Model Rules for Judicial Disciplinary Enforcement

Section II. General Provisions
Rule 7. Proof

Charges of misconduct and grounds for transfer to and from incapacity inactive status shall be established by clear and convincing evidence. The burden of proof in proceedings seeking transfer from incapacity inactive status is on the judge.

Commentary
Judicial (and lawyer) disciplinary cases are neither civil nor criminal in nature but are sui generis. "Clear and convincing evidence" is a standard of proof higher than the civil law standard of "preponderance of the evidence" and lower than the criminal law standard of "beyond a reasonable doubt." The standard of proof required to sanction a respondent's conduct is thus commensurate with the importance of protecting the judicial system's ability to function - more than required to prove a private wrong, less than required to prove a criminal offense. The same standard is applied in lawyer disciplinary proceedings. See ABA Model Rules for Lawyer Disciplinary Enforcement. When incapacity is raised as a defense, the same burden of proof applies. See Rule 27.D(1).

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