be compounded by the recommendation in Rule 3.15(D) that these public disclosure reports be posted on the court’s website. Many courts are reviewing what details are necessary on these forms so that they can both be informative and protect the judge’s personal security.

And, most obviously, a judge is required to maintain order and decorum in the courtroom itself. When a party or an attorney becomes agitated to the point of creating a security risk, a judge has a duty to act. De-escalation skills and techniques are now taught as a routine part of many judicial training programs. Whether it is “safer” to handle the situation as part of the judicial role or bring in judicial security is a difficult judgment call for both the judge and court personnel. Judges are often concerned that having an obvious security presence will escalate the troubling in-court behavior. Having a thoughtful, informed discussion with court security personnel and courtroom staff can ensure the safest outcome for all.

Security threats are real and troubling. Our Code of Judicial Conduct presumes a norm of common behavior on behalf of all court participants and the general public. Where there is a threat to physical safety, the norms of the code still apply but also often require a mindful reassessment demanded by the threat at hand. 

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Marla N. Greenstein

Alaska Commission on Judicial Conduct

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].