Abstract
The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas with little formal institutional support. They must rely on their own resources or informal advice and counsel from colleagues and the head of jurisdiction. This article will explore whether this arrangement continues to be appropriate. We consider a hypothesis that a number of factors, including the growing numbers and diversity of the judiciary mean that it is less likely that there will be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers as to the adequacy of the ethical support available to them. Finally, we consider the variety of supports that are available in comparable jurisdictions and also in the legal profession, before turning to possible solutions to the question our hypotheses raise, including the introduction of ‘ethical infrastructures’ in the form of more formal arrangements that provide ethical guidance to judges. We argue that these ethical support mechanisms have the potential to enhance the quality of ethical decision-making and foster an ethical culture within the judiciary.
Introduction
Traditional values, such as those encapsulated by the concepts of judicial independence and impartiality, rightly remain central to the work and regulation of judicial officers. At the same time, other more contemporary values are clamouring for attention: legitimacy, transparency, accountability, representativeness and efficiency. 1 The creation of frameworks that incorporate these values can encounter resistance as they may be seen to pose significant challenges to the more traditional values. This tension can be seen in the attempts to incorporate a more diverse and representative judiciary as well as enlarging the bench. Both of these changes pose challenges to the traditional, informal frameworks for ethical support within the judiciary.
The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges to determine for themselves. This has been justified as an important dimension of the protection of the independence of the judiciary: both from the influence that might originate outside the judicial branch and from the influences of other judges within it. Under that traditional, individualised system, ‘professional osmosis’, that is, the ‘example and influence of respected peers’, assisted them.
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The 18 rules for judges set down by Lord Hale in about 1660 were a notable early exception to this standard approach (these included the exhortation that judges should be ‘short and sparing at meals’).
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Since that time the Bangalore Principles of Judicial Conduct, developed by the international Judicial Integrity Group and adopted by a roundtable of chief justices drawn from across the globe in 2002, have attempted to provide a unifying set of principles for the world’s judiciary. These state that they [a]re designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary.
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Today in most jurisdictions, pronouncements on ethics are simply offered as guidance, with clear stipulations that they should not be used as part of any formalised and structured accountability and disciplinary processes. 5 In other jurisdictions more assertive steps are taken to control judicial conduct with ‘ethical codes’ being compulsory, backed by the prospect of disciplinary proceedings. 6 Within both models, these instruments and exhortations aside, judges are still frequently left to consider ethical dilemmas with little formal institutional support. This article will explore whether this arrangement is appropriate in modern times for the Australian judiciary, particularly in view of its current makeup with an enlarged and more diverse membership.
In Part I of this article, we open by defining our key terms before explaining the traditional, informal arrangements for providing ethical guidance to judicial officers through advice and counsel from colleagues and the head of jurisdiction. This part also explores a hypothesis that a number of factors, including the growing diversity of the judiciary — in terms of gender, race, ethnicity, religion, sexuality, class, education, age and geographic region — mean that it is less likely that there be common understandings of the ethical values to be employed in resolving difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. In Part II, drawing on the findings of a survey of 138 judicial officers across Australian jurisdictions that was conducted in 2016, we test these hypotheses by reference to the perceptions of Australian judicial officers to the adequacy of the ethical support available to them. In Part III, we turn to possible solutions, including the introduction of what have been referred to as ‘ethical infrastructures’, 7 that is, ‘formal and informal management policies, procedures and controls, work team cultures, and habits of interaction and practice that support and encourage ethical behaviour’. 8 This could include an institutional approach, that is, the introduction of formal mechanisms for ethical guidance such as committees that provide ethical support to judges. Ethical infrastructures in this form have been implemented in some jurisdictions, although not necessarily for the reasons we have identified.
PART I: The Traditional Model and Its Challenges
Before continuing, it is useful to address a threshold issue: the nature of, and the intersection between, legal and ethical issues. Ethics can be focused on a single enquiry: What does it mean to be ‘right, fair, just or good’?
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Christine Parker and Adrian Evans consider that: Ethics is concerned with deciding what is the good or right thing to do — right or wrong action, and with the moral evaluation of our own and others’ character and actions — what does it mean to be a good person? In deciding what to do and how to be, ethics requires that we look for coherent reasons for our actions and character that show why it is right or wrong.
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This suggests the consideration of both significant questions and a moral evaluation and also a proper and explicable process of ethical reasoning. Therefore ethical issues are those that enliven moral questions and, ideally, require a considered reasoning process. By extension, ethical dilemmas are those where it is possible to have both morally ‘right’ and ‘wrong’ answers, and it is difficult to choose between them.
Ethical issues arise in a variety of circumstances. They may emerge in relation to how the judge manages his or her personal affairs, if and when this intersects with the professional role. They may also arise in relation to how the judge conducts himself or herself in the courtroom, as well as off the bench. Different factors may create ethical dilemmas for the judge, including personal and relational interests, or even personal illness. These factors can present the judge with significant moral questions that require a personal evaluation of right and wrong, rather than presenting a simple or even singular answer.
Legal issues, by contrast, arise where there is a legal framework and process to support decision-making. Of course, the distinction is not always clear-cut. It is possible that a legal activity might not be evaluated as being ethical, and an ethical activity might not be legal. In the context of the judiciary, for example, it might be legal for a judge to invest in a company that provides services to his or her bench, but it might raise ethical concerns.
