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August 14, 2018

Model Rules for Judicial Disciplinary Enforcement

Section I. Organization and Structure
Rule 4. Disciplinary Counsel

  1. Appointment. The commission shall appoint disciplinary counsel [for a term of 8 years subject to reappointment]. Full-time disciplinary counsel shall not otherwise engage in the practice of law or serve in a judicial capacity. Disciplinary counsel shall not be removed from office except upon the concurrence of both the highest court and the commission.
  2. Powers and Duties. Disciplinary counsel shall have the authority and duty to:
    (1) receive and screen complaints, refer complaints to other agencies when appropriate, conduct preliminary investigations, recommend to an investigative panel of the commission and upon authorization conduct full investigations, notify complainants about the status and disposition of their complaints, make recommendations to an investigative panel on the disposition of complaints after full investigation, file formal charges when directed to do so by an investigative panel, prosecute formal charges and file notices of exceptions to the findings, conclusions, recommendations for sanctions or orders of dismissal of hearing panels;
    (2) maintain permanent records of the operations of disciplinary counsel's office, including receipt of complaints, screening, investigation and filing of formal charges in judicial discipline and incapacity matters, subject to the requirements of Rule 18;
    (3) compile statistics to aid in the administration of the system, including but not limited to a log of all complaints received, investigative files and statistical summaries of docket processing and case dispositions;
    (4) prepare disciplinary counsel's budget for submission to the commission and administer the funds;
    (5) employ and supervise other members of disciplinary counsel's staff;
    (6) employ private investigators or experts as necessary to investigate and process matters before the commission and the highest court; and
    (7) perform other duties at the direction of the commission.


The proposed Model Rules contemplate the establishment of a professional staff exclusively committed to the disciplinary system and not on loan from other agencies of state government.

Although the size of the disciplinary counsel's staff will vary, every state should have at least one person who is responsible for the investigation of complaints and presentation of evidence of judicial misconduct. A system that relies on other government agencies to investigate complaints or present evidence, or both, loses efficiency and endangers confidentiality. The proposed Model Rules envision a disciplinary counsel who would develop expertise and oversee the proper functioning of the system. At the same time, a separate position, identified in the proposed rules as commission counsel, would assist the commission in its deliberative functions and act on its behalf in arranging for hearings and resolving minor scheduling conflicts.

Most states provide for an "executive director" of the commission. The concept of executive director is not in keeping with the demands of the 1990's. That person is too closely aligned with the commission members who exercise discretion in post-charge proceedings. Too many states rely on the executive director to conduct investigations, present evidence and provide advice and services to the commission members in their post-charge, decision-making capacity. Some states have taken informal steps to prevent executive directors from performing the inconsistent roles of prosecutor and advisor, but in the absence of clear rules, the perception persists that the executive directors continue to carry out such conflicting roles. One alternative, equally flawed, is for the commission's executive director to conduct the investigation, retain outside counsel to present evidence on formal charges and then advise the commission in its deliberative and adjudicative functions. Although not constitutionally mandated, prosecutorial and adjudicative functions should be separated as much as possible to avoid unfairness and the appearance of unfairness.

Disciplinary counsel should serve full-time. In jurisdictions where the work load is insufficient to warrant hiring a full-time disciplinary counsel, a person who is licensed to practice but whose practice would not involve a conflict should be retained on a part-time basis. In order to preserve disciplinary counsel's independence (e.g., to appeal the decision of the hearing panel under Rule 24.F), the commission should not have sole control over the removal of disciplinary counsel.

Although requiring both the highest court and the commission to agree on removal makes it more difficult to terminate disciplinary counsel, the importance of protecting the independence of this office outweighs the commission's interest in being able to act quickly to terminate unsatisfactory counsel. Recognizing the difficulty in terminating disciplinary counsel, some jurisdictions may choose to establish a term of office for disciplinary counsel.

The duties of disciplinary counsel and commission counsel should be clearly defined and separated: the commission counsel is legal counsel to the commission. Disciplinary counsel receives and screens complaints, conducts investigations and presents formal charges.

Disciplinary counsel should not participate in commission deliberations, draft decisions, orders or other documents, or otherwise serve as legal counsel to the commission. Disciplinary counsel shall also perform those duties assigned by the commission under Rule 3.E(2).

The hiring and supervision of disciplinary counsel's staff are the responsibility of disciplinary counsel. Disciplinary counsel has the authority to employ lawyers, private investigators and other experts necessary to investigate and present cases before the commission and the highest court.

Judicial investigations should be conducted by disciplinary counsel under the authority of the commission. Disciplinary counsel should not use law enforcement officials or staff to investigate complaints or present cases. These persons have other responsibilities that could be given priority over the processing of disciplinary matters. Their use could compromise the confidentiality of investigations and could pose separation of powers problems.

The disciplinary counsel's office should be adequately funded to assure its independence and effectiveness. Budgetary constraints should not prevent the investigation of complaints and presentation of formal charges.