Evaluating Judicial Performance: How Judges Can Earn High Marks Even From Those Who Lose

by Jennifer MJ Yim
Conventional wisdom suggests that 50% of people appearing in court will walk away unhappy with their judge, their attorney, and the legal system in general. How could a criminal defendant sentenced to prison have positive things to say about the judge? When the Judicial Performance Evaluation Commission (JPEC) first discussed the statutory requirement to survey litigants and witnesses about judicial performance, some commissioners questioned how such surveying could result in anything but a 50-50 split, with winners praising the judge and losers voicing dissatisfaction. Many judges believe they are powerless to prevent half the participants leaving their courtrooms unhappy.

And yet, for each of the three years that the Administrative Office of the Courts has surveyed court users statewide, over 70% of respondents rated satisfaction with their court experience as “more than adequate” or “excellent.” A 2009 national study sponsored by the National Center for State Courts found that 74% of those with direct court experience expressed confidence in their state courts. If it is not winning and losing that accounts for public satisfaction and confidence in the justice system, then what is it?
Multiple studies show that procedural justice, also called fair processes, makes the crucial difference when people evaluate the quality of their experience with a decision-maker. People are more likely to base their judgments about a decision maker’s performance on whether they experienced fair processes than on whether they were granted advantageous outcomes or were afforded fair outcomes. Despite the counter-intuitive nature of this conclusion, it may sometimes matter less whether you win or lose than how the game was played!
In the judicial arena, procedural justice usually encompasses four factors: participation, neutrality, trustworthiness, and dignified and respectful treatment.
Participation: Was the party afforded an active voice in the decision-making process, allowing litigants to feel they have “been heard” by the judge?
Neutrality: Did the judge treat all parties in an impartial manner, basing decisions on objective factors?
Trustworthiness: Did the judge demonstrate concern about the situation? Does the judge appear to have proper motives, adequate reputation, and character to serve as a decision-maker in the case? (Litigants may not feel they have the information necessary to judge judicial competence but feel able to weigh a judge’s motives.)
Treatment with dignity and respect: Was the party treated courteously and as a valued member of society?
Studies show that judges who successfully afford litigants procedural justice based upon the above factors enjoy at least two benefits. First, such judges are more likely to have litigants who express satisfaction with their judge’s performance, regardless of the actual verdict. And second, the litigants are more likely to comply with the judge’s orders. In other words, procedural justice pays dividends both in measures of public trust and confidence as well as in higher levels of compliance with court orders.
What makes these findings even stronger is their replication in numerous settings, including personnel management, banking, law enforcement, correctional institutions, federal aid programs, tax collections, courts, and even with military soldiers in Iraq. In all of these settings, what consistently matters most to people on the receiving end of decisions is whether they believed the processes used to reach the decision were fair.
Think, for a moment, about how you interact with your clients, employees, or family members. The next time you need to make a decision that significantly affects their lives, consider how a process that affords participation, neutrality, trustworthiness, and treatment with dignity and respect might help your interaction. Research suggests that how you interact can improve the chances that others will leave satisfied with your decision, and be more likely to comply with it.
Of course, nothing about these research findings suggests that winning does not matter. To suggest otherwise would be to push the envelope of counter-intuitiveness too far. Outcomes do matter. Justice depends on judges making good, fair decisions every day. The important procedural justice issue for judges is that outcomes matter less than we sometimes think, particularly in terms of whether people feel satisfied with a judge’s performance and confident in the legal system.
Procedural justice provides a useful way to think about JPEC’s task of evaluating judges because it considers the criteria citizens actually use to evaluate both decision-makers and their government. JPEC must grapple with issues of procedural justice in order to produce meaningful evaluations of judges for Utah voters. The Commission also considers procedural justice a relevant marker of its own success in terms of how it conducts its business, including treatment of those affected by its decisions. What thoughts do you have about this concept of procedural justice as it affects JPEC? Contact Joanne Slotnik, executive director of the Commission, at 801-538-1652 or email me at j.yim@xmission.com.

Ethical Conundrum? Try Asking the Ethics Advisory Opinion Committee

by Meb W. Anderson
It is five minutes to five and you are sitting in your office just about to leave for the weekend, when of course the phone rings. It is a former client calling from the county jail. He asks you to mail him his entire client file. You say, “OK, I’ll locate it and send it to you,” and you hang up. On the drive home, you recall that this particular client file contains explicit crime scene photos, third-party medical reports, victim identification information, psychological and psychosexual evaluations, and so on, and you also recollect that a number of these documents are subject to court-ordered restrictions. You also recall, albeit faintly, that at some point in your career someone told you that when a former client requests the file, the Utah Rules of Professional Conduct define what constitutes the file, and require that most, if not all, of it should be turned over to the client.

