Model Rules for Judicial Disciplinary Enforcement

Section II. General Provisions
Rule 12. Immunity From Civil Suits

Communications to the commission, commission counsel, disciplinary counsel, or their staffs relating to misconduct or incapacity and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness. Members of the commission, commission counsel and staff, and disciplinary counsel and staff shall be absolutely immune from civil suit for all conduct in the course of their official duties.

Commentary
This rule does not cover immunity from criminal prosecution. Immunity from criminal prosecution for witnesses in judicial disciplinary proceedings is covered by Rule 17.E. It is crucial that persons with information about misconduct feel free to bring matters to the commission. Complainants and witnesses will not come forward without some protection.

Complainants and witnesses should be granted absolute immunity. Qualified immunity does not protect against the threat of a civil lawsuit because it does not apply to acts done with malice. The judge may file suit alleging malice and force the complainant or witness to undergo the expense of defending the suit. Qualified immunity therefore does not serve to encourage cooperation with the disciplinary process.

Immunity from civil action attaches only to communications made to the commission or its staff and to testimony given in the proceeding. If the complainant or witness publicly discloses the information, immunity does not apply to the public disclosure. The complainant or witness remains liable in a civil action if he or she publicly makes a false allegation about a judge. Immunity under this Rule does not protect a complainant or witness from a criminal prosecution for perjury.

Commission members and staff must be free from harassment. Immunity assures the independence of the commission and eliminates a major deterrent to service on it. The immunity provision of this rule may require legislative enactment if existing statutes in the jurisdiction are not applicable to judicial disciplinary officials.

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