To add to the complexity, it is possible that some issues may have both legal and ethical dimensions at different stages. The issue of conflict of interest provides the best example of such issues arising. A judge might evaluate in advance the ethics of presiding where a case coming before the court involves a person with whom he or she has a connection. However, once the case has commenced with the judge presiding and a party makes an application for his or her recusal, the issue becomes a legal one for decision. In this article, while we acknowledge that ethical and legal issues may well be intertwined, we limit our focus to exploring the possibilities for enhanced processes to assist the judiciary with the resolution of ethical issues. Those that crystallise into legal issues to be guided by a legal decision-making framework are beyond the scope of this article. 11
The traditional model of providing support for judges faced with ethical dilemmas largely retains the orthodox position that ethical matters are a matter of independent judgement for the individual involved. This is consistent with the idea that ethical matters are matters for personal judgement by the judicial officer in question. It also fits with the commitment within the judiciary to independent decision-making.
Currently there is very limited formal, institutionalised and direct ethical support for judges. As we explained in the introduction, in this article, we refer to this institutionalized support as ‘ethical infrastructure’, that is, institutional practices, norms and procedures, both formal and informal, that promote, support and foster ethical behaviour within benches.
Despite the lack of ethical infrastructure for judicial officers in Australia, there are, however, four elements that may contribute to their individual decision-making processes. Of course, these are only likely to be considered by a judicial officer who is aware that they have an ethical dilemma to solve. The ability to ‘see’ the ethical dimensions of a particular question cannot be assumed, and failures to identify ethical dilemmas might be exacerbated by the isolation that often accompanies judicial office. Where the particular problem is not identified as having an ethical dimension, it is unlikely that these resources will come to mind.
Firstly, there is the collegial support and example offered by other judicial officers. In a survey of the Australian judiciary undertaken in 2007, judicial officers indicated that more than half of their days involved conferring with other judges for between 15 and 30 minutes. 12 Both magistrates and judges reported a high degree of satisfaction with these interactions (81 per cent and 88 per cent, respectively). 13 The regular and satisfactory nature of these interactions may mean that judicial officers are able to canvas ethical dilemmas with their fellow judges.
The second element is the formal education undertaken by judicial officers, which may also provide an opportunity to explore and discuss ethical issues. While in Australia, like in Canada, 14 formal judicial education was initially opposed; 15 it has since become an accepted part of the landscape. 16 The National Orientation Program for new judges offered by the National Judicial College of Australia, for instance, aims to ‘assist newly appointed judges with their transition to judicial office’. 17 The same body offers a range of specific and general programs for judges at other stages in their careers, as does the Australian Institute of Judicial Administration. 18 A Curriculum for Professional Development for Australian Judicial Officers, published in 2007, explicitly acknowledges that this education should include content about ‘displaying appropriate standards of judicial conduct’, with Module 4 focusing on ‘judicial independence and the role of the judicial officer’ and ‘judicial conduct and ethical issues’. 19 It is likely that these educational endeavours provide opportunities for judicial officers to focus on the ethical challenges associated with their role and explore ethical ways of solving common dilemmas. In this respect, we accept that judicial education falls within a broad definition of ethical infrastructure. However, and without understating its importance in the ethical sphere, for the purposes of this article, we will keep the spheres of education and ethical support distinct, as education provides ethical support as one of its many objectives, as opposed to being specifically directed at it.
The articulation of ethical standards provides a third tool for judicial officers who are considering ethical dilemmas. The publication in 1988 of the first text specifically exploring ethics for Australian judges, Judicial Ethics in Australia, signalled an increased interest in the professional ethics of judicial officers and has become a key text in the area. 20 This was followed in 2002 by the publication of the Guide to Judicial Conduct, published for the Council of Chief Justices of Australia. 21 While it is likely that these are resources that judicial officers might examine, the extent to which judges draw on these texts when faced with immediate and practical ethical problems is unknown.
Finally, there is a special role for the head of jurisdiction in advising and counselling, and even sanctioning, members of the judiciary for their conduct. Traditionally, despite the mantle of ‘first among equals’, the head of jurisdiction has had special responsibility to respond to ethical breaches. Today, this traditional process has been formalised in a number of jurisdictions, through the adoption of complaints protocols and processes and, in some cases, the introduction of a legislative regime. In general this is enlivened by the receipt of a complaint about the conduct of a judicial officer or the referral from a complaints investigation body. 22 The head of jurisdiction is given some, mostly administrative, power to respond to impugned conduct. 23 Presumably the interactions between a judicial officer and a head of jurisdiction in this context would encompass a discussion of the appropriate ethical standard and the consequences of its breach.
While this is conceived as an ex post response to judicial conduct, the head of jurisdiction also has a role ex ante. One participant in a study of Chief Circuit Court judges in the United States federal system indicated that where there was a formal mechanism (such as a judicial complaints commission) as a ‘shotgun behind the door’, that creates incentives for judges to take the ex ante counsel of their head of jurisdiction seriously. 24 That is, judicial officers faced with a thorny issue may seek guidance from the head of jurisdiction in advance of any action, to avoid the ignominy of reactive measures being taken by a complaints body or jurisdictional head.
While these options are currently available to Australian judicial officers, they all offer partial solutions. The standards and the education opportunities would tend to be most useful as ways of understanding general standards and may or may not specifically address the problem in question. On the other hand, they have the advantage of being widely available to judicial officers and their nature means that there is no necessary exposure of a judicial officer to critique or embarrassment. Presumably more specific advice would be available from colleagues and heads of jurisdiction. There is an interrelationship here too, with judicial education systems providing an opportunity for judges to develop collegiate relationships that might lead to ethical discussions. However, it is not known how reluctant judicial officers are to canvas-sensitive topics, particularly in the absence of strong collegial relationships. In the case of heads of jurisdiction, the potential for them to take disciplinary measures might add an additional chill. 25
This largely informal and socially dependent model may have been adequate when the judiciary was relatively small and appointed from a group of individuals with pre-established relationships and a shared culture. As Lord Bingham once claimed, writing extrajudicially: The practice of appointing judges from a small pool of candidates, sharing a common professional background, and known personally or by professional repute to those making and advising on appointments, has enabled much to be taken for granted.
