Judges must consider defendants' ability to pay fines and fees, ethics opinion says

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Judges must take steps to ensure individuals have the ability to pay before threatening incarceration, revoking probation, exercising contempt powers and similar conduct, says a recent ethics opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility.

Formal Opinion 490, published Tuesday, refers to the obligation as an “important area of procedural justice” and notes that in some jurisdictions, judges are failing this duty.

A press release is here.

Individuals have a fundamental right to be asked about—and heard—on their ability to pay. Due process principles under federal and state constitutions, laws and judges’ ethical responsibilities form the bedrock of this fundamental right.

When judges ignore individuals’ ability to pay they commit “a serious breach” of Rule 1.1. of the Model Code of Judicial Conduct, which requires judges “to comply with the law.”

When judges don’t inquire meaningfully into whether a litigant has the capacity to pay, they cause a decline in public confidence in the independence, integrity and impartiality of the judiciary—a key principle under Rule 1.2, which states that “a judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary”.

Furthermore, the Comments to Rule 2.2 (“a judge shall uphold the law and shall perform all duties of judicial office fairly and impartially”) require judges to show care to those who can’t afford counsel to ensure their matters are fairly heard. “Incarcerating pro se litigants for failure to pay legal financial obligations without inquiring into their ability to pay directly undermines their opportunity to be heard on issues as to which they may most need accommodation,” the opinion states.

Two other provisions of the MCJC are directly triggered: Rule 2.5, which requires judges to “perform all duties of judicial office fairly and impartially” and Rule 2.6, which provides that “a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” Judges also must avoid conflicts of interests that arise from imposing fees that fund courts.

Opinion 490 encourages judges to consider “innovative options and comprehensive guidance” from the Conference of State Court Administrators, the National Center for State Courts and other organizations.

It lists four examples of methods to help ensure procedural justice: (1) using “a bench card” that gives judges and judicial staff instructions on “ability-to-pay inquires”; (2) giving advance notice to litigants of their ability-to-pay hearings and that the ability to pay will be a critical issue at the hearing; (3) distributing a form to obtain relevant financial information; and (4) “providing a meaningful opportunity to address questions about the litigant’s financial status at the hearing.”

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