Court Ethics:Court Ethics:

Applying the Codes in Applying the Codes in

Changing TimesChanging Times

Karl ThoennesKarl ThoennesPeter KieferPeter Kiefer

National Association for Court ManagementNational Association for Court ManagementMid-Year ConferenceMid-Year ConferenceTuesday, February 7, 2012Tuesday, February 7, 2012

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Presentation ObjectivesPresentation Objectives

• Become familiar with ethics codesBecome familiar with ethics codes

• Show that ethics codes are importantShow that ethics codes are important

• Discuss the ethics of practical situationsDiscuss the ethics of practical situations  • Discuss how to make ethics codes more Discuss how to make ethics codes more

relevantrelevant

• Have FunHave Fun2 of 31

Are Ethics Important?Are Ethics Important?

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ToKillAMockingBird.mp4

Are Ethics Important?Are Ethics Important?

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Lincoln Lawyer.mp4

•Has our perception the courts changed since Has our perception the courts changed since “To Kill a Mocking Bird” premiered in 1962?“To Kill a Mocking Bird” premiered in 1962?

•Do the two clips accurately depict that Do the two clips accurately depict that changing perception? changing perception? 

•What role do we as court professionals have What role do we as court professionals have in countering that perception?in countering that perception?

Are Ethics Important?Are Ethics Important?

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• A fair and independent court system is A fair and independent court system is essential to the administration of justice in a essential to the administration of justice in a democratic society.democratic society.

• Proper conduct by court employees:Proper conduct by court employees:– inspires public trust and confidence in the inspires public trust and confidence in the

courts; andcourts; and– conveys impartiality, equity, fairness, and conveys impartiality, equity, fairness, and

integrity;integrity;

Are Ethics Important?Are Ethics Important?

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Scenario: 1Scenario: 1

Betty’s SisterBetty’s Sister

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Betty’s SisterBetty’s SisterCodesCodes

MINNESOTA JUDICIAL BRANCH POLICYMINNESOTA JUDICIAL BRANCH POLICY(Minnesota Policy)(Minnesota Policy)

Article I.  C. Article I.  C. Abuse of Position and Conflict of Interest Abuse of Position and Conflict of Interest Employees shall act so that they are not unduly affected Employees shall act so that they are not unduly affected or appear to be affected by kinship, position, or influence or appear to be affected by kinship, position, or influence of any party or person.of any party or person.   

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Betty’s SisterBetty’s SisterCodesCodes

Minnesota PolicyMinnesota Policy

Article I.  K. Abuse of Position and Conflict of Interest Employees shall not give legal advice.

   

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Betty’s SisterBetty’s SisterCodesCodes

NATIONAL ASSOCIATION FOR COURT MMANAGEMENT NATIONAL ASSOCIATION FOR COURT MMANAGEMENT MODEL CODE OF CONDUCT FOR COURT MODEL CODE OF CONDUCT FOR COURT PROFESSIONALSPROFESSIONALS(NACM Model Code)(NACM Model Code)

Canon 1.2 - Canon 1.2 - Avoiding ImproprietyAvoiding Impropriety Members shall act so that they are not unduly affected or Members shall act so that they are not unduly affected or appear to be affected by kinship, position, or influence or appear to be affected by kinship, position, or influence or any party or person.any party or person.

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Betty’s SisterBetty’s SisterCodesCodes

AMERICAN JUDICATURE SOCIETY MODEL CODE OF AMERICAN JUDICATURE SOCIETY MODEL CODE OF CONDUCT FOR NONJUDICIAL COURT EMPLOYEESCONDUCT FOR NONJUDICIAL COURT EMPLOYEES(AJS Model Code)(AJS Model Code)

Section III (A) – Section III (A) – Conflict of InterestConflict of Interest . . . every court employee is required to exercise diligence . . . every court employee is required to exercise diligence in becoming aware of conflicts of interest, disclosing in becoming aware of conflicts of interest, disclosing conflicts to the designated authority and ending them conflicts to the designated authority and ending them when they arise. when they arise.

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Betty’s SisterBetty’s SisterCodesCodes

AJS Model CodeAJS Model Code

Section V (F) – Section V (F) – Performance of DutiesPerformance of DutiesNo court employee shall give legal advice or recommend No court employee shall give legal advice or recommend the names of private attorneys.the names of private attorneys.

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Betty’s SisterBetty’s SisterQuestionsQuestions

• Has anyone ever experienced something like Has anyone ever experienced something like this? this?

• Does Betty have an ethical dilemma?Does Betty have an ethical dilemma?

• What can we do for people like Delores?What can we do for people like Delores? • What should the court have done to make it What should the court have done to make it

easier for Betty to have done the right thing?easier for Betty to have done the right thing?12 of 31

Scenario: 2Scenario: 2

Supervisor’s Supervisor’s DilemmaDilemma

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The Supervisor’s DilemmaThe Supervisor’s Dilemma CodesCodes

Minnesota PolicyMinnesota Policy

Article VI. A.  Article VI. A.  Duty to Report Duty to Report Employees shall disclose to MJC or District Employees shall disclose to MJC or District Administration, Human Resources and the Appointing Administration, Human Resources and the Appointing Authority any arrests, criminal charges, or criminal Authority any arrests, criminal charges, or criminal convictions on the next business day following the convictions on the next business day following the arrest, criminal charge, or conviction; or as soon as arrest, criminal charge, or conviction; or as soon as practicable.practicable. 

