Attorneys’ role in upholding judicial ethics
Attorneys constitute an inseparable part of the judicial system and, as such, they serve a vital role in guarding its integrity and objectivity. This duty includes upholding judicial canons, both in the courtroom and outside its bounds. While the judges are bound by their judicial ethics rules, attorneys ought to comply with those same rules to assure judicial fairness.
The adversarial process is one of the main pillars of our justice system. Consequently, specific rules exist to protect its proper functioning. Any communication between a judge and a party to a legal proceeding without the presence of the opposing party or their attorney is called “ex parte communication” and is generally prohibited. In the courtroom, limited exceptions exist to handle administrative matters, scheduling, or in case of an emergency. For example, a party may request an ex parte order to protect themselves against domestic violence. The judge may issue a temporary ex parte order without prior notice to the other party but, before a permanent order is issued, a hearing will be scheduled within a short time to ensure that there was an actual need for that order and that the defendant has an opportunity to respond to the allegations. When interreacting with an attorney privately, a judge should safeguard that neither side gains an unfair advantage via such private conversation.
An attorney should not exploit his or her personal relationship with a judge in order to influence the judicial decision or conduct. In a small town like ours, it is not unusual to personally know the presiding judges. While it is the attorney’s job to convince the judge to rule in their client’s favor, such persuasion can only be used in the courtroom and within the rules of law. An attorney should never allow or attempt to use a personal relationship with a judge to influence the outcome of the legal proceedings. An attorney should also never insinuate to a client that his or her private association with a judge can be used to the client’s benefit. Such insinuation harms not only the integrity of the judicial system but also the attorney’s reputation.
An attorney should also not enter into a business relationship with a judge who is likely to preside over the attorney’s cases as such endeavor could be perceived as an exploitation of the judicial position. Further, when making financial contributions to a judge’s campaign, an attorney may not attempt to use it as disguise for illegal gifts or bribes intended to elicit favorable case outcomes.
Generally, an attorney should not make gifts to a judge if acceptance is prohibited by law or creates an appearance of lack of impartiality. Such a gift may be perceived as an attempt to influence a judicial decision in a case. Certain exceptions apply to this rule such as an attorney gifting a judge with items of little value including greeting cards or ordinary social hospitality for example. If an attorney enjoys a close personal relationship with a judge that would require a disqualification of the judge if that attorney were to appear before that judge, then gifts more than of little value are generally allowed.
Attorneys have an ethical duty to protect and uphold the integrity of the justice system. Therefore, in addition to compliance with their own rules of conduct, attorneys should not commit acts that would result in violation of the judicial canons.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.