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Court Ethics:Court Ethics:

Practical Applications ofPractical Applications of

Ethics CodesEthics Codes

Karl ThoennesKarl Thoennes

Peter KieferPeter Kiefer

Oregon Association for Court AdministrationOregon Association for Court Administration

October 20, 2008 Bend, OregonOctober 20, 2008 Bend, Oregon

Presentation ObjectivesPresentation 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 Discuss the ethical implications of some practical situationspractical situations

  • Discuss how to make codes relevantDiscuss how to make codes relevant

• Have FunHave Fun

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Are Ethics Important?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

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Structure of Ethics Codes:Structure of Ethics Codes: A Broad SpectrumA 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 Personnel policies/rules address ethical standards

(New Mexico)(New Mexico)• No written code (South Dakota)No written code (South Dakota)• Others?Others?

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Scenario #1:Scenario #1:

Betty’s SisterBetty’s Sister

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Betty’s SisterBetty’s SisterQuestionsQuestions

•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 Are there practical implications to people finding out about what Betty did?out about what Betty did?

•Do the codes work in this situation?Do the codes work in this situation?

Betty’s SisterBetty’s SisterCodesCodes

NACM Model Code Canon 1.2 - NACM Model Code Canon 1.2 - Avoiding ImproprietyAvoiding Impropriety

A court professional shall avoid improper influences A court professional shall avoid improper influences from business, family, position, party, or person.from business, family, position, party, or person.

Canon 1.7 - Canon 1.7 - Assisting LitigantsAssisting Litigants

A court professional shall be responsive to inquiries A court professional shall be responsive to inquiries regarding standard court procedures, but shall not give regarding standard court procedures, but shall not give legal advice unless it is required as part of one’s official legal advice unless it is required as part of one’s official position.position. 6 of 19

Betty’s SisterBetty’s SisterCodesCodes

AMERICAN JUDICATURE SOCIETYAMERICAN JUDICATURE SOCIETY(AJS) Section III (A) – (AJS) 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.

Section V (F) – Section V (F) – Performance of DutiesPerformance of Duties

No 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 Sister CodesCodes

OACA Section I.C – OACA Section I.C – Abuse of Position and Conflict of Abuse of Position and Conflict of InterestInterest

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 of appear to be affected by kinship, position, or influence of any party or person.any party or person.

Section II.B - Section II.B - ConfidentialityConfidentiality

Members shall not give legal advice unless specifically Members shall not give legal advice unless specifically required to do so as part of their official position.required to do so as part of their official position.

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Betty’s SisterBetty’s Sister CodesCodes

Oregon Judicial Department (OJD)Oregon Judicial Department (OJD)Section 7.01 (20) (c) – Section 7.01 (20) (c) – Employment IssuesEmployment Issues

Abstain from recommending the services of a specific Abstain from recommending the services of a specific attorney(s) unless that is part of assigned duties (family attorney(s) unless that is part of assigned duties (family law facilitation program employees may be authorized to law facilitation program employees may be authorized to provide referrals to agencies and resources that provide provide referrals to agencies and resources that provide legal and other services to parents or children;legal and other services to parents or children;

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Scenario #2:Scenario #2:

Gifts, Gifts, GiftsGifts, Gifts, Gifts

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Gifts, Gifts, GiftsGifts, Gifts, GiftsQuestionsQuestions

• 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, GiftsGift, Gifts, GiftsCodesCodes

NACM MODEL CODE Canon 3.3 NACM MODEL CODE Canon 3.3 - Avoiding Gifts- Avoiding Gifts

A court professional shall not solicit, accept, agree to A court professional shall not solicit, accept, agree to accept, or dispense any gift, favor, or loan either for accept, or dispense any gift, favor, or loan either for oneself or on behalf of another based upon any oneself or on behalf of another based upon any understanding, either explicit or implicit, that would understanding, either explicit or implicit, that would influence an official action of the court.influence an official action of the court.

