Advisory opinion: Judges can advise family members behind the scenes

Indiana judges can advise family members on legal issues, but they must do so in a behind-the-scenes way that does not “trade on the prestige” of their office.

That’s according to an advisory ethics opinion issued this week from the Indiana Commission on Judicial Qualifications. Advisory Opinion #2-20 was released Thursday.

“Generally, a full-time judicial officer may not practice law, except in limited circumstances involving self-representation, military service, or assisting family members,” the JQC wrote, referencing Rule 3.10 of the Code of Judicial Conduct. “Recently, a number of questions have arisen regarding what type of assistance a judicial officer ethically may provide to a family member … .

“The Commission’s view is that a full-time judicial officer may attend a court or administrative hearing with a family member but only in a supportive role and not as a legal advocate for the family member,” the JQC continued. “A full-time judicial officer also may attend a settlement conference with a family member in a support role and privately may provide legal advice to the family member but should take precautions to not give any impression that the judicial officer is serving as an attorney for the family member. Similarly, a judicial officer may provide behind-the-scenes legal advice to a family member who is under investigation but should take no actions which would give the impression that the judicial officer is acting as the family member’s attorney or attempting to trade on the prestige of judicial office to benefit the family member.”

In the case of judicial or administrative hearings, the ethics commission urged judges to consider three factors before attending on a family member’s behalf.

First, judges should make an effort to avoid referring to their judicial status, including by asking parties not to address them as “judge” while in or near the courtroom before and during the hearing. That extends to the judge’s clothing, which should not feature court logos or other judicial markers.

Second, judges attending hearings with their family members should not interact with the presiding judge, court staff or attorneys “in a manner that conveys that the judicial officer has special influence or the status of a ‘court insider.’” That would include visiting the presiding judge’s chambers before or immediately after the hearing.

Finally, a visiting judge should evaluate their ability to maintain composure during a family member’s hearing.

“Just as a hearing may be emotionally charged for the family member, it may produce intense emotions in the judicial officer as well,” the JQC wrote. “When deciding whether to attend such hearings, a judicial officer should remember that he or she is still expected to behave in a manner which promotes public confidence in the integrity, independence, and impartiality of the judiciary. See Jud. Cond. R. 1.2.”

As for settlement conferences or investigative hearings, the commission said judicial officers must consider whether advising a family member would constitute the “practice of law.” It defined the practice as “actively attempt(ing) to navigate the direction or resolution of settlement discussions or investigative interviews through questioning, advice, or representations.”

Rather than engage in the practice of law, judicial officers should seek to provide behind-the-scenes assistance, the JQC wrote. That would include attending conferences/interviews in a support role and offering advice during breaks in the proceedings.

“It is, therefore, the Commission’s opinion that any time (absent military service) a full-time judicial officer announces to third parties that he or she is serving as another person’s lawyer, the judicial officer is acting inconsistent with Rule 3.10. Further, a judicial officer should avoid engaging in activities in the presence of third parties which give the appearance that the judicial officer is acting as the family member’s lawyer. Negotiating with third parties on a family member’s dispute or publicly directing a family member’s responses would fall into this category.”

Finally, the Judicial Qualifications Commission warned judges against communicating with law enforcement, prosecutors or court personnel on behalf of a family member in a way that gives the impression of the judge seeking special treatment. Judges can advise family members on these communications, the commission said, but “should weigh these considerations carefully” before communicating directly on a family member’s behalf.

In “unusual circumstances,” such as a minor child who is not able to adequately communicate on their own and who has no other responsible adult to speak for them, judicial officers should be “cautious” and should never refer to their judicial status in their communications with law enforcement, prosecutors or court personnel.

In a footnote, the JQC noted that its advice regarding attending hearings applies only when a judge is there in a support role. If a judge is asked to testify, however, they should contact the commission for guidance.