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Ethical Infrastructure for a Modern Judiciary

Published online by Cambridge University Press:  01 January 2025

Gabrielle Appleby and
Suzanne Le Mire
Gabrielle Appleby*
Affiliation:
UNSW Law, Co-Director, The Judiciary Project, Gilbert + Tobin Centre of Public Law
Suzanne Le Mire*
Affiliation:
Adelaide Law School, University of Adelaide
*
The author may be contacted at g.appleby@unsw.edu.au.
The author may be contacted at suzanne.lemire@adelaide.edu.au.
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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.

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Articles
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Federal Law Review , Volume 47 , Issue 3 , September 2019, pp. 335 - 357
Copyright
Copyright © 2019 The Author(s)

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Footnotes

Our thanks to Andrew Lynch and Brian Opeskin, who worked with us on a survey from which we have extracted the data considered in Part 2 of this article. We are also grateful to Anselmo Reyes, Simon Young and Jamie Hanson, whose comments on earlier versions of this article were very helpful.

References

Notes

1. Richard Devlin and Adam Dodek, ‘Regulating Judges: Challenges, Controversies and Choices’ in Richard Devlin and Adam Dodek (eds), Regulating Judges: Beyond Independence and Accountability (Edward Elgar, 2016) 1, 9; See also J J Spigelman, ‘Measuring Court Performance’ (2006) 16(2) Journal of Judicial Administration 69, 72; J J Spigelman, ‘Quality in an Age of Measurement’ [2002] (March) Quadrant 9, who lists judicial values as encompassing ‘accessibility, openness, fairness, impartiality, legitimacy, participation, honesty and rationality’.

2. Hon Gerard Brennan, ‘Foreword to the Second Edition’, in Hon James Thomas (eds), Judicial Ethics in Australia (LexisNexis, 3rd ed, 2009) vii.

3. See further Richard Devlin, C Adele Kent and Susan Lightstone, ‘The Past, Present…and Future(?) of Judicial Ethics Education in Canada’ (2013) 16(1) Legal Ethics 1, 22.

4. Strengthening Basic Principles of Judicial Conduct, ESC Res 2006/23, UN ESCOR, 41st plen mtg, Agenda Item 14(c), UN Doc E/RES/2006/23 (27 July 2006) annex Preamble (‘Bangalore Principles of Judicial Conduct’).

5. For further discussion of the nature of ethical guides in Australia, see Hon James Thomas, Judicial Ethics in Australia (LexisNexis, 3rd ed, 2009).

6. See, eg, Supreme Court of California, California Code of Judicial Ethics (1 December 2016), Canon 6A. The Supreme Court is required by art VI § 18(m) of the California Constitution to ‘make rules for the conduct of judges’.

7. The term was developed by Ted Schneyer, ‘A Tale of Four Systems: Reflections on How Law Influences the” Ethical Infrastructure” of Law Firms’ (1998) 39(2) South Texas Law Review 245, 246. See the development of this concept in Elizabeth Chambliss and David B Wilkins, ‘A New Framework for Law Firm Discipline’ (2003) 16(2) Georgetown Journal of Legal Ethics 335; Elizabeth Chambliss and David B Wilkins, ‘Promoting Effective Ethical Infrastructure in Large Law Firms: A Call for Research and Reporting’ (2002) 30(3) Hofstra Law Review 691.

8. Christine Parker et al, ‘The Ethical Infrastructure of Legal Practice in Larger Law Firms: Values, Policy and Behaviour’ (2008) 31(1) University of New South Wales Law Journal 158, 159–60.

9. Noel Preston, Understanding Ethics (The Federation Press, 3rd ed, 2007) 16.

10. Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 3rd ed, 2018) 10.

11. In relation to the legal dimensions of recusal, see further Grant Hammond, Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009); Gabrielle Appleby and Stephen McDonald, ‘Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure’ (2017) 20(1) Legal Ethics 89.

12. Kathy Mack, Anne Wallace and Sharyn Roach Anleu, Judicial Workload: Time, Tasks and Work Organisation (Australasian Institute of Judicial Administration, 2012) 53.

13. Ibid 29–30.

14. Adam Dodek and Richard Devlin, ‘“Fighting Words”: Regulating Judges in Canada’ in Richard Devlin and Adam Dodek (eds), Regulating Judges: Beyond Independence and Accountability (Edward Elgar, 2016) 87.

15. Christopher Roper, A Curriculum For Professional Development For Australian Judicial Officers (January 2007) 1 <https://njca.com.au/wp-content/uploads/2017/12/National-Curriculum.pdf>.

