A NATIONAL SURVEY OF

JUDICIAL ETHICS ADVISORY ORGANIZATIONS

A COMPILATION OF STATE STATUTES AND RULES FOR COMMITTEES, COMMISSIONS, AND PANELS CHARGED WITH RENDERING ETHICAL OPINIONS ON JUDICIAL CONDUCT

COMPILED BY:

The Honorable Scott J. Silverman

Dade County Court

Miami Beach, Florida


Table of Contents

Alabama Alaska Arizona Arkansas California
Colorado District of Columbia Delaware Florida Georgia
Illinois Indiana Kansas Hawaii Kentucky
Louisiana Maine Maryland Massachusetts Michigan
Missouri Nebraska New Jersey New York North Dakota
Ohio Rhode Island Pennsylvania South Carolina South Dakota
Tennessee Utah Vermont Washington West Virginia
American Bar Assoc Amer. Jud. Society      

 

Appendix

Opinions Bindings where there is Compliance
Opinion Not Binding, but Compliance is to be taken into Account
Opinions Not Binding, but Compliance is Evidence of Good Faith
Opinion Not Binding, but Compliance is Evidence of Good Faith, at Discretion of Disciplinary Body
Admissibility of the Opinion as a Defense
Opinions Not Binding

Alabama

RULES OF PROCEDURE OF THE JUDICIAL INQUIRY COMMISSION *

Judicial Inquiry Commission Rule 17 - Current with amendments received through 4-1-95

RULE 17. ADVISORY OPINIONS

A judge may direct to the Commission in writing a request for an opinion as to whether certain specified action contemplated or proposed to be taken by him may constitute a violation of the Canons of Judicial Ethics, and the Commission may, in its discretion, render to the judge in writing such opinion as it may deem appropriate in the premises. Any such opinion rendered by the Commission that certain specified conduct by the judge would not constitute a violation of the Canons of Judicial Ethics shall be admissible on behalf of the judge to whom it is directed in any disciplinary proceeding involving the propriety of such conduct by the judge to whom the opinion is directed.

* Also has judicial disciplinary responsibilities


Alaska

ALASKA COMMISSION ON JUDICIAL CONDUCT

RULE 19 - COMMISSION-ISSUED ADVISORY OPINIONS

A. Issuance Formal Advisory Opinions. On written request of a state judicial officer, subject to the Code of Judicial Conduct, the Commission may issue a written formal advisory opinion concerning the application of the Code to a specific fact situation involving that judicial officer. The request for an opinion should specify an the facts relevant to the ethical situation. Both the request for an opinion and the opinion itself shall remain confidential unless the requesting judge asks that it be public.

B. Advisory Opinion Drafting. Written formal advisory opinions shall be drafted by a committee of the Commission appointed by the Chairperson for the purpose of drafting the opinion, with staff assistance. The drafting committee shall be composed of not less than one public member, one attorney member, and one judge member of the Commission. The full Commission shall vote on adoption of the draft opinion.

C. Use of Formal Advisory Opinions. Reliance on the formal advisory opinion by the requesting judge is an absolute defense to subsequent disciplinary proceedings by the Commission concerning the identical facts addressed by the opinion. If there are distinguishing facts, reliance on the formal advisory opinion will be viewed as merely a good faith defense.

D. Informal Verbal Advisory Opinions. As has been its long-standing practice, informal verbal guidance concerning judicial ethics issues, will continue to be available from Commission members and staff. Informal advisory opinions have no legal effect and, if in error, provide no recognized defense to later disciplinary charges.


Arizona

RULES OF THE SUPREME COURT

RULE 82. JUDICIAL ETHICS ADVISORY COMMITTEE

Current with amendments received through 2/8/96

Rule 82(a). Membership

The Chief Justice shall appoint a Judicial Ethics Advisory Committee of the Supreme Court (referred to in the rule as the "advisory committee") consisting of seven members. Six members shall be judges and one member shall be from the public. Of the judicial members, two members shall be appointed from the Court of Appeals; two members shall be appointed from the Superior Court; one member shall be appointed from the Municipal Courts; and one member shall be appointed from the Justice of the Peace Courts. Members shall serve three-year terms; terms shall be staggered as designated by the Chief Justice; and no member shall serve for more than two consecutive terms. Members shall continue to serve until a successor is appointed, and appointments to fill a vacancy shall be for the balance of the term vacated.

Rule 82(b). Powers and Duties

The advisory committee so established shall have authority to:

  1. render advisory opinions on proper judicial conduct with respect to the provisions of the Code of Judicial Conduct, any financial reporting requirements, or any other requirement of law applicable to judges or candidates for judicial office provided that an opinion should not be requested and shall not be issued on a matter known to be pending before a court or before the Commission on Judicial Conduct;

  1. make recommendations to the Supreme Court for amendment of the Code of Judicial Conduct or these rules; and

  1. make recommendations regarding appropriate subjects for judicial education programs.

Rule 82(c). Administration

The advisory committee shall be administered under the direction of a chairperson appointed by the Chief Justice, and assisted, as appropriate, by the staff of the Administrative Office of the Courts and the staff of the Commission on Judicial Conduct.

  1. The chairperson is authorized to appoint a vice-chairperson from the members of the advisory committee, to call meetings as needed, and to otherwise coordinate the work of the advisory committee.

  1. Upon agreement by the Commission on Judicial Conduct, the advisory committee's office shall be located at the same address as the Commission on Judicial Conduct and Commission staff shall be available to answer questions concerning advisory committee procedures, to receive and process opinion requests, to maintain committee records, and to provide other staff assistance as appropriate. All communications with staff concerning requests for advisory opinions shall be confidential, and members of the Commission may not serve on the advisory committee during their tenure on the Commission.

  1. The Administrative Office of the Courts shall distribute the formal opinions of the advisory committee until the advisory committee or the Commission on Judicial Conduct is funded for this purpose, and shall provide other staff assistance as appropriate.

Advisory opinions may be requested by a judge or candidate for judicial office, by a court, by an agency charged with judicial administration or by any member of the advisory committee. Requests for formal advisory opinions shall be submitted in writing at the committee's office or to any committee member and should be accompanied by a letter or memorandum describing the facts and discussing the issues presented in the request. Each request for a formal opinion shall be assigned a number when received, and copies of requests shall be forwarded to all committee members. The identity, organizational affiliation, and geographic location of persons requesting opinions shall be confidential. Requests for informal advisory opinions may be submitted in writing to the committee's office or communicated in person or by telephone to any member of the committee or its staff.

Rule 82(e). Consideration of Requests

The chairperson of the advisory committee shall determine whether a request for an opinion should be resolved formally with a written, published opinion or informally by letter or other communication. Formal opinions shall be decided by a majority vote of the advisory committee. Informal opinions may be assigned to any member of the advisory committee or its staff to discuss and resolve directly with the person or organization requesting the opinion. The advisory committee may confer in person or by telephone as often as needed to conduct committee business and resolve pending requests.

Rule 82(f). Opinion Distribution

Immediately upon approval, the advisory committee's formal opinion shall be initially distributed to the requester, the justices, clerk and chief staff attorney of the supreme court, the chief judges of the court of appeals, the presiding judges of the superior court, the director of the Administrative Office of the Courts, and the chief bar counsel tothe Arizona State Bar. Formal opinions shall be accumulated and distributed to all other judges at least annually. Records of advisory committee determinations and opinions shall be maintained at the committee's office.

