Ethical Issues in Adult Drug Treatment Courts

1. Hon. Peggy Fulton Hora Judge of the Superior Court of California (Ret.) Ethical Issues in Adult Drug Treatment Courts

2. Prosecution Ethics Jack McCoy, Law & Order Protect and promote public safety Cannot charge without PC (Model Rule 3.8) Duty to dismiss weak case

3. Net Widening • Studies in AZ and CA found no evidence DAs were overcharging and, in fact, in DTCs, charges were being reduced to allow participation Riley, J. et al., “Just Cause or Just Because? Prosecution and Plea-Bargaining Resulting in Prison Sentences on Low-Level Drug Charges in California and Arizona,” (2005)

4. Define:

5. Prosecution Issues • Must adopt less punitive approach • Soft on crime (‘hug a thug’) • Conviction required or evidence lost • Trained to put people in jail • Misperception of link between mental illness & violence • “Buy in” from prosecutor required for program success

6. Defense Ethics Yvonne Smith Segars, Esq., Public Defender of New Jersey

7. Defense Issues • Effect of non-adversarial, collaborative approach in DTC (Key Component, 2) and MH Court (Essential Elements of a Mental Health Court, Element 8) • Adversarial nature of traditional criminal courts may be roadblock to open communication and a hindrance to recovery • Success of rehabbing drug offenders depends on believing tx is necessary Lamparello, Adam, Comment & Note, Reaching Across Legal Boundaries: How Mediation Can Help the Criminal Law in Adjudicating “Crimes of Addiction,” 16 OHIO St. J. on DISP. RESOL. 335, 335

8. Duty of representation • “Duty of zealous representation” of client • C.f., reasonable diligence and competence in ABA Model Rule 1.3; “devotion and courage” in advocacy in ABA (“Defense Function Guidelines”) • To competently represent client in DTC must familiarize self with tx, procedures, bases for sanctions or termination, etc. (Model Rule 1.1)

9. Smith v. State FL Ct.App. 4th Dist. 3/19/03 • Lawyers must educate themselves about drug court programs. • They cannot effectively advise their clients otherwise • “To ignore the need to learn about the drug court process is to ignore the evolution of the justice system” • “For lawyers to do otherwise is for them to become legal dinosaurs”

10. Mary Ann • Prostitution, petty theft, possession, DWI, vandalism • Long-term health problems (Hep C and cirrhosis) • Wants out today • Doesn’t want to go to DTC • “There’s nothing wrong with me”

11. Must guard against • Use of TJ approaches “paternalistically” …when client ‘really needs psychological treatment or help’ • Daicoff, supra.

12. Does it diminishes the role of the attorney? • How is it different from explaining a plea agreement? • What is in the “best interests” of the client? • What is an “informed decision” re: representation (Model Rule 1.4) • Balance client needs with “early and prompt placement” in Key Component #3

13. Rhonda Coming down from 3 day meth run Falling asleep while interviewing “It wasn’t my meth. I was holding for my boyfriend” “I don’t care what happens. Just leave me alone”

14. Legal/cognitive competence of client to exercise options • Prone to relapse, AOD clients display denial, rationalization, resistance so who is making the decision - lawyer or client? (Model Rule 1.4, ABA Std Criminal Justice 4-5.1)

15. Jennifer • Current participant in DTC • Partied on the w/e • Tested positive for cocaine • Swears it was a false positive caused by dental work

16. Novocaine, Lidocaine, Xylocaine

17. COCAINE

18. Acquiesce to sanctions or “zealously” advocate for client? • Argue client’s position just in staffing or in court? • Therapeutic or anti-therapeutic effects of arguments and location? • “Whose team am I on anyway?” • Quinn, Mae C., Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. Rev. of L. & Soc. Change 37 (2000-2001).

19. Ex parte Communication • Ex parte communication must be specifically waived or asserted (Model Code Judicial Conduct, Canon 3B(7)) • Who is present at staffing? • Is it ok to attend team meetings w/out client? • How many levels of hearsay in staffing? • Are 42 CFR waivers executed for everyone present? Brown v. State, MD Ct of Appeal 5-18-09

20. TJ and Judging Hon. Melanie May, Justice of the Court of Appeals Florida

21. ETHICAL ISSUES ARISE FROM: • The collaborative nature of drug courts • The increased personal relationship of the judge to a drug court participant versus a “normal” criminal defendant • Direct contact between the judge and participant • The community advocacy role of the drug court judge

22. Judicial Issues • Remaining objective & impartial • Ensuring confidentiality, privacy, & dignity • Crafting appropriate sanctions • Developing a more personal, interactive style with defendants

23. Ted voluntarily withdrew from DTC

24. What to do with participant who dropped out? Hear case on regular docket? Recuse? • Duty to hear all cases Canon 3B(1) • Impartiality/bias or appearance Canon 3E(a) • “Punish” them for failing?

25. Edmondson case • D pled possession of mj with intent to distribute • Judge terminated D from drug court • No prior felonies • Sentence: Life • Judge used ex parte communication and inadmissible polygraph tests to determine sentence • HELD?