16. Christopher Roper, Review of the National Standard For Professional Development For Australian Judicial Officers (December 2010) 9 <https://njca.com.au/wp-content/uploads/2017/12/Review-of-the-National-Standard-for-Professional-Development-for-Australian-Judicial-Officer-Report-2010.pdf>.

17. ‘National Judicial Orientation Program April 2019’ National Judicial College of Australia (web page) <https://njca.com.au/course/national-judicial-orientation-program-november-2019/>.

18. See generally, ‘Professional Development’ National Judicial College of Australia (web page) <https://njca.com.au/professional-development/>; The Australasian Institute of Judicial Administration (web page) <https://aija.org.au/>. There are other, jurisdictionally specific institutions that run education programs, for instance, in Victoria (Judicial College of Victoria) and New South Wales (Judicial Commission of NSW). There are also judicial education programs that run within the courts themselves.

19. Roper, above n 16, 10.

20. Hon James Thomas, Judicial Ethics in Australia (Law Book Co, 1st ed, 1988).

21. Australasian Institute of Judicial Administration, Guide to Judicial Conduct (1st ed, 2002).

22. Judicial Officers Act 1986 (NSW) s 21(2); Judicial Conduct Commissioner Act 2015 (SA) s 18; Department of the Attorney General (WA), Protocol for Complaints against Judicial Officers in Western Australian Courts (August 2007); Judicial Commission of Victoria Act 2016 (Vic) s 97.

23. See, eg, Judicial Complaints Act 2012 (Cth) sch 1 ss 5, 18; see also sch 1 s 28.

24. Charles Gardner Geyh, ‘Informal Methods of Judicial Discipline’ (1993) 142(1) University of Pennsylvania Law Review 243, 283.

25. Heads of jurisdiction can exercise disciplinary power under judicial complaints legislation in some jurisdictions: see, eg, Judicial Complaints Act 2012 (Cth) sch 1 ss 5, 18; see also sch 1 s 28; Judicial Conduct Commissioner Act 2015 (SA) s 18; Department of the Attorney General (WA), Protocol for Complaints against Judicial Officers in Western Australian Courts (August 2007).

26. Tom Bingham, ‘Judicial Ethics’, in Tom Bingham (ed), The Business of Judging (Oxford University Press, 2000) 69.

27. Ronald Sackville, ‘Judicial Ethics and Judicial Misbehaviour: Two Sides of the One Coin?’ (2015) 89(4) Australian Law Journal 244, 251.

28. Brennan, above n 2, 10.

29. R I M Dunbar, ‘Co-evolution of Neocortex Size, Group Size and Language in Humans’ (1993) 16(4) Behavioral and Brain Sciences 681, 693.

30. Adrian Evans and Josephine Palermo, ‘Gender and Ethics’ (2005) 79(10) Law Institute Journal 40, 40.

31. Ibid 44.

32. Parker et al, above n 8, 165.

33. Irving L Janis, Victims of Groupthink: A Psychological Study of Foreign-Policy Decisions and Fiascoes (Houghton Mifflin, 1972) 9.

34. Parker et al, above n 8, 165.

35. Sir Gerard Brennan, ‘Why be a Judge?’ (Conference Paper, Judges’ Conference, 12–13 April 1996) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_nz.htm>.

36. David Wood, ‘Judicial Ethics: A Discussion Paper’ (Discussion Paper, Australian Institute of Judicial Administration, 1996) 1.

37. The voluntary and anonymous survey, in which a total of 142 judicial officers participated, asked judicial officers a series of questions related to life cycle of judges including appointment issues, challenges throughout the working life of a judge (such as education, ethical support, workload, remuneration and staffing and support) and matters relating to discipline and removal. Several optional demographic questions were also asked. The survey was administered online, and a hard copy version was available on request for completion and return by post or email. The approval of Heads of Jurisdiction to survey the judicial officers of their court was sought, and the survey was not distributed to the judicial officers of any court if this approval was not granted. See further Gabrielle Appleby et al, ‘Contemporary Challenges Facing the Australian Judiciary’ (2018) 42(2) Melbourne University Law Review (forthcoming).

38. See further Rebecca Ananian-Welsh, Gabrielle Appleby and Andrew Lynch, The Tim Carmody Affair: Australia’s Greatest Judicial Crisis (NewSouth Publishing, 2016); see also Reid Mortensen, ‘How Many Chief Justices? Judicial Appointments and Ethics in Queensland’ (2017) 20(1) Legal Ethics 64; Matthew Groves, ‘Public Comments by Judges of their Colleagues: An Unhappy Australian Episode’ (2016) 8(1) Journal of Media Law 98.

