Family advice

Full-time judges are generally prohibited from practicing law but are allowed to provide some free legal services to members of their family.  Rule 3.10, ABA 2007 Model Code of Judicial Conduct.  (“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge has a close familial relationship.)

In a recent advisory opinion, the Indiana Judicial Qualifications Commission addressed questions about what type of assistance a judicial officer may provide to a family member.  Indiana Advisory Opinion 2-2020.  The opinion emphasized that the family advice exception “is narrow and essentially only allows judicial officers to give behind-the-scenes assistance” to family members, for example, drafting a will or trust agreement, reviewing documents incidental to a real estate transaction, conducting legal research, or drafting letters for the family member to sign.

The opinion also emphasized that judges must not, under any circumstances:

  • Hold themselves out to third parties in person or in correspondence as a family member’s lawyer, or
  • Act as a family member’s advocate before a tribunal.

Where the model code prohibits judges from acting as a family member’s advocate “in any forum,” the Indiana code uses the term “tribunal.”  Neither code defines either term.  The Indiana advisory opinion concluded that it means “at a minimum” that judges cannot appear on behalf of family members before courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  That interpretation relied on the definition of “tribunal” in the Rules of Professional Conduct as “a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.”  (The reporters’ explanation of changes to the ABA model code states that the prohibition on appearing in forums was not meant to apply to “informal settings, such as a dispute in a neighborhood association or a purely private and minor commercial dispute,” where a judge could “serve as an “advocate” for a family member without becoming his or her lawyer and thus practicing law . . . .”)

The Indiana opinion addressed 3 questions.

1.“May a judicial officer attend a court or administrative hearing with a family member who is a party or witness in a proceeding?”

The opinion acknowledged that it was understandable that judges would want to accompany family members to legal proceedings where they might feel vulnerable and anxious.  However, the opinion noted that concern had to be balanced with the likelihood that observers might believe that the judge’s presence was an attempt to influence the outcome, creating at least an appearance of impropriety.

The committee concluded that a judicial officer may attend a court or administrative hearing with a family member to provide support, not advocacy.  To dispel any concerns about the judge’s role, the committee cautioned, the judge, in and around the location and immediately before and during the proceeding:

  • Must not refer to their judicial status,
  • Should try to keep others from referring to them as “judge,” “magistrate,” “commissioner,” “referee,” or other judicial title,
  • Should not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo), and
  • Should not interact with others in a manner that conveys that they have special influence or are a “court insider,” by, for example, visiting the presiding judge’s chambers or the hearing officer’s office, socializing with tribunal staff, or interacting informally with any prosecutorial or investigative staff.

The Indiana committee relied in part on Massachusetts Advisory Opinion 2008-4.

Noting that a hearing that is emotionally charged for a family member might also produce “intense emotions” for a related judge, the Indiana opinion warned judges to carefully evaluate whether they “can maintain composure during the hearing” and to remember that they must behave in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary even when not acting as a judge and regardless how others may be reacting.

2. “May a judicial officer attend and participate in an investigative interview or settlement conference of a family member on a matter that is likely to be litigated?”

The Indiana committee noted that, even before a legal matter is filed, a family member may seek a judicial officer’s advice “when facing investigative interviews or settlement conferences (i.e. to resolve an insurance claim after an auto accident or to clear up disputed credit issues).” 

The opinion concluded that negotiating on a family member’s behalf in a settlement conference or advising a family member about answering questions in an interview is the practice of law, and, therefore, judges cannot engage in those activities.  However, the opinion stated that a judge could attend a settlement conference or investigative interview to provide emotional support for a family member — with the same caveats that apply to attending hearings, described above.  Further, the committee stated that a judge could, “during a break in the settlement conference or interview, . . . answer the family member’s questions, assist the family member in evaluating the strengths and weaknesses of certain positions, and provide informal, common sense input.”

3. “May a judicial officer speak with law enforcement, prosecutors, or court personnel on a family member’s behalf when the family member is under investigation or charged with a criminal offense?”

Encouraging a “cautious approach,” the Indiana committee advised judicial officers to avoid contacting law enforcement, prosecutor’s office staff, or court personnel on a family member’s behalf, although it stated that a judge could advise a “family member what questions to ask or what information to relay.”  The opinion explained:

When a family member asks the judicial officer to communicate with law enforcement, prosecutor’s office staff, or court personnel on the family member’s behalf, even if the judicial officer merely seeks general information, there is a risk (especially if the listener knows the judicial officer) that the listener will interpret the judge’s communication as a request for special treatment.

The committee did note that a judicial officer may be able to ask questions if a family member, for example, a minor child, “is unable to adequately communicate on his or her own behalf with third parties” and no other responsible adult is available.  Even in that unusual circumstance, the committee warned, judicial officers should be cautious and never refer to their judicial status, imply that they are the family member’s attorney, suggest special consideration for the family member, or “use any court resources, such as an email dedicated to the court system.”

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