Center for Indigenous Law, Governance & Citizenship Syracuse University College of Law

Ethical Guidance

for Dealing with the Media

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1. A Judge should uphold the integrity and independence of the Judiciary. Fort Peck Tribal Court Code of Judicial Conduct

How does this guide your dealings with the media?

Three Judicial Canons to Keep in Mind

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2. A judge should avoid impropriety and the appearance of impropriety in all his activities

• He should avoid at all times discussions, other talk or communications concerning on-going or pending cases with litigants or other interested persons unless both parties or their counselors are present or have been accorded and waived equal opportunity to meet and engage in the discussions. Chickasaw Code of Judicial Conduct

How does this guide your dealings with the media?

Three Judicial Canons to Keep in Mind

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3. A judge should perform the duties of his office impartially and diligently.

•A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control. This proscription does not extend to public statements made in the course of the judge’s official duties, to the explanation or court procedures or to a scholarly presentation made for purposes of legal education. Chickasaw Code of Judicial Conduct

How does this guide your dealings with the media?

Three Judicial Canons to Keep in Mind

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• Canon Three – A Navajo Nation judge shall always exercise the inherent powers and duties of the court with impartiality and diligence in order to encourage free discussion, achieve a prompt and speedy resolution of disputes, and obtain a just resolution of all matters under consideration.

•Consideration 10. Public Comment on Court Matters: The judge shall not publicly comment on matters pending before the court, including providing information or views to the news media or persons in semipublic contacts. While a judge may give public addresses or make public statements regarding views on the law, they should be general expressions of informed opinion which are not related to any matter pending before the Navajo Nation courts.

Other Examples – Navajo Nation

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Canon 3: A judge should perform the duties of the office fairly, impartially and diligently

•A (6) A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.

Other Examples - Code of Conduct for U.S. Judges

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•Canon 2 - A judge shall perform the duties of judicial office impartially, competently, and diligently.

• Rule 2.10 – Judicial Statements on Pending and Impending Cases

• (A) A Judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any non public statement that might substantially interfere with a fair trial or hearing.

Other Examples - ABA Model Code of Judicial Conduct

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•Canon 2 - Rule 2.10 – Judicial Statements on Pending and Impending Cases

• (C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).

• (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.

• (E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.

ABA Model Code of Judicial Conduct

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• What are your specific ethical rules?

What about Court Clerks?

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• Who is your client?• The community

• What is the purpose of your job?• To bring about justice

• How do you help the court system?• Contribute to the community’s

confidence and trust in court system

• How do you help the community?• Efficient use of public resources

Role of Court Employees

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• Judicial employees, when authorized, shall furnish accurate, timely information and shall provide access to public court proceedings and records according to established procedures. T.O.’s Rules for Judicial Employees

•What does this give you authority to do?

•A judicial employee shall not disclose any confidential information received in the course of official duties, except as required in the performance of such duties, or use such information for personal gain or advantage. T.O.’s Rules for Judicial Employees

•What is “as required in the performance of such duties”?•Can you disclose to a judge not assigned to the case?

Court Clerk Rules

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• Purpose of these rules????

• Can you comment on pending cases?• Depends on your rules…• Possibly public statements in course of official duties• Possibly explain for public information procedures of the court

• Should you explain a written opinion?

• Should you explain a series of decisions?• Depends on your rules and only if defends judicial integrity

What is a Judge and Clerk to do???

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•When asked by the media – should you comment?

• Review rules• Think about judiciary’s integrity and independence• Think about avoiding impropriety and the appearance of impropriety • Think about performing the duties of his office impartially and diligently• Think about = Do you have a duty to educate the public about

• Privacy• Process• Court and legal system

What is a Judge to do???

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•When asked by the media – should you comment?

• Review rules• Think about your role as a court employee

• Community is client• Work to bring about justice• Present and contribute to the community’s

confidence and trust in court system• Contribute to well-being of community through

efficient use of public resources• Other?

What is a Clerk to do???

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• Clarify in advance how a reporter may use what you say

• Can the reporter quote you and use your name?• Can he attribute your statement to a court official• Is the information strictly for background?• Example – a criminal sentence under ICRA limitations

• Make reporter aware of your ethical laws/rules/canons

•Why speak to the media?•It’s your duty• Corrects misinformation about your court• Self-interest

Thoughts from a Reporter

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• “Contrary to the traditional view of judicial independence, in contemporary society the ability of courts to act as independent decision makers depends on their involvement in local communities through various public outreach efforts.” Kevin M. Esterling

• Agree or disagree?

•“Organized public outreach efforts instead represent the best institutional response to issue-oriented attacks on judicial decisions, inaccurate or incomplete media reporting, and citizen disenchantment, frustration, or skepticism.” Kevin M. Esterling

• Agree or disagree?

Education/Outreach

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• Brochure

• Website

• Traveling courtroom

• Classroom programs

• Field trips to court

• Radio programs on the legal process• Avoid call in programs

• Newspaper/newsletter columns on legal process

Ideas for Outreach

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• Your Rules

• Three Canons

• Nature of audience

• Appropriateness of format

• Choose words carefully and responsibly

Keep in Mind

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• FL• Criticized practice of judges “friending” lawyers – violates Code of Judicial Conduct• Concern – people can infer “friended” attorney is in position to influence the judge

• NY• Participation in social media, including maintaining connections with attorneys, not ethics violation•But use judgment about propriety of connections that might create impression of “special influence”•Be aware of public nature of comments and that individuals might feel entitled to seek legal advice

Is Social Media OK?

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•CA• Social media ok•But may not interact with attorneys who have cases pending before them.• Cautioned to

• Exercise appropriate discretion in how use network

• Be familiar with site’s privacy settings and how to modify them

• Continue to monitor features of network’s services for new developments

Social Media

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• Tribal reporter stops you in the Walmart parking lot and asks you, off the record, what is happening in the Smith v. John case.

• What do you do?

• What is acceptable for you to say and what is unacceptable?

• Judges – what do you do to train the clerks to help them understand this rule?

Court Clerks

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• Your mother-in-law asks you what is happening in the Smith v. John case.

• What do you do?

• What is acceptable for you to say and what is unacceptable?

• Judges – what do you do to train the clerks to help them understand this rule?

Court Clerks

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• Reporter from tribal newspaper calls about Smith v. John a pending case.

• Judges – What do you do and why?

• Clerks – What do you do and why?

•Is there anything you can tell the reporter?

• What if reporter asks you to respond to allegations that the Court is influenced by Tribal Council?

What Would You Do?

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• Facebook• Twitter• Linkedin• Blogs• Email lists

Social Media

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• Judges • Is it ok to use Facebook?• In what manner is it ok to use?

• Court clerks•Is it ok to use Facebook?• In what manner is it ok to use?

• Tribal Court Websites• What material can be posted on website?

Social Media

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