Rule 82(g). Reconsideration

Within thirty days after the distribution of a formal opinion to all judges, any person, court or agency authorized to request an opinion under this rule may petition the advisory committee to reconsider the opinion by submitting a request for reconsideration to the advisory committee's office in the form of a letter or memorandum explaining the basis for the request. The advisory committee shall respond to the request by either reaffirming or revising the formal opinion. If warranted, the advisory committee or the supreme court may also reconsider an opinion at any time on its own motion. Revised opinions shall be distributed in the same manner as original opinions.

Rule 82(h). Opinion as Defense

Reliance on a formal advisory opinion may be raised as a defense in any disciplinary proceeding.


Arkansas

RULE 1. Judicial Ethics Advisory Committee -- Organization.

Pursuant to Section 5 of Act 791 of 1991 a Judicial Ethics Advisory Committee is hereby created to give advisory opinions to elected officials, judicial officers and candidates for judicial office seeking opinions concerning the compliance of an intended, future course of conduct with the Arkansas Code of Judicial Conduct. The Committee, appointed by the Judicial Discipline & Disability Commission, shall consist of no more than two retired justices or judges and one attorney who is a member of the Arkansas Bar and has never been a publicly elected judicial officer. Committee members may be reappointed and shall serve for three-year terms from date of appointment except that to achieve staggered terms, the first two appointed retired judges shall draw for which one shall serve for three years and which one shall serve for one year. The first appointed attorney shall serve for a two-year term. Vacancies on the committee for an unexpired term shall be filled for the remainder of the term. No member shall serve simultaneously on the Judicial Ethics Advisory Committee and the Judicial Discipline & Disability Commission. Members of the Committee shall be reimbursed their actual and necessary expenses incurred in the discharge of their official duties by the Judicial Discipline & Disability Commission. A chair shall be elected by the Committee members. The Committee may promulgate additional rules of procedure not inconsistent with these rules.

RULE 2. Eligibility for Requesting Advisory Opinions and Submissions.

A request for a judicial ethics advisory opinion shall be directed to the Executive Director of the Judicial Discipline & Disability Commission, who shall forward the request to the committee. Requests will be accepted only from elected officials, judicial officials (justices or judges) and publicly declared candidates for judicial office.

RULE 3. Requests for Advisory Opinions -- Contents.

Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended conduct together with a clear, concise question of judicial ethics. The identity of the individual, whose proposed conduct is the subject of the request, shall be disclosed to the Committee. The requesting individual shall include with the request a concise memorandum setting forth his or her own research and conclusions concerning the question and the statement that the matter is not the subject of a pending disciplinary proceeding. Requests shall not be accepted or referred for opinion unless accompanied by this memorandum.

RULE 4. Scope of and Procedure for Issuance of Advisory Opinions.

Advisory opinions shall set forth the facts upon which the opinion is based. Advisory opinions shall address only whether an intended, future course of conduct violates the Arkansas Code of Judicial Conduct and shall provide an interpretation of this Code with regard to the factual situation presented. The opinion shall not address issues of law nor shall it address the ethical propriety of past or present conduct. The identity of the requesting person shall be disclosed in the opinion. If the individual facts and circumstances provided are insufficient in detail to enable the Committee to render an advisory opinion, the Committee shall request supplementary information from the requesting individual to enable it to render such opinion. If such supplementary information is still insufficient or is not provided, the Committee shall so state and shall not render an advisory opinion based upon what it considers to be insufficient detail. The Committee may respond to requests for an advisory opinion by referring the requesting individual to a prior opinion and by so doing need not publish a new advisory opinion. Two members of the Committee shall constitute a quorum for the transaction of any Committee business, including the issuance of any advisory opinion, whether in a meeting or by conference call or by circulated writing.

RULE 5. Distribution and Publication of Advisory Opinions.

The Executive Director of the Judicial Discipline & Disability Commission shall provide a copy of each advisory opinion to the requesting party, the Chief Justice of the Supreme Court, the Judicial Discipline & Disability Commission, the Supreme Court library, the two law school libraries and the American Judicature Society. The Executive Director of the Judicial Discipline & Disability Commission shall keep the original opinion in a permanent file. Copies of the opinions will also be published in a publication generally available to judicial officials such as the Supreme Court advance sheets.

RULE 6. Binding Effects of Advisory Opinions.

All opinions shall be advisory in nature only. No opinion shall be binding on the Judicial Discipline & Disability Commission or the Supreme Court in the exercise of their judicial discipline responsibilities. However, compliance by the requesting individual with a written advisory opinion of the Committee is evidence of a good faith effort to comply with the Arkansas Code of Judicial Conduct. An opinion given to a requesting individual in an oral conversation is not binding on the Committee nor evidence of a good faith effort to comply with the Arkansas Code of Judicial Conduct.


California

CALIFORNIA JUDGES ASSOCIATION

COMMITTEE ON JUDICIAL ETHICS

BY-LAW, ARTICLE VII, SECTION 4

The President of the Association shall appoint a standing Committee on Judicial Ethics, consisting of fifteen members of the Association. Such Committee shall have the following duties:

  1. It shall consider requests from any judge, justice, commissioner, referee, or aspirant to judicial office for construction of the Code of Judicial Ethics adopted by the Supreme Court, and shall interpret the Code by written or telephonic opinion, and may propose amendments to the Code of Judicial Ethics on behalf of the Association.

  1. It shall make recommendations to the Executive Board and the Association with reference to any amendments to the Code of Judicial Ethics proposed by any member of the Association.

  1. It shall, at the request of the Executive Board, study any problem concerning judicial ethics, and submit a report thereon to the Executive Board or to the next annual meeting of the Association, as may be directed by the Executive Board.

Ten members of the committee may render such an opinion report or recommendation.

No opinion, report or recommendation rendered by such committee shall name any judge whose conduct may have been the subject thereof.

Committee on Judicial Ethics of the California Judges Association

Rules and Procedures

(Adopted June 30, 1984)

(Amended 9/14/86, 11/15/86, 9/25/88, 4/3/90, 8/25/90)

I. INTRODUCTION

A. Standing Committee of the CJA

The Committee on Judicial Ethics exists pursuant to the authority of CJA By-Law, Article VII, Section 4. The President of the Association is directed to appoint a committee of fifteen members; at least ten members must concur in rendering any opinion, report or recommendation.

These Rules and Procedures are adopted pursuant to By-Law, Article VII, Section 11 for governance of the Committee

B. Committee Purpose

The Committee is charged with construction of the Code of Judicial Conduct on the request of any judge, justice, commissioner, referee, or aspirant to judicial office, the interpretation of, and proposed amendments to that Code. Further, the Committee may be directed by the CJA Executive Board to study and report on any concern relating to judicial ethics.

II. COMMITTEE PROCEDURES

A. Informal Responses

An inquiry which appears to be resolved by an existing opinion or Canon may be handled (1) by the vice-chairperson of the committee or (2) any member in consultation with the vice-chairperson, by telephone or letter of response, with a copy of an existing opinion when appropriate. Upon consultation with the vice-chairperson, members should cite the suggested canon(s) relayed to the caller. This shall be deemed an "informal response."