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Gifts, Gifts, Gifts Gifts, Gifts, Gifts CodesCodes

AJS Section I (B) - AJS Section I (B) - Abuse of PositionAbuse of Position

No court employee shall solicit, accept or No court employee shall solicit, accept or agree to accept any gifts, loans, gratuities, agree to accept any gifts, loans, gratuities, discounts, favors, hospitality or services under discounts, favors, hospitality or services under circumstances from which it could reasonably circumstances from which it could reasonably be inferred that a major purpose of the donor is be inferred that a major purpose of the donor is to influence the court employee in the to influence the court employee in the performance of official duties.performance of official duties.

Gifts, Gifts, Gifts Gifts, Gifts, Gifts CodesCodes

OACA Section I.B – OACA Section I.B – Abuse of Position and Conflict of Abuse of Position and Conflict of InterestInterest

Members shall not accept, agree to accept, dispose, Members shall not accept, agree to accept, dispose, or solicit any gift or favor based upon an or solicit any gift or favor based upon an understanding that the official actions of the member understanding that the official actions of the member would be influenced thereby.would be influenced thereby.

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Gifts, Gifts, Gifts Gifts, Gifts, Gifts CodesCodes

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:Scenario #3:

A Future Up in A Future Up in SmokeSmoke

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A Future Up in SmokeA Future Up in Smoke QuestionsQuestions

• 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?

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A Future Up in SmokeA Future Up in Smoke CodesCodes

NACM Model Code Canon 1.3 - NACM Model Code Canon 1.3 - FairnessFairness

A court professional shall conduct his or her work A court professional shall conduct his or her work without bias or prejudice including, but not limited to, without bias or prejudice including, but not limited to, bias or prejudice based upon race, gender, skin bias or prejudice based upon race, gender, skin color, religion, age, sexual orientation, national color, religion, age, sexual orientation, national origin, language, marital status, socioeconomic origin, language, marital status, socioeconomic status, or physical or mental challenge.status, or physical or mental challenge.

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A Future Up in SmokeA Future Up in Smoke CodesCodes

AJS Section V (E) – AJS Section V (E) – Performance of DutiesPerformance of Duties

No court employee shall discriminate on the basis of No court employee shall discriminate on the basis of nor manifest, by words or conduct, bias or prejudice nor manifest, by words or conduct, bias or prejudice based on race, religion, national origin, gender, based on race, religion, national origin, gender, sexual orientation or political affiliation in the sexual orientation or political affiliation in the conduct of service to the court.conduct of service to the court.

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A Future Up in SmokeA Future Up in Smoke CodesCodes

OACA Section III.B – OACA Section III.B – Performance of DutiesPerformance of Duties

Members shall not discriminate on the basis of, nor Members shall not discriminate on the basis of, nor manifest by words or conduct, a bias or prejudice manifest by words or conduct, a bias or prejudice based upon race, color, religion, national origin, based upon race, color, religion, national origin, gender, or other groups protected by laws, in the gender, or other groups protected by laws, in the conduct of service to the court and public.conduct of service to the court and public.

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A Future Up in SmokeA Future Up in Smoke CodesCodes

RULE 5 - RULE 5 - EQUAL EMPLOYMENT OPPORTUNITY POLICYEQUAL EMPLOYMENT OPPORTUNITY POLICY

All recruitment, hiring, training, promotions, transfers, and All recruitment, hiring, training, promotions, transfers, and administration of all personnel policies, procedures, administration of all personnel policies, procedures, practices, programs, and services shall be conducted or practices, programs, and services shall be conducted or administered without regard to race, color, religion, administered without regard to race, color, religion, national origin, sex, political affiliation, age, marital status, national origin, sex, political affiliation, age, marital status, mental or physical disability, or sexual orientation.mental or physical disability, or sexual orientation.

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Why Do This?Why Do This?

• Should codes include sanctions?

• Should codes be part of personnel rules?

• Should codes be aspirational?

Why Do This?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

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