Marla N. Greenstein is Executive Director of the Alaska Commission on Judicial Conduct, a position she has held since 1989. Ms. Greenstein served from 1996-97 as Chair of the ABA Judicial Division Lawyers Conference. Ms. Greenstein also serves as Secretary of the Board of the Association of Judicial Disciplinary Counsel. She is a graduate of Loyola University of Chicago School of Law and holds an undergraduate degree in American Government and Philosophy from Georgetown University.
Judicial Ethics Column
2023
Judicial Civility
Today’s stresses on parties, lawyers, and judges are real. The articles in this issue all emphasize how judges can model civility for others. Understanding and anticipating these stresses can help every judge model the civility that the Model Code of Judicial Conduct expects.
Judges’ Professional Obligations to “Vulnerable” Colleagues
When a lawyer or judge becomes unable to perform the basic functions of their professional roles, it may trigger ethical duties for judges who become aware of those issues.
2022
Ethics for Bankruptcy Judges
Bankruptcy judges may face more unique ethical issues than other judges, including awareness of the use of a trustee, the statute requiring criminal referrals, and the nature of other court proceedings.
Judicial Ethics and Law Clerks
In many ways, the law clerk is an extension of the judge and the judicial position. As such, judges may extend their ethical obligations to their clerks, but putting limitations on law clerks’ actions can be complicated
Judicial Ethics and the Diverse Jury
Judges can ethically assist in achieving jury diversity by raising awareness of the obstacles to jury service and accessibility, serving on administrative committees, and speaking to the public about the importance of jury service.
Ethics and the Immigration Judge
As employees of the Department of Justice, immigration judges face tension between their ethical duties as independent adjudicators and the efforts to control case outcomes by their employer.
2021
Political Activity Inconsistent with the Impartiality of the Judiciary
Because judicial authority rests in the public’s acceptance of well-reasoned impartial decision-making, judges’ political speech and activity can threaten trust in the impartiality of the judiciary.
The Impact of COVID-19 on Judicial Ethics
over the last year and a half in response to the pandemic—moving to remote hearings and virtual jury trials—all while maintaining the necessary decorum.
Ethics and Empathy
While the ABA Model Code of Judicial Conduct outlines standards for maintaining impartiality, each judge is challenged to also bring humanity and compassion to the courtroom. Human trafficking issues bring that need and challenge to the forefront.
Conflicting Laws, Evolving Ethics
As states adopt laws legalizing the use of cannabis products for medical or personal recreational use, conflicting laws also have judicial ethics implications.
2020
Ethics for Former Judges
To many, a person who was a judge in the past will always be a judge. With this in mind, even former judges’ speech and actions should be guided by the Code of Judicial Conduct.
Judicial Ethics 100 Years Later
Women in our country were denied the right to vote as recently as 100 years ago, and barriers to their full participation still exist. However, the rights of women are receiving much more attention today, particularly in legal reform efforts.
Viewing Judicial Ethics Through a New Lens
There are benefits in considering new approaches to problem solving using Native American traditions and values as a complement to established Anglo-American structures, but there also may be potential challenges when considering the differing ethical values and strictures.
AI and a Judge’s Ethical Obligations
While artificial intelligence may help provide streamlined access to justice, free from human bias, it While artificial intelligence may help provide streamlined access to justice, free from human bias, it cannot replace human judgment and the intelligence that judges must have to adequately deliver justice.
2019
Promoting the Independence, Integrity, and Impartiality of the Judiciary
The current threats to judicial independence have given judicial outreach an urgent and compelling purpose, one in which judges isolated behind the bench transform into respected and visible community leaders.
Judicial Ethics, Impartiality, and the Media
When judges explore their relationship and comfort with the media and are aware of their courts’ guidelines for dealing with the media, they can have a meaningful media presence that informs the public and maintains the impartiality of the judiciary.
Ethics and Judicial Independence in an Executive Branch Judiciary
Articles in this issue raise the many challenges to the independence of administrative law judges, but hopefully states’ adoption and application of Model Codes of Conduct will help these judges to remain free from outside influence.
The Role of the Judge in Children’s Matters
When dealing with matters involving children, a judge’s impartial decision-making requires a disciplined evaluation of the facts while acknowledging the emotional realities. Ultimately, the judge must determine what actions are in the best interest of the child and communicate these findings with directness and sensitivity.
2018
Finding Guidance Beyond Your Code of Judicial Conduct
The ABA Model Code of Judicial Conduct is periodically revised to keep up with an evolving world. “Sexual harassment” didn’t appear in the Code until 1990, when it was explained in terms of “bias” and “prejudice.” Major revisions to the Code came later, in 2007, when sexual harassment was explicitly prohibited.
Judicial Ethics of Bail Decision Making
Articles in this issue reflect the highest goals of the Code of Judicial Conduct and call upon judges to change the existing cash bail and pretrial justice system in order to promote public confidence in the independence, integrity, and impartiality of the judiciary.
Maintaining Connections with Lawyers
Greenstein contemplates the boundaries between practitioner and judge, which create an appearance of impartiality that the public expects, while also considering the ethical requirements for judges to maintain connections to lawyers and the people they serve.