The vice-chairperson shall thereafter report, at the next meeting of the Committee, on the subject of all inquiries and responses. Three members of ht Committee may cause an inquiry to be resubmitted for further study and response.

The inquiring judge should be advised that if the resolution is not readily apparent, the Committee invites a written inquiry for further study. Such a request should set forth all relevant facts of the ethical concern, together with the research already undertaken. In case of an urgent request, the chairperson may conduct a telephone poll of members to obtain a tentative response prior to written inquiry, and prior to further study. Upon receipt of such a written inquiry, or on the initiative of the chairperson of the Committee, the chairperson shall assign a committee member or members to complete further research and to formulate a proposed response.

The proposed response shall be discussed at the next meeting of the Committee. Upon approval, the chairperson or a designated member will convey the "Informal Response" to the inquiring judge. (See Attachment A.)

The Committee shall decide if an "Informal Response" is sufficient, or if the question has significance as to require a "Formal Opinion" of the Committee.

B. Formal Opinions

If it is decided that there is need for a Formal Opinion of the Committee, an inquiry shall be assigned by the chairperson for study and formulation of a proposed response. The assigned member shall then prepare a draft response for consideration of the Committee at the next meeting giving due regard to brevity and economy of thought, and following the format of Attachment B.

After deliberation, at least ten members of the Committee may adopt an opinion. The opinion shall be limited to the facts presented by the inquiry. Further, the opinion shall state that is so limited, and is advisory only. Any member of the Committee may submit a minority opinion to be circulated and published in the same manner as the majority opinion of the Committee. The names and signatures of each Committee member subscribing to any opinion shall be set forth at the conclusion of the opinion.

C. Reports

The chairperson of the Committee shall designate the procedure and format for a response on any matter referred from the executive Board.

III. RULES AND COMMITTEE POLICY

A. Confidentiality

No opinion, report or recommendation, nor the minutes of the Committee shall name any judge whose conduct has been the subject of an inquiry. Neither shall any member reveal the identity of such a judge, nor inquiring judge, except under compulsion of law.

B. Non-involvement in Disciplinary Proceedings or Litigation

The Committee will not render an opinion or informal response when a matter of inquiry is the subject of investigation with the Commission on Judicial Performance, or is the subject of pending litigation. It will be the responsibility of the member of the committee preparing a tentative or informal response to attempt to determine that the inquiry is not the subject of such investigation or litigation. The Committee may depart from this policy at the request of the Executive Board. The Committee may in its discretion decline to respond to any inquiry where the Committee determines that a response would be inappropriate.

C. Solicitation of Information

In order that the responses, opinions and reports of the Committee may be well-informed, the Committee or any member may seek information or advice from the inquiring judge or any other source that might contribute to the deliberations of the Committee. The Committee and each member shall use discretion in such consultation, however, so as not to violate the integrity of Committee deliberations, and maintain anonymity of the inquiring judge.

D. Meetings of the Committee

So long as inquires or other business of the Committee remain unresolved, the Committee shall meet at the call of the chairperson. The Committee year coincides with the Annual Meetings of CJA, and every effort shall be made to conclude the business of the Committee on an annual basis.

E. Publication of Opinions

All existing opinions of the Committee shall be distributed by CJA to new members of the Association. All new formal opinions shall be distributed by CJA to all members annually.

The Committee shall file each new opinion with the Executive Director of the Association and send its opinion to the inquiring judge. Further, the Committee shall publish an annual report entitled "Ethics Update" to summarize the formal opinions and informal responses of the Committee. The Ethics Update shall be distributed by CJA to all members of the Association.

A copy of any formal opinion shall be sent to a member of the Association on request. An opinion, response or Ethics Update may be sent to a non-member at the request of the President of the Association, or the Executive Director, after consultation with the chairperson of the Committee.

The Committee shall periodically review opinions to determine if any are obsolete.

IV. These rules and procedures may be amended by a majority vote of those present at any ethics Committee meeting.


Colorado

SUPREME COURT OF THE STATE OF COLORADO

CHIEF JUSTICE DIRECTIVE 94-01

MAY 13, 1994

THE COLORADO JUDICIAL ETHICS ADVISORY BOARD

Pursuant to Chief Justice Directive 94-01, a Colorado Judicial Ethics Board is hereby created effective July 1, 1994

I. Scope, Purpose and Title

The Colorado Judicial Ethics Advisory Board is hereby created to provide advisory opinions to state justices and judges seeking opinions concerning the compliance of an intended, future course of conduct with the Colorado Code of Judicial Conduct

II. Composition

The board shall be composed of five members, who shall be appointed by the Chief Justice of the Colorado Supreme Court.

The board shall consist of three state judges, at least one of whom shall be a state district court judge and one of whom shall be a state or county court judge. At least on judge shall be from an urban area court and one judge shall be from a rural area court. Judge members may be either active or retired.

One member shall be a citizen, who shall be neither a justice nor a judge, active or retired, nor admitted to practice law before the courts of the state of Colorado.

One member shall be an attorney, who shall be neither a justice nor a judge, active or retired, and who shall have been admitted to the practice of law in the state of Colorado for at least ten years.

A chair shall be elected by the board members.

The executive director and general counsel of the Colorado Commission on Judicial Discipline shall act as the Reporter for the board.

III. Terms of Office

Board members shall serve for three year terms from their date of appointment. To achieve staggered terms, the first appointed members shall draw for which two members shall serve for a one year term, which two members shall serve for a two year terms and which one member shall serve for three year term at the expiration of their first term appointment.

The executive director and general counsel of the Colorado Commission on Judicial Discipline shall have an ongoing appointment as Reporter for the board.

IV. Vacancies

Vacancies on the board for an unexpired term shall be filled for the remainder of the term by the Chief Justice of the Colorado Supreme Court.

V. Restrictions on Membership

No member shall serve simultaneously on the Colorado Judicial Ethics Advisory Board and the Colorado Commission on Judicial Discipline.

VI. Meetings

Meetings for the transaction of any board business, including the issuance of any advisory opinion may be in person, by telephone conference call or by circulated writing.

VII. Expenses

Members of the board shall be reimbursed for their actual and necessary expenses incurred in the discharge of their official duties as board members.

VIII. Promulgation of rules and procedures

The board may promulgate additional rules of procedure not inconsistent with these rules subject to approval of the Colorado Supreme Court.

IX. Requests for Advisory Opinions

A request for a judicial ethics advisory opinion shall be directed to the executive director and general counsel of the Colorado Commission on Judicial Discipline. Requests shall be accepted only from Colorado state justices or state judges who are serving in active status or as members of the Colorado senior judge program.

X. Content of Requests for Advisory Opinions

Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended course of conduct together with a clear, concise question of judicial ethics. The identity of the individual whose proposed conduct is the subject of the request shall be disclosed to the board.

The requesting individual shall include with his or her request a thoroughly researched and detailed memorandum setting forth his or her own ethical and legal research and conclusions concerning the question. The requesting individual shall also include a statement that an opinion is not sought with respect to past or current conduct and that the request is not the subject of a past or pending disciplinary proceeding before the Colorado Commission on Judicial Discipline. Requests shall not be accepted by the board or referred for opinion unless accompanied by these supporting documents.