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However, it is now subject to a number of challenges. Primarily, we argue, it is challenged by the growing numbers and diversity of the judiciary. A more diverse judiciary, we hypothesise, may be more in need of ethical guidance. For example, judges drawn from careers other than the bar, such as academia, may not have previously encountered — and therefore developed an appropriate response to — professional ethical dilemmas such as conflict of interest. Even where judges are formerly legal practitioners, there is not necessarily congruence between the ethical conduct expected of barristers and that of judges. Ronald Sackville JJA draws a distinction as follows: The judge, unlike the practitioner, has no client or employer. Accordingly, the judge owes no fiduciary or other special duties to identifiable individuals, beyond the general duties that are inherent in the exercise of judicial power. Unlike the legal practitioner, the judge must be independent of governments, institutions and individuals and must be impartial in the discharge of his or her adjudicative responsibilities.
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That distinction between fidelity and impartiality provides a central but not exhaustive difference. The nature of the judicial role carries with it a unique form of applied professional ethics, such that it ensures judicial conduct maintains ‘the community’s trust’ in the judicial institution. 28
The second unanticipated consequence is that with growing differences in characteristics including where a judge grew up, where they were educated, their racial and ethnic racial background, their gender, their sexuality and their professional background, there is not necessarily a sense of immediate and close collegiality between members of the bench as there may have been when judges tended to be appointed with similar demographic characteristics. Indeed, in this earlier era, many judges would have been known to each other from their secondary education, or even earlier. Without this sense of long-standing collegiality, we postulate it may be harder for judges to seek advice from their colleagues, to admit that they have an ethical dilemma that they cannot solve on their own.
Reliance on social collegiality is challenged not just by the diversity of the judiciary but also by its growing size. Larger groups challenge the reliance on relationships to deal with issues as they arise and emphasise the need for rules and infrastructure to assist. As anthropologist and ethnographer Robin Dunbar has argued, larger social groups have the potential to become socially unstable and have to depend on other mechanisms, such as rules and hierarchies, to support cohesiveness. 29
There is an assumption within the legal profession — and it is an assumption upon which the foundations of the traditional model rest — that there is homogeneity in ethical values and ethical reasoning. 30 However, we hypothesise that, with a growing diversity of background and demographic characteristics among the judiciary, there is a higher likelihood that there will be an increased diversity of views as to the most appropriate resolution of any particular ethical dilemma. There is research to support this view. For example, research focused on law students by Adrian Evans and Josephine Palermo reveals that female students have a greater propensity than male students to be aware of their behaviour-related values when confronted with ethical choices and thus be informed by them in ethical decision-making. 31 The perceptions of the ethical issue and thus its need for resolution differ.
When individuals share culture — whether that be created through shared upbringing, education or work — there is a tendency to develop ‘shared ways of seeing their work and the world’. 32 This may mean that those within such a culture are not open to seeing other perspectives on ethical questions that arise before them, or even seeing that an ethical question has arisen. Such a form of ‘groupthink’ 33 has been applied by Parker, Evans, Waller, Le Mire and Mortensen to the legal profession: ‘[l]awyers can…get so used to “the way we do things around here”, and the values exhibited by a particular leader or group, that they do not even think of ways in which others might think that these habits are unethical’. 34
Other more longstanding barriers to seeking advice may also exist. Judges who sit alone, remotely or on circuit may not develop relationships with their colleagues that foster ease when consulting about difficult dilemmas. The strong spirit of independence and individual responsibility associated with judicial office may also discourage judges from seeing their ethical questions as matters that can and should be shared. The ‘lonely moment of decision’ 35 may become the standard approach.
Ethical complexity and social change provide further challenges. In 1996, it was noted that ‘with growing pluralism in social values, and greater questioning of figures in authority, there is no longer one simple and widely accepted model of judicial conduct’. 36 It is also challenged by the greater public expectation for transparency and accountability of the work of all public officials, including judicial officials.
This part has explored the current arrangements that can assist judicial officers faced with ethical dilemmas. It has argued that these are increasingly insufficient in the face of growing numbers and diversity of the judiciary. We now turn to examine more closely the views of the Australian judiciary in relation to the adequacy of the current arrangements.
PART II: Perceptions of Ethical Support in Australia
Between March and June 2016, we were part of a team of researchers who conducted a survey of Australian judicial officers across Australian jurisdictions. 37 In this part, we will present the data from that survey that provides insight into the perceptions of the adequacy of current arrangements for judicial support across the Australian jurisdictions.
Among other questions, judicial officers were asked about a number of ‘challenges’ that were facing the modern judiciary. Judges were asked the extent to which they agreed that 13 different issues were ‘challenges confronting the judiciary’ in their jurisdiction. As Table 1 indicates, of the 138 respondents to the question of whether ‘ethical support’ was a challenge in their jurisdiction, 34.06 per cent strongly agreed (10.87 per cent) or agreed (23.19 per cent). In all, 37.68 per cent were neutral on that question and 28.26 disagreed (23.19 per cent) or strongly disagreed (5.07 per cent).
Responses to question: ‘Please indicate the extent to which you agree that the following are challenges confronting the judiciary in your jurisdiction: Ethical Support’.
Female respondents were more inclined to agree with the position that ethical support was a challenge that the judiciary faced: 42.6 per cent of female respondents agreed that ethical support was a challenge in comparison to 27.78 per cent of male respondents (see Table 2). Similarly, 33.33 per cent of male respondents disagreed that ethical support was a challenge in comparison to 22.22 per cent of female respondents. Neutral responses on the question were more similar: 38.89 per cent of male respondents and 35.18 per cent of female respondents were neutral.
