Friday, April 18, 2014

Disciplinary Responsibility of Judges and the Duty to Report Ethical Misconduct

May 5, 2010 by Adrienne Meiring

Reporting the professional misconduct of a colleague or contemporary is never an easy task.  For many judges, their most difficult duty may be deciding whether to report an ethical violation by another judge or an attorney.  But, it also may be their most important.

As a day-to-day observer of other judges and attorneys, judges often have the best vantage point to notice patterns of recurring ethical violations, to observe substance abuse or mental health problems, or to learn about serious wrongdoing which might otherwise go undetected.  Not only is it desirable for judges to take appropriate action in such circumstances, but it is critical to maintain the public’s respect for our justice system.

Exactly when am I obligated to report alleged ethical violations that come to my attention?

Of course, as most judges know, not all ethical violations are created equally and addressing ethical misconduct suitably is not always a simple equation.  While a judge often can effectively resolve minor violations with a sincere and frank discussion with the judicial colleague or attorney, the judge may find that a series of minor violations is indicative of a bigger problem which requires more significant action.  Similarly, although a judge may find that a referral to the Judges and Lawyers Assistance Program (JLAP) usually is a humane and just way to handle a judge’s or lawyer’s substance abuse problem, there certainly are times when the contemporary’s substance abuse is so pronounced and so detrimental to the public that a judge must elevate his or her response.

A judge may also struggle with the fact that not all information received about the alleged ethical misconduct of another judge or attorney is of the same caliber.  For instance, a letter penned by a disgruntled litigant who has been known to stretch the truth does not carry the same weight as a trusted staff person who reluctantly discloses information about misconduct he or she observed.

In balancing these considerations, many judges are left wondering:  Exactly when am I obligated to report alleged ethical violations that come to my attention?  Under Rule 2.15 of the Code of Judicial Conduct, a judge is required to inform the appropriate disciplinary authority when the judge has knowledge that another judge or lawyer has committed an ethical violation that “raises a substantial question regarding the judge’s [or lawyer’s] honesty, trustworthiness, or fitness as a judge [or lawyer].”  However, the judge only must take “appropriate action” if the judge receives credible information which indicates a substantial likelihood that another judge or lawyer has violated the Code of Judicial Conduct or Rules of Professional Conduct.

Additionally, Rule 2.14 of the Code of Judicial Conduct further specifies that, when addressing issues of professional impairment due to substance abuse or mental, emotional, or physical conditions, “appropriate action” may include a confidential referral to JLAP.  Comment 2 to Rule 2.14, however, warns that, “Depending upon the gravity of the conduct [resulting from the impairment] …the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body.”

This means  that, as a general rule, a judge will want to consider the following five variables when deciding whether he or she is ethically obligated to report the alleged ethical violations of a fellow judge or lawyer to a disciplinary body:  1) the amount and quality of a judge’s information (rumor vs. firsthand knowledge); 2) the seriousness of the offense (technical vs. substantial violation); 3) the impact of the offense (substantial harm could or did result vs. no harm); 4) the possible remedial measures a judge could take; and 5) whether prior attempts to address the violation have gone unheeded by the offending judge or lawyer.  The first three variables carry more weight than the latter two, as a judge bears a higher burden to report serious misconduct which harms others, even if there are other remedial options that the judge could take.

So what types of conduct raise a “substantial question regarding the judge’s [or lawyer’s] honesty, trustworthiness, or fitness” to serve or practice?

The Indiana Code of Judicial Conduct does not provide specific examples of the types of conduct that constitute serious misconduct, but other jurisdictions, such as Arizona and Massachusetts have published lists of ethical violations which activate the duty to report.  (See Arizona Advisory Opinion 03-3 and Massachusetts Code of Judicial Code, commentary to Section 3D).  Similar to the examples found in the Arizona and Massachusetts commentary, the following conduct is sufficiently serious that it likely triggers the reporting requirement in Indiana:

  • Criminal or Deceitful Conduct – Deceitful conduct may include giving false testimony under oath or tampering with or falsifying court papers;
  • Sexual Misconduct/Harassment – This includes unwanted, overt sexual advances to staff, colleagues, or members of the public that rises to the level of harassment, but more minor misconduct, such as isolated inappropriate comments, may be handled by taking other appropriate measures;
  • Abuse of the Prestige of Office/Abuse of Power – This includes misusing  appointment power to show favoritism, attempting to use judicial status to receive favorable treatment during a traffic encounter, and tampering with or attempting to influence improperly the judicial action of another judge or a pending police investigation;
  • Pattern of Substance Abuse or Serial Neglect – While taking other actions may be appropriate initially, a judge’s duty to report commences when a lawyer’s or judge’s substance abuse or neglect becomes routine or threatens to injure others;
  • Repeated Profane or Abusive Behavior in Court/Conduct Bringing Judiciary into Disrepute – While an occasional language slip-up may not merit the attention of a disciplinary body, repeated abusive behavior by a judge or lawyer affects public perceptions of justice and tarnishes the reputation of the legal system as a whole.

Certainly, this list is not meant to be exhaustive, as other situations may arise which prompts a judge’s reporting obligation.  Ultimately, for judges who are wrestling with the decision whether to report particular misconduct, the best advice may be Jiminy Cricket’s words to the wise to “always let your conscience be your guide.”* After all, if a judge finds himself or herself deeply bothered by information, then likely others will view the matter equally as troubling.  Of course, judges are always welcome to call me for assistance with evaluating these issues.  I promise not to whistle.

Trial courts can seek advice on judicial ethics issues by contacting Adrienne Meiring directly at (317) 232-4706 or ameiring@courts.state.in.us.

*Lyric from “Give a Little Whistle” (performed by Jiminy Cricket, voice of Cliff Edwards) in Disney’s cartoon classic, Pinocchio (1940).