GR 9 COVER SHEET

Suggested Amendments to the

Code of Judicial Conduct Canon 2 Comments, Rules 2.2 and 2.6

Submitted by the Superior Court Judges’ Association

_____________________________________________________________

A.        Name of Proponent:             Superior Court Judges’ Association

B.        Spokesperson:                       Judge Jennifer Forbes, President-Elect

                                                            Superior Court Judges’ Association

C.        Purpose:        

The Superior Court Judges’ Association (SCJA) proposes amendments to the comments of the Code of Judicial Conduct Canon 2, Rule 2.2 and Rule 2.6, to help judges discern what constitutes “reasonable accommodation” of unrepresented litigants in court.  This amendment is needed to ensure that unrepresented litigants are fairly heard and that access to justice is available to those without representation. 

Unrepresented litigants make up a significant and growing number of participants appearing in Washington courts.  This is a national phenomenon.  The National Center for State Courts, Civil Justice Initiative shows a decline in defendant/respondent representation in civil litigation in general jurisdiction state courts from 97 percent in 1992 to 46 percent in 2015.  Nat’l Ctr. For State Courts, Civil Justice Initiative 32-33 (2015), https://ncsc.org/_data/assests/pdf_file/0020/13376/civiljusticereport_2015.pdf. Increased poverty and relatively few legal resources for those with limited financial means are factors contributing to the increase in unrepresented litigants appearing in court.^[1]

This decrease in legal representation contributes to access to justice challenges faced by those with limited financial means.  In a legal system that is generally described as adversarial and lawyer-centric, unrepresented litigants are disadvantaged.^[2]  A 2015 survey conducted by Washington State University’s Social and Economic Sciences Research Center (WSU-SESRC) found 70 percent of adults living in households at or below 200 percent of the federal poverty level reported legal problems for which they received inadequate or no legal help.^[3]  The divide between legal needs and legal assistance fuels the perception of a “justice gap” that disproportionately impacts low-income households, women, seniors, veterans, people with disabilities, and communities of color.^[4]

Judges are challenged when unrepresented litigants appear in court, and they must balance their obligation to “perform all duties of judicial office fairly and impartially” (CJC 2.2) with the need to ensure that unrepresented litigants are adequately “heard according to law” (CJC 2.6(A)).  In recognition of this judicial challenge, in 2007 the American Bar Association added a new comment to the Rule 2.2, which provides, “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”  The new comment 4 adds, “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  As of 2018, 34 states, including Washington, and the District of Columbia, have added comment 4 or a version of comment 4 to their Code of Judicial Conduct.^[5]

Unfortunately, what constitutes “reasonable accommodation” is often difficult for judges to discern.  In 2012, in a joint resolution regarding Rule 2.2, the Conference of Chief Justices and the Conference of State Court Administrators (CCJ/COSCA) urged states to “modify the comments to Rule 2.2 to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants,” explaining that the resolution affirmed “the importance of access to justice for all” and emphasized that “access to courts extends both to lawyer-represented and self-represented litigants.”^[6]

In 2018 the California Judges’ Association Judicial Ethics Committee issued a legal opinion further explaining the legal principles behind their examples of reasonable accommodation:

Reasonable procedural accommodations for self-represented litigants do not change the facts, the law, or the burden of proof, nor do they ensure a victory for the unrepresented.  Such accommodations simply mean that both sides will have a fair opportunity to tell their stories.^[7]

At least nine states and the District of Columbia have followed the CCJ/COSCA resolution and have listed examples of reasonable accommodation in their Code of Judicial Conduct.^[8]

At the 2019 Long Range Planning Meeting, the SCJA identified the need to improve self-represented litigant resources and access to courts as a top priority.  In February 2020, SCJA hosted the inaugural meeting of the Unrepresented Litigant Ad-Hoc Workgroup (Workgroup), a multidisciplinary group of justice system partners^[9] with the goal of improving processes, advancing access to justice, and ensuring that unrepresented litigants are heard fairly in court.  The group members reported disparate statewide practices and widespread uncertainty regarding the reasonable accommodation of unrepresented litigants in court.  Recognizing that judges and court staff are critical to addressing the justice gap that face unrepresented litigants, the Workgroup made education one of its top priorities. 

The Workgroup quickly concluded that training initiatives alone, however, will not provide the support needed to ensure the reasonable accommodation of unrepresented litigants.  Judicial education is not universally accessed nor always readily available.  Training subject matter varies by year and presenter, and may be forgotten by the individual taking the training.  After a careful review of the national literature and other states’ judicial ethics rules and canons, the Workgroup concluded that additional clarity and support was needed in Washington’s judicial canons as to the reasonable accommodation of unrepresented litigants.  The Workgroup concurred with the CCJ/COSCA recommendation that expanded comments to the judicial canons, that include “specific actions” of reasonable accommodation, would not only clarify existing canon rules, but provide important ethical guidance, and create a lasting, accessible resource for judges. 

The Workgroup drafted comment amendments to Washington’s judicial canons from the ABA model code, adding examples of reasonable accommodation as per the CCJ/COSCA recommendation.  The suggested comment amendments were circulated for extensive review through the Workgroup membership as well as the following external stakeholder groups: Family Law Executive Committee of the Family Law section of the Washington State Bar Association, SCJA Family and Juvenile Law Committee, the Access to Justice Rule Committee, Washington State Commission on Judicial Conduct, and SCJA Judicial Ethics Committee.  The suggested comment changes provided to the Supreme Court reflect the direct feedback of these external stakeholders and the support of each of the Workgroup’s member organizations and the SCJA Board.  Suggested changes were carefully crafted to impact only the comments to Canon 2, Rule 2.2 and Rule 2.6, in the acknowledgement that the judicial canons must uphold strict standards even when incorporating improved practices for the ethical conduct of judges.   

In summary, the SCJA concurs with both the ABA model code and the CCJ/COSCA joint resolution that judges need further guidance regarding what constitutes “reasonable accommodation” of unrepresented litigants, and that the Washington Code of Judicial Conduct should be revised accordingly.  SCJA’s suggested Canon 2 amendments to comments to Rule 2.2 and Rule 2.6 will assist judicial officers discern what accommodative actions are permissible under the Canon, and in so doing help unrepresented litigants to be fairly heard, ensuring access to justice for all people using the Washington courts. 

D.        Hearing:  A hearing is not requested.

E.        Expedited Consideration:  Expedited consideration is not requested.