Model Rules for Judicial Disciplinary Enforcement

Section III. Disciplinary Proceedings
Rule 18. Use Of Allegations From Dismissed Cases

If a complaint has been dismissed, the allegations made in that complaint shall not be used for any purpose in any judicial or lawyer disciplinary proceeding against the judge. If additional information becomes known to disciplinary counsel regarding a complaint that has been dismissed before the filing of formal charges, the allegations may be reinvestigated with permission of an investigative panel.

Commentary
A judge should not be subject forever to possible disciplinary action based on a complaint that has been investigated and dismissed. It is implicit in a dismissal of a complaint alleging misconduct within the jurisdiction of the judicial discipline system that an investigative panel has found insufficient evidence to go forward with charges. It is unfair to use these inadequately supported complaints to establish a pattern or practice of misconduct. If, however, additional evidence is discovered that adds substance to the allegations of a previously dismissed complaint, it is appropriate to reinvestigate the allegations of the original complaint. In determining whether to reinvestigate allegations, an investigative panel may wish to consider factors such as the length of time elapsed, the alleged harm caused, possible disruption to the judicial system, the extent of the original investigation, the good faith of the complainant and other appropriate factors. Like the Model Rules for Lawyer Disciplinary Enforcement, these 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.

This Rule does not establish a policy for the retention or destruction of the physical files of dismissed cases.

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