© 2009 Collaborative Lawyers, Inc.
under the 2007 ABA Model Code
Comments on the Judicial Family Institute's Report
by Elizabeth J. Kates, Esq.
Family law judges have families too. In 2007 the ABA (American Bar Association) revised its Model Judicial Ethics Code to consider the impact of judges' roles on their families, and the impact of their familial relationships on the persons who come before them. A committee was convened which issued a report written by Ethics Chair Isabel Picó Vidal, Esq. entitled Ethics and Conflicts of Interest Issues., available at http://jfi.ncsconline.org/
One of the changes made by the judicial ethics committee was to redefine and expand the definition of "family" as it pertains to judges. Formerly, "family" consisted of spouses and children. In the new Code it also includes third degree relatives such as grandparents, great grandparents, aunts, uncles, and grandchildren, as well as judges' domestic partners or significant others with whom they live. A "family member" is anyone residing in the judge's household who is related by blood or marriage.
There are four Canons in the new Model Code. Pertinent provisions applicable to judges' families are:
Rule 2.4, which deals with external influences on a judge's decision-making. The Rule provides that a judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment. The principle behind the judicial family ethics is stated in the report: "An independent judiciary requires that the judges decide cases according to the law and facts, without regard to inappropriate outside influences including family influences and/or economic interests."
Rule 2.11 addresses when a judge must disqualify himself. Rule 2.11(A) provides that a judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:
-- When the judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
-- When the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, or child, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding.
Rule 2.11(B) adds a provision that circumvents a judge's claim that he did not know about conflicting interests involving his family members. Rule 2.11(B) provides that a judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's family and household members.
The Model Code prohibits a number of extra-judicial activities that could influence a judge's decision-making, or undermine public confidence in his impartiality. Some of these are:
-- Using court premises, staff, stationary, equipment or other resources except for activities that concern the law, the legal system or the administration of justice. (Rule 3.1)
-- Having membership in organizations that discriminate on the basis of race, sex, gender, religion, national origin, ethnicity or sexual orientation. (Rule 3.3)
-- Serving as executor, administrator, trustee, guardian, attorneyinfact except for the estate, trust or person of a member of the judge's family (Rule 3.8)
-- Practicing law or serving as a family member's lawyer in any forum, not including acting pro se, and without compensation to give legal advise and draft documents for a member of the judge's family (Rule 3.10)
-- Permitting extra-judicial business activities to interfere with judicial duties, or using the judicial office to market or advertise non-judicial businesses (Rule 3.11)
An apparently difficult area for the ethics committee to address -- because the prohibition remains weak -- involved how to handle the problem of gifts and awards that would be inappropriate for a judge to receive directly, but are given to a judge's family member, which may or may not indirectly benefit the judge. A discussion of these issues, which come under Rule 3.13, is provided in the report.
As of this writing, only a couple of states have adopted the new ABA Model Judicial Ethics Code which includes more emphasis on judges' families. Indiana was the second state to do so, but in adopting the new Code, also substantially modified many of the family-related prohibitions. Some of them were weakened, but of note, the Indiana Supreme Court strengthened the judicial recusal provision under ABA Model Rule 2.11(C). In Indiana, a judge's obligation to disqualify himself from cases in which there is a conflict because of the judge's family activities and interests may not be excused "by consent of the parties after disclosure", which is permitted by the ABA Model Rules.
More information on judicial ethics can be found at the website of the American Judicature Society. Information on the the Florida Judicial Ethics Code can be found at the Florida Supreme Court website. Information on Florida attorney ethics is at the Florida Bar website, which can be accessed from the Collaborative Lawyers' Resources directory.
Elizabeth Kates has practiced law in Florida for nearly 30 years. She was a charter member and director of Collaborative Lawyers of South Florida, Inc. for eight years prior to becoming Vice President and Director of Collaborative Lawyers Inc.
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