By Adrienne Meiring, Counsel | Judicial Qualifications Commission
The past year has provided a number of unprecedented challenges for the judiciary, which has allowed the court system to demonstrate its adaptability and innovation to keep the wheels of justice moving. With the advent of video-conference hearings and court proceedings being livestreamed, parties and witnesses may participate in proceedings from a remote location, which promotes citizen and employee safety and gives more people an opportunity to see courts in action.
And people are indeed tuning in—perhaps in greater numbers than before the pandemic. Now more than ever, it’s important for judges to remember that despite the less-formal feel of remote hearings, these are still court proceedings, and judges continue to have ethical obligations during them to maintain public confidence in the independence, integrity, and impartiality of the judiciary (R. 1.2 of the Code of Judicial Conduct); to require order and decorum in proceedings (R. 2.8(A)); and to behave in a patient, dignified, and courteous manner (R. 2.8(B)).
For instance, while the occasional, unavoidable photo bomb appearance of Loki the Cat during a hearing might draw some smiles and not undermine public confidence, holding a hearing while the judge is in his/her car to drop off the judge’s children may give the impression that the judge does not have enough time for or interest in the litigants’ legal matters.
Similarly, even though we are all proud of our alma maters, favorite sport teams, social views, and quirky interests, showing off items such as branded apparel prominently behind oneself during remote hearings may give viewers the impression that the judge is not taking the matter seriously.
Judges should also be mindful that they need to ensure that other participants treat these proceedings in a dignified and appropriate manner. And individuals who aren’t technologically savvy may need additional patience to walk them through how to proceed during a remote hearing. Judges should consider sending out an instruction sheet in advance that informs litigants and attorneys on not only how to access remote hearings but the expectations of the court as well.
For instance, attorneys should be instructed to dress appropriately for a proceeding and to maintain a neutral background/location (e.g., attorneys should not have the firm logo displayed to avoid claims of improper attorney advertising/solicitation). By advising participants and attorneys in advance of the hearing, a judge can avoid many of the frustrations that may occur, but the judge should keep in mind that flexibility is still key when negotiating technological hiccups.
For judicial officers who are livestreaming from the courtroom, judges should be mindful of the public image they cast when lax with safety protocols. Viewers may question the integrity of the judicial system when a judicial officer isn’t abiding by Supreme Court directives or Executive Orders during this pandemic (e.g. not wearing face masks/face shields, not having protective barriers between participants, not maintaining social distancing, and/or packing the gallery, wall-to-wall, with people). Citizens who witness such scenarios may lose faith in the court system—questioning how they can be required to comply with the law when a judge is not abiding by the law’s safety mandates. We can all agree that this is an image that we should all strive to avoid. With an ounce of prevention and foresight, we can continue Indiana’s longstanding tradition of public confidence in its judiciary.
Quick ethics checklist for holding remote hearings
- Send an instruction sheet to participants and attorneys in advance explaining how to access the remote hearing, who to call if there is a problem, and the court’s expectations of the participants during the hearing (e.g., appropriate clothing, appropriate location/background for the videoconference, order of speaking, etc.).
- If holding the remote hearing from a location other than the courthouse, the judge should select a neutral location and background that will be uninterrupted during the hearing.
- The judge should ensure that attorneys particularly abide by the court’s expectations handout and maintain a neutral background during remote hearings (e.g., no law firm logos in the background).
- If the judge is in the courtroom/courthouse (or other public setting), the judge should wear a face mask or be behind a protective barrier and ensure that others do so too.
- If in the courtroom/courthouse, the judge should follow court rules/Executive Orders limiting the number of people in a public space.
- Don’t anecdotally comment during a hearing about the wisdom of a particular court order or Executive Order (when the specific rule/directive is not legally at issue in the hearing).
- Be flexible. Be kind. These are difficult days for everyone, and a little kindness goes a long way.
