American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 490

By David Majchrzak and Edward McIntyre

Issue:
What obligations do judges have in terms of inquiring into a litigant’s ability to pay court fines, fees, bail, or other charges?  

Analysis:
Under the Model Code of Judicial Conduct, Rules 1.1 (a judge shall comply with the law) and 2.6 (a judge shall “accord every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law”), judges must undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2 (“a judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary”), 2.2 (“a judge shall uphold the law and shall perform all duties of judicial office fairly and impartially”), and 2.5 (“a judge shall perform judicial and administrative duties, competently and diligently” and “shall cooperate with other judges and court officials in the administration of court business”) as a fundamental element of procedural justice necessary to maintain the independence, integrity, impartiality, and fairness of the administration of justice and the public’s faith in it.

According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. As long as a defendant’s failure to pay is due to genuine financial incapacity, alternatives to incarceration must be explored. Best practices for making ability to pay inquiries include using a “bench card” that provides judges and other staff relevant instructions on ability-to-pay inquiries, including a workable definition of indigence and alternatives to incarceration; providing advance notice to litigants of their ability-to-pay hearing and emphasizing that financial means will be “a critical issue” covered at the hearing; distributing a form “to elicit relevant financial information;” and providing a meaningful opportunity to address questions about the litigant’s “financial status” at the hearing.

David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.