Gender breakdown of responses to question: ‘Please indicate the extent to which you agree that the following are challenges confronting the judiciary in your jurisdiction: Ethical Support’.
The agreement amongst different cohorts of the judiciary revealed that those first appointed and those who had been appointed between 15 and 19 years were the least concerned about ethical support. As seen in Table 3, of those appointed for between 0 and 4 years, only 22.22 per cent either strongly agreed (3.7 per cent) or agreed (18.52 per cent) that ethical support was a challenge facing the judiciary in their jurisdiction. Of those serving 5–9 years, this number rose to 35.14 per cent either strongly agreed (5.41 per cent) or agreed (29.73 per cent); of those serving 10–14 years, this rose again to 40 per cent either strongly agreed (20 per cent) or agreed (20 per cent). This number sank amongst those appointed between 15 and 19 years, with only 17.65 per cent agreeing that ethical support was a challenge facing the judiciary in their jurisdiction (no strong agreement responses recorded). Concern rose then amongst the more judicially experienced cohorts: of those serving 20–24 years, this number rose to 70 per cent either strongly agreed (20 per cent) or agreed (50 per cent); of those serving 25+ years, this was at 40 per cent either strongly agreed (20 per cent) or agreed (20 per cent).
Length of service breakdown of responses to question: ‘Please indicate the extent to which you agree that the following are challenges confronting the judiciary in your jurisdiction: Ethical Support’.
A breakdown of the results across Australia’s jurisdictions does not reveal any readily attributable differences. For example, in New South Wales, where there is some institutional ethical support (see Part III, below), and a developed educational program within the jurisdiction, there was not a markedly large (comparative) percentage of respondents who disagreed with the proposition that ethical support was a challenge facing the judiciary in their jurisdiction (total of 22.5 per cent either disagreed or strongly disagreed; less than all other jurisdictions with responses: federal, Victoria, South Australia, Western Australia and Queensland). Queensland, recently wracked by the appointment and resignation of a Chief Justice that brought to the fore difficult ethical questions for all of the judges of the Supreme Court and Court of Appeal as to how to respond to his appointment and subsequent actions, 38 did not have a comparatively high positive response to the question (agree (19.05 per cent)/strongly agree (4.76 per cent), totalling 23.81 per cent). Indeed, as Table 4 shows, this was less than responses from federal (62.5 per cent), Victorian (39.29 per cent) and New South Wales (40 per cent) participants.
Jurisdictional breakdown of responses to question: ‘Please indicate the extent to which you agree that the following are challenges confronting the judiciary in your jurisdiction: Ethical Support’.
When looking at responses across the different levels of courts, there is a marked difference between agreement that ethical support is a challenge facing their jurisdiction among those appointed at the Magistrates/Local levels (totalling 44.44 per cent of strongly agree (11.11 per cent) or agree (33.33 per cent)), those appointed to the intermediate courts (totalling 37.5 per cent of strongly agree (8.33 per cent) and agree (29.17 per cent)), and superior courts (totalling 15.15 per cent of strongly agree (9.09 per cent) and agree (6.06 per cent)) (see Table 5). The differences in responses across the court tiers should be compared to the larger numbers and higher levels of diversity evident at the lower levels of the court system in Australia. 39 This is consistent with our hypothesis that diversity might undermine the traditional model of ethical support.
Court-level breakdown of responses to question: ‘Please indicate the extent to which you agree that the following are challenges confronting the judiciary in your jurisdiction: Ethical Support’.
The comments provided by judicial respondents revealed that the ‘traditional’ model, described in Part I, was the only model operating in the Australian jurisdictions. It was described by some in positive terms, for instance: The usual means of seeking this form of support from trusted, experienced colleagues or the head of jurisdiction. Ethical support is informal, via discussions with other judges and head of jurisdiction, who are always helpful. [Male, 10–14 years, Qld, District/County/Federal Ct] Excellent support from Head of Jurisdiction but not from Government of the day in most cases. [Male, 0–4 years, Vic, District/County/Federal Ct] The collegiate nature of most judicial bodies is one of the great strengths. [Male, 0–4 years, Qld, Supreme/Federal/Family]
Others provided a less positive description, either neutral or implicitly negative in its terms: It is more informal than formal and developed. [Male, 5–9 years, NSW, District/County/Federal Ct] Comes from judicial colleagues and from head of jurisdiction. [Female, 15–19 years, Federal, Supreme/Federal/Family] We have none of which I am aware apart from talking to our colleagues. [Male, 5–9 years, Federal, Supreme/Federal/Family] Almost none. [Female, 10–14 years, Vic, Magistrates/Local]
In addition to the informal support of colleagues and heads of jurisdiction, one respondent referred to the soft law ethical support for judges: The AIJA Guide on behalf of the Council of Chief Justices of Australia, is an invaluable resource in this area, and I would consult it at least once a month. [Male, 20–24 years, Qld, District/County/Federal Ct]
Some respondents revealed concerns about the management of ethical support at the senior level within the judiciary. It appeared that this was very dependent on the individual filling the role of the head of jurisdiction. For example, one respondent said: [Chief Magistrate] does not provide it. As an issue it is ignored at that level. [Female, 10–14 years, WA, Magistrates/Local]
That same respondent, however, indicated that the support was found through colleagues: Magistrates seek out support, ethical or otherwise, from colleagues whom they respect and trust.
