Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts

This opinion outlines the ethical obligation of judges to make inquiries into an individual’s ability to pay court fines, fees, restitution and other charges before imposing a period of imprisonment for nonpayment, as required by Model Code of Judicial Conduct Rules 1.1, 1.2, 2.2, 2.5 and 2.6. The opinion also provides guidance on best practices for making ability to pay inquiries. 

You can read the full opinion here.

Key Findings
  • A judge’s failure to inquire into a person’s ability to pay before imposing incarceration, whether for nonpayment, to induce payment, or as leverage for demanding bail, violates rules 1.1, 1.2, 2.2, 2.5 and 2.6 of the Model Code of Judicial Conduct. 
  • Failure to adopt and consistently follow prescribed procedures in proceedings that could result in incarceration for failure to pay is a breach of a judges duty to comply with the law under Rule 1.1. 
  • Without meaningful inquiry into a litigant’s ability to pay, public confidence in the independence, integrity, and impartiality of the judiciary is not promoted within the meaning of Rule 1.2. 
  • The fairness and impartiality required by Rules 1.2 and 2.2– the duty to perform all duties fairly and impartially– are compromised by bail requirements and collection methods that affect low income litigants while allowing litigants of means to simply pay to avoid incarceration. 
  • The absence of procedures to prevent incarceration for failure to pay, and a lack of training for judges, attorneys and other court personnel on ability-to-pay procedures, the duty for the diligent performance of judicial and administrative duties as well as the cooperation with other judges and court officials in the administration of court business, violates Rule 2.5.. 
  • Pursuant to a judge’s duty under Rule 2.6 to ensure all interested parties have the right to be heard, uncertainty regarding whether inquiry into a litigant’s ability to pay in a particular circumstances is necessary should be resolved in favor of making the inquiry, and where the litigant is not represented by counsel, questions about his ability to pay and the viability of alternatives to incarceration, should generally be resolved against incarceration. 
  • Compliance with the obligation to inquire into an individual’s ability to pay requires the adoption of practices and provisions to ensure uniformity and efficiency. Examples include: use of a bench card that provides judges and other staff with relevant instructions on ability-to-pay inquiries, including a workable definition of indigence and alternatives to incarceration; advance notice to litigants of their ability-to-pay hearing and emphasizing that financial means will be “a critical issue” covered at the hearing; distribution of a form to elicit relevant financial information; and a meaningful opportunity to address questions about the litigant’s financial status at the hearing.
American Bar Association Standing Committee on Ethics and Professional Responsibility