26. Trial court’s finding that judge committed “oppression in office” was not against the clear weight of the evidence nor contrary to law or established principles of equity • No judicial misconduct • Specific to Oklahoma Court on the Judiciary of Oklahoma, Appellate Division. State of OK, ex rel. W.A. Drew Edmondson, Appellee v. Jerry L. Colclazier, District Judge Seminole Co., No. CJAD-01-2, June 14, 2002

27. No Due Process violation • Same DTC judge may preside over the case and hear probation violation hearing • Ford v. Kentucky, Ct. of Appeal, April30, 2010 • State (NH) v. Belyea (May 20, 2010)

28. May increase sentence for “failure” • San Bernardino County (CA) sentences to aggravated term if fail out of drug court • People v. Loveless Ct.App. 3-9-09 and People v. Miller Ct. App. 3-24-09 said appropriate consideration to apply aggravated term

29. Incentives/Rewards • Graduations rates increased from 432% to 55% if the judge is the sole provider of rewards. • Carey, Shannon M., Ph.D., et al., “Exploring the Key Components of Durg Courts: A Comparative Study of 18 Adult Drug Courts on Practices, Outcomes and Costs,” NPC Research (March 2008) The “judge would be appearing to be lending the prestige of judicial office to advance the private interests of the commercial interests involved.” • NY Opinion 02-77: Sept. 12, 2002

30. Ex parte communication Canon 3B(7)ABA Rule 2.9(5) • No ex parte communications except: (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.

31. Comment [4] A judge may initiate, permit, or consider ex parte communications …when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

32. Ex parte staffing • Permissible to have ex parte communications at staffing with appropriate waivers and outside of drug court • Best practice to inform defense counsel of content and nature of communications • NY has specific administrative orders permitting such communication NY Opinion 04-88: March 10, 2005, Advisory Committee on Judicial Ethics, NY State Unified Court System

33. State judicial ethics amendments • Idaho • Maryland • Montana • Minnesota • New York • Indiana • Arkansas • have all amended their Codes to specifically address and permit ex parte communications in problem-solving courts including staffings

34. Bowling night Out-of-court contact with participants Drug Court picnic

35. Judicial discipline • Matter of Blackman, 591A.2d1339 (N.J. 1991) “[J]udges who attends a public or social event will be perceived as endorsing or supporting not only the event itself but also persons associated with the event.” • In re Jones, 581 N.W.2d 876 (Neb. 1998) Canon 1 and Canon 2 violation to meet individually with probationers.

36. Jud.EthicsAdComm. FL 2010-37 Out-of-court contact Jogging with juveniles Community service project to jog with judge Non-participants may wonder if they will get worse treatment if they don’t participate Could affect impartiality

37. Fundraising

38. …for the Court • Rubber chicken dinner (Attend? Speak?) • Wine auction (Auctioneer?) • Grant application (governmental or private?) • Appear before local board of supervisors, state legislators, Congress re: funding? • Write letter in support of legislation? • Bake sale? • Honoree at the Friends of the Overshoe County Drug Treatment Court at $150/plate?

39. Bd. Membership in 510(c)(3) • May not be an officer or director or help in any way the foundation used to solicit funds for the drug court • NY Opinion 97-83: Sept. 11, 1997

40. May participate as an applicant for grant funding • 2002 OK Jud Eth2. Oklahoma Judicial Ethics Advisory Panel, Judicial Ethics Opinion No. 2002-2, Jan. 25, 2002 • May not solicit incentive gifts from lawyers • 2007 Florida Supreme Court Judicial Ethics Advisory Committee • ABA Ethics Opinion 08-452 agreed with OK and FL

41. ABA Model Code of Judicial Conduct • 3.7 Permits solicitation for govt. entities and nonprofits concerned with admin of justice, etc. but only from family and other bench officers over whom you have no supervisorial position • 1.2 “Act in a manner that promotes public confidence in impartiality and integrity…” • Duty to recuse if lawyer at the rubber chicken dinner appears before you? She bought a table of 10 and her firm was a Golden Sponsor. Next attorney bought 1-$150 ticket

42. ABA Opinion • Judges in drug courts find themselves being urged to engage in efforts to raise private funding • No specific prohibition against fundraising for the court • BUT 3.7 and 1.2 • Judge is “well-advised” to take both the size and importance of the contribution in deciding recusal • ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 08-452 (Oct. 17, 2008)

43. Community Service • May attend and receive an award at a dinner sponsored by a local not-for-profit organization that is a member of the drug court team • NY Opinion 01-33: April 18, 2002 Advisory Committee on Judicial Ethics. NY State Unified Court System • May not sit on the Board of tx facility that serves drug court • NY Opinion 98-10: March 12, 1998 • May sit on Board that develops job skills • NY Opinion 88-121: Oct. 17, 1988

44. Other activities outside Court • Attending 12-Step or visiting tx facilities • Ride along on probation checks • Receiving award by tx community

45. DV Courts Award by DV community? • DV Courts are still adversarial • Ct goal: to enhance victim safety and increase offender accountability • D perceives judge more closely aligned with victim • Appearance of impropriety? NY Ethics Advisory Opinion 08-191

46. Team Approach • Violation of Due Process to allow team to deliberate/recommend disposition when statute vested authority in trial court • Judge delegated decision-making authority to the team Tennessee v. Stewart, Ct. of Crim. Appeals at Nashville (10/6/08) 2008 Tenn. Crim. App. LEXIS 784

47. "I have no thoughts or opinions on what you should do, should you decide that [the defendant] should come back with no sanctions whatsoever, or if he should be revoked and dismissed from the program or anything between, I do not care what your opinion is. I trust your judgment." • Neither the transcript of the hearing nor the order reflect that the trial judge engaged in its own deliberation of the proper disposition of the case.

48. The Team Approach • With whom does the final decision rest? • What is the reporting mechanism? • Individual agency responsibilities • Jurisdiction of the court

49. Who’s driving the BUS?

50. Avoiding Problems • Review your state’s Canons and Codes • Check for any opinions specific to drug courts • Ask for ethics opinions on issues of concern • No court has ever found collaborative approach to be illegal when approached properly • Examine your own prejudices • Preconceived notions, biases, and stereotypes about people with AOD abuse and/or mental disorders can prevent fairness and impartiality toward those who have them