Model Rules for Judicial Disciplinary Enforcement

Preface

Development of the 1994 Model Rules for Judicial Disciplinary Enforcement

For nearly two decades the American Bar Association has been committed to an effective and strong professional regulatory system for lawyers and judges.

In February 1978, the American Bar Association adopted the Standards Relating to Judicial Discipline and Disability Retirement as a national model for enforcement of judicial conduct codes. To assist jurisdictions in the implementation of these standards, the ABA Standing Committee on Professional Discipline and the Judicial Administration Division developed the Model Rules for Judicial Discipline and Disability Retirement in June 1979. In 1990, the American Bar Association significantly revised its Model Code of Judicial Conduct.

While nearing the completion of its project to combine the Standards for Lawyer Discipline and Disability Proceedings (1978) and the 1979 Model Rules for Lawyer Discipline and Disability Proceedings into the Model Rules for Lawyer Disciplinary Enforcement, which was approved by the ABA House of Delegates in August 1989, the Standing Committee on Professional Discipline decided to review the 1978 Standards Relating to Judicial Discipline and Disability Retirement.

In April 1988, Chairperson Marna S. Tucker appointed a Subcommittee chaired by Barbara Crabb, Chief Judge, United States District Court for the Western District of Wisconsin, to examine the effectiveness of the 1978 Judicial Standards, combine the Standards with the 1979 Model Rules and provide comment on the revisions of the Model Code of Judicial Conduct that were then under consideration by the Standing Committee on Ethics and Professional Responsibility. After a number of preliminary meetings, the Subcommittee decided that the Standards should be revised and that the American Bar Association Judicial Administration Division should be invited to join in its efforts.

In February 1990, the Standing Committee on Professional Discipline and the Judicial Administration Division created the Joint Subcommittee on Judicial Discipline co-chaired by Vivi Dilweg, Judge of the Circuit Court, Green Bay, Wisconsin, representing the Standing Committee on Professional Discipline, and Judge Crabb, representing the Judicial Administration Division. The members of the Subcommittee representing the Discipline Committee were Linda D. Donnelly, Disciplinary Counsel for the Supreme Court of Colorado; Thomas M. Fitzpatrick, Seattle, Washington; and H. Holcombe Perry, Jr., Albany, Georgia.

Representing the Judicial Administration Division were C. Tolbert Goolsby, Judge, South Carolina Court of Appeals; Florence K. Murray, Justice, Rhode Island Supreme Court; and Gerald Stern, Administrator of the State of New York Commission on Judicial Conduct. The goals adopted by the Joint Subcommittee were to: (1) assure conformity with the new ABA Model Code of Judicial Conduct, (2) ensure prompt and fair discipline for judges, (3) enhance public confidence in the judiciary and in the judicial disciplinary system, (4) ensure the protection of the public and the judiciary, (5) protect the independence of the judiciary and (6) establish a model for states to use as a resource to establish improved judicial discipline systems.

The first task of the Joint Subcommittee was to gather information from all sources on how the judicial discipline system was working across the country. The judicial discipline procedures of each state were collected and reviewed with an in- depth study of twelve jurisdictions. The size, location, complexity of procedure, structure and number of complaints disposed of each year were considered in identifying the twelve jurisdictions to ensure that the broad spectrum of disciplinary systems were represented in the study. The study included jurisdictions that combine the investigative and adjudicative functions of the judicial enforcement system and jurisdictions that bifurcate those functions. Alabama, Arizona, California, Florida, Illinois, Michigan, Montana, New York, Ohio, Vermont, Virginia and Washington were chosen for study. The Joint Subcommittee conducted a complete review of each jurisdiction's disciplinary procedures and case law as well as relevant literature. In addition, interviews were conducted in each jurisdiction with selected representatives of the system.

Due to the complexity and importance of this nationwide project, the Joint Subcommittee on Judicial Discipline requested funding from the State Justice Institute to complete the project. The State Justice Institute approved a grant of $120,000 in 1991.

After a series of meetings to complete information gathering and analysis and to draft proposed changes to the Standards, the Joint Subcommittee completed the first draft of the Model Rules for Judicial Disciplinary Enforcement in August 1992.

