The Disciplinary Complaint Against Judges as a Deontological Imperative: An Analysis from the Perspective of Lawyers' Positive Duties

Law: Contemporary Focus and Analysis

1. Deontological Foundation: The Hierarchy of Positive Ethical Duties

The practice of law transcends the mere technical representation of a private interest. It implies the assumption of a quasi-institutional role that entails inescapable positive ethical duties. Following the deontological dogma adopted and developed by Félix Mariano Viera, the lawyer is subject to mandates of dignity, probity, loyalty, good faith, and obedience to the law. These duties, by requiring active conduct, possess an axiological hierarchy superior to negative duties, which only demand abstention.

Under this prism, passivity in the face of systematic non-compliance with the rules by judges is not a neutral option. It constitutes a passive way of participating in their breach, eroding the social fabric and the community of legal operators itself. Institutional loyalty, far from being collusion or cover-up, demands the unwavering denunciation of notorious misconduct and manifest irregularities. The lawyer, in their capacity as a primary public actor and co-responsible party in democratic social practice, has the inexcusable duty to combat the reprehensible conduct of judges by all lawful means, as a guarantee for the rule of law.

2. Systemic Diagnosis: Independence, Accountability, and Justice Service

As Felipe Omar Brianti warns, the independence of the Judiciary, a pillar of the republican system, cannot and should not be confused with irresponsibility or impunity. The reality of a slow justice system, distant from changing social needs and out of step with the speed required by legal transactions, demonstrates that structural rigidity and the lack of adequate control mechanisms result in an unacceptable lack of service. This chronic inefficiency not only affects litigants but also erodes public trust in institutions.

2.1. Judicial Delay as a Social Pathology

Augusto M. Morello, in his lucid diagnosis, held that the problem of justice is not merely technical but profoundly sociological. It requires a change in mentality where the process is conceived as a "service enterprise" aimed at providing an effective response to the citizen. Extraordinary and unjustified judicial delay is not a simple dysfunction; it compromises social peace. When the Administration of Justice stagnates or fails to conclude within a "reasonable time," the right to jurisdiction is frustrated, generating material and moral damage that constitutes an effective denial of justice.

2.2. The Positive Duty to Report

Faced with this scenario, the Code of Professional Ethics imposes an active role on the lawyer: they must not allow or silence irregularities. The complaint before the Undersecretariat for Disciplinary Control of the Supreme Court of Justice of the Province of Buenos Aires, whose framework is the Disciplinary Regulations for Magistrates (Court Agreement No. 3354, Consolidated Text according to Court Agreement No. 4087), stands as the ideal civic and guild tool. It is not a mere "complaint" but an act of institutional defense to demand an adequate level of social responsibility from judges, combining impartiality with efficiency in favor of the users of the service.

3. Factual Scenarios for Disciplinary Action

Below are systematized factual and legal scenarios that, in light of the doctrine analyzed, justify and compel the promotion of disciplinary action, consolidating it as a true ethical duty.

• Case A: Inexcusable ignorance of current law. Ignorance of procedural law (CPCCBA - Law 15.240), regulatory norms (Court Agreements of the SCBA), and substantive law (Civil and Commercial Code of the Nation) is incompatible with the technical capacity required of a public official. The voluntary and conscious departure from essential "procedural facts" constitutes a manifest procedural excess and arbitrariness that must be reported.
• Case B: Lack of management and systemic paralysis. Following Brianti's thesis, courts are identified that, having the same infrastructure and resources as other efficient ones, present an unacceptable standard of performance. Negligence, wasted work hours, and lack of judicial direction of the process (absence of case management) are objective grounds for a complaint.
• Case C: Unreasonable paralysis and denial of justice. Cases where the court paralyzes or inhibits the administration of justice sine die, or issues untimely rulings, violating the guarantee of continuous and effective judicial protection. This conduct directly collides with Article 15 of the Constitution of the Province of Buenos Aires, which classifies repeated delay as a serious offense and constitutes a violation of the reasonable time guarantee.

4. Implications of Tolerating Judicial Inefficiency

Tolerating a deficient Administration of Justice has implications that transcend the individual case and corrode the foundations of Legal Certainty. The lawyer's silence in these situations makes them a passive accomplice to systemic damage.

1 Material Harm to the Litigant: The appeals structure of the Judiciary, which requires increasingly rigorous requirements (such as demonstrating an "evident absurdity"), means that deficiency in the first instance forces a disproportionate economic and temporal burden. This constitutes a barrier to accessing justice for the most vulnerable sectors, as Morello warned.

2 Denial of Effective Judicial Protection: The "time" factor is a constitutive element of justice. As discussed in the 1994 Constitutional Convention, justice not delivered within a reasonable time is, for a large part of the citizenry, inaccessible justice. Delay operates in favor of impunity and against the claimant.

3 Moral Obligation to the Client: The lawyer, bound by the duties of probity, loyalty, and good faith analyzed by Viera, is obliged to demonstrate to their client that they have exhausted all institutional avenues to combat arbitrariness. The disciplinary complaint thus becomes a concrete manifestation of the duty of diligence and defense of the rights entrusted to their sponsorship.

5. Perspectives and Projections for a New Control Paradigm

The future of the justice service demands a thorough review of control mechanisms and the role of the legal profession as guarantor of the system, in line with the reflections of Brianti and Morello.

• Projection 1: Digital Management Control and Audits. The progressive implementation of digital management, in tune with the principles of speed and procedural economy of SCBA Court Agreement 4087, will allow for the establishment of objective performance metrics. This will banish opacity in resolution times and facilitate the identification of inefficient courts, making complaints more effective.
• Projection 2: The Debate on Accountability and Stability. The debate on absolute tenure versus relative stability, or the granting of disciplinary powers to the provincial Council of the Magistracy, is emerging as necessary. The objective is to align judicial independence with social responsibility to the service user, overcoming the conception of tenure as a shield for inefficiency.
• Projection 3: The Lawyer as a Civic Auditor. Bar Associations must assume a leading role, spearheading investigations and promoting institutional complaints that safeguard the diffuse interests of society in the face of chronic inefficiency. This function of "civic auditor" is the ultimate expression of the positive duty of loyalty to the community and the democratic system.

📚 Links of Interest

• SCBA Disciplinary Regulations (Ac. 3354 T.O. Ac. 4087)
• Supreme Court of the Province of Buenos Aires
• Code of Professional Ethics
• Constitution of the Province of Buenos Aires (Art. 15)
• Civil and Commercial Code of the Nation (Arts. 1764 et seq.)