On Monday morning you ask around the office, but nobody gives you the certainty you desire in addressing this issue. You do some legal research, but continue to feel uncertain. Do you send the former client the entire file, as required by Utah Rule of Professional Conduct 1.16(d)? Do you commit an ethical violation – or worse – if you send the former client the restricted documents? Certainly someone somewhere must have faced a similar ethical dilemma.
A Utah lawyer once confronted this exact scenario. Luckily, this lawyer knew where to turn, and his dilemma became the subject of an ethics opinion. On December 8, 2006, the Utah State Bar Ethics Advisory Opinion Committee issued Opinion 06-04, which advises that: “Absent prosecutorial or court-ordered restrictions, a former client’s access to his client file may not be restricted. In limited circumstances, a lawyer may delay transmission of certain information in a current client’s file.” Utah State Bar Ethics Advisory Opinion Committee, Op. 06-04 (2006).
What is the Ethics Advisory Opinion Committee?
The Ethics Advisory Opinion Committee (“the Committee”) is authorized to issue letter responses and to issue and publish formal written opinions responding to requests from members of the Bar for advisory opinions regarding the ethical propriety of anticipated professional or personal conduct. The Committee consists of fourteen voting members, each of whom is an active member of the Utah State Bar in good standing, and at least one of whom is a sitting or former judge. An attorney from the Office of Professional Conduct serves as a non-voting consultant to the Committee.
The current Committee members are: Maxwell A. Miller, Chair; Judge Kate Toomey, Vice-Chair; Linda F. Smith, Secretary; Nelson T. Abbott; Meb W. Anderson; Alain C. Balmanno; Herschell Bullen; Paul C. Farr; John Morris; Karra J. Porter; John D. Ray; John A. Snow; Ryan Tenney; Shelley Wismer; and Judith D. Wolferts. These individuals represent a broad range of practice areas, and include attorneys in private practice affiliated with firms of all sizes, government employment, and academia.
Each year the Committee receives a variety of requests for ethics advisory opinions concerning Utah lawyers’ ethical behavior under the Utah Rules of Professional Conduct. The Committee responds to all such requests either by issuing a formal ethics opinion to be published and thereby available to Utah lawyers and the public at large, or by issuing a letter response to the requesting party.
Ethics opinions focus on “the ethical propriety of anticipated professional or personal conduct of Bar members.” Ethics Advisory Opinion Committee Rules of Procedure I(a)(1). Accordingly, the Committee does not entertain requests for legal opinions or opinions on any other subject outside the scope of its authority. Moreover, the Committee may exercise its discretion to decline a request if it “does not involve a significant subject or involves isolated conduct,” id. R. I(b)(3)(i), or if the request “is clearly resolved by applicable Committee opinions, the Rules of Professional Conduct, statutes or case law,” id. R. I(b)(3)(ii). The Committee also may, in its discretion, decline an otherwise appropriate request if it involves a matter that is already the subject of review by a court or by the Office of Professional Conduct, and may decline a request to opine upon the propriety of the conduct of an attorney who is not the author of the request.
The Committee is not the Office of Professional Conduct. Nevertheless, because an attorney from the Office of Professional Conduct serves as a consultant to the Committee, its views and perspectives are available to the Committee.
How Do I Request an Ethics Advisory Opinion?
The Board of Bar Commissioners, any member of the Bar in good standing, or any “person with a significant interest in obtaining an advisory opinion on legal ethics may request an opinion.” Id. R. III(a)(1). Requests must be in writing, and include a brief description of the facts; a concise statement of the issue presented; and relevant citations to rules and ethics opinions, judicial decisions, and statutes. See id. R. III(a)(2), (3). The requests may be submitted directly to the Committee, or filed with the Board of Bar Commissioners or the Office of Professional Conduct, in which case those entities must forward the request to the Committee. See id. R. III(a)(2).
Once received, the Committee reviews each request, making a preliminary determination as to whether it is within the Committee’s authority, should be declined, or should be the subject of an opinion. The Chair or the Chair’s designee conducts a preliminary determination, which is followed by the full Committee’s review. Regardless of the Committee’s ultimate disposition of the requests, each receives considerable effort and discussion. In appropriate circumstances, the Committee may seek the views of appropriate Bar sections or committees, request public comment, invite the requestor to make additional oral or written presentations, or consult with the Office of Professional Conduct. See id. R. III(c).
The identities of persons or entities involved in making a request for an ethics opinion are confidential and shall not be disclosed in a published opinion without their consent. See id. R. VI. All voting and non-voting members of the committee and their staff are bound to maintain the confidentiality of the requesting persons or entities, and further, may not disclose the particulars of pending requests or circulate draft opinions. See id. (noting some limited exceptions for circulating drafts among colleagues and consulting non-Committee members concerning general issues).
In the event you disagree with an ethics opinion, recourse is available. See id. R. III(e). Generally, ethics opinions and letter responses are subject to review by the Board of Bar Commissioners within thirty days of their issuance. Also, a request for reconsideration of an ethics opinion may be filed with the Committee at the requesting party’s option. The ethics opinion under review “shall remain in full force and effect for the period during which the review is pending, unless the Board, in its discretion, issues a stay pending the outcome.” Id. R. III(e)(1)(iii). Appeal procedures for letter responses are handled a bit differently, with a mandatory request for reconsideration to the Committee. See id. R. III(e)(2).
What Does an Ethics Opinion Do For Me?
The ethics opinions are advisory in nature, and assist attorneys in avoiding unethical conduct. Assuming a factual context similar to what was posed by the request, a Utah lawyer who acts in a manner that is consistent with what was prescribed in an ethics opinion enjoys a “rebuttable presumption” of having conformed his or her conduct to the Utah Rules of Professional Conduct.