XI. Content of Advisory Opinions

Advisory opinions shall set forth the facts upon which the opinion is based but shall not include the name of the requesting individual. Advisory opinions shall address only whether an intended, future course of conduct violates or does not violate the Colorado Code of Judicial Conduct and shall provide an interpretation of the Code only with regard to the factual situation presented. The opinion shall not address issues of law nor shall it address the ethical propriety of past or present conduct.

If the facts, circumstances or ethical and legal research provided by the requesting individual are unclear, vague, or insufficient in detail to enable the board to render an advisory opinion, the board may refuse to consider the matter or may request that the judge provide supplementary information to the board

If the supplementary information provided is still unclear, vague or insufficient in detail or is not provided within a reasonable time, the board shall inform the requesting individual and shall not render an advisory opinion based upon what it considers to be unclear, vague or insufficient information.

XII. Distribution of Advisory Opinions

The board shall provide a copy of each advisory opinion to the requesting individual, the Chief Justice of the Colorado Supreme Court, the Colorado Commission on Judicial Discipline, the Colorado Supreme Court law library, the University of Colorado law library, the University of Denver law library, the journal entitled The Colorado Lawyer and the American Judicature Society, The board shall retain the original opinion in a permanent file in the offices of the Colorado Commission on Judicial Discipline.

XIII. Binding Effect of Advisory Opinions

All opinions shall be advisory in nature only. No opinion shall be binding on the Colorado Commission on Judicial Discipline or the Colorado Supreme Court in the exercise of their judicial disciplinary or other responsibilities. However, compliance by the requesting individual with a written advisory opinion of the board shall be considered to be evidence of a good faith effort by the requesting individual to comply with the Colorado Code of Judicial Conduct.

An opinion given to a requesting individual in an oral conversation is neither binding on the board nor evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct.


Delaware

The Rules of the Judicial Ethics Advisory Committee

Supreme Court Rule 81

Effective April 10, 1996

RULE 1. MEMBERSHIP; SCOPE OF RULES; AUTHORITY

Membership of the Committee shall be as provided in Court on the Judiciary Rule 13(a). These rules shall govern procedures of the Judicial Ethics Advisory Committee, as authorized by Court on the Judiciary Rule 13(b)(2).

RULE 2. DEFINITIONS

Definitions. The following terms shall have the following definitions:

"Committee" shall mean the Judicial Ethics Advisory Committee established in Court on the Judiciary Rule 13.

"Rules" shall mean the rules of the Judicial Ethics Advisory Committee.

"Supreme Court" shall mean the Supreme Court of Delaware.

RULE 3. DUTIES OF OFFICERS

(a) Chair. The chair shall call meetings as needed, preside over those meetings, and otherwise coordinate the work of the committee.

(b) Vice-chair. In the absence of the chair, the vice-chair shall act as chair and shall otherwise perform such other duties as may be assigned by the chair.

(c) Secretary. The secretary shall record the minutes of meetings of the committee, distribute opinions, prepare an annual revised index to the committee's opinions, and otherwise perform such duties as may be assigned by the chair.

RULE 4. REQUESTS FOR OPINIONS

(a) Who May Request Opinion. Any person subject to the Delaware Judges' Code of Conduct may request an advisory opinion on proper judicial conduct with respect to the Delaware Judges' Code of Judicial Conduct. The committee shall decline to respond to an inquiry from someone who is not subject to the Delaware Judges' Code of Conduct.

(b) Scope of Opinions. The committee shall not render opinions regarding the proposed conduct of someone other than the inquirer, except that the committee may respond to requests from a judge about a person subject to the judge's direction and control or about a judge's spouse or close relatives. The committee shall only issue opinions that address contemplated or proposed future conduct and shall not issue opinions addressing past or current conduct unless the past or current conduct relates to future conduct or is continuing. The committee may not issue an opinion in a matter known to be the subject of a past or pending litigation or disciplinary investigation or proceeding.

(c) Discretion of Committee. The committee may in its discretion decline to respond to any inquiry where the committee determines that a response would be inappropriate or that an opinion will not aid the judge, benefit the judiciary as a whole, or serve the public interest.

(d) Opinions Issued on Own Initiative. Notwithstanding any other provision of these rules, the committee may also issue opinions at its own initiative on matters of interest to the judiciary.

RULE 5. ISSUANCE OF OPINIONS

(a) Contents of Request. Except for an emergency request pursuant to Rule 8, a request for an advisory opinion must be in writing, signed by the person requesting the opinion, and submitted to the chair. A request shall contain a statement describing in detail all relevant facts and circumstances pertaining to the conduct for which an opinion is being sought. The request shall include a clear and concise statement of the question of judicial ethics for which an opinion is sought. The request shall also include references to and summarizations of the relevant section(s) of the Delaware Judges' Code of Judicial Conduct, advisory opinions, case law, and other authority that the inquirer has already consulted.

(b) Threshold Considerations. The chair shall review the request for an advisory opinion and notify the inquirer if it does not comply with these rules. If an existing opinion answers the question presented in a request, the chair may send a copy of that opinion to the inquirer, and the committee need not issue a new advisory opinion. If an existing opinion does not answer the question presented in a request, the chair shall send the request and any accompanying documents to all members of the committee. The identity of the individual whose proposed conduct is the subject of the request shall be disclosed to the members of the committee. If the facts or circumstances provided by the requesting individual are unclear, vague, or insufficient in detail, the chair shall request supplemental information. If the supplemental information provided is still insufficient or is not provided within a reasonable time, the chair shall advise the inquirer that the committee shall not render an advisory opinion.

(c) Drafting of Opinion. The chair shall assign the responsibility for drafting an opinion to members of the committee on a rotating basis. The assigned member shall have 30 days to prepare a proposed opinion and to circulate it to the other members. If a proposed opinion is not submitted within 30 days or within any extension approved by the chair, the chair may re- assign the opinion to another committee member. Committee members shall have 15 days to indicate their approval or disapproval of a proposed opinion to the author of the proposed opinion and to make comments. The failure to respond within 15 days may be deemed an assent to the proposed opinion. Committee members shall send their responses to all other committee members who shall have an additional 15 days to respond to the comments of other committee members. The times set forth in this subsection may be enlarged or shortened by the Chair for good cause.

(d) Voting; Lack of Unanimity. The chair will maintain a record of the voting of all members. A majority of the members shall be required to concur in any advisory opinion issued by the committee. If the committee is evenly divided with regard to an issue, an opinion stating that division, with the arguments of both sides, may be issued. Dissenting members may issue a minority opinion or opinions.

(e) Effect of an Opinion. A judge who has requested and relied upon an opinion shall be entitled to introduce that opinion as evidence that conduct conforming to the opinion is prima facie permissible pursuant to the Delaware Judges' Code of Judicial Conduct, as authorized by Court on the Judiciary Rule 13(c).

(f) Opinion Limited to Judicial Ethics. If the request raises issues under constitutional provisions, statutes, rules, or regulations other than the Delaware Judges' Code of Judicial Conduct, the opinion may note the issues but shall indicate that the committee is not authorized to interpret a judge's obligations under any law other than the Delaware Judges' Code of Judicial Conduct.

