Model Rules for Judicial Disciplinary Enforcement

Section II. General Provisions
Rule 11. Confidentiality

  1. Proceedings.
    (1) Before the filing and service of formal charges, all proceedings shall be confidential.
    (2) After the filing and service of formal charges, all proceedings shall be public except incapacity proceedings as provided in Rule 27.B.
  2. Information.
    (1) Before the filing and service of formal charges, all information relating to a complaint that has not been dismissed shall be held confidential by the commission and disciplinary counsel and their staffs, except that the commission may disclose information:
    (a) when the commission has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice; or
    (b) upon waiver in writing by the judge.
    (2) All information relating to a complaint that has been dismissed without formal charges being filed shall be held confidential by the commission and disciplinary counsel and their staffs.
    (3) Disciplinary counsel's work product, commission deliberations and records of the commission's deliberations shall not be disclosed.

Commentary
In the initial stages of the disciplinary case, confidentiality is necessary to protect a judge's reputation from unfounded charges and to protect witnesses from possible recriminations while a claim is being investigated.

Once the formal charges have been filed and served upon the judge, the policy emphasis shifts from confidentiality to the public's right to know. The integrity of the judicial system is better protected by an open public hearing than by a closed hearing. This is particularly true in those instances in which the conduct is publicly known and the commission proceedings are the subject of rumor and speculation. Once formal charges have been filed and served, there is no longer a danger that the charges are frivolous. It is no longer possible to protect the identity of the witnesses because their identity must be disclosed through the discovery to which the respondent is entitled.

Rule 11.B(1)(a) is intended primarily to cover the release of information the commission determines should be made known to law enforcement authorities or to the assigning authority in connection with the assignment or reactivation of a judge to judicial duties. It does not apply to information sought by appointing authorities, who may obtain information only upon waiver as provided in Rule 11.B(1)(b).

Neither the commission nor disciplinary counsel should disclose information about dismissed complaints even if a waiver has been signed by the judge who is the subject of the complaint.

Such waivers are rarely voluntary, but are signed at the direction of organizations that can withhold benefits or determine career advancement, such as admission to practice in another state, appointment to the federal bench, etc. Disclosing the existence of complaints that were considered and dismissed is unfair to the judge and undermines the work of the commission. It is unfair to allow any adverse inferences to be drawn from the mere existence of a complaint when it was not substantial enough to state a possible ground for discipline. The commission and disciplinary counsel will have greater credibility if they do not release information about dismissed complaints under any circumstances. If the judge wishes to have such information disclosed, the judge may release the information.

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