In contrast, others said: I think it depends on your court. We have a Chief Judge who is very supportive and provides good counsel. [Female, 15–19 years, Qld, District/County/Federal Ct] Adequate support exists where there is a strong head of jurisdiction [female, 25+ years, NSW, District/County/Federal Ct].
Some judges were relatively unconcerned by the current arrangements. Reasons for this varied. Some, it appeared, were unconcerned or unperturbed by ethical issues in their work: I have not encountered problems of this kind personally. I have rarely seen ethical problems arise so can’t comment really. Support is probably adequate and reasonable. [Male, 20–24 years, NSW, Magistrates/Local]
Others appeared to express confidence in the current arrangements: There is nothing formal, and to my perception, no formal support is needed. [Female, 10–14 years, Vic, District/County/Federal Ct]
In contrast, some respondents explained that they would like to see more formalised systems of ethical support in place. A number of respondents made comments to this effect: I think a more structured mentoring system would help in this area. As a relatively new judge, whilst my court is extremely collegiate, it is nevertheless quite isolating and others give the impression of being very self sufficient. [Female, 0–4 years, Qld, District Court/County/Federal Ct] Obviously advantageous. [Male, 0–4 years, Vic, District/County/Federal Ct] Always necessary. [Female, 5–9 years, NSW, Magistrates/Local]
A number of explicit suggestions were made as to how ethical infrastructure might be introduced: Each Court should designate a retired Judge who is available to assist in this regard. [Male, 5–9 years, WA, District/County/Federal Circuit] Think we need more education here. [Female, 10–14 years, Vic, District/County/Federal Circuit] There needs to be a Federated group of judicial commissions, with one secretariat to provide guidance and if needed investigation and recommendation for removal applying to all judges and magistrates. The standards need to be consistent Australia wide. [Male, 10–14 years, Federal, Supreme/Federal/Family]
Evidencing why some judges may feel reluctant to seek ethical support and counsel from colleagues and highlighting, perhaps, the underlying cause of judicial loneliness, one judicial respondent commented: If you need ethical support you shouldn’t be in the job. [Female, 15–19 years, NSW, Magistrates/Local]
One respondent noted possible consequences of a growing and more diverse judiciary on the traditional ethical advisory model, although this respondent believed that growing diversity ought to be viewed as a positive development: This tends to come informally through colleagues, which works well — as it also does, for example, at the Bar, in my experience. But such practices depend on likeminded people being able to confide in each other, which in turns means you need a sufficiently diverse and approachable judiciary for everyone to find their ‘buddies’. [Female, 0–4 years, Federal, Supreme/Federal/Family]
While we are wary of drawing conclusions of too much significance from a relatively small dataset, the data reflect a range of views about the existing levels of support but also indicate that some judicial officers would welcome a more formal approach to ethical support, with specific ideas for design of ethical infrastructure. We now turn to what that could look like.
PART III: Redesigning Ethical Support for a Modern Judiciary
If we posit that institutional ethical support is a useful way to assist the judiciary when judicial officers face ethical dilemmas, our next question is, how might ethical support function? We now examine more closely the reasons why ethical support might be useful. The following section then considers how ethical support for judges has been approached in similar jurisdictions, namely Canada, England and Wales and the US. Finally, ethical advice regimes that have been developed in the legal profession are considered to the extent they might inform judicial adoption of ethical infrastructure.
We have argued that the traditional approach to ethics may not serve the modern judiciary well. In suggesting a more formal infrastructure, we bear in mind that it should be crafted to suit the judicial context. Devlin and Dodek propose that six values provide a foundation for the regulation of the judiciary: impartiality, independence, accountability, representativeness, transparency and efficiency. 40 Such values can influence the way any supplementary infrastructure is conceived.
For example, transparency might suggest a system where ethical guidance is publicly available, perhaps through the publication of de-identified advice, in order to ‘foster public confidence in the judiciary’. 41 This could both enhance public confidence in government integrity and have broader institutional benefits: judges will benefit from a more formalised system where they can see the questions being asked — and answers provided — to their peers. Indeed a process that encourages dialogue amongst judges about the nature and extent of ethical obligations ‘seems highly desirable in order to widen the area of common agreement, to correct misconceptions, and perhaps to learn tolerance of a different view in areas where there is room for difference of opinion’. 42 It is also plausible that such a process would benefit from drawing on diverse voices, both from within the judiciary and from outside it, to assist with the identification of ethical problems, enhance their consideration and ensure the provision of high-quality guidance.
Perhaps unsurprisingly, although without forgetting the additional justification provided by judicial independence, the traditional judicial model of ethical support reflects the traditional model of ethical support that operated within the legal profession more generally. The traditional model for the legal profession also relied on selecting the ‘right’ people, an articulation of standards by the professional bodies, collegial support and a disciplinary process in the event of a breach. Broadly within the profession, there has been an increasing recognition that this traditional model requires some supplementation. 43 The adoption of mandatory continuing professional development (CPD) for legal practitioners, with a particular focus on ethics, can be seen as a way to bolster ethical sensitivity and sophistication. 44 The National Continuing Professional Development Taskforce described the aim of CPD as ‘to enable lawyers to develop and expand their professional competence to meet their obligation to provide ethical, effective and competent service’. 45 In addition, many professional organisations have focused on providing situation-specific ethical advice to practitioners via hotlines or the like. 46
Again, when law firms were modest in size and complexity, ethical support consisted of informal mechanisms: ‘mentoring, socialisation and collegial discussions’,
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known as the ‘professional partnership’ model.
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This model relied heavily on social relations, norms and information sharing. As law firms have become more expansive, bureaucratic and compartmentalised by specialisation or geography, there is recognition that these traditional approaches are under stress.