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The Supervisor’s DilemmaThe Supervisor’s Dilemma CodesCodes

NACM Model CodeNACM Model Code

Canon 2.3:Canon 2.3: Misconduct of Others Misconduct of OthersA court professional shall report to the appropriate A court professional shall report to the appropriate authority the behavior of any court professional who authority the behavior of any court professional who violates this code including, but not limited to, violates this code including, but not limited to, potential conflicts of interest involving one’s duties potential conflicts of interest involving one’s duties and attempts to inappropriately influence one in and attempts to inappropriately influence one in performing one’s duties.performing one’s duties.

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The Supervisor’s DilemmaThe Supervisor’s DilemmaCodesCodes

AJS Model CodeAJS Model Code

Section Five (h):Section Five (h): Performance of Duties Performance of DutiesEvery court employee shall immediately report Every court employee shall immediately report violations of this Code to the appropriate designated violations of this Code to the appropriate designated authority.authority.

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The Supervisor’s Dilemma The Supervisor’s Dilemma QuestionsQuestions

• Does Dan have a point since he waited for Dale to Does Dan have a point since he waited for Dale to tell Phil King?tell Phil King?

• Is this just an HR rules issue or is there an ethical Is this just an HR rules issue or is there an ethical issue involved?issue involved?

• What options does Phil King have? What options does Phil King have?

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Scenario: 3Scenario: 3

Defriending Mr. Defriending Mr. KingKing

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Defriending Mr. KingDefriending Mr. KingCodesCodes

Minnesota Policy

Article IV Article IV Release of News InformationRelease of News InformationNo personnel rule is intended to restrict the rights of No personnel rule is intended to restrict the rights of an individual employee to comment as a private citizen an individual employee to comment as a private citizen on a public matter.  However, all media requests for on a public matter.  However, all media requests for information on Judicial Branch business should be information on Judicial Branch business should be referred to a supervisor or an employee designated to referred to a supervisor or an employee designated to respond to such requests. respond to such requests.

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Defriending Mr. KingDefriending Mr. KingCodesCodes

Minnesota Policy

Article V Article V Performance of DutiesPerformance of DutiesEmployees shall avoid any activity that would reflect Employees shall avoid any activity that would reflect adversely on their position or court.  adversely on their position or court.  

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Defriending Mr. KingDefriending Mr. KingCodesCodes

NACM Model CodeNACM Model Code

Canon 1.2 Avoiding ImproprietyCanon 1.2 Avoiding Impropriety A court professional shall avoid activities that would A court professional shall avoid activities that would impugn the dignity of the court.impugn the dignity of the court.

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Defriending Mr. KingDefriending Mr. KingCodesCodes

NACM Model CodeNACM Model Code

Canon 2.7 DiscretionCanon 2.7 DiscretionA court professional shall be respectful of litigants, the A court professional shall be respectful of litigants, the public, applicants and employees’ personal lives; public, applicants and employees’ personal lives; disregard information that legally cannot or should not disregard information that legally cannot or should not otherwise be considered; use good judgment in otherwise be considered; use good judgment in weighing the credibility of Internet data; and be weighing the credibility of Internet data; and be cautious about verifying identities.cautious about verifying identities.

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Defriending Mr. KingDefriending Mr. KingCodesCodes

NACM Model CodeNACM Model Code

Canon 2.7 Discretion (Continued)Canon 2.7 Discretion (Continued)A court professional shall treat personal or sensitive A court professional shall treat personal or sensitive information with the same discretion that one would information with the same discretion that one would wish others to have if one were involved in a similar wish others to have if one were involved in a similar case. case.

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Defriending Mr. KingDefriending Mr. KingCodesCodes

AJS Model CodeAJS Model Code

Section Six (D):Section Six (D): Court Managers Court ManagersCourt managers shall take action regarding any Court managers shall take action regarding any unethical conduct of which they may become aware, unethical conduct of which they may become aware, initiating appropriate disciplinary measures against an initiating appropriate disciplinary measures against an employee for any such conduct and reporting to employee for any such conduct and reporting to appropriate authorities evidence of any unethical appropriate authorities evidence of any unethical conduct by judges or lawyers.conduct by judges or lawyers.

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Defriending Mr. KingDefriending Mr. KingQuestionsQuestions

• Does making disparaging remarks on the social Does making disparaging remarks on the social network truly qualify as an ethical question?network truly qualify as an ethical question?

• Do courts have the right to look on the social Do courts have the right to look on the social network for employee comments?network for employee comments?

• Do courts have the right to dictate what employees Do courts have the right to dictate what employees can have on their social networking sites? can have on their social networking sites?

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Why Do This?Why Do This?

•The Integrity of the Judicial BranchThe Integrity of the Judicial Branch

•More than Just Personnel RulesMore than Just Personnel Rules

•Not Just Right or Wrong AnswersNot Just Right or Wrong Answers  •Your Job to Make the Code RelevantYour Job to Make the Code Relevant

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A Final WordA Final Word

““Ethics are not laws.  They are not imposed by the state.  Rather, Ethics are not laws.  They are not imposed by the state.  Rather, they are norms, values, beliefs, habits, and attitudes that are they are norms, values, beliefs, habits, and attitudes that are embraced voluntarily – that we as a society impose on embraced voluntarily – that we as a society impose on ourselves.  Laws regulate behavior from the outside in.  Ethics ourselves.  Laws regulate behavior from the outside in.  Ethics regulate behavior from the inside out.  Ethics are something you regulate behavior from the inside out.  Ethics are something you carry with you wherever you go to guide whatever you do.” carry with you wherever you go to guide whatever you do.” 

Thomas L. FriedmanThomas L. Friedman

““For every problem, there is a solution that is simple, neat, and For every problem, there is a solution that is simple, neat, and wrong.wrong.

H. L. MenkenH. L. Menken

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