RULE 6. FORMAL OPINIONS

Style of Opinions. Formal opinions shall set forth the facts upon which the opinion is based and shall provide advice only with regard to those facts. Formal opinions shall cite the rules, cases, and other authorities that bear upon the advice rendered and shall quote the applicable provisions of the Delaware Judges' Code of Judicial Conduct. Formal opinions shall contain a statement of facts; a brief summary of the conclusion and a thorough but succinct discussion of the issue(s). If the opinion responds to more than one issue, each issue shall be answered separately. The names of each committee member subscribing to any formal opinion shall be set forth at the conclusion of the opinion, but only the chair need actually sign the final opinion.

RULE 7. INFORMAL OPINIONS

(a) Basis for Issuance. An informal opinion may be issued if the opinion does not reverse prior formal opinions and the chair finds that the subject is not of general substantial interest and continuing concern to the judiciary or to the public. If a request is made that requires only an informal opinion, the chair or a member designated by the chair may render an informal opinion only after soliciting the advice of three other members. The chair must always be consulted. Informal opinions may initially be oral but shall subsequently be memorialized in writing and circulated to all members of the committee. Informal opinions need not follow the format of formal opinions.

(b) Post-issuance Procedures. The chair shall report at the next meeting of the committee on all informal opinions issued since the last meeting of the committee. If three members of the committee disagree with an informal opinion, that opinion shall be resubmitted for further study and issuance of a formal opinion, and the inquiring judge shall promptly be so notified by the chair. Informal opinions will not be distributed or published in the same manner as formal opinions.

RULE 8. EMERGENCY REQUESTS

(a) Basis for Issuance. An emergency request for an opinion may be made by any judge faced unexpectedly with a question of judicial ethics that requires an immediate response. Whenever possible, a request for an emergency opinion shall be in writing. An emergency request shall be accompanied by an explanation of the circumstances that make an immediate response necessary.

(b) Procedures. When an emergency request is made, the chair may with the concurrence of two members of the committee give a provisional response, orally or in writing. The response must make clear that the advice is provisional until consideration by the entire committee. The chair shall report promptly to the committee, in writing, on all provisional responses. If a majority of the committee agrees with the advice given, a written, confirming opinion shall be issued to the inquirer. If a majority disagrees, a written opinion shall be issued to the inquirer setting forth the provisional response but also setting forth the views of the entire committee on the issue presented. The view of the majority of the full committee will supersede the inconsistent provisional response.

RULE 9. DISTRIBUTION AND PUBLICATION

The original formal opinion and any minority opinion shall be mailed to the judge requesting the opinion, and copies shall be distributed to all committee members. The secretary shall cause to be prepared an edited version of a formal opinion that omits the names of persons, courts, and places, and any other information that might tend to identify either the person making the request or any other person. The edited opinion shall use gender neutral references. The chair shall review the edited opinion, add a heading if necessary, and assign a case number to the formal opinion.

Copies of edited opinions shall promptly be sent by the secretary to the Clerk of the Court on the Judiciary, to the Clerk of the Supreme Court, to the Administrative Office of the Courts, to all county law libraries in Delaware, to the American Judicature Society, and to such other recipients as the chair shall designate. Copies of all edited opinions and an updated index to all

formal opinions shall be sent by the secretary annually to all members of the Judicial Conference. A complete set of the committee's edited opinions shall be provided by the secretary to each new member of the Judicial Conference.

RULE 10. RECONSIDERATION AND MODIFICATION

Any determination of the propriety of particular conduct by the Judicial Ethics Advisory Committee or by the Court on the Judiciary shall supersede any conflicting prior opinion of the committee. The committee shall examine and reconsider any of its opinions upon the request of the Court on the Judiciary. At any time, a majority of the committee may modify or reverse any advisory opinion. The committee shall periodically review all of its opinions to determine if any are obsolete. Any judge may petition the committee to reconsider any opinion by letter or memorandum explaining the basis for the request. The committee shall respond to the request by either reaffirming or revising the opinion. Revised opinions shall be distributed and published in the same manner as the original opinion.

RULE 11. CONFIDENTIALITY

Disclosure of a formal or informal opinion shall be as provided in Court on the Judiciary Rule 13(d).

RULE 12. MISCELLANEOUS

  1. Transaction of Business. Committee business, including the issuance of an advisory opinion, may be transacted in person, by telephone conference call, or by writing circulated to all members.
  1. Recusal. No member of the committee shall participate in any request for advice in which the member has a direct or indirect interest.
  1. Recommendations for Amendments to Code of Judicial Conduct. The committee may submit recommendations to the Supreme Court for amendments to the Delaware Judges' Code of Judicial Conduct.

ORDER AMENDING RULE 13 OF THE COURT ON THE JUDICIARY OF THE STATE OF DELAWARE

Effective April 23, 1996

ORDER

Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT, and BERGER, Justices, of the Supreme Court; ALLEN, Chancellor of the Court of Chancery; and RIDGELY, President Judge of the Superior Court, constituting the Court on the Judiciary.

AND NOW, to-wit, this 23rd day of April, 1996.

NOW, THEREFORE, IT IS ORDERED, effective immediately:

That Rule 13 of the Court on the Judiciary of the State of Delaware be and it is hereby amended by deleting the present rule and restating it, as follows:

RULE 13. JUDICIAL ETHICS ADVISORY COMMITTEE

  1. Membership. The Chief Justice shall appoint a Judicial Ethics Advisory Committee consisting of seven members. One member shall be appointed from each of the following courts: Court of Chancery; Superior Court; Family Court; Court of Common Pleas; Justice of the Peace Court; and Wilmington Municipal Court. No member of the Court on the Judiciary shall be appointed. The Chief Justice shall designate the chair, vice-chair and secretary. Members shall serve three-year terms; terms shall be staggered; and no individual shall serve for more than two consecutive terms. The Chief Justice shall designate a Justice of the Delaware Supreme Court to serve as the administrative liaison between the Court on the Judiciary and the Judicial Ethics Advisory Committee.
  1. Functions. The Judicial Ethics Advisory Committee shall have authority to:
  1. Express Opinions. At the request of a judge, by the concurrence of a majority of its members, express its opinion on proper conduct with respect to the provisions of the Code of Judicial Conduct, the Code of Conduct for Law Clerks, and other judicial branch codes of conduct adopted by the Delaware Supreme Court.
  1. Adopt Rules. Adopt rules relating to the procedures to be used in expressing opinions, including rules to assure a timely response to inquiries.
  1. Effect of an Opinion. A judge who has requested and relied upon an opinion shall be entitled to introduce that opinion as evidence that conduct conforming to the opinion is prima facie permissible pursuant to the Delaware Judges' Code of Judicial Conduct.
  1. Disclosure of Opinion. An opinion issued pursuant to this rule shall be filed with the Clerk of the Court on the Judiciary. Unless the judge releases its confidentiality in writing, such an opinion is confidential and not public information. The Chair of the Judicial Ethics Advisory Committee shall, however, cause an edited version of each opinion to be prepared which is not likely to compromise its confidentiality, e.g., in which the identity and geographic location of the judge who has requested the opinion, the specific court involved, and the identity of other individuals, organizations or facts mentioned in the opinion are not disclosed. Opinions so edited shall be distributed periodically to the Judicial Conference and in any other manner the Court on the Judiciary deems proper. The Clerk of this Court is directed to transmit forthwith a certified copy of this Order to the Prothonotary and the Register in Chancery of each county, the Clerk of the Court of Common Pleas and the Clerk of the Family Court in each county, the Clerk of the Municipal Court in Wilmington, the Clerk of the Court on the Judiciary, and the Chief Magistrate of the Delaware Justice of the Peace system.