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As Kimberly Kirkland explains: Practice environments, most significantly our workplaces, influence the roles we assume vis-à-vis our clients and the assumptions, values and beliefs that frame our ethical decision-making — in other words, they shape our ethical consciousness.
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Further, she finds that in this context lawyers work on a ‘choice of norm’ approach where they adjust their ethical precepts to match that of their work group and, in particular, those who have power to determine their success. 51 This is consistent with the work of Robert Jackall in the corporate context, who found that corporate managers ‘turn to each other for moral cues for behavior and come to fashion specific situational moralities for specific significant others in their world’. 52
Accordingly, it has been advocated that law firms should adopt systems and processes that consciously prioritise ethics. A number of scholars have called for firms to be required 53 or encouraged to implement ethical infrastructure to promote ethical conduct. 54 There have been some such initiatives in Australia. The Queensland Legal Services Commission, eg, developed an ‘ethics check’ survey with the aim ‘to help lawyers and law firms reflect on their ethical infrastructure and to promote discussion within law firms that might help them identify gaps and make improvements’. 55 In 2001, the New South Wales Office of the Legal Services Commissioner implemented legislative provisions that required all incorporated legal practices to develop and maintain ‘appropriate management systems’, by requiring all such firms to self-assess and report their results. 56 This program led to a drop of one third in client complaints made about firms who had undertaken the audit process. 57
When considering judicial ethics, the assumption might be made that the judiciary is a workplace so different in its nature that organisational insights are of limited relevance, even those drawn from the legal profession. There are, of course, key differences in the terms upon which judicial officers are appointed, the nature of their task and the judicial value of independence, both in its manifestation as independence from external influence and the influence of judicial colleagues. However, on another level, members of the judiciary are participating in a workplace in which they face ethical dilemmas that are caused by their professional office and have traditionally been solved by drawing on the collegiality of that workplace. Inevitably, as Steven Brenner points out, ‘[a]ll organizations have ethics programs’ even if, as he asserts, ‘most do not know they do’. 58 We have already seen this must be the case in the informal, traditional response to judicial ethics resolution through colleagues and the head of jurisdiction. The way that an organisation consciously or unconsciously constructs ‘processes of governance and regulation [will] imply particular sets of ethical values and norms’. 59 This would suggest that the judiciary also has a particular approach to ethics that could be discerned from an examination of the ‘ethical culture’ within their organisation and the existing processes. Moreover, and more usefully, it could be developed by the conscious creation of ethical infrastructure.
Overview of Jurisdictional Arrangements
A brief overview of ethical infrastructure systems operating in Canada, England and Wales, and the US is provided, before three key questions of ethical infrastructure design are considered. Firstly, we examine the composition of a formalised ethical advisory body. Secondly, we consider how such a body might fit within the broader judicial institutional framework. For example, would its pronouncements be binding or advisory? How would they fit with other judicial accountability mechanisms, such as the ability to remove a judge for serious misbehaviour? Lastly, we look at the question of transparency within any system. Elevating transparency might suggest that the decisions made by the body should be made public or at least be shared with other judges. At the same time, exposure might have a chilling effect on those considering whether to seek advice, thus undermining the purpose of the endeavour.
Canada
The oversight body for Canadian judges is the Canadian Judicial Council (‘CJC’). This body is responsible for the quality of judicial service and thus has both educational and accountability functions. 60 It is entirely made up of senior judges (either heads of jurisdiction or associate heads) and chaired by the Chief Justice of Canada. 61 It does publish letters of advice and inquiry outcomes on its website. 62 This body also publishes a guide to the ethical conduct of judges entitled Ethical Principles for Judges. 63 The guide provides general advice to judges about ethical issues but ‘[t]hey are not and shall not be used as a code or a list of prohibited behaviours. They do not set out standards defining judicial misconduct’. 64
At the same time this guide was published, an Advisory Committee on Judicial Ethics was established. This body provides an avenue of institutional support for Canadian judicial officers. It issues advisory opinions to specific ethical questions submitted by judges and is made up of 12 serving judges who do not belong to the CJC, but who are nominated by that body. 65 It is difficult to assess the conduct of this body as its decisions are not made public. As Dodek and Devlin explain, the ‘guiding principles of the process are anonymity and confidentiality’. 66 This appears to shape the processes adopted by the Committee, with judicial officers contacting any of the judges on the Committee with their dilemma and that judge presenting the dilemma to the committee. While the decisions of the committee are not available to the public, they are shared, with the consent of the initiating judge, in a de-identified format with other members of the judiciary. 67
There is no evidence that the decisions of this body are linked to the complaints handling aspect of the CJC’s role.
England and Wales
Judicial officers in England and Wales have recourse to a written Guide to Judicial Conduct. 68
This Guide makes it clear that the burden of ethical decision-making rests with the individual judge: This Guide is intended to offer assistance to judges, coroners and magistrates about their conduct. It is based on the principle that responsibility for deciding whether or not a particular activity or course of conduct is appropriate rests with each individual judge. This Guide is therefore not a code, nor does it contain rules other than where stated. Instead, it contains a set of core principles which will help judges reach their own decisions.