During 1992, the Joint Subcommittee held public hearings on the draft Model Rules at the American Judicature Society National Conference in Baltimore and at the ABA Annual Meeting in San Francisco. After circulation of a second draft in January 1993, the Joint Subcommittee sponsored a public hearing at the ABA Midyear Meeting in Boston. Following dissemination of a third draft in July 1993, a panel discussion and forum was sponsored by the Judicial Administration Division at the ABA Annual Meeting in New York in August 1993.

As a part of its outreach efforts, the Joint Subcommittee presented the draft Model Rules at the August 1993 meeting of the National Conference of Chief Justices. Subcommittee Co-Chair Vivi Dilweg also addressed the National Commission on Judicial Discipline and Removal, which held hearings regarding the procedure for discipline and removal of federal judges.

During the drafting process, the Joint Subcommittee met with the Standing Committee on Professional Discipline and the Council of the Judicial Administration Division and had a continuing dialogue with the Joint Ethics Committee of the National Conference of State Trial Judges and the National Conference of Special Court Judges. In addition to convening four public hearings, the Subcommittee received and carefully considered numerous written comments from members, counsel and executive directors of judicial discipline commissions, judges and the public.

The Model Rules were submitted under the co-sponsorship of the Standing Committee on Professional Discipline, the Judicial Administration Division, the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Judicial Selection Tenure and Compensation to the ABA House of Delegates for action at the 1994 Annual Meeting in New Orleans, and were approved by the House on August 9, 1994.

Highlights of the Model Rules for Judicial Disciplinary Enforcement

The Model Rules, unlike the Standards, have a Terminology Section to resolve differences in language.

I. Organization and Structure

Section I of the Model Rules addresses organization and structure of the Commission on Judicial Conduct.

Rule 1 provides that the disciplinary authority of the commission extends to any person performing judicial functions or exercising judicial powers in the state's judicial branch. The definition includes court administrators, judicial mediators or referees and excludes administrative law judges and federal judges.

Rule 2 governs the appointment of the commission members and mandates an equal number of judges, lawyers and public members.

One of the most consistent complaints the Joint Subcommittee heard from judges and their counsel was the perceived unfairness of a system that combines all functions - investigation, prosecution, hearing and decision making - in a single process. The process has survived due process challenges because in this type of system the highest court has the ultimate authority to review de novo and impose sanctions. The primary reason voiced in favor of this type of system is cost efficiency. The primary criticism is that once a commission is exposed to all the investigative information and determines probable cause to file formal charges, it is nearly impossible for the same commission to be a neutral adjudicative body. Although commissions and executive directors express their assurance that it is fair, the appearance of fairness is not met. The Joint Subcommittee engaged in extensive deliberations in formulating its recommendation to separate the investigative and prosecutorial functions from the hearing, fact-finding and decision-making functions.

The solution in the Model Rules is to divide the commission into two panels, an investigative panel of three members and a hearing panel of nine members, and to have separate disciplinary and commission counsel.

Rule 3 provides that each panel should be composed of an equal number of judges, lawyers and members of the public. The membership on the panels rotates with the restriction that no member shall sit on both the hearing and investigative panel for the same case.

Rule 4 of the Model Rules provides that the investigative panel works closely with the disciplinary counsel. The disciplinary counsel handles the investigation and prosecution of the case. The commission appoints the disciplinary counsel, but to preserve the counsel's independence to appeal a hearing panel's decision, counsel cannot be removed without the concurrence of the highest court.

Rule 5 provides that the hearing panel have a separate commission counsel to assist it. It is left to the commission as a whole to determine which counsel would maintain the commission's records, prepare the commission's budget, inform the public of the existence and operation of the system and perform other administrative tasks. This structure is designed to resolve any appearance of unfairness.

II. General Provisions

General provisions of the Model Rules are embodied in Section II.

Rule 6 defines the grounds for discipline as any conduct constituting a violation of the Code of Judicial Conduct, the Rules of Professional Conduct or other applicable professional conduct codes. The only other ground for discipline is willful violation of a valid order of the highest court, the commission or a panel of the commission in a proceeding under the Rules.

Like the Model Rules for Lawyer Disciplinary Enforcement, the Model Rules do not adopt any statute of limitations. The conduct of a judge, no matter when it has occurred, is always relevant to the question of fitness for office. The time between the commission of alleged misconduct and the initiation of a complaint based on the conduct is relevant to whether and to what extent discipline should be imposed, but is not relevant to limit the commission's power to investigate.

