Ethics Issues Unique To Problem Solving Courts, 1117 COBJ, Vol. 46, No. 10 Pg. 23

• Author: JAMI VIGIL, J.

46 Colo.Law. 23

Ethics Issues Unique to Problem Solving Courts

Vol. 46, No. 10 [Page 23]

The Colorado Lawyer

November, 2017

PROBLEM SOLVING COURTS

JAMI VIGIL, J.

Problem solving courts are thriving throughout the United States to promote rehabilitation and reduced recidivism through collaborative and therapeutically guided court programs addressing complex problems such as substance abuse, domestic and family violence, mental health issues, and truancy. This is the fourth in a series of articles dedicated to exploring current best practices and common issues facing problem solving courts locally and nationally.

In 1997, the National Association of Drug Court Professionals (NADCP), with approval from the Bureau of Justice Assistance, adopted a document outlining 10 key components for problem solving courts (PSCs).[^1] These components were created to serve as national guidelines for the development and implementation of PSCs. Colorado's Office of State Court Administrator strongly supports all judicial districts adhering to these 10 key components, even requiring it for the state's new accreditation process. A complete list of the 10 key components appears in the sidebar accompanying this article; however, only those that relate to some of the unique ethical issues found in PSCs will be discussed in detail here. Problem solving courts are nontraditional in many ways. To achieve their ultimate purpose of rehabilitation and reducing recidivism, these court programs are collaborative instead of adversarial, using a treatment team approach, closed treatment team staffings, and frequent, direct communication with the court. Much of the focus in therapeutic jurisprudence literature is on designing a program that advances treatment adherence and outcomes for participants. However, it is equally important to explore ethical concerns that arise out of this collaborative team approach. Most PSC ethical concerns relate to the following three areas:

1.closed staffing and ex parte communication;

2. judicial independence and impartiality; and

3. the role of defense counsel/respondent parent counsel as team member.

This article serves as a brief introduction to these three areas, emphasizing ethical implications unique to PSCs and best practice remedies. Related PSC key components are highlighted along the way.

Please note that this article does not provide exhaustive analysis of every ethical issue that might arise in a PSC. Furthermore, in looking at these aspects of PSCs, remember that the ultimate purpose of all PSCs, regardless of whether it is an adult criminal drug court, a domestic violence court, or a dependency and neglect-based program, is rehabilitation and reduced recidivism. All PSC team members, while possessing different responsibilities, share the goal that participants will successfully complete the individualized treatment program. Closed staffings, increased access to the court, and defense counsel as a treatment team member are all elements of PSCs that have been found to increase participant success.

Closed Staffing and Ex Parte Communication

An essential feature of the adversarial system is courts that are accessible and available to every person, without exception. "It has long been recognized that equal access to the courts, and modes of procedure therein, constitute basic and fundamental rights. The courts must be open to all and on the same terms without prejudice."² One criticism of PSCs is that most hold closed staffings, in conflict with this core value of accessible courts. The specific argument is that these programs do not follow the open court rule and instead conduct closed proceedings in which team members openly share information about a participant's case without the person present.

The majority of drug court programs do conduct closed staffings with only treatment team members present. Immediately preceding each court session, the team holds a pre-court conference typically called a staffing. This meeting is generally not open to the public or program participants unless the court determines there is a good reason to do so. To ensure full team collaboration, many courts guard the closed nature so closely that the staffings in these jurisdictions are held off the record. Does this raise an ethical concern, and if so, how can it be addressed?

Therapeutic courts function differently than traditional courts. The purpose of the closed staffing is to facilitate open information sharing and review of participant progress by the program's multidisciplinary team of professionals. The PSC team not only oversees the operation of the program, but also collaboratively reviews participant progress to develop suggestions for therapeutically appropriate court responses.³ The goal of these staffings is to review the participant's current information and develop a timely court response that is informed by the team, with the intention of furthering recovery.

► Key Component #6: A coordinated strategy governs drug court responses to participants' compliance.

The staffing is an opportunity for the team to share new information, as well as discuss participant progress, individualized incentives and sanctions, and a participant's movement through phases of the program and case resolution. New information might include the following:

■ confirmed drug test results;

■ individual attendance at treatment and other appointments;

■ evaluation or assessment results;

■ participant goals;

■ newissues such as recent arrests, reports of domestic violence, or major medical conditions; and

■ overall compliance with court orders and the program.

All of these factors could greatly influence a person's ability to successfully complete the treatment program. They also typically involve confidential information, and broadcasting this highly personal information in open court could undermine therapeutic goals should the participant feel embarrassed, ashamed, or traumatized.

Additionally, research has consistently shown that the greatest therapeutic gains in PSCs arise from court responses presented by a unified team. A divided PSC team is a distraction for participants from die ultimate goal of recovery. Staffing enable team members to understand the appropriate message to be conveyed to a particular participant and avoid inconsistent messages that could derail treatment or sobriety monitoring.

PSC staffings have been analogized to pre-trial conferences where attorneys advise die court of disputed issues, identify facts in dispute, and address any other collateral matters.⁴ As such, it has been determined that staffings may be closed.⁵ "A participant's direct connection with the judge and active participation in...