11.6 Ethical Obligations

Introduction

Judges carry the weighty public responsibility to be independent and impartial decision makers. Every decision has to be delivered with respect to the specific facts of the case before the judge. While some charges will seem “routine” or appear before the court more frequently (for example, sexual assault charges), each case is unique, and the parties involved deserve to be treated with a fresh and unencumbered perspective. Burnout is a challenge that judicial interns may face given the volume of exposure they encounter over the course of a semester. Later in the Care section of this chapter, there is more information on personal care and resources to assist with burnout. This subject is mentioned briefly here because it is important to remember that burnout does not only impact the person experiencing it, but it can also have negative impacts on the public and parties that the court ultimately serves. Addressing wellness and burnout are important parts of maintaining ethical and professional conduct at work.

The Canadian Judicial Council has published a public document titled Ethical Principles for Judges. The latest update was released in 2019 with revisions and additions to provide ethical guidance on social media usage. The principles listed below are “advisory in nature and are designed to describe exemplary behaviour which all judges strive to maintain and assist judges with the difficult ethical and professional issues that confront them”:

1. independence

1. integrity

1. respect

1. diligence

1. competence

1. equality

1. impartiality

It can be beneficial for judicial interns to reflect on how these characteristics might guide their role in assisting judges. For example, how does the principle of diligence impact legal research responsibilities?

Judicial Independence

All members of the legal profession should know that there are serious professional consequences for attempted, perceived, or actual interference with the independence of judges. This news story arising in Manitoba serves as a cautionary tale. The Chief Justice’s swift response illustrates how judges are expected to handle any affronts to those principles; with transparency.

Ethical dilemmas

The court as an institution is empowered and also restricted by federal legislation. Managing expectations, especially through the criminal sentencing process, can be a challenging component of a judicial internship or clerkship. Many students struggle with the sometimes limited range of options within the court’s power. At the same time, it is central to the function of a court to maintain and respect the rule of law. This tension is an important source of reflection to carry into one’s career. Students are encouraged to ask their supervisors about the ethical dilemmas they face in their roles, and where judicial discretion is appropriate. A deeper understanding of the boundaries of the judge’s role is an important learning outcome in this type of placement.

Confidentiality

Courts are public institutions, but the judges’ chambers are spaces of private deliberation. The principles of independence and impartiality demand a degree of separation so that judges’ decisions are not influenced. Judicial interns and clerks are trusted with access to filed materials and expected to act in a way that protects the confidentiality of the parties and of the judges they support. Work habits, personal attitudes, and information about the judges themselves are shared with students in confidence and should be treated as private knowledge.

The need to maintain confidentiality is heightened in the context of small communities and high-profile cases that draw a media presence. Students are representatives of their law schools while on placement in the court and are expected to demonstrate professionalism in this regard. It may be that students come across victim support service workers, journalists, or lawyers in their day-to-day attendance at court. In those passing conversations, students should stay mindful of the boundaries between public information and information that they hold in confidence.

Confidentiality extends to the protection and safekeeping of sensitive digital and written media. Just as a student is expected to limit their discussions of courtroom materials to chambers, physical copies of materials and student notes should also be protected and stored securely. Court administrators may be able to provide more direction on their specific policies in terms of shredding, password protection, and where court property such as issued laptops may be used.