When Use Professional Discretion Crosses Ethical Boundaries In Judiciary (Essay Sample)

When use professional discretion crosses ethical boundaries in judiciary
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Introduction
The use of discretion is documented in various literature reviews as the core tenet of professionalism. The art of making decisions about clients is a characteristic of professionalism and discretion (Miller, 2010). In the criminal justice system, the law allows practitioners to engage in professional discretion when discharging their duties. The law recognizes that professional discretion is an unavoidable aspect of practice when faced with the “if –then” dilemmas. While discretion is viewed as the autonomous decision regarding a situation in practice, professionalism requires that such decisions be made within the confines of rules and ethics governing the practice.
However, constant use of professional discretion can overlap ethical boundaries, jeopardize the rule of law and also emasculate democratic control over the street level of application of laws and policies (Molander et al., 2012). Professional discretion borders on heuristics which is utilized for long in practice may lead to systematic and cognitive errors with time.
In practice, judges are bound to adhere to the canon of judicial ethics as a benchmark to their practice. The canon of judicial ethics spells out the ethical boundaries that the judges should observe when delivering rulings. Cannon of Ethics are statements drafted by the American Bar Association for use as a guideline in the practice of law. The American bar association thus provide the guideline of interpreting these codes (Van, & Van, 2000). In most cases the judges find themselves using professional discretion to step over the ethical boundaries set for practice in a bid to ensure justice if served. While this may seem right, the fact that the discretions overstep ethical boundaries is illegal and should be punished under the guidelines set by the ABA.
It on this backdrop that this paper seeks to highlight scenarios when the use of professional discretion has crossed the ethical boundaries in judge’s practice. While looking at the scenarios the paper will give accounts and examples of such situations. This article focuses on the judge’s role and how exercising discretion undermines the realization of ethical standards as stipulated by the America Bar Association canon of ethics.
Judge’s role
As stated above, the ethical boundaries in practice are guided by the canon of ethics. Most state judges have bended moral laws in a situation that benefits the public interest. For instance, judges have made a decision that favors the state at the detriment of individual’s citizen’s right. The general perception from citizens is that the court favors the wealthy, influential individuals and politicians, and those who can influence the system. The courts are then put to question over its traditional neutrality and with the involvement of pro se litigants, the public perception is bound to worsen. Canon two in the judicial conduct model requires that the judge duties with great impartiality, diligence and competence (American Bar Association, 2007).
One issue that highlights the overlap of professional discretion is when a judge helps pro se litigants in a situation where the victim is unable to meet the legal cost. When a judge offers to support the litigants, then the public lose trust on the notion of "equal justice" to all. In this situation, the judges help uphold the interest of the state at the detriment of its citizens. In a situation where one individual has legal representation, and the opponent lacks legal representation then an ethical dilemma ensures. The judges are unable to maintain partiality in such situation as they intuitively feel that one party is disadvantaged. When a pro se litigant is involved, such litigants present with them time-consuming procedural challenges and ethical dilemmas that are deemed unfair by both opponents who are legally represented and the pro se litigant.
The use of standardized pleading forms in courtrooms present the solution to procedural difficulties as they enable the legal issues of the case be identified by the judge so they can be able to move it forward to resolutions. For example, in a divorce case petition, judges would send away petition from pro se litigants on the ground that they lack statutory requirements that the unrepresented parties are not privy. When judges issue these standardized forms, they believe they are exercising their judicial authority and within their professional discretion and thus, the act is harmless. To show the unethical practice is when the judge aids the pro se litigants with the forms or the degree of impartiality such a judge directs to the pro se litigants who fills the forms wrongly.
When judges are faced with individuals who are not represented and are also not familiar with the judicial and litigation process, then they are forced to adjust and make reasonable accommodations ensure a leveled playing field for a fair hearing. Leveling the ground is a subjective phenomenon that according to the Canon 2.2, a revision of Canon 2, which requires the judge to uphold and perform state duties with fairness and impartiality (American Bar Association, 2007). Any assistance accorded to the unrepresented party may be seen as giving them an unfair advantage.
Still on a divorce case scenario, a judge who participated in Supreme Court commission that conscripted divorce forms that were approved by court when presented with a situation where the pro se litigants are unable to fill the forms correctly. The ethical dilemma thus arises when the judge stops the hearing to highlight mistakes in the forms or guide the litigant through the instruction. While doing that might be within the professional discretion of the magistrate, it can be seen as an unfair advantage to the party. In the courts, judges are guided to treat papers presented by pro se litigants liberally unlike those of lawyers or self-represented.
If litigants file cases at state judges who are familiar with the forms, then the judges would quickly identify and pinpoint anomaly with the forms thus giving them a significant consideration for the accommodation of the pro se party. When the judge steps in to help the party with information about feeling the form, the judge is deemed to have a step in the role of a lawyer, and such act becomes questionable (Albrecht et al., 1997).
In an attempt to provide non-partial hearing and as obliged ethically, judges are required to offer assistance to pro se litigants on minor issues or deficiency that can easily be established in the litigants presentations. For the judicial matter then to be considered a small deficiency all the parties must agree to it and it must not be contested. In this situation, it is viewed that according to help to litigants ensures justice by helping them correct oversight made in applications. However, this cast doubts on the capacity of the trial judge to impartially decide on issues that arise from such requests. Furthermore, such activities may be seen as creating a public or private advantage to particular individuals (Kalin, 2000). Judges Thus engages in judicial misconduct when they participate on both drafting and approval of pleadings.
Additionally, judges who participate in drafting or approving the procedural forms might find it hard to give a more difference to itself by the virtue that id adopted the forms in the first place. Thus, the case of neutrality is questionable when such documents come under attack on the basis of deficiency as the judges will find it difficult to be critical of their peers. When judges, in that case, refused to be impartial, then they are deemed to have gone against canon 2.11 that calls for disqualification if a judge is reasonably questioned (American Bar Association, 2007). Thus, it is hard for a judge to be impartial for a litigant who pleaded their cases using forms approved by court.
Another issue that has led to professional discretion overlapping ethical boundaries is extrajudicial activities and conflict of interest. The law allows the judges to involve in extra-judicial activities that include pursuits that are connected to law, benevolent activities, religious activities, social, financial activities, fiduciary, and functions inclined to government. The law also allows judges to speak, write, lecture and teach both non-legal and law related subjects.
These provisions, however, does not enable the judge to engage in extra-judicial activities that interfere with the dignity of the judge's office, or impede the normal official duties of the judge and his performance, or adversely affect the judge’s impartiality and or lead to the judge being disqualified simultaneously. When judges engage in extrajudicial activities that bring about conflict of interest, then there is a need for them to disqualify themselves from such cases. In proceedings in which a judge has a financial interest, canon 4D, (2) and (3) excludes such a judge from the said proceedings (American Bar Association, 2007).
Additionally, when a judge wears two hats, that of an advocate and that of a judge, then he/she is deemed to have crossed the ethical boundaries in discharging professional discretion. For example, rule 3.10 of the model code of judicial conduct bars judges from practicing law. When a judge helps in drafting and approving law forms for pro se litigants, it is deemed the judge is acting as both the advocate and the judge on that issues. While Canon 4A (5) (American Bar Association, 2007).states that a judge may act pro se in all legal matter including matters that involve litigation and appearances before or other dealings with go...