District of Columbia

ADVISORY COMMITTEE ON JUDICIAL CONDUCT

OCTOBER 1, 1990

Upon consideration of the proceedings before the Joint Committee on Judicial Administration on this 1st day of October 1990, it is

ORDERED that:

An Advisory Committee on Judicial Conduct (hereinafter "the Committee") is hereby created, which shall provide informal advice and formal advisory opinions to judges and judicial officers of the District of Columbia court system pursuant to the procedures contained in this order.

I. MEMBERS:

  1. The Committee shall consist of five members, appointed by the Joint Committee on Judicial Administration chosen from among the members of the judiciary of the District of Columbia courts. Three members will be chosen from the District of Columbia Court of Appeals and two members will be chosen from the Superior Court of the District of Columbia. The chair of the Committee shall be an appellate judge, to be designated by the chair of the Joint Committee on Judicial Administration. Each member shall serve a three year term, except for those members first appointed to the Committee. Initially, the Joint Committee of Judicial Administration shall appoint one member from the Court of Appeals to a four year term, two members, one from the Court of Appeals and one from the Superior Court, to three year terms, and two members, one from the Court of Appeals and one from the Superior Court, to two year terms so that subsequent appointments will be staggered.
  2. No member may swerve more than two consecutive three year terms. If a vacancy occurs during a member's service, the Joint Committee on Judicial Administrations shall appoint a new member who will complete the term of the member whose service was interrupted. A member shall serve until a successor is appointed.

II. DUTIES:

  1. A judge or judicial officer may direct a request to the Committee as to whether or not specified action, either contemplated or proposed to be taken, would constitute a violation of the Code of Judicial Conduct for the District of Columbia. The Code is the American Bar Association Code of Judicial Conduct, as adopted by the Joint Committee. See 1973 Resolution of the Joint Committee on Judicial Administration, reprinted in full in Scott v. United States, 559 A.2d 745 (D.C. 1989) (appendix).
    1. A judge or judicial officer, seeking informal, unwritten advice, may direct such a request to any one or more members of the Committee as to whether or not specified action, either contemplated or proposed to be taken, would constitute a violation of the Code of Judicial Conduct for the District of Columbia.
    2. A judge or judicial officer seeking a formal, written advisory opinion may direct such a request to the Committee as to whether or not specified action, either contemplated or proposed to be taken, would constitute a violation of the Code of Judicial Conduct for the District of Columbia.
  2. A request shall state in detail the facts involved, and specify the question sought to be answered. The request should, whenever possible, also include reference to any legal authority, such as canons of the American Bar Association Code of Judicial Conduct, or advisory opinions from this or any other jurisdiction, or decisions of the District of Columbia Commission on Judicial Disabilities and Tenure. If additional factual information is required in order to provide either informal, unwritten advice or a formal written opinion, it may be requested from the judge or judicial officer making the request.
  3. The Committee will not provide either informal, unwritten advice or a formal written opinion concerning the conduct of others or conduct which has already occurred, unless the conduct is of an ongoing nature.

III. PROCEDURES: The actions of the Committee shall conform to the following procedures:

  1. When a judge or judicial officer has made a request for informal, unwritten advice to any one or more members of the Committee, that member or members may respond orally. In responding informally, the Committee member or members may call the attention of the judge or judicial officer making the request to particular provisions of the American Bar Association Code of Judicial Conduct, as adopted by the Joint Committee on Judicial Administration, or advisory opinions for this or any other jurisdiction, or decisions of the District of Columbia Commission on Judicial Disabilities and Tenure. Moreover, such Committee member or members may present the substantive issue to the full Committee for its consideration and issuance of a formal written opinion, if the issue is of continuing concern to the judiciary.
  2. When a judge or judicial officer has made a request for a formal, written, advisory opinion the Committee shall respond issuing a formal written opinion. A formal opinion shall be prepared in cases where a prior opinion does not answer the question presented in the request. Where it appears that an already existing opinion answers the question presented in the request, the Committee shall forward a copy of that opinion to the judge or judicial officer making the inquiry.
  3. The Committee shall not issue an opinion in a matter that is the subject of a pending disciplinary proceeding, unless the District of Columbia Commission on Judicial Disabilities and Tenure requests such an opinion.
  4. Opinions shall be limited to the facts stated in the request, and such supplemental facts provided at the Committee's request, if any, and shall include a statement indicating this limitation.
  5. Opinions shall be published and circulated to the members of the judiciary and judicial officers of the District of Columbia court system and the District of Columbia Commission on Judicial Disabilities and Tenure.
  6. In order to preserve confidentiality for the judges and judicial officers seeking advisory opinions, the opinions shall not name the judge or judicial officer or disclose the judge's or judicial officer's identity in any other way.
  7. Written opinions will provide a body of guidance for the judges. Action in accordance with an advisory opinion may be considered by the District of Columbia Commission on Judicial Disabilities and Tenure as evidence of good faith in the course of any proceeding or investigation conducted by the Commission.
  8. The Committee shall develop appropriate procedures for the processing and consideration of both informal, unwritten advice and formal written advisory opinions.

IV. CODE REVIEW:

  1. The Committee may receive suggestions or proposals from the Board of Judges of the District of Columbia Court of Appeals, the Board of Judges of the Superior Court of the District of Columbia, and individual judge, judicial officer, or employee, the organized or voluntary Bar, the District of Columbia Commission on Judicial Disabilities and Tenure, or the Committee may initiate its own proposals for necessary or advisable changes to the Code of Judicial Conduct. After reviewing these suggestions, the Committee may submit its recommendations to the Joint Committee on Judicial Administration for its consideration and action.
  2. The Committee and the Joint Committee on Judicial Administration shall confer at such times as either shall determine t be appropriate.
  3. The Committee shall confer from time to time with the District of Columbia Commission on Judicial Disabilities and Tenure when each shall determine such a meeting is appropriate.

V. STAFF SUPPORT:

  1. The Executive Officer of the District of Columbia Courts shall provide administrative support for the Committee.
  2. The Executive Officer shall provide a complete set of the Committee's written opinions to each newly appointed judge and judicial officer of the District of Columbia court system. The Executive Officer shall maintain official copies of all written opinions of the Committee and make them available to all judicial officers and the District of Columbia Commission on Judicial Disabilities and Tenure.

Florida

FLORIDA COURT RULES

CURRENT WITH AMENDMENTS RECEIVED THROUGH 2-15-95

COMMITTEE ON STANDARDS OF CONDUCT FOR JUDGES

Pursuant to the authority conferred in Article V, sections 2(b) and 15, Fla.Const., there is created a Committee on Standards of Conduct Governing Judges, to be composed of three district court of appeal judges, four circuit judges, two county court judges, and one practicing member of The Florida Bar. The purpose of the Committee shall be to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct.