39. Brian Opeskin, ‘The State of the Judicature: A Statistical Profile of Australian Courts and Judges’ (2013) 35(3) Sydney Law Review 489, 511; see also AIJA Librarian, AIJA Judicial Gender Statistics: Judges and Magistrates (% of Women) March 2019 (Online Document, March 2019) <https://aija.org.au/wp-content/uploads/2018/03/JudgesMagistrates.pdf>. We acknowledge that gender is only one aspect of diversity, but note that the data on other diversity factors are very limited in Australia.

40. Devlin and Dodek, above n 1, 9.

41. Dodek and Devlin, above n 14, 89.

42. Thomas, above n 2, 11.

43. See, eg, Ted Schneyer, ‘The Case for Proactive Management-Based Regulation to Improve Professional Self-Regulation for US Lawyers’ (2013) 42(1) Hofstra Law Review 233, 234.

44. See, eg, The Law Society of New South Wales, Mandatory Continuing Professional Development (web page) <https://www.lawsocietysa.asn.au/LSSA/Lawyers/Ethics_and_Practice/Mandatory_CPD.aspx>; <http://www.lawsociety.com.au/ForSolictors/practisinglawinnsw/mclecpd/index.htm>.

45. National Continuing Professional Development Taskforce, A Model Continuing Professional Development Scheme for Australian Lawyers (October 2007) 3.

46. See, eg, The Law Society of New South Wales, Ethical Assistance Line (web page) <https://www.lawsociety.com.au/practising-law-in-NSW/ethics-and-compliance/ethics/about>.

47. Parker et al, above n 8, 172.

48. John Flood, ‘Partnership and Professionalism in Global Law Firms: Resurgent Professionalism?’ in Daniel Muzio, Stephen Acroyd and Jean-Francois Chanlat (eds), Redirections in the Study of Expert Labour: Established Professions and New Expert Occupations (Palgrave Macmillan, 2008) 52, 71.

49. Parker et al, above n 8, 159.

50. Kimberley Kirkland, ‘Ethics in Large Law Firms: The Principle of Pragmatism’ (2005) 35(4) The University of Memphis Law Review 631, 632.

51. Ibid 710–11.

52. Robert Jackall, Moral Mazes: The World of Corporate Managers (Oxford University Press, 1988) 193.

53. Schneyer, above n 7, 245.

54. Chambliss and Wilkins, A New Framework for Law Firm Discipline, above n 7; see also Parker et al, above n 8.

55. Queensland Legal Services Commission, Ethics Checks for Law Firms (web page, 25 October 2013) <https://www.lsc.qld.gov.au/ethics-checks>.

56. Christine Parker, Tahlia Gordon and Steve Mark, ‘Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales’ (2010) 37(3) Journal of Law and Society 466, 468.

57. Ibid 493.

58. Steven N Brenner, ‘Ethics Programs and Their Dimensions’ (1992) 11(5–6) Journal of Business Ethics 391, 391.

59. Glenn Morgan, ‘Governance and Regulation: An Institutionalist Approach to Ethics and Organizations’ in Martin Parker (ed), Ethics and Organizations (Sage, 1998) 221, 229.

60. Judges Act, RSC 1985, c J-1, s 60(1). See also Canadian Judicial Council, About the Council: Mandate and Powers (web page) <http://www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_mandate_en.asp>.

61. Ibid s 59.

62. Canadian Judicial Council, Latest News (web page) <https://www.cjc-ccm.gc.ca/english/index_en.asp>.

63. Canadian Judicial Council, Ethical Principles for Judges (2004) <https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_1998_en.pdf>.

64. Ibid 3.

65. Dodek and Devlin, above n 14, 88.

66. Ibid.

67. Ibid 88–9.

68. Judiciary of England and Wales, Guide to Judicial Conduct (2019). This guide was first published in 2004, and the most recent edition was issued in March 2019.

69. Judiciary of England and Wales, Guide to Judicial Conduct (2019) 4.

70. Ibid [1.4].

71. Constitutional Reform Act 2005 (UK).

72. ‘Disciplinary Statements’, Judicial Conduct Investigations Office (web page) <http://judicialconduct.judiciary.gov.uk/disciplinary-statements/2015>.

73. Office for Judicial Complaints, ‘Statement from the Office for Judicial Complaints: Mr James Allen QC’ (Statement OJC 33/11, 2 November 2011).

74. JCIO, ‘Statement from the Judicial Conduct Investigations Office: District Judge Timothy Bowles’ (Statement JCIO 18/15, 17 March 2015) 1.

75. JCIO, ‘Statement from the Judicial Conduct Investigations Office: Ms Onengiyeofori Fyn-Sydney JP’ (Statement JCIO 1/2015, 15 January 2015) 1.

76. Ministry of Justice, Lord Chancellor and Secretary of State’s Directions for Advisory Committees on Justices of the Peace (Directions, July 2013).

