Navigating Your Way Through the Judicial Code of Conduct

Judicial Ethics

Concept behind the Code of Judicial

Conduct

It’s a responsibility and a privilege to serve

Application of the Judicial CodeSo if it’s called the Judicial Code of Conduct,

why does it apply to me?

Application of the Judicial CodeRule 2.12 of the Code of Judicial Conduct

provides that:

(A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.

Structure of the CodeCanon 1: upholding the

integrity of the judiciary & avoiding impropriety & appearance of impropriety

Canon 2: maintaining impartiality, competence & diligence

Canon 3: conflicts of interest

Canon 4: political activity

Canon 1 (aka Don’t Disgrace the Court)

Canon 1But I’m an upstanding citizen & I never make

a public spectacle of myself, do I really need to be concerned about Canon 1?

Rule 1.3 provides that:

A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or others, or allow others to do so.

Abuse of Prestige of Office: What Does That Mean?Judge/Staff Can Do Judge/Staff Cannot DoWrite a letter of

recommendation, if based on personal knowledge

Attend court or admin. hearing of a family member, if no attempt is made to highlight judicial office to influence decision maker

Write letter to parole board, etc. to vouch for someone’s character

Refer to the judicial office to avoid a parking or traffic ticket

Use court stationary or refer to the judicial office to gain an advantage in conducting personal business

Canon 2: Be Impartial, Competent & DiligentRule 2.3 provides that:

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

Comment 2 to Rule 2.3EpithetsSlursDemeaning nicknames Negative stereotypingAttempted humor

based upon stereotypes

Threatening, intimidating, or hostile acts

Suggestions of connections between race, ethnicity or nationality & crime

Irrelevant references to personal characteristics

Facial expressions & body language can convey bias or the appearance of bias

Thumper’s Rule

If you can’t say something nice, don’t say anything at all . . .

Canon 2, Rule 2.5Rule 2.5 provides that:

(A) A judge shall perform judicial and administrative duties competently, diligently, and promptly.(B) A judge shall cooperate with other judges and court officials in the administration of court business.

In other words, don’t delay.

Canon 2, Rule 2.8Rule 2.8 provides that:

(A) A judge shall require order and decorum in proceedings before the court. (B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control. (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

So…if you’re having this kind of day…

You might want to have someone else work the counter….

And if this is your impulse on the jury’s verdict…• You might want someone else on staff to escort the jury out of the courtroom. . .

Canon 2, Rule 2.9 (Ex Parte)The “General Rule” –

(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter.

Exceptions Communication for scheduling, administrative, or

emergency purposes if: 1.Doesn’t address substantive matters2.No party gains procedural, substantive ,or tactical

advantage3. Judge promptly notifies all other parties of substance of

communication & gives opportunity to respondWritten advice of disinterested expertConsultations with court staff, other judges, and officials

whose function is to aid judge in adjudicative responsibilities

Settlement conferences (if done w/ parties’ consent)When authorized by law (i.e. protective order)

So what is “ex parte”?“Ex parte

communication” means any communication “on behalf of or involving one party to a legal matter” that is “conducted in the absence of or without notice to the other party.”

What kinds of things can be ex parte?LettersVerbal CommunicationEmailsGoogle and other web searchesInappropriate assistance to one party (see In

re Kern, 774 N.E.2d 878 (Ind. 2002))Informing only one side about the court’s

orders

What should I do if I receive ex parte communication?Written communications should go to the judge – if it

is an improper ex parte communication, judge can act pursuant to Rule 2.9(B) & notify all the parties & provide parties with an opportunity to respond

If it is a verbal communication, is it just general “venting” after an order or ruling or is it an attempt to influence the decision maker?

ALWAYS tell the judge about any threats received, even if it occurs as a result of an ex parte communication

How do I avoid ex parte contacts?Can I have a phrase

please……When someone wants to see

the judge & starts talking about his/her case…..

Response: “Ethical rules prevent the judge from talking to only one side about the case. If you want the judge to consider that, you’ll need to file a motion or bring it up during a hearing . . .”

Rule 2.10 – Judicial Statements on Pending and Impending CasesRule 2.10 provides that: (A) A judge shall not make any public statement that might

reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.

(C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).

In other words…Keep It Confidential!!!!

Disqualification & Conflicts of InterestRule 2.11 provides that:

(A)A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned.

(However, not all staff “conflicts” will require the judge to disqualify; in certain situations, the judge can simply keep that staff member from working on the case in which there is a conflict)

So what does my judge need to know?If you are a party or

witness in a caseIf a family member

within the 3rd degree or his/her spouse (great grandparent, grandparent, parent, uncle, aunt, niece, nephew, brother, sister, child, grandchild, or great grandchild) is a party or witness

If your spouse, domestic partner, or someone residing in your household is a party or witness

If you have a substantial economic interest that could be affected by the decision

If you are related to an attorney on the case

Canon 4 – Political Activity

What types of political activity am I permitted to do?

Questions to ask:1)Do you work for an

elected judge or an appointed judge?

2)Are you attempting to do something for the judge which he/she cannot do under the rules?

3)What is your judge’s policy?

Rule 4.6 – Political Activities of Nonjudicial Court EmployeesRule 4.6 provides that:

(A) An appointed judge in an office filled by retention election must require nonjudicial court employees to abide by the same standards of political conduct which bind the judge.

(B) A judge in an office filled by partisan or nonpartisan election must not permit nonjudicial court employees to run for or hold nonjudicial partisan elective office or to hold office in a political party’s central committee.

Political Activities of Nonjudicial Court EmployeesComment 2 to Rule 4.6 further provides that:

[2] Unlike appointed judges subject to retention, judges in partisan and nonpartisan elective office are not required to hold their employees to the same limitations on political conduct which apply to the judges.

Other Miscellaneous ProvisionsRule 2.13 – Hiring and Nepotism Rule 3.13(A) – Gifts

Rule 3.5 – Use of Nonpublic Information

Who should I talk to when I have ethics questions?Talk to your judge If your judge is not

available (or it is not practical to consult with him/her), talk to another judicial officer

Or call Adrienne Meiring at 317-232-4706 or email at ameiring@courts.state.in.us