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August 13, 2018

Model Rules for Judicial Disciplinary Enforcement

Section I. Organization and Structure
Rule 5. Commission Counsel

  1. Appointment. The commission may appoint a commission counsel to assist the commission.
  2. Powers and Duties. The commission may delegate functions to the commission counsel, including but not limited to the duty and authority to:
    (1) advise the hearing panel during its deliberations and draft decisions, orders, reports and other documents on behalf of the hearing panel;
    (2) employ and supervise other staff necessary to the performance of the commission's duties; and
    (3) perform other duties at the direction of the commission.


It is crucial to the perception of fairness that the commission keep separate the tasks of investigation and prosecution, which are performed by disciplinary counsel, and the tasks of conducting the hearing and determining the recommended disposition of the complaint, which are performed by the hearing panel of the commission. To do so, the commission cannot allow the hearing panels to obtain help or advice from disciplinary counsel on any procedural or substantive matters such as those relating to discovery, the manner of holding the hearing, the disposition of the complaint or the drafting of the findings of fact and recommended disposition.

It is possible for the hearing panels to operate without the benefit of advice or assistance from paid counsel, particularly in jurisdictions in which few complaints reach the hearing stage, but it is a significant burden on volunteer commission members to expect them to work without staff help. For this reason, the commission should hire a commission counsel to provide legal research, drafting and advice. In jurisdictions where the work load is not sufficient to warrant hiring a commission counsel full-time, the commission may choose to retain on a part-time or per diem basis an individual who is licensed to practice but whose practice would not involve a conflict.

The commission counsel and staff can assist the commission in the assignment of hearing and investigative panel members, provide the support necessary to the efficient functioning of the hearing process and perform any other duties assigned by the commission under Rule 3.E(2).