69
The Guide also makes reference to the informal guidance that could be provided by a senior judge: ‘[i]n cases of difficulty or uncertainty, however, judges should always seek advice from the relevant leadership judge’. 70
In England and Wales, the regulation of judges underwent significant reform as part of the constitutional reforms of 2006. 71 At this time, the Judicial Conduct Investigations Office (‘JCIO’) was created with the responsibility for investigating and recommending responses to complaints about judges. There is some limited commentary about the outcomes of complaints on the JCIO website, which provides some information about the ethical standards that are being applied. 72
The first available statements about inappropriate conduct by judicial officers relate to matters in 2011. As noted above, these statements could be a source of information about the ethical conduct of judicial officers. However, they are at their clearest in relation to conduct that is not likely to be the kind of matter that a judicial officer would be seeking guidance about in advance. For example, when ‘Mr James Allen QC, who sat as a Deputy High Court Judge and a Recorder, was convicted of assault at Bradford Magistrates’ Court’, 73 it is unlikely he would have sought ethical advice in advance of the actions that gave rise to this event. Similarly, when District Judge Timothy Bowles, Immigration Judge Warren Grant, and Deputy District Judge and Recorder Peter Bullock ‘viewed pornographic material on judicial IT equipment in their offices’ it seemed unlikely that they were in any doubt as to the ethical lines they were crossing. 74
Matters that may have led a judge to seek more considered advice are present, but in such cases the information provided is spare and may not be of great assistance to judges considering their ethical obligations. It is even less likely to be of assistance to members of the public that are trying to understand the ethical framework applicable to judicial officers. For example, in 2015, ‘[t]he Panel found that Ms Fyn-Sydney demonstrated an error of judgement by appearing as a character witness in her husband’s court case’. 75 In such a case it would be useful for observers to understand the reasoning behind the judgment to be able to extrapolate to other instances where other judicial officers are asked to assist connected people with interactions with the justice system.
The judiciary of England and Wales has well-developed institutional mechanisms but, nonetheless, judicial officers looking for ethical advice are left to access traditional informal advice. The JCIO, mentioned above, feeds advice to the Lord Chancellor and Lord Chief Justice who make decisions about the outcome of complaints. The Judicial Appointment and Conduct Ombudsman assists with appointment processes and provides an avenue for review of JCIO activity. In the ethical advice arena, the main channels for advice appear to be informal and collegial in nature. There are Advisory Committees for Justices of the Peace for each bench, but their role is focused on facilitating appointment and discipline processes and does not appear to encompass ethical advice. 76 There are a number of representative bodies for judicial officers at various points in the hierarchy, such as the Association of Her Majesty’s District Judges and the Association of High Court Masters. There is a possibility these provide forums for the discussion of ethical issues, but their main role appears to be to represent their membership’s interests to external stakeholders. 77
USA
There are a variety of arrangements to assist judicial officers with ethical problems across the states of the USA, three of which are examined below, and at the federal level.
Federally, judges are bound by the Code of Conduct for United States Judges. 78 They can also seek formal advisory opinions on ethical questions from the Committee on Codes of Conduct. Where the matter is of a type ‘frequently raised or [is of] broad application’ the Committee’s opinion is made public. 79 Membership of the Committee is not publicly available.
Texas has a private arrangement. There is a Texas Code of Judicial Conduct, 80 which must be adhered to by Texan judges. Judicial conduct and complaints are investigated by the State Commission on Judicial Conduct, created by an amendment to the Texas Constitution in 1965. 81 A branch of the State Bar of Texas, the Judicial Section, is a membership organisation for judges and judicial officers. It provides ethical advice in response to written requests and publishes its opinions. 82
California, an early adopter of a formal judicial complaints mechanism, 83 now has two institutional avenues for ethical advice. The professional association for judges, the California Judges Association (‘CJA’), provides written de-identified opinions available on the CJA’s website. 84 These opinions are expressed ‘not [to] have the force of law’. 85 The membership of the ethics committee is not publicly available, but is likely to be confined to judicial officers who are members of the Association. This private arrangement was supplemented in 2009, when an institutional avenue was established. Specifically, the Supreme Court created the Committee on Judicial Ethics Opinions. 86 This independent body is made up of 12 current or former judges and provides written advice to judges and judicial employees. Interestingly, while the body is staffed entirely by judges, it does seek public comment on its draft opinions. 87 In addition, members of the public can suggest topics for consideration by the Committee. 88
Colorado provides an example of a state with highly developed ethical infrastructure mechanisms. As in the other states mentioned above, a mandatory Code of Conduct, the Colorado Code of Judicial Conduct, regulates judicial conduct. 89 There is also a Colorado Commission on Judicial Discipline, established in 1967 by constitutional amendment. 90 It has responsibility for judicial discipline matters, short of removal, for state judges (excluding magistrates). 91 In addition, judges are able to seek ethical advice from the Colorado Judicial Ethics Advisory Board. This body, created in 1994, is made up of seven members, appointed by the Chief Justice of the Colorado Supreme Court. The membership is made up of four judges, one citizen member, one attorney member and a law professor with an interest in ethics. 92 The Board can receive matters for consideration from judges, the state court administrator or legal counsel for the judicial branch or board members. 93 They can also issue, with or without amendment, ethics opinions from other similar state bodies. There is an explicit commitment to transparency with the Chief Justice’s Directive setting up the Board ruling that ethics opinions must be provided to a number of parties, including the journal The Colorado Lawyer and two university libraries. 94
Ethical Infrastructure for the Legal Profession
The legal profession has long anticipated that members might desire ethical advice and incorporated ‘ethics hotlines’ or the like into their professional associations. So, eg, the Law Institute of Victoria has an ethics committee staffed by current and former members of the Institute and practitioners who face a dilemma can access the committee for advice provided they are members of the Institute. 95 The committee’s decisions on common ethical dilemmas can be accessed by members via the Institute website. 96 The opinions of the ethics committee are not binding but have been taken into account by the courts. 97
Similar arrangements exist in other Australian states. In NSW, the Law Society of NSW’s Ethics Unit provides confidential advice via an ethics assistance line that is available to all solicitors regardless of their membership status. 98 In this case, employed solicitors staff the Ethics Unit. There is no apparent transparency of the opinions provided, but the Unit does provide ethical education to the profession. Queensland appears to have the most developed system with the Queensland Law Society’s Ethics Centre making advice available to both members and non-members. 99 In this case, the opinion and documentation is available to the practitioner in any subsequent case for professional misconduct. It is not available to the disciplinary authorities. The advice is provided by employed solicitors 100 and summarised ‘Guidance Statements’ are available on the Society website. 101
Discussion
This brief survey suggests that some jurisdictions have adopted quite sophisticated infrastructure to provide ethical advice for judges. In others, traditional methods prevail, with ethical conduct seen to be the province of individual judges and little support being offered. The next section draws on these exemplars to suggest useful ways of crafting ethical infrastructure for a modern, growing and increasingly diverse judiciary. Based on the above survey of how other jurisdictions have dealt with this issue, the discussion is premised on the position that ethical advice infrastructure would include the creation of a new body to service ethical questions that arise for judges.
