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February 24, 2023 Judicial Ethics Column

Judges’ Professional Obligations to “Vulnerable” Colleagues

By Marla N. Greenstein

When considering vulnerable populations, we often don’t think of those who are similarly situated to ourselves. But it can only take a short time for a fully functioning lawyer or judge to themselves become unable to perform the basic functions of their professional roles. Once that happens, it may trigger ethical duties for judges who become aware of those issues.

Rule 2.14 of the ABA Model Code of Judicial Conduct states that a “judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.” A new rule in the 2007 Model, this Code provision recognizes the prevalence of various illnesses and conditions that can affect the judgment, intellect, and emotional stability of lawyers and judges. There are numerous studies that show an alarmingly high number of lawyers and judges who suffer from various forms of depression or other mental health disorders as well as high numbers of those abusing drugs and alcohol. As life expectancy increases, so do associated cognitive disorders. For those in good physical health, age-related cognitive issues can still arise. (The Center for Disease Control and Prevention reports a rate of over 11 percent, or one in nine persons, who suffers from subjective cognitive decline after age 45.)

An ABA Journal article published two years ago outlined the various challenges that an aging judiciary faces. And while we certainly hope that we all maintain the necessary self-awareness to know when to step back or ask for assistance, the personality traits of judges and lawyers often get in the way. When they do, and a judge or lawyer is “just fine” in their own self-assessment, considerations under Rule 2.14 come into play.

As with all the Code provisions, the goal is to maintain public trust and confidence in the judiciary. Rule 2.14 recognizes that at times confidence in the judiciary can erode if lawyers and judges are tacitly permitted to perform below professional standards. “Impairment” may be difficult to assess, but once a pattern of behavior becomes evident, judges have an obligation to act on that “reasonable belief.”

Unlike many of the other ethical rules, Rule 2.14 sets out a responsibility rooted in compassion. While the rule does mandate “appropriate action,” it recognizes that often the appropriate action is contacting the many lawyer or judicial assistance programs. Those programs are set up to safeguard the dignity of the impaired professional through confidentiality, peer support, and a network of treatment options.

While rooted in compassion, the commentary to Rule 2.14 is also grounded in the obligation we all share to “prevent harm to the justice system.” As uncomfortable as it may be to address a fellow judge who is arriving late, confusing calendar items, and laughing off forgetting your name . . . compassion requires action, and judicial ethics demand it.

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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].