Providing Legal Advice and Support for Family Members
January 31, 2011 by Adrienne Meiring
After taking the oath of office, new judges find that their former roles in the community sometimes must be adjusted, especially when it comes to doling out legal advice. Prior to taking the bench, the judge may have served as the “go-to” person when neighbors, friends, and family members had legal questions or disputes that required the services of a lawyer. However, the Code of Judicial Conduct places restrictions on a judge’s ability to render such advice.
Rule 3.10: Practice of Law
Rule 3.10 of the Code of Judicial Conduct provides that full-time judges may practice law only in three types of situations:
- A judge may represent himself/herself on the judge’s own legal matters;
- A judge may practice law pursuant to military service; and
- A judge may give legal advice to and draft or review documents for family members as long as the judge does not receive compensation, does not serve as the family member’s lawyer before a tribunal, and does not sign any pleadings.
The rationale behind the general prohibition against practicing law is that the “likelihood of conflicts of interest, the appearance of impropriety, and the appearance of a lack of impartiality – all have their greatest potential in the practice of law by a full-time judge.” E. Wayne Thode, Reporter’s Notes to the Code of Judicial Conduct 90, 91 (ABA 1973). Nonetheless, both the Indiana Code of Judicial Conduct and the Model Code of Judicial Conduct attempt to balance the judge’s professional and personal roles by permitting judges to provide behind-the-scenes legal assistance to family members.
Who is defined as a “family member” under the Code?
The Terminology Section of the Indiana Code of Judicial Conduct defines “member of the judge’s family” to include “a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.” The family-member exception does not apply to a close friend, even if the individual has been like a member of the family.
What is considered a “tribunal”?
Although the term “tribunal” is not defined in the Code of Judicial Conduct, use of the term in other court rules suggests that the term applies to entities besides courts of record. Rule of Professional Conduct 1.0(m) defines “tribunal” as “a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.” Further, in Black’s Law Dictionary, “tribunal” is defined as “a court or other adjudicatory body.”
Black’s Law Dictionary, 9th ed. (2009). Given these interpretations, it is likely that the term “tribunal” includes most, if not all, administrative bodies that perform adjudicatory functions as well as courts of law.
What constitutes “behind the scenes”?
As a rule of thumb, judges should try to limit their legal activities for family members to behind-the-scenes assistance. Under Rule 3.10, a judge comfortably may provide the following legal services for family members:
- Draft a will or trust agreement;
- Draft or review documents incidental to a real estate transaction;
- Draft letters for the family member’s signature;
- Offer informal legal advice and opinions;
- Conduct legal research for the family member to use.
Other situations require the judge to proceed with more caution, particularly those which would require direct contact with a party whose interest is adverse to the family member’s (i.e. attending an insurance settlement meeting when there is a dispute about a family member’s coverage). Although the Code does not prohibit a judge’s attendance when a family member is informally meeting with a legal opponent, the judge will need to exercise care to not refer to his title or office during such meetings. To further avoid any appearance that the judge is attempting to trade on the prestige of office, the judge should likewise instruct the family member to not refer to the judge’s title. For judges in smaller counties where the opposing party already knows the judge’s occupation, the judge might be wise to indicate that he is attending the meeting merely as a family representative.
Can a judge attend a court hearing with a family member to provide moral support?
Although Rule 3.10 restricts a judge from serving as the family member’s lawyer before a tribunal, a judge is not prohibited from attending a family member’s court hearing to lend emotional support to the family member. Again, the judge needs to be careful to not act in a manner that would give the impression that she is attempting to use her judicial position to influence the proceedings. To safeguard against such appearance issues, the judge attending the hearing should not refer to herself as “judge” while in the courthouse and should not permit others to do so either. The judge should not interact with others in the courthouse in a way that conveys that she has the status of an insider. The judge should not wear her robe to the proceeding.
Understandably, when family members have legal problems, judges want to help. The Code of Judicial Conduct attempts to provide some leeway so that a judge can give some support to family members while maintaining the integrity and impartiality of the judiciary. With appropriate consideration, a judge should find that he or she successfully can navigate both roles when faced with these situations.