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2 Court Ethics: Practical Applications of Ethics Codes Karl Thoennes Peter Kiefer Oregon Association for Court Administration October 20, 2008 Bend, Oregon

Presentation Objectives Become familiar with ethics codesBecome familiar with ethics codes Agree that ethics codes are importantAgree that ethics codes are important Discuss the ethical implications of some practical situationsDiscuss the ethical implications of some practical situations Discuss how to make codes relevantDiscuss how to make codes relevant Have FunHave Fun 2 of 19

4 Are Ethics Important? “We haven’t been sued recently so we don’t need to worry about ethics.” Scooter Libby William Jefferson Paul Wolfowitz Michael Nifong Judge Roy Pearson Alberto Gonzales Eliot Spitzer J.A.I.L. Judicial Accountability Initiative Law 3 of 19

Structure of Ethics Codes: A Broad Spectrum Highly Detailed (Federal Courts)Highly Detailed (Federal Courts) Detailed, with web-based tutorials (California)Detailed, with web-based tutorials (California) Brief, broad, general (NACM, Pennsylvania, AJS)Brief, broad, general (NACM, Pennsylvania, AJS) Code for non-judicial employees (New Jersey)Code for non-judicial employees (New Jersey) Judicial Code for non-judicial employees (Minn.)Judicial Code for non-judicial employees (Minn.) Personnel policies/rules address ethical standards (New Mexico)Personnel policies/rules address ethical standards (New Mexico) No written code (South Dakota) No written code (South Dakota) Others? Others? 4 of 19

Scenario #1: Betty’s Sister 5 of 19

Betty’s Sister Questions Who has experienced something like this?Who has experienced something like this? Do you think Betty is justified?Do you think Betty is justified? What code sections come into play?What code sections come into play? Are there practical implications to people finding out about what Betty did?Are there practical implications to people finding out about what Betty did? Do the codes work in this situation?Do the codes work in this situation?

Betty’s Sister Codes NACM Model Code Canon Avoiding Impropriety A court professional shall avoid improper influences from business, family, position, party, or person. Canon Assisting Litigants A court professional shall be responsive to inquiries regarding standard court procedures, but shall not give legal advice unless it is required as part of one’s official position. 6 of 19

Betty’s Sister Codes AMERICAN JUDICATURE SOCIETY (AJS) Section III (A) – Conflict of Interest... every court employee is required to exercise diligence in becoming aware of conflicts of interest, disclosing conflicts to the designated authority and ending them when they arise. Section V (F) – Performance of Duties No court employee shall give legal advice or recommend the names of private attorneys. 6 of 19

Betty’s Sister Codes OACA Section I.C – Abuse of Position and Conflict of Interest Members shall act so that they are not unduly affected or appear to be affected by kinship, position, or influence of any party or person. Section II.B - Confidentiality Members shall not give legal advice unless specifically required to do so as part of their official position. 7 of 19

Betty’s Sister Codes Oregon Judicial Department (OJD) Section 7.01 (20) (c) – Employment Issues Abstain from recommending the services of a specific attorney(s) unless that is part of assigned duties (family law facilitation program employees may be authorized to provide referrals to agencies and resources that provide legal and other services to parents or children; 8 of 19

Scenario #2: Gifts, Gifts, Gifts 10 of 19

Gifts, Gifts, Gifts Questions Gifts, Gifts, Gifts Questions Was Ed Edwards doing the right thing?Was Ed Edwards doing the right thing? Was Rachel Dexter right in giving the chocolates?Was Rachel Dexter right in giving the chocolates? What sections of the codes come into play?What sections of the codes come into play? Do the ethics codes provide adequate guidance?Do the ethics codes provide adequate guidance? How can a court train for this situation?How can a court train for this situation? 13 of 19

Gift, Gifts, Gifts Codes NACM MODEL CODE Canon Avoiding Gifts A court professional shall not solicit, accept, agree to accept, or dispense any gift, favor, or loan either for oneself or on behalf of another based upon any understanding, either explicit or implicit, that would influence an official action of the court. 11 of 19

15 Gifts, Gifts, Gifts Codes AJS Section I (B) - Abuse of Position No court employee shall solicit, accept or agree to accept any gifts, loans, gratuities, discounts, favors, hospitality or services under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence the court employee in the performance of official duties.

Gifts, Gifts, Gifts Codes OACA Section I.B – Abuse of Position and Conflict of Interest Members shall not accept, agree to accept, dispose, or solicit any gift or favor based upon an understanding that the official actions of the member would be influenced thereby. 12 of 19

17 Gifts, Gifts, Gifts Codes OJD Rule 19 – Gifts – Favors No employee shall solicit or accept any gift or favor from a person or organization that may benefit from the employee’s official position with the Judicial Department or from a person or organization whose interests may be substantially affected by the performance or non- performance of the employee’s official duty. Subject to the administrative authority‘s assessment of the propriety of accepting a gift, a gift designated for a group of individuals may be accepted. Gifts that cannot be accepted and cannot by returned shall be donated to charity.

Scenario #3: A Future Up in Smoke 14 of 19

A Future Up in Smoke Questions Is Judge Abrams justified?Is Judge Abrams justified? How could Marie have done?How could Marie have done? What are Helen’s options?What are Helen’s options? What sections of the codes come into play?What sections of the codes come into play? Can the codes address this situation?Can the codes address this situation? 18 of 19

A Future Up in Smoke Codes NACM Model Code Canon Fairness A court professional shall conduct his or her work without bias or prejudice including, but not limited to, bias or prejudice based upon race, gender, skin color, religion, age, sexual orientation, national origin, language, marital status, socioeconomic status, or physical or mental challenge. 15 of 19

A Future Up in Smoke Codes AJS Section V (E) – Performance of Duties No court employee shall discriminate on the basis of nor manifest, by words or conduct, bias or prejudice based on race, religion, national origin, gender, sexual orientation or political affiliation in the conduct of service to the court. 16 of 19

A Future Up in Smoke Codes OACA Section III.B – Performance of Duties Members shall not discriminate on the basis of, nor manifest by words or conduct, a bias or prejudice based upon race, color, religion, national origin, gender, or other groups protected by laws, in the conduct of service to the court and public. Members shall not discriminate on the basis of, nor manifest by words or conduct, a bias or prejudice based upon race, color, religion, national origin, gender, or other groups protected by laws, in the conduct of service to the court and public. 17 of 19

A Future Up in Smoke Codes RULE 5 - EQUAL EMPLOYMENT OPPORTUNITY POLICY All recruitment, hiring, training, promotions, transfers, and administration of all personnel policies, procedures, practices, programs, and services shall be conducted or administered without regard to race, color, religion, national origin, sex, political affiliation, age, marital status, mental or physical disability, or sexual orientation. 17 of 19

24 Why Do This? Should codes include sanctions? Should codes be part of personnel rules? Should codes be aspirational?

Why Do This? It’s the Integrity of the Judicial BranchIt’s the Integrity of the Judicial Branch It’s More than Just Personnel RulesIt’s More than Just Personnel Rules It’s Not Just Right & Wrong AnswersIt’s Not Just Right & Wrong Answers It’s Your Job to Make the Code RelevantIt’s Your Job to Make the Code Relevant 19 of 19

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