Ethics and Private Judges

California Chief Justice Ronald George’s interest in applying to so-called private judges the same ethical standards held by the state judiciary is most welcome. The examination he proposes should also address ways to stop the departure of so many highly skilled and experienced state bench jurists to more lucrative careers in private-dispute resolution.

George’s call for a study panel followed Times reports of private judges who helped settle a lawsuit involving Pacific Gas & Electric Co. and then went on a cruise set up by lawyers involved in the case. The ethical questions in this matter aside, the rapid growth of private judging is troubling for a number of reasons. George rightly warns about “the perception [that] we have a two-track system of justice, a speedier way of resolving disputes for those willing and able to pay.”

Private judges are a creation of the 1980s, part of a broader “alternative dispute resolution” movement, including lay mediators and arbitrators, that aims to avoid the acrimony and delays that often plague local courts. Private judges are hired in civil disputes when both sides agree to circumvent the public system. In some cases, the litigants want to avoid media scrutiny--in a celebrity divorce case, for example--or to tap a particular judge. Dispositions reached with private judges have the same legal status as those reached in court.

The practice has proved lucrative for these judges and the handful of dispute-resolution firms with which they typically affiliate. Some companies now require that customers accept private mediation when disputes occur. But the fact that these proceedings are closed and that private judges are not subject to the same public oversight as sitting judges has raised concern within the bar and among some jurists.

The 20-member panel proposed by George should focus on standards regarding conflict-of-interest disclosure and the possible need to restrict the judges’ social and professional relationships with attorneys.

Surely the prospect of higher income, greater flexibility and plusher surroundings is tempting for some judges still laboring in the dreary, crowded public courthouses. As chief administrator of the state bench, George has been a strong advocate for improvement in the public system and this year won legislative approval of a formula to provide more dependable funding for trial courts. Continued improvement in trial court operations is essential to keeping California’s best judges available to all.