Model Rules for Judicial Disciplinary Enforcement

Section III. Disciplinary Proceedings
Rule 17. Screening And Investigation

  1. Screening. Disciplinary counsel shall evaluate all information coming to disciplinary counsel's attention by complaint or from other sources that alleges judicial misconduct or incapacity. If the information would not constitute misconduct or incapacity if it was true, disciplinary counsel shall dismiss the complaint, subject to review by an investigative panel or, if appropriate, refer the matter to another agency. If the information raises allegations that would constitute judicial misconduct or incapacity if true, disciplinary counsel shall conduct a preliminary investigation.
  2. Preliminary Investigation.
    (1) Disciplinary counsel may conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints, provided that no subpoena shall issue to obtain testimony or evidence until an investigative panel of the commission authorizes a full investigation pursuant to Rule 17.C.
    (2) When disciplinary counsel believes there is evidence supporting the allegations against a judge, he or she shall recommend to the investigative panel of the commission assigned to the case that the panel authorize a full investigation. Disciplinary counsel may recommend a full investigation when there are grounds to believe that evidence supporting the allegations could be obtained by subpoena or further investigation. In all other cases, disciplinary counsel shall recommend that the matter be dismissed.
    (3) The investigative panel shall review disciplinary counsel's recommendations and either dismiss the complaint or authorize a full investigation.
  3. Full Investigation.
    (1) Within [10] days after the investigative panel authorizes a full investigation, disciplinary counsel shall give the following notice to the judge:
    (a) a specific statement of the allegations being investigated and the canons or rules allegedly violated, with the provision that the investigation can be expanded if appropriate;
    (b) the judge's duty to respond pursuant to Rule 17.C(3);
    (c) the judge's opportunity to meet with disciplinary counsel pursuant to Rule 17.C(4); and
    (d) the name of the complainant unless the investigative panel determines that there is good cause to withhold that information.
    (2) The investigative panel may defer the giving of notice but, when notice is deferred, disciplinary counsel must give notice to the judge before making a recommendation as to a disposition.
    (3) Disciplinary counsel may request that the judge file a written response within [30] days after service of the notice under Rule 17.C(1).
    (4) Before the investigative panel determines its disposition of the complaint under 17.D, either disciplinary counsel or the judge may request an appearance before disciplinary counsel to respond to questions. The appearance shall be on the record. If disciplinary counsel requests the judge's appearance, disciplinary counsel must give the judge [20] days' notice and the testimony shall be sworn.
    (5) Disciplinary counsel is authorized to issue subpoenas pursuant to Rule 14.B once a full investigation has been approved. Disciplinary counsel shall conduct all investigations.
  4. Disposition After Full Investigation.
    (1) Upon the conclusion of a full investigation, disciplinary counsel may recommend to the investigative panel:
    (a) dismissal;
    (b) private admonition or deferred discipline agreement;
    (c) the filing of formal charges;
    (d) the filing of a petition for transfer to incapacity inactive status;
    (e) referral to an appropriate agency; or
    (f) a stay.
    (2) The investigative panel may adopt, reject or modify the recommendations of disciplinary counsel. If the investigative panel finds a violation pursuant to Rule 6 for which the imposition of discipline is not warranted it may dismiss. If the investigative panel finds that there is reasonable cause to believe the judge committed misconduct,
    (a) it may propose a private admonition or deferred discipline agreement to the respondent and if the respondent consents, it shall admonish the respondent or implement the deferred disciplinary agreement; in addition, it may assess costs against the respondent as a condition of the private admonition or deferred disciplinary agreement;
    (b) if the respondent does not consent to the admonishment or the deferred discipline, the investigative panel may direct disciplinary counsel either to file formal charges or dismiss the complaint; or
    (c) it may direct disciplinary counsel to file formal charges.
  5. Immunity from Criminal Prosecution. Whenever a witness invokes his or her privilege against self-incrimination as a basis for refusing to answer a question or to produce other evidence that may be relevant to a discipline or incapacity proceeding, disciplinary counsel may apply to the {court of general jurisdiction} for a grant of immunity from criminal prosecution and shall give notice of the application to the {prosecuting authority of the jurisdiction}. If the court grants the order, the witness may not refuse to comply with the order on the basis of the witness's privilege against self-incrimination, but no testimony or other evidence compelled under such an order shall be used against the witness in any criminal case. The witness may be prosecuted for perjury or contempt committed in answering or failing to answer in accordance with the order.