Rule 7 establishes "clear and convincing evidence" as the standard of proof.

Rule 8 provides that the state's rules of evidence applicable to non-jury civil proceedings and the rules of civil procedure apply in all proceedings under these Rules except as otherwise provided in these Rules.

Rule 9 provides the judge with the right to counsel at all stages of the proceedings.

Rule 10 prohibits the commission's hearing panel, commission counsel and hearing officers from having ex parte contacts regarding the case with the respondent, respondent's counsel, disciplinary counsel or any other witnesses. Prior to a determination to file formal charges, members of the investigative panel may communicate with disciplinary counsel, and disciplinary counsel may communicate with the respondent and witnesses as required to perform their duties.

Rule 11 addresses confidentiality. Prior to the filing of formal charges, all proceedings are confidential. If the complaint is dismissed without the filing of formal charges, the commission may never disclose it. If the matter proceeds to the filing of formal charges, all proceedings are public except incapacity proceedings as defined in Rule 27. This reflects the policy adopted by the ABA in the Model Rules for Lawyer Disciplinary Enforcement and is consistent with Rule 4.6 of the Standards Relating to Judicial Discipline and Disability Retirement (1978).

Rule 12 provides immunity from civil suit for communications to the commission, commission counsel, disciplinary counsel or their staffs relating to misconduct or incapacity. Immunity does not attach to any communication made to the media or to anyone other than those named in the Rule. Members of the commission, commission counsel and staff, and disciplinary counsel and staff are also absolutely immune from civil suit for all conduct in the course of their official duties. The Joint Subcommittee believes such immunity is essential to the effectiveness of the system.

Rule 13 provides that service of formal charges shall be made by personal service upon the judge or the judge's counsel or by registered or certified mail to the judge's address of record.

Rule 14 covers the use and enforcement of subpoenas.

Rule 15 provides that the highest court may place a judge on interim suspension upon the filing of an indictment or information charging the judge with a felony under state or federal law or upon the filing of a misdemeanor charge against the judge if the charge raises a substantial question as to the judge's fitness for office.

Rule 16 provides that disciplinary counsel must notify the complainant in writing of the final disposition of a matter under the Model Rules. Notice is to be mailed within 10 days of the disposition. Such notice is important to the integrity of the system and to public understanding of judicial discipline. Rule 16 also provides that the complainant must be notified of the filing of formal charges and the time and place of the hearing if one has been scheduled.

III. Disciplinary Proceedings

The disciplinary process begins with the receipt of a complaint by the commission. A complaint is defined as information in any form from any source that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. This definition is broad enough to allow disciplinary counsel to initiate a complaint.

Rule 17 provides that disciplinary counsel evaluate all complaints to determine whether the matter is within the jurisdiction of the commission and whether the information, if true, constitutes judicial misconduct or incapacity. If it does not, disciplinary counsel either dismisses the matter or refers it to another agency if appropriate. After a preliminary investigation to determine whether grounds exist to believe the allegations of complaints, disciplinary counsel recommends to the investigative panel that it either authorize a full investigation or dismiss the matter.

After the completion of the full investigation, during which disciplinary counsel has the power to issue subpoenas, disciplinary counsel recommends to the investigative panel dismissal, private admonition or deferred discipline agreement, the filing of formal charges or a petition for transfer to incapacity inactive status, referral to another agency, or a stay.

When a full investigation is authorized, the judge is notified of the nature of the allegations under investigation unless the investigation would be compromised by such disclosure. Either disciplinary counsel or the judge may request a meeting. Disciplinary counsel may request that the judge respond in writing after receiving notice of the allegations. The judge has a duty to cooperate, and failure to do so could be grounds for discipline.

Rule 18 governs the use of dismissed complaints by the commission. It is intended to protect the judge from the use of unsubstantiated information years after the information was received. The Rule provides that if a complaint has been dismissed prior to the filing of formal charges, the allegations made in that complaint are not to be used for any purpose in any future judicial or lawyer disciplinary proceeding against the judge. If additional information becomes known regarding the complaint, the allegations may be reinvestigated only with the consent of the investigative panel.

Rule 19 governs the filing of formal charges.

Rule 20 provides that the respondent judge is given 20 days to respond to the formal charges.

Rule 21 provides that failure to answer shall result in default and that all facts alleged are deemed admitted.