  1. The judges on the Committee shall be selected by their respective court conferences. The Bar member shall be selected by The Florida Bar's Board of Governors.
  1. The members of the Committee shall elect a chairman and a vice-chairman, and each shall serve for a term of one calendar year. No officer shall serve more than two successive terms. A majority vote of all of the members of the Committee shall be required to elect the chairman and vice-chairman.
  1. The chairman shall advise each of the chief judges of the several circuits as to the duties and obligations of the Committee, and he shall preside at all meetings. The vice-chairman shall preside in the absence of the chairman and exercise all powers delegated to him by the chairman.
  1. A quorum for the transaction of any committee business, whether in a meeting or by circulated writing, shall be six members of the Committee. A majority of the members shall be required to concur in any advisory opinion issued by the Committee.
  1. The Committee shall render advisory opinions to inquiring judges relating to the propriety of contemplated judicial and non-judicial conduct, but all opinions shall be advisory in nature only. No opinion shall bind the Judicial Qualifications Commission in any proceeding properly before that body. An opinion of the Committee may, however, in the discretion of the Commission, be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct; provided that no opinion issued to one judge or justice shall be authority for the conduct, or evidence of good faith, of another judge or justice unless the underlying facts are identical. All opinions rendered by the Committee shall be in writing, and a copy of each opinion, together with the request therefor, shall be filed with the Clerk of the Supreme Court and with the chairman of the Judicial Qualifications Commission. All references to the name of the requesting judge shall be deleted. In addition, the Committee may from time to time submit to the Supreme Court formal proposals and recommendations relating to the Code of Judicial Conduct.
  1. No judge on the Committee shall participate in any matter before the Committee in which he has a direct or indirect interest.
  1. Any determination of the propriety or impropriety of particular conduct by the Judicial Qualifications Commission shall supersede any conflicting opinion of the Committee.

8. Opinions of the Committee may be published, and compiled, by The Florida Bar.

Added Feb. 3, 1979 and Feb. 23, 1976 (327 So.2d 5). Amended March 31, 1976 (327 So.2d 5); Feb. 1, 1979 (367 So.2d 625).


Georgia

JUDICIAL QUALIFICATIONS COMMISSION *

Rule 22

The Commission shall be authorized to render advisory opinions concerning a proper interpretation of the Code of Judicial Conduct and to publish and disseminate the same. It shall be a complete defense to any complaint under these rules that the judge complained against has acted in accordance with and in reliance upon any such advisory opinion.

* Also has judicial disciplinary responsibilities


Hawaii

Hawaii Commission on Judicial Qualifications *

Sup.Ct.Rules, Rule 8

Current with amendments received through 04-15-95

RULE 8. JUDICIAL DISCIPLINE

8.15 Advisory Opinions.

(a) Rendering Opinions. The Commission may render advisory opinions concerning proper interpretations of the Code of Judicial Conduct and, if appropriate, publish and disseminate the same.

(b) Who May Request; Types of Opinions. Requests for advisory opinions may be made by a judge, the Administrative Director of Courts, and the Commission itself.

  1. Informal Written Opinions. If the Commission finds the opinion of limited significance, it may provide an informal written opinion to the questioner. Such opinion shall be kept confidential, except as may be permitted to be disclosed by this court, the judge to whom the opinion is directed, or the Commission.
  1. Formal Written Opinions. If, however, the Commission finds the opinion of sufficient general interest and importance, it shall render a formal written opinion, which shall be published and disseminated to all judges and to whomever the Commission deems advisable. In issuing formal written opinions, the Commission shall undertake, in good faith, reasonable efforts to retain the confidentiality of the identity of the judge to or about whom the opinion is directed.
  1. Discussions. In addition to the foregoing, the Commission, either through the Commission itself or persons designated by the Commission, may discuss with any judge any issue relating to the Code of Judicial Conduct in order to assist the judge in determining whether any conduct of the judge would or would not be appropriate. However, any such discussion by the Commission or its designee will not be deemed to be the giving of an advisory opinion by the Commission and will not be binding on the Commission in any proceeding being brought against that judge or any judge who may rely on such discussion.

(c) Use and Effect. An advisory opinion rendered by the Commission shall be admissible in any disciplinary proceeding involving a judge to whom the opinion is directed. It shall be a complete defense to any complaint under these rules that the judge complained against acted in accordance with and in reliance on an advisory opinion issued to the judge that certain specified conduct by the judge would not constitute a violation of the Code of Judicial Conduct. In addition, it shall be a mitigating factor in the consideration of any complaint under these rules that the judge complained against acted reasonably in reliance on any formal or informal advisory opinion not directed at the judge.

(d) Modification. The Commission may, at any time, including as a result of disciplinary proceedings, modify or amend any advisory opinion; provided, that no such modification or amendment shall be applied retroactively in any such disciplinary proceedings.

[Adopted effective April 26, 1993.]

* Also has judicial disciplinary responsibilities


Illinois

ILLINOIS JUDICIAL ETHICS COMMITTEE

A joint Committee of the Chicago Bar, Illinois Judges and Illinois State Bar Associations

ETHICAL RESPONSE DISCLAIMER

A formal opinion can only be rendered by the full committee. You should know that even a formal opinion from the full committee does not heave any legal binding effect on the Judicial Inquiry Board or the Courts Commission. The Association will publish the responses issued from time to time.

ILLINOIS JUDICIAL ETHICS COMMITTEE PROCEDURES

(March 7, 1995)

  1. A call to the Committee Administration is directed to a facilitator who prepares a statement of facts, a proposed conclusion and recites references in support of that conclusion.
  1. The facilitator is advised by the Administrator of a second Committee member who shall be either a judge member (if the facilitator is a lawyer) or a lawyer member (if the facilitator is a judge) and transmits the preliminary opinion to that member. By conference (telephone or in person) the two members decide on a recommendation to the Committee that the opinion be either by letter, "letter opinion", or formal. The presumption is that the opinion would be a "letter opinion." The second member will then prepare a draft opinion which the Administrator will deliver to the Committee members with their regular agenda materials.
  1. The Committee shall then vote on the following three issues at its regular meeting:
  1. agreement/disagreement as to the conclusion of the proffered opinion;
  1. whether the format of the opinion should be changed, i.e., from letter to formal;
  1. suggestions or revisions on the content of the opinion.

PROCEDURES FOR RECONSDIEREATON OF OPINIONS ISSUED BY THE ILLINOIS JUDICIAL ETHICS COMMITTEE

(May 23, 1995)

The following procedures shall be employed by the Illinois Judicial Ethics Committee (IJEC) on receipt of a request to reconsider a published opinion.

1. Written Requests.

  1. The IJEC shall only entertain written requests to reconsider a published opinion.
  1. All reconsideration requests shall be made in writing, stating the reasons the opinion should be reconsidered and addressed to the IJEC Chair or Administrator.

2. Distribution to Committee. Upon receipt of a reconsideration request, the request shall be distributed to all IJEC Members (Members) and placed on the agenda for the next regularly scheduled meeting.

3. Presentation of Request to Committee.

  1. The reconsideration request shall be considered at the first meeting at which the request appears on the agenda.
  1. Consideration of the request may be deferred on motion to the next regularly scheduled meeting; provided, however, that no reconsideration request shall be deferred for more than two meetings after the request first appears on the agenda.

