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August 13, 2018

Model Rules for Judicial Disciplinary Enforcement

Section II. General Provisions
Rule 6. Grounds For Discipline; Sanctions Imposed; Deferred Discipline

  1. Grounds for Discipline. The grounds for discipline are:
    (1) any conduct constituting a violation of the {code of judicial conduct} or {rules of professional conduct} or other applicable ethics codes; or
    (2) a willful violation of a valid order of the highest court, commission or panels of the commission in a proceeding under these Rules, a willful failure to appear personally as directed, or a knowing failure to respond to a lawful demand from a disciplinary authority.
  2. Sanctions. These sanctions may be imposed upon a respondent who has committed misconduct:
    (1) removal by the highest court;
    (2) suspension by the highest court;
    (3) imposition by the highest court of limitations on the performance of judicial duties;
    (4) imposition of lawyer discipline by the highest court;
    (5) public reprimand by the highest court;
    (6) private admonition by an investigative panel of the commission with the consent of the judge, provided that a private admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanction to be imposed, pursuant to Rule 17.D(1); and
    (7) deferred discipline agreement.

If a jurisdiction has determined that referees, mediators and arbitrators acting under the judicial branch are to be included under these Model Rules, then a violation of any ethics codes applicable to those positions would be grounds for discipline.

Removal and suspension are the most serious sanctions that can be imposed by the judicial discipline system. They can be imposed only by the highest court, and their use is appropriate when the respondent's misconduct demonstrates that the respondent is unfit to hold judicial office.

In many instances, however, judicial misconduct is of a lesser nature that does not require the judge's removal or suspension, either to protect the public or to preserve the integrity of the judiciary. The facts may indicate that the judge can continue to serve effectively with certain limitations (e.g., limitation to a specific court or docket or participation in a therapy, counseling or recovery program). In these cases, the commission should recommend, and the highest court should exercise its inherent authority to fashion, appropriate limitations and conditions.

A private admonition is a non-public sanction imposed on a judge by an investigative panel of the commission with the consent of the judge. A private admonition cannot be imposed after the filing and service of formal charges. Only in cases of minor misconduct, when there is little or no injury to the public, the legal system or the profession, should a private admonition be imposed.

A deferred discipline agreement is a confidential agreement between the judge and an investigative panel of the commission for the judge to undergo treatment, participate in education programs or take other corrective action. It is only available as a response to misconduct that is minor and can be addressed through treatment or a rehabilitation program. A deferred discipline agreement can only be entered into prior to the filing and service of formal charges.

Some misconduct is so minor that it is appropriate not to impose any discipline. It is not intended that every transgression of the Canons and Sections of the Code of Judicial Conduct will result in the imposition of discipline. Whenever the commission determines there has been a transgression, it should consider whether disciplinary action is appropriate and the degree of discipline to be imposed through a reasonable and reasoned application of the text of the Code, taking into account such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system. See ABA Model Code of Judicial Conduct, p. 4.

Under these Rules it is not within the commission's authority to impose public discipline. That is the responsibility of the highest court. The commission's function is to determine facts, make conclusions of law and recommend sanctions, or dismiss cases when misconduct was not proven. Some jurisdictions may choose to give the commission the authority to impose some forms of public discipline. (See Rule 25 regarding review by the highest court.)

Some misconduct is so serious that the respondent should not only be removed from judicial office but also be disbarred or suspended from the practice of law. This does not mean that disbarment should follow automatically every time a respondent is removed from office; rather, it should be determined on the facts of each case.

The lawyer disciplinary agency should be provided an opportunity to brief the highest court on its recommendations regarding lawyer discipline in order to avoid duplicative lawyer disciplinary procedures against the respondent judge. See Rule 24.G. "Lawyer discipline" includes disbarment, suspension, limitations on practice and other sanctions authorized by the rules for lawyer disciplinary enforcement. See ABA Model Rules for Lawyer Disciplinary Enforcement.

Removal by impeachment is the least desirable method of judicial discipline. It is an all-or-nothing approach. The impeachment process is subject to political considerations and it is expensive, cumbersome and ineffective. However, the availability of impeachment as a sanction serves as a check not only upon the judiciary, but upon the judicial discipline and incapacity process as well.

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