Where Can I Find Ethics Opinions?

An index of the Committee’s opinions can be found at: http://www.utahbar.org/rules_ops_pols/index_of_opinions.html
Recent ethics opinions of interest include:
Opinion No. 09-01
Issue: What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites? See Utah State Bar Ethics Advisory Opinion Committee, Op. 09-01 (2009).
Opinion: Advertising may not be “false or misleading.” Testimonials or dramatizations may be false or misleading if there is substantial likelihood that a reasonable person will reach a conclusion for which there is no factual foundation or will form an unjustified expectation. The inclusion of appropriate disclaimer or qualifying language may prevent testimonials or dramatizations from being false or misleading. See id.
Opinion No. 08-01
Issue: May an attorney provide legal assistance to litigants appearing before a tribunal pro se and prepare written submissions for them without disclosing the nature or extent of such assistance? If so, what are the attorney’s obligations when full representation is not undertaken? See id. Op. 08-01 (2008).
Opinion: Under the Utah Rules of Professional Conduct, and in the absence of an express court rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure to others of the nature or extent of such assistance. Although providing limited legal help does not alter the attorney’s professional responsibilities, some aspects of the representation require special attention. See id.
Opinion No. 07-01
Issue: May a lawyer purchase the exclusive right to referrals generated from the membership base of an organization whose members from time to time may have need of the legal services offered by that lawyer? See id. Op. 07-01 (2007).
Opinion: The proposed arrangement, which contemplates the exclusive funneling of referrals to one lawyer or firm, is not permitted, as it violates Utah Rule of Professional Conduct 7.2(b), which prohibits a lawyer from giving anything of value to a person for recommending the lawyer’s services. The fact that the recommendation is made by an organization does not change the outcome here. See id.
Opinion No. 06-05
Issue: Do the Utah Rules of Professional Conduct preclude a lawyer from participating in an ad hoc legal advisory group to a private, nonprofit, public interest legal organization, if the persons served by the legal services organization have interests adverse to the interests of a client of the lawyer or the lawyer’s law firm? See id. Op. 06-05 (2006).
Opinion: Generally, no. Rule 6.3 of the Utah Rules of Professional Conduct, with respect to legal services organizations, and Rule 6.4, with respect to organizations involved in the reform of law or its administration, provide that service as an officer or director of such organizations or membership in such organizations does not by itself create an attorney-client relationship with the organization or the organization’s clients. These rules do require that a lawyer be observant of the lawyer’s duties under Rule 1.7 to the lawyer’s clients and to the clients of the lawyer’s firm. Rule 6.3 requires that the lawyer not knowingly participate in a decision of the organization that is incompatible with the lawyer’s obligations under Rule 1.7, or that could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer, or on the representation of a client of the lawyer or the lawyer’s firm. Rule 6.4 requires that when the lawyer knows a client of the lawyer may be materially benefited by a decision of the law reform organization, that the lawyer-member disclose this fact to the organization. Under some circumstances, a lawyer’s participation on an ad hoc litigation advisory group may create an attorney-client relationship with the organization or the organization’s clients requiring the lawyer to comply with Rules 1.6, 1.7, and 1.9 before representing or continuing to represent clients adverse to the interests of the organization or the organization’s clients in such matters. See id.

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 00-04
(Approved June 2, 2000
Issue: What are lawyer’s ethical duties to a third person who claims an interest in proceeds of a personal injury settlement or award received by the lawyer?

Opinion: When a lawyer receives funds or property and knows a third person claims an interest in the funds or property, the lawyer must first determine whether the third person has a sufficient interest to trigger the duties stated in Rule 1.15(b). Only a matured legal or equitable claim – such as a valid assignment, a judgment lien, or a statutory lien – constitutes an interest within the meaning of Rule 1.15 so as to trigger duties to third persons under Rule 1.15. If no such interest exists, the lawyer must comply with the duties stated in Rule 1.15.
Opinion No. 00-07
(Approved June 2, 2000)
Issue: Do the Utah Rules of Professional Conduct prohibit a lawyer licensed to practice in Utah from participating in an association of lawyers that would use joint letterhead, with a disclaimer that the association “is an affiliation of independent attorneys – not a partnership?”
Opinion: A lawyer does not violate the Utah Rules of Professional Conduct if he participates in an association or affiliation of individual lawyers and law firms, provided that he adheres to the applicable rules regarding conflicts of interest and disclosure of confidential information. However, it would be misleading, and therefore a violation of the Rules, for the lawyer to participate in such an association or affiliation if its members were to practice under a common firm name and were to use joint letterhead. The inclusion of a partnership disclaimer would not cure the misleading nature of the letterhead concerning the relationship among the attorneys..