Ethics In Problem-Solving Courts – Justice Speaks Podcast

“The basic function of an independent, impartial and honorable judiciary is to maintain the utmost integrity in decision making,” according to Judge David Rothman (Ret.) of the Los Angeles Superior Court.  The Model Code of Judicial Conduct is the codified embodiment of this principle.  The traditional Canons, however, did not anticipate a collaborative court system but, rather, relies on an adversarial system when making the rules.  With one exception, the Canons have not addressed problem-solving courts and their unique needs.

Judges in problem-solving courts face unique legal issues such as:

• Remaining objective and impartial with participants with whom the judge develops a much more personal relationship that she does in a regular criminal case
• Ex Parte communications among team members
• Direct communication between the judge and the participant
• Ensuring confidentiality, privacy, and dignity
• Crafting appropriate incentives, sanctions and treatment responses
• Using evidence-based practices
• Demeanor both on and off the bench
• The collaborative nature of drug courts (Key Component 6)
• The community advocacy role of the drug court judge (Key Component 10)

Ex Parte Communication

Canon 2 of the American Bar Association (ABA) Model Code of Judicial Conduct requires a judge to “perform the duties of judicial office impartially, competently, and diligently.  Canon 2.9 specifically prohibits ex parte communications defined as improper unilateral contacts with a judge without notice to the other side.

Comment [4] of Canon 2.9 goes on to say:

“A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts.  In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.”

Judges in problem-solving courts are advised to see whether or not their state has adopted the “drug court exception” to ex parte communications because fewer than half have done so.  Judges are further advised to urge the adoption of this Canon so they may be protected from ethics violations.

What to do with an unsuccessful participant

On the one hand, judges have the duty to hear all cases (Canon 2.1).  On the other, judges must not only be impartial and free of bias but also appear to be impartial and free from bias (Canon 2.2, 2.3).  Judges in problem-solving courts develop a personal relationship with participants and get to know them quite well.  The judge may have watched the participant struggle for months and celebrated victories with the participant.  If the participant voluntarily drops out of the program, who should sentence the defendant?  If there is a petition to revoke probation, who should resolve the probation violation hearing?  What information has the judge received ex parte and will the judge be relying on this information when making a ruling?  The trend of appellate cases is that recusal is not required except in the State of Tennessee where the appellate court found it was a violation of Due Process for the drug court judge to continue to hear the defendant’s case.  Interestingly enough, there is a Tennessee ethics opinion that says it is not an ethics violation to do so.  Oklahoma says judges should recuse themselves if asked to do so if there is an objection to the drug court judge hearing the case.  The State of Nevada has said the judge need not recuse is she has previously sat as the drug court judge but must disclose that former relationship.

Although the California Supreme Court has said it is permissible to sentence a failed drug court participant to the maximum, the Adult Drug Court Best Practice Standards [i] set forth the necessary disclosures to cover this practice and advise that someone should not be punished for trying to get well. 

Out-of-Court Activities

Judges in problem-solving courts are asked to participant in many activities that may raise ethical concerns.  May a judge attend a baseball game where the teams are made up of drug court participants and police officers?  How about a drug court picnic?  May a judge serve Thanksgiving dinner to drug court participants?  May the judge participate in a bowling night?  May a judge take juvenile participants jogging on the weekend as a prize for doing well?  The Drug Court Judicial Benchbook advises minimal contact outside the courtroom even if it is a group activity.  The judge should attend long enough to greet everyone then leave without further participation. 

Judges have been disciplined for having contact with participants where no one else was present.  They have also been disciplined for association with convicted felons – one by attending a party held in honor of the felon and one by attending a church dinner where the felon was also in attendance.

Activities such as attending an open Alcoholics Anonymous meeting; participating in a probation check; and, visiting a treatment facility can pose ethical problems.

Judges are also frequently asked to participate as board members in various organizations.  Again, the safest response is to ask, in advance, whether it would be ethical to do so.  It is clear that judges may attend, speak at and teach drug court professionals whether on a national, regional or local level.

Finally, fundraising — including soliciting incentive prizes — is discouraged.  There have been numerous rulings in many states and judges should check with their own discipline bodies before engaging in these activities.

Avoiding problems

• Review your state’s Canons and Codes
• Check for any opinions specific to drug courts or other problem-solving courts
• Ask for ethics opinions on issues of concern
• No court has ever found collaborative approach to be illegal when approached properly
• Examine your own prejudices

Preconceived notions, biases, and stereotypes about people with AOD abuse and/or mental disorders can prevent fairness and impartiality toward those who have them

[i] Vol. 1, IV. K. and L.