Rule 22, covering discovery, balances the judges' expressed desire for the full range of civil discovery with the need to ensure that the process does not become mired in the time and expense of endless depositions. Rule 22 is similar to Rule 15 of the Model Rules for Lawyer Disciplinary Enforcement. Subpoena power is available to the respondent after the filing of the answer. Disciplinary counsel has subpoena power from the authorization of the full investigation.

Depositions may be taken of witnesses to be called at trial, witnesses who may be unavailable at trial and of other relevant persons for good cause shown. Non-privileged information and evidence relevant to the charges including witness statements and summaries of interviews of witnesses are discoverable. Disciplinary counsel must make available exculpatory evidence. No other civil discovery is permitted. There is a suggested limit of 60 days from the date of filing of the answer to complete discovery.

Rule 23 provides that the hearing panel of the commission may enter into an agreement with the respondent for discipline by consent at any time after the filing of formal charges. The agreement is confidential until the highest court approves it. If it is not approved, the agreement cannot be used against the judge.

Rule 24 sets forth the rules of the hearing. If a hearing is held, the members of the hearing panel either sit as the finder of fact or appoint a subpanel or a hearing officer. Both parties may present evidence and produce and cross-examine witnesses. Disciplinary counsel may call the respondent as a witness. Rule 24.C provides that the hearing be recorded verbatim. After the hearing, the hearing panel may dismiss the case or recommend a sanction to the court. Any recommendation for sanction shall include findings of fact and conclusions of law and any minority opinions.

Rule 25 provides that dismissals and the recommendations for sanction shall be reviewed by the highest court in the state which may accept, reject or modify in whole or in part the findings and conclusions of the commission. The highest court may dismiss the charges, remand to expand the record or impose sanctions. The requirement that any public sanction be imposed by the highest court and not the commission is essential to the independence of the judiciary.

IV. Special Proceedings

The last section of the Model Rules establishes a model for the discipline of a member of the state's highest court and outlines procedures to be used in cases involving allegations of mental or physical incapacity.

Rule 26 provides that a complaint against a member of the highest court proceeds through the process in the same way as any other except that a special supreme court is constituted to act in place of the highest court. The special court shall consist of a number of judges equal to the number of justices of the highest court and may be composed of trial or appellate court judges or a combination of the two. The special supreme court will act on interim suspension motions and serve as the appellate review body for the imposition of sanctions. If disciplinary counsel, the respondent and the hearing panel of the commission reach agreement on the findings and sanction, then the hearing panel of the commission has the power to impose the sanction without review by the special supreme court.

Rule 27 sets forth a detailed rule to control cases involving allegations of the mental or physical incapacity of a judge. Most jurisdictions and the current ABA Standards use the term disability rather than incapacity; however, as exemplified by the Americans with Disabilities Act, a disability does not necessarily disqualify a person from serving. Rule 27 uses the term incapacity instead of disability. The rule makes it clear that determination of incapacity is not a disciplinary proceeding. The purpose of the proceeding is to determine whether the respondent suffers from a physical or mental condition that adversely affects the respondent's ability to perform judicial functions. The Rule also establishes a procedure for handling disciplinary cases where the judge pleads incapacity as a defense.

The 1994 Model Rules Offer Balanced Procedures for the Handling of Complaints against Judges

The regulation of judicial conduct is critical to preserving the integrity of the judiciary and enhancing public confidence in the judicial system. To carry out the regulatory task, a jurisdiction should have an adequately-funded judicial discipline and incapacity system. These Model Rules are intended to assist jurisdictions in reviewing the procedures of their existing judicial discipline systems and in drafting fair and efficient procedures for enforcement of the ethical codes if they choose to revise their present systems. The model system is a careful balance of a number of competing interests: the rights of judges to fair treatment in the disposition of complaints against them; the judges' interest in the confidentiality of complaints for which the commission finds there is not reasonable cause to believe that misconduct occurred; the public's concern that complaints against judges are given serious consideration and that judges are held to high standards of behavior; and the interest of the judges and the public in having judicial disciplinary complaints resolved promptly and accurately.

These Model Rules are presented with the understanding that each jurisdiction should determine for itself whether to accept or modify the individual Rules.

Hon. Barbara B. Crabb
Hon. Vivi L. Dilweg
January 1995

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