Marilyn Stowe Blog

Judges must avoid close relationships with solicitors (From Solicitors Journal)

From my latest Solicitors Journal column “Family Business”, 17/04/2012.

It is vital that we maintain the public’s faith in the independence of the justice system, says Marilyn Stowe.

Will Gardner is a senior partner at the Chicago law firm Lockhart Gardner. Every week he plays basketball with three judges. His well-known friendships with those members of the judiciary have come under scrutiny from his opponents, all the more so since his firm won a number of spectacular outcomes from those same three judges. Nothing improper has taken place, and the three judges don’t seem to think there is anything wrong with playing basketball with a trial lawyer. But Gardner’s opponents, one of whom is the State Attorney, are convinced otherwise. How else did Lockhart Gardner’s brilliant results come about?

As some of you have no doubt recognised, this is a storyline from the latest season of the American legal drama, The Good Wife. The glossy, high-budget series makes for compulsive viewing and, needless to say, its high-octane plotlines do not always match the day-to-day working reality for solicitors here in England and Wales. However the judges and their basketball games with a single trial attorney have given me pause for thought. In fact they have struck a chord, prompting a question that is not often asked: how close can members of the judiciary be in their relationships with solicitors?

Of course it should be clear cut because the Guide to Judicial Conduct, which applies to the judiciary in England and Wales, most certainly is. It covers a number of lofty themes including Independence, Impartiality, Propriety, Competence and Diligence. It also considers personal relationships and perceived bias, as well as activities conducted outside of court.

One of the most significant points outlined in the Guide falls under the category of Propriety: “A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.”

The Supreme Court also has its own Guide to Judicial Conduct, published in 2009, and the United Nations introduced the Bangalore Principles of Judicial Conduct in 2002 to establish standards for the ethical conduct of judges worldwide. Both highlight in near identical terms that judges should avoid situations involving other members of the legal profession that might lead to a charge of bias.

In short, there is plenty of guidance as to how the judiciary should conduct itself in relation to other members of the profession. I this country it is not always easy to sever all ties as judges are appointed from within the ranks of practicing lawyers, so it is inevitable that close professional relations will have been formed over many years between solicitors and individual members of the judiciary.  But by acquiring the substantial perks of their role, judges also accept weighty obligations too, and in particular, judges are specifically mandated to do all they can to avoid accusations of bias.

Why is it so fundamentally important to our Justice system, that judges strictly maintain their isolation? For me there are a number of compelling reasons that go far beyond any code of conduct. Much as in the fictional situation Will Gardner found himself, such close relationships can only ever leave doubt in the mind of other legal practitioners and the public as a whole – regardless of how innocuous they are considered to be by those who conduct them.

In the past few years there has been no end to the damaging stories concerning the close relationships politicians, the media and the police have shared. And we should be constantly vigilant if we are to also avoid falling foul of what is commonly seen as a crisis of trust in public life.

In fact, we should differentiate ourselves for this very reason and maintain the strong and proud reputation that the legal profession has, while maintaining the public’s faith in the independence of the justice system – something that is so important at a time when budget cuts seem to be eroding its very foundations.