The Problematic Role of the Judge in Assessing Addiction
Judges encounter addiction in the courtroom daily. However, the law is slow to evolve, and the court may be limited in its flexibility when addiction is involved. Hopefully, going forward judges can work with policymakers on ways to address addiction in the courtroom.
2017
Scientific Knowledge or Ex Parte Facts? Maintaining the Ethical Distinction
Though expert witnesses are used to establish formal assessments in court, judges must understand and continue to educate themselves on science to meaningfully serve as gatekeepers. This is especially true because courses and science experts may present self-serving information that crosses an ethical line.
The Ethics of a Sanctuary Courthouse
Immigrants may hesitate to seek judicial protection and medical care if it means risking arrest. As a result, some legal and judicial leaders have declared courthouses and hospitals “safe harbors,” where law enforcement cannot interfere with the ability of a person to attend a local court hearing or receive necessary medical help.
A Day in the Life of a Judicial Ethics Counsel
As with most judges, there is no “typical” day for those who staff judicial conduct commissions. In Greenstein’s role, she provides ethics advice to judges and investigates complaints of ethical misconduct by judges.
Can Sitting Judges “Practice Law” as Members of the Judge Advocate General’s Corps?
States have taken a variety of stances on whether a sitting judge can both practice law and serve as an advocate on the JAG corps. Some states maintain that there is a conflict if a judge provides services to military members that resemble those of civilian lawyers, while other states hold that judges should not be limited in their scope of military assignments.
2016
Judicial Ethics and Tribal Courts
By adopting a Code of Conduct, tribal decision makers can benefit from guidance, clear expectations, and confidence in their decisions from tribal members.
International Judicial Ethics
Several judicial ethics codes have been developed for international judges over the past two decades. The most recent has separate code sections for “national judges” and “international judges.”
The Challenge of Maintaining Confidence in a Judiciary Lacking in Diversity
Judges who vigilantly address breaches of diversity in their courtroom, including staff and jury pool selection, will increase confidence in a judiciary that might not be a s diverse as its population.
2015
Manifesting Implicit Bias
While our Code of Judicial Conduct cannot possibly prohibit the manifestation of implicit bias, each judge can live his or her own version of Model Code of Judicial Conduct Rule 2.3 (B) in careful awareness and contemplation of the assumptions we all carry with us.
Ethical Issues and Forensic Evidence: How Much Science Should a Judge Know?
Judges are impartial arbiters of fact, relying on presentations in court for their education about facts to be proven. At what point is science best presented in court through experts and not directly to judges through professional education?
Ethics Challenges for a Mental Health Court Judge
In mental health court, the goals are to address the underlying reason that the person is interacting with the judicial system and to reduce the chances that it will recur. In addition to the usual problem-solving court dilemmas, judges in mental health court often need to rely on teams of outside providers.
Innovations and Ethics
By thoughtfully embracing innovation, judges can embody the integrity of the justice system.
2014
Judges Must Keep Up with Technology: It’s Not Just for Lawyers
Judges require technological literacy to be effective and to exercise their responsibility in a virtual world.
Evolving Role of the Appellate Courts in Judicial Ethics
In the past 50 years, the ABA and its appellate judges have developed Model Codes of Judicial Conduct and assisted in forming judicial conduct commissions in all 50 states. Because of this dedicated effort, we can all look forward to a strong ethical judiciary in our next 50 years.
Can a Judge Be Impartial and Passionate in Domestic Violence Matters?
Confronting the complex issues in domestic violence, judges are often forced into challenging roles. When dealing with these matters, they must balance their passion with the necessary impartiality that fairness demands.
Judicial Innovations Lead to Inevitable Ethics Questions
Given budget constraints and increasing family issues brought to the courts, innovation will be required to fulfill the obligations under Rule 2.5 of the 2007 Model Code of Judicial Conduct. Advisory opinions will be needed more than ever before to address this changing landscape.
2013
Is Judicial Disqualification an Issue of Ethics or of Law?
While individual judges may differ in weighing the ethical requirements of avoiding the appearance of bias against the duty to decide matters assigned, the thoughtful balancing of these two interests provides an ethical structure for making final determinations.
Ethical Challenges When Addressing Emerging Legal Issues
While it may take a long time for human trafficking to be recognized in the same way as domestic violence in our country’s courtrooms, ethics and justice require that judges patiently maintain their impartiality on the bench while working earnestly to educate their communities.
Reflections on the Future of Judicial Ethics
Issues such as virtual courts and court-funding crises continue to place new demands on the judiciary. Whatever their impact in the future, Greenstein believes that professionals will give advice, courts will address transgressions, and Model Codes of Judicial Conduct will continue to evolve.
Ethics in Times of Crisis
By keeping basic ethical precepts in the forefront, judges can ensure that courts in times of crisis are courts that continue to promote public confidence in the independence, integrity, and impartiality of the judiciary.
2012
Ethical Boundaries for Judges Working with Correctional Facilities
Judges should stay informed of corrections institutions’ practices by engaging in dialogue with corrections officers in official settings and touring the facilities to which they sentence offenders.