To defend himself from disciplinary charges based on his orders requiring over 120 drug court defendants to make payments to organizations not authorized by statute, a Louisiana judge recently argued that “the ABA Canon Model Code of Conduct now says if there’s a conflict . . . , you don’t use the standard Canon of Conduct . . . .  It says you defer to the drug court practice and rules.”  That argument was misplaced because the revised ABA Model Code of Judicial Conduct adopted in 2007 does not give unbridled discretion to drug court judges.  (The Judiciary Commission rejected the judge’s argument; its recommendation that the judge be censured for this and other misconduct is pending before the Louisiana Supreme Court.)

A new Comment 4 added to the prohibition on ex parte communications (Rule 2.9A) in the 2007 ABA Model Code states:

A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts.  In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

Thus, the only special ethical rule for problem-solving judges in the model code relates to ex parte communications and then only insofar as “expressly authorized” by the rules or policies of the court.

So far five states have adopted revised codes of judicial conduct based on the 2007 model code.  Delaware has not adopted a provision similar to Comment 4 to Rule 2.9A.  Indiana and Montana have adopted the comment.  (The syntax is a little different in the Montana version, which also adds “water court” as an example of a problem-solving court.)  Hawaii has greatly expanded the exception by deleting the phrase “expressly authorized by law” so that the Hawaii allows a judge to “initiate, permit, or consider ex parte communications when serving on therapeutic or problem-solving courts, such as mental health courts or drug courts,” apparently without limitation.  In the revised Ohio code, effective March 1, 2009, an exception for judges presiding over “specialized dockets” is in the text of the rule, not the comment, and states “a judge may initiate, receive, permit, or consider an ex parte communication when administering a specialized docket, provided the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage while in the specialized docket program as a result of the ex parte communication.”

by: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society