Commentary
Disciplinary counsel must be authorized to screen complaints because complaints that fail to state grounds for discipline represent a large portion of those received by commissions.

However, an investigative panel should review the dismissals to determine that the screening is being done properly. The term "complaint" includes information received by telephone, news items and any other source and includes complaints initiated by disciplinary counsel on their own motions. See the definition of "Complaint" in the Terminology Section. Disciplinary counsel should consider complaints submitted anonymously in the same manner as other complaints in order to ensure that lawyers, court personnel or litigants can bring misconduct to the attention of the commission without the fear of retaliation.

Disciplinary counsel need not notify a judge of every complaint made against the judge. For example, it is not necessary to notify a judge of a complaint that is dismissed after screening on the ground that it does not state facts constituting misconduct. Also, disciplinary counsel may want to withhold the fact of a complaint from a judge until after a preliminary investigation has been conducted. Disciplinary counsel should notify the judge of the complaint within [10] days after the investigative panel authorizes a full investigation unless the panel determines that notice should be deferred. The investigative panel should permit deferral only where necessary to protect the identity of a witness who may suffer harm. Disciplinary counsel must notify the judge before disciplinary counsel recommends a disposition to the investigative panel, in order to ensure that the investigative panel can consider all the facts, including the judge's statement, before determining whether to file formal charges or offer respondent a deferred discipline agreement or private admonition.

When giving notice, disciplinary counsel should inform the judge of the nature of the allegations, the code provisions alleged to have been violated, the duty of the judge to respond if requested and the judge's opportunity to meet with disciplinary counsel. Disciplinary counsel should advise the judge that since the investigation is ongoing, facts may be discovered that will change the violations charged.

If disciplinary counsel requests a written response from the judge, disciplinary counsel should state when the judge is to respond and provide the judge a copy of the rules of the commission. If disciplinary counsel requests the judge's appearance, the judge must appear and answer questions. If either disciplinary counsel or the judge requests an opportunity to appear before disciplinary counsel, the judge may have counsel present at the appearance.

In reviewing a complaint after full investigation, the investigative panel should consider disciplinary counsel's recommendation and memoranda on the law together with the investigative file. The investigative file should include the statements of the complainant, the witnesses, if any, and the respondent, as well as relevant documents and other evidence.

If the investigative panel decides to impose a private admonition the panel should condition the private admonition upon the judge's execution of a waiver of the right to a hearing. Such a waiver should bar the judge from objecting to the use at a subsequent proceeding against the judge of the findings that are the basis for the admonition. The private admonition should be in writing.

A deferred disciplinary agreement may be entered into only with the consent of the judge. The agreement sets forth conditions imposed by the investigatory panel with which the judge must comply in order to avoid the reinstatement of disciplinary proceedings. The agreement must be in writing. A deferred discipline agreement does not constitute a finding that misconduct was committed. It is appropriate only when the alleged misconduct is minor, that is, it does not reflect on the judge's fitness for office, and when the underlying cause of the misconduct can be addressed through a treatment or rehabilitation program. Upon successful completion of the program the complaint will be dismissed. If the judge fails to complete the program, the investigative panel may proceed to determine whether to dismiss the complaint against the judge, impose a private admonition with the consent of the judge or direct disciplinary counsel to file formal charges or a petition for transfer to incapacity inactive status.

A stay of the proceedings may be appropriate when there is an ongoing civil or criminal action against the judge, so as not to interfere with the expeditious litigation of the court action.

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