In Pursuit of Settlement: Deciphering Judicial Activism

Georgetown Journal of Legal Ethics, The, Summer 2005 by Barnao, Jaclyn

I. INTRODUCTION

"The law favors the voluntary settlement of civil suits."1 Although this may appear to be a somewhat obvious and apparent goal of the adjucatory system, it is one that appears to be in conflict with the current settlement culture that has emerged in modern civil litigation. With the more recent changes that have been made to Rule 16 of the Federal Rules of Civil Procedure ("FRCP"), specifically the 1983 amendments, as well as the proposed Rule 2.08 of the Draft Model Code of Judicial Conduct ("2004 Draft Model Code"), judges are being encouraged more than ever to facilitate settlement during the course of a lawsuit, bringing to light the question of whether such settlements are ever truly voluntary. Accompanying this new role are the added responsibilities placed on judges to ensure that settlement discussions and conferences remain fair and impartial to both parties. But with the limited guidance that is currently available, how can judges ever know what the appropriate and accepted behavior for judicial involvement in settlements really is? By advocating the "important role [judges] play in overseeing the settlement of disputes"2 and "facilitating the settlement of the case,"3 these rules place judges in an ethical Catch-22 by encouraging an active judicial role in settlement without denning what the boundaries of that role should be.

This predicament was aptly expressed by James Alfmi, a member of the 2003 American Bar Association ("ABA") Joint Commission to Evaluate the Model Code of Judicial Conduct, during a public hearing and meeting: "The problem here is that, over the last couple of decades, we created a settlement culture, and we don't have an ethics infrastructure to support that culture."4 This lack of an ethics framework is evident in many forms, and it is manifested in judicial conduct ranging between two extremes: from complete lack of judicial involvement in settlement discussions,5 to exerting extreme judicial pressure to achieve a settlement and threatening or imposing negative consequences for not settling.6 The Commission on Judicial Conduct for the State of New York attempted to define the fine line that judges must tread, acknowledging that, "[w]hile a judge may play an active role in attempting to settle cases, the judge's conduct toward litigants and their attorneys at all times should be 'patient, dignified and courteous.'"7 The danger, of course, is that judges may cross this line with aggressive settlement techniques, coerce parties into settlements that they are uncomfortable accepting, make the lawyers feel as if the judge is trying to interfere with their relationship with their client, or facilitate the appearance of judicial impartiality.

Partly as a response to this growing awareness of and increasing concern about judicial bias, the ABA has formulated a Joint Commission to Evaluate the Model Code of Judicial Conduct to review the 1990 ethics code for judges and to recommend revisions for possible adoption.8 These revisions appear to take the 1990 Model Code of Judicial Conduct ("Model Code") even further, by strongly emphasizing that there are limits to the judicial role in the settlement of disputes.9 Similar to the current Canon 3B(7),10 the proposed Rule 2.08 demands 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."11 Comment Two, however, further highlights that "efforts to further settlement [should] not undermine a party's right to be heard according to law."12

Currently, these drafts are mere proposals; they have been posted for public comment, and a final report will be given to the ABA House of Delegates for consideration in August 2005.13 It will then remain to be seen what states will implement the new code or similar versions of it. Noticeably absent, however, from the proposed canons are several concerns that were raised at various meetings and public hearings including (1) whether a judge should preside over a trial after he or she has participated with the parties in settlement negotiations and (2) "global settlement" issues regarding whether federal and state judges may work simultaneously together on a case to promote settlement.14 Nonetheless, the very fact that these revisions are being contemplated and released is significant; through them, the ABA has acknowledged the need to "provide a framework for identifying the enduring principles of an independent, accountable judiciary, recognizfe] trends affecting these principles and recommend[] strategies that address this phenomena in the 21st Century."15

Part II of this Note begins by discussing the history and background of the current rules concerning judicial involvement in settlement, focusing particularly on Rule 16 of the FRCP and the Model Code. Next, Part III specifically examines the influence of Rule 16 of the FRCP, as well as the significant changes made to the proposed Rule 2.08 of the 2004 Draft Model Code. Part III will also explore what, if any, implications the new draft will have on the judicial role in settlement discussions. Finally, Part IV will discuss other factors that are helping to define the judicial role in settlement, including recent case law and ethics opinions placing limits on judicial behavior, and will conclude with suggested judicial tactics for use in settlement negotiations evaluated under the broad ethical guidelines of proposed Rule 2.08. Throughout, this Note argues that although Rule 16 of the FRCP has solidified the placement of the settlement conference in modern civil litigation by authorizing the judge to order a settlement conference, the lack of ethical boundaries in the Model Code has proved problematic by failing to define what the court can do to effect the proper settlement and resolution of claims.