Chapters 9 and 10 in The Drug Court Judicial Benchbook
- Topics: Chapter 9: Federal confidentiality law overview; 42 CFR, Part 2; consent forms; best practices in the confidentiality arena
- Description: Chapter 9: A general overview of federal confidentiality laws. that provides a groundwork for judges to comply with said laws in drug courts. Courts should exercise discretion to afford the greatest protection to the participant. HIPPA does not apply to drug courts. Court’s should issue an order for treatment providers to disclose relevant treatment information and consent forms should track HIPPA requirements. A Court in possession of federally confidentially information about a drug court participant is prohibited from redisclosing such information absent proper consent. Consent forms have 10 elements; consent cannot be revoked in the criminal justice context. Mandatory disclosure is required in 3 instances; 1) valid court order; 2) child abuse or neglect; 3) cause of death. Courts should designate a privacy official that ensures compliance with best practices to avoid sanctions including financial, licensing or criminal sanctions.
- Topics: Chapter 10: Code of Judicial Conduct, Canons of Judicial Conduct; the Canons; or the Model Code. Model Code Rule 2.3; ex parte contacts; Model Code Rule 2.9; Model Code Rule 2.11; Model Code Rule 3.1; Model Code Rule 3.7, Model Code Canon 4.
- Description: Chapter 10: Ethical obligations of judges in drug courts. Collaborative decision making should not violate the judge’s duty of independent judgment so long as the final decision remains with the judge. Courts should avoid appearing to compromise independence, integrity and impartiality by communicating with community organization or law enforcement in a way that implies the Court is directing actions by those agencies, including arrests. Judges do not have an ethical obligation to reports criminal activity disclosed during court proceedings. Participation in any outside activities with probationers or law enforcement is potentially problematic as indicative of bias or questions regarding allegiance to the judiciary. References can be problematic because the stature of the court is behind the reference. There is a therapeutic court exception in the model code that allows for ex parte communications but few states have adopted said model code. Judges play a role in garnering public support for treatment-oriented programs. Judges should abstain from being on treatment provider boards. Judges should not personally solicit funds to support drug courts. Judges may explain and defend the drug court model in general terms as long as it does not appear to reflect an intention to handle future cases in a certain way.
- Resource Type: Guidance Document
- Length: 13 pages (Chapter 9) ; 28 pages (Chapter 10)
- Agency/Author: National Drug Court Institute
- Year Published: 2017
Ethical Considerations for Attorneys and Judges in Drug Court
- Topics: Model Code of Judicial Conduct Canon 1; Model Code of Judicial Conduct Canon 2; Model Code of Judicial Conduct Canon 3; Model Code of Judicial Conduct Canon 4; Model Code of Judicial Conduct Canon 5; ABA Model Rule of Professional Conduct 1.1; ABA Model Rule of Professional Conduct 1.2; ABA Model Rule of Professional Conduct 1.3; ABA Model Rule of Professional Conduct 1.4; ABA Model Rule of Professional Conduct 1.6; ABA Model Rule of Professional Conduct 1.7; ABA Model Rule of Professional Conduct 1.14; ABA Model Rule of Professional Conduct 2.1; ABA Model Rule of Professional Conduct 3.1; ABA Model Rule of Professional Conduct 3.2; ABA Model Rule of Professional Conduct 3.3; ABA Model Rule of Professional Conduct 3.4; ABA Model Rule of Professional Conduct 3.5; ABA Model Rule of Professional Conduct 3.6; ABA Model Rule of Professional Conduct 3.8; ABA Model Rule of Professional Conduct 4.1; ABA Model Rule of Professional Conduct 4.2.
- Description: Model Canons and Rules of Professional conduct the authors perceive to be relevant to practice in drug courts. Judges and lawyers should refer to state and local rules because not all jurisdictions have adopted the model rules. A judge must uphold the integrity and independence of the judiciary, key components are a coordinated strategy used to govern drug court responses and forging partnerships between drugs courts, public agencies and community-based organizations to enhance local support and effectiveness. The comments taken from each rule of a given canon are specifically tailored to issues that may arise in the drug court setting. Roles in drug court are different for lawyers than their classic adversarial roles. Instead of the assumption of conflict the assumption is cooperation. Most of the ABA’s Model Rules of Professional Conduct have been adopted but lawyers should still consult rules in their jurisdictions.
- Resource Type: Research Brief
- Length: 69 pages
- Agency/Author: National Drug Court Institute
- Year Published: 2001
Confidentiality of Substance Use Disorder Patient Records (42 CRF Part 2)
- Resource Type: PDF
- Length: 57 pages
- Agency: SAMHSA and the Colorado Bar Association
- Year Published: 2018
- Resource Type: Website article and videos
- Agency: SAMHSA's GAINS Center
- Year Published: 2018