(a) Composition of Ethical Advice Infrastructure
One approach to professional ethics is to treat ethical precepts as matters best understood only by those within the profession. As Raymond McKoski explains: A lawyer is legitimately presumed to recognize conduct considered improper by lawyers, even in the absence of a rule, statute, or case outlawing the particular deed in question. Similarly, judges know what behavior other judges uniformly deem improper.
102
This approach has value in that those with expertise scrutinise potential conduct. However, in the context of creating ethical advice infrastructure it may also have two key drawbacks. Firstly, the advice provided to judges may lead to actions that are apparent to the public. Arguably, it would be prudent that any consideration of dilemmas would incorporate public values and standards as well as purely judicial ones. Ultimately, a mismatch with public values could undermine public confidence when judicial actions become visible to the public. It is plausible that the incorporation of alternative voices into the scrutiny process would be more likely to expose different perspectives on ethical matters that are by their nature open to debate. Secondly, a key value for the judiciary is legitimacy and a carefully thought-through, inclusive and independent ethical advice body would appear to be the most likely to enhance the legitimacy of the process. One standard way of enhancing legitimacy is to include independent parties on decision-making bodies. 103 The provision of private advisory services to judges, as employed in Texas and California, runs into exactly this difficulty.
Scholars have argued in favour of public participation in a variety of decision-making processes [f]rom different underlying motivations — those arising from ideological (i.e., the desire to pursue democratic ideals of legitimacy, transparency and accountability) or more pragmatic (i.e., the desire to achieve popular support for potentially unpopular decisions) reasons.
104
It is our view that incorporating a range of voices as part of an ethical advice body for the judiciary, as Colorado exemplifies, would enhance both the quality of its recommendations and the public perception of its value. 105
(b) Fit with Institutional Frameworks
There is some evidence in this survey that the development of ethical advice infrastructure is correlated with mandatory codes of conduct. While this appears to be the case, it is plausible that ethical guidance is at least as useful in situations where the judicial guidelines are hortatory. In both cases, the judge is likely to be vulnerable to discipline or even removal if they are as acting contrary to the shared understandings of judicial behaviour. Whether they are imposed in a code or in a mix of formal and informal structures is immaterial. In fact, the presence of ethical advice channels may be even more important when there is a lack of clarity about the standards expected.
A further question emerges about the weight that should be given to ethical advice where a judicial officer then becomes the subject of disciplinary proceedings. A standard approach is to state that the advice is non-binding on the ultimate disciplinary body, whatever that might be, but that the fact that advice has been sought and followed would be considered to be favourable to the judge. A further element that could be of value is that the advice is only shared with the disciplinary authorities at the request of the judge concerned. The advantage of this approach is that it encourages judges to engage with the advice process.
Ethical advice infrastructure can be a useful mechanism whatever the status of the existing rules or guidelines about judicial conduct. In addition, they can provide valuable advice to prevent significant problems arising and can be used as a defence for judges who choose to engage with them.
(c) Transparency of Ethical Advice Infrastructure
There are a variety of approaches to the transparency of ethical advice infrastructure. Many advice arrangements incorporate confidentiality for the requesting judge but publication of opinions about ‘frequently asked’ ethical questions. Some of this publication is largely ‘in-house’ to other judges. This approach indicates a commitment to the education of other judges and also to efficiency, as it would allow those raising similar dilemmas to be referred to the published opinion. It does not, however, address the public perception issue, nor does it educate the public about the standards expected of judges.
The better approach is to be as open as possible. Clearly confidentiality for individual judges is a necessary requirement, but broad promulgation of ethical opinions would be a welcome indication of the commitment of the judicial arm to public confidence in its work.
PART IV: Concluding Remarks
The contemporary judiciary has come a long way since Lord Hale advised in 1660 that they should ‘be short and sparing at meals’. 106 Yet the traditional ethical approach remains the dominant one in Australian jurisdictions. We have argued that changes in the nature and the composition of the Australian judiciary make it timely to consider whether ethical advice infrastructure should become the standard. This article has explored the potential of judicial ethical advice bodies as a change that could extend greater support to the judiciary whilst also enhancing public regard for its role and integrity.
Our survey results suggest that the Australian judiciary has mixed views on such arrangements. But importantly, there is evidence that those who may feel themselves most unsupported in ethical matters, such as magistrates, would value them.
We have also considered how ethical advice infrastructure might be crafted to incorporate significant judicial values such as legitimacy, accountability and transparency. Drawing on the arrangements in a variety of other jurisdictions, we have identified several key aspects that can determine the way the ethical advice mechanism can work. These are the composition of the body, its integration with other institutional frameworks and its transparency. We have recommended that ethical advice bodies incorporate lay voices, be structured to fit with, and not override, other accountability mechanisms, and be as open as possible to public scrutiny.