77. Courts and Tribunals Judiciary, ‘Council of Her Majesty’s Circuit Judges (COCJ)’ (web page) <https://www.judiciary.gov.uk/related-offices-and-bodies/representative-bodies-2/council-of-her-majestys-circuit-judges/>.

78. Judicial Conference of the United States, Code of Conduct for United States Judges (12 March 2019).

79. Administrative Office of the US Courts, ‘Ethics Policies’ (web page) <http://www.uscourts.gov/rules-policies/judiciary-policies/ethics-policies>.

80. Supreme Court of Texas, Texas Code of Judicial Conduct (22 August 2002).

81. Office of State Commission on Judicial Conduct, Mission Statement (web page) <http://www.scjc.texas.gov/about/mission-statement/>; Office of State Commission on Judicial Conduct, Governing Provisions (web page) <http://www.scjc.texas.gov/about/governing-provisions/>.

82. State Bar of Texas, Judicial Ethics (web page) <http://www.judicialsection.com/ethics-opinions>.

83. The Commission on Judicial Performance was established in 1960: see Commission on Judicial Performance, ‘Home’ (web page) <http://cjp.ca.gov>.

84. Ibid.

85. Californian Judges Association, ‘Advisory Opinions of the CJA Ethics Committee’ (web page) <http://www.caljudges.org/EthicsOpinion.asp>.

86. This committee was created by the California Supreme Court as part of the court’s constitutional responsibility to guide the conduct of judges and judicial candidates: see California Constitution, art VI § 18(m).

87. Cathal Conneely, ‘Public Comment Plays Unique Role in Judicial Ethics Opinions’ (Newsroom, California Courts, 20 May 2016) <http://newsroom.courts.ca.gov/news/public-comment-plays-unique-role-in-judicial-ethics-opinions>.

88. California Supreme Court, ‘Suggest a Topic’ (web page) <http://judicialethicsopinions.ca.gov/node/187>.

89. Supreme Court of the State of Colorado, Colorado Code of Judicial Conduct (1 July 2010) <https://www.courts.state.co.us/userfiles/file/Code_of_Judicial_Conduct.pdf>.

90. Colorado Constitution art VI § 23(3)(d).

91. Colorado Commission on Judicial Discipline, ‘Home’ (web page) <http://www.coloradojudicialdiscipline.com>.

92. Supreme Court of the State of Colorado, Creation of, and Procedural Rules for, the Colorado Judicial Ethics Advisory Board (Directive 94-01) <https://www.courts.state.co.us/Courts/Supreme_Court/Directives/94-01.pdf>.

93. Ibid [IX].

94. Ibid [XII].

95. Law Institute Victoria, ‘Ethics Committee’ (web page) <http://www.liv.asn.au/Professional-Practice/Ethics/LIV-Ethics-Committee>.

96. See Law Institute Victoria, ‘Ethics Committee Rulings’ (web page) <http://www.liv.asn.au/LIV-Home/Practice-Resources/Law-Institute-Journal/Archived-Issues/LIJ-June-2006/Ethics-Committee-rulings>.

97. See, eg, Executive Homes Pty Ltd v First Haven Pty Ltd [1999] VSC 261 (Byrne J).

98. The Law Society of New South Wales, ‘About the Ethics Unit’ (web page) <https://www.lawsociety.com.au/practising-law-in-NSW/ethics-and-compliance/ethics/about>.

99. Queensland Law Society, ‘What the QLS Ethics Centre Does’ (web page) <http://www.qls.com.au/Knowledge_centre/Ethics/What_the_Queensland_Law_Society_Ethics_Centre_does>.

100. Ibid.

101. Queensland Law Society, ‘Guidance Statements’ (web page) <https://www.qls.com.au/Knowledge_centre/Ethics/Guidance_Statements>.

102. Raymond J McKoski, ‘Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets’ (2010) 94(6) Minnesota Law Review 1914, 1940.

103. Suzanne Le Mire and George Gilligan, ‘Independence and Independent Company Directors’ (2013) 13(2) Journal of Corporate Law Studies 443, 448.

104. Julia Abelson et al, ‘Deliberations about Deliberative Methods: Issues in the Design and Evaluation of Public Participation Processes’ (2003) 57(2) Social Science & Medicine 239, 239.

105. For our view on the virtue of lay voices on judicial accountability bodies, see Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System That Enhances Institutional Integrity’ (2014) 38(1) Melbourne University Law Review 1, 47–8.

106. See Lord Hale quoted in Richard Devlin, C Adele Kent and Susan Lightstone, ‘The Past, Present…and Future(?) of Judicial Ethics Education in Canada’ (2013) 16(1) Legal Ethics 1, 22.