4. Vote to Send to Ad Hoc Subcommittee.

  1. After discussing the reconsideration request, the Members shall vote whether to submit the request to the Ad Hoc Reconsideration Subcommittee (Subcommittee) for further analysis or to decline to reconsider the opinion.
  1. A vote by a majority of all Members present shall be required to submit the reconsideration request to the Subcommittee.

5. Ad Hoc Reconsideration Subcommittee. The Subcommittee shall consist of three members including the primary author of the opinion being reconsidered and at least one judge shall be designated the Chair; provide, however, that the Chair of the Subcommittee shall not be the primary author of the opinion being reconsidered.

6. Standard of Review -- Good Cause

  1. The Subcommittee shall promptly review the opinion and the reconsideration request and determine whether good cause exists to withdraw, revise or clarify the opinion.
  1. Good cause to withdraw an opinion shall consist of amistake of fact or of law that renders the opinion erroneous.
  1. Good cause to revise or to clarify an opinion shall consist of a statement or an omission that renders the opinion unclear or incomplete.

7. Report of Ad Hoc Reconsideration Subcommittee. The Subcommittee shall promptly inform the Members of the basis on which the Subcommittee determined whether or not good cause exists to withdraw, clarify or revise the opinion.

8. Supermajority Required for Reconsideration. A vote of two-thirds of all members entitled to vote shall be required to withdraw, revise or clarify an opinion.

  1. Redraft of Opinion.
  1. An opinion that has been revised or clarified without altering its basis conclusion shall retain the number under which it was originally published and the statement that it was modified on reconsideration as of the date the Members approved the revision or clarification.
  1. When an opinion is withdrawn, the index of published opinions shall contain a statement that the opinion has been withdrawn. A replacement opinion shall be disseminated that contains no information except the number of the case and the statement that the opinion was withdrawn and the caveat that the previously published opinion is not to be cited or relied upon as expressing the opinion of the IJEC.
  2.  

Indiana

INDIANA COMMISSION ON JUDICIAL QUALIFICATIONS *

Compliance with an opinion of the Commission will be considered by it to be a good faith effort to comply with the Code of Judicial Conduct.

* Also has judicial disciplinary responsibilities

[Note: The Indiana Commission on Judicial Qualifications does not have a specific set of rules or regulations addressing advisory opinions on judicial ethics. Nevertheless, the above is set forth as "boiler plate" in each of its written advisory opinions, as per the Commission's legal counsel.]


Kansas

Current with amendments received through 12-1-95

RULE 650. JUDICIAL ETHICS ADVISORY PANEL

  1. Pursuant to Article 3, Section 15 of the Constitution of the State of Kansas and the inherent power of the Supreme Court, there is hereby created a judicial ethics advisory panel to serve as an advisory committee for judges seeking opinions concerning the compliance of an intended, future course of conduct with the Code of Judicial Conduct. The panel shall consist of no more than three retired justices or judges who shall serve at the pleasure of the Supreme Court. Members of the advisory panel shall be reimbursed their actual and necessary expenses incurred in the discharge of their official duties and shall be compensated in the manner determined by the Supreme Court.
  1. A request for a judicial ethics advisory opinion shall be directed to the Clerk of the Appellate Courts, who shall forward the request to the panel if the requirements of this rule are satisfied. Requests will be accepted only from persons subject to Supreme Court Rule 601 et seq.
  1. Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended conduct together with a clear, concise question of judicial ethics. The identity of the judge, whose proposed conduct is the subject of the request, shall be disclosed to the panel. The requesting judge shall include with the request a concise memorandum setting forth the judge's own research and conclusions concerning the question. Requests shall not be accepted or referred for opinion unless accompanied by this memorandum.
  1. Advisory opinions shall address only whether an intended, future course of conduct violates the Code of Judicial Conduct and shall provide an interpretation of the Code with regard to the factual situation presented. The opinion shall not address issues of law nor shall it address the ethical propriety of past or present conduct. The identity of the requesting judge shall not be disclosed in the opinion.
  1. The Clerk shall provide a copy of each advisory opinion to the Chief Justice, the Commission on Judicial Qualifications and the requesting judge, and the state law library. The Clerk shall keep the original opinion in a permanent file.
  1. The fact that a judge or candidate for judicial office (as defined in the Terminology Section of this Code) has requested and relied upon an advisory opinion shall be taken into account by the Commission on Judicial Qualifications in its disposition of complaints and in determining whether to recommend to the Supreme Court discipline of a judge or judicial candidate. The advisory opinion, however, shall not be considered binding upon the Commission on Judicial Qualifications or the Supreme Court in the exercise of their judicial discipline responsibilities.
  2.  

Kentucky

Rules of the Supreme Court (SCR), Rule 4.310

JUDICIAL RETIREMENT AND REMOVAL COMMISSION

Current with amendments received through 1-31-96

SCR 4.310 JUDICIAL ETHICS COMMITTEE AND OPINIONS

  1. There shall be an ethics committee of the Kentucky judiciary consisting of one judge each of the Court of Appeals, the circuit court and the district court and two members of the Kentucky Bar Association appointed by the board of governors, none of whom shall be members of the judicial retirement and removal commission. The judicial members shall be selected by the members of their courts in the manner which each court selects. Each member shall serve for a term of four years from the date of his appointment. A chairman shall be elected by the ethics committee.
  1. Opinions as to the propriety of any act or conduct and the construction or application of any canon shall be provided by the committee upon request from any justice, judge or trial commissioner. If the committee finds the question of limited significance, it shall provide an informal opinion to the questioner. If, however, it finds the question of sufficient general interest and importance, it shall render a formal opinion, in which event it shall cause the opinion to be published in complete or synopsis form. Likewise, the committee may issue formal opinions on its own motion under such circumstances as it finds appropriate.
  1. Both formal and informal opinions shall be advisory only; however, the commission and the Supreme Court shall consider reliance by a justice, judge, or trial commissioner upon the ethics committee opinion.
  1. Any person affected by a formal opinion of the ethics committee may obtain a review thereof by the Supreme Court by filing with the clerk of that court within 30 days after the end of the month in which it was published a motion for review stating the grounds upon which the movant is dissatisfied with the opinion. The motion shall be accompanied by a copy of the opinion or synopsis as published and shall be served upon the ethics committee and, if the movant is someone other than the party who initiated the request for the opinion, upon the initiating justice, judge or commissioner. The filing fee for docketing such motion shall be as provided by Civil Rule 76.42(1) for original actions in the Supreme Court.

Louisiana

CODE OF JUDICIAL CONDUCT

Current with amendments received through 3-25-96

COMMITTEE ON JUDICIAL ETHICS

To the end that these canons may be properly interpreted, and in order to provide a forum to receive inquiries from members of the judiciary related to the interpretation of these canons, the Supreme Court Committee on Judicial Ethics is hereby created. The function of this Committee shall be limited to the issuance of advisory opinions on its own motion or in response to inquiries from any judge insofar as these canons may affect the judge.

The Committee shall consist of nine members, as follows:

  1. The Chief Justice and one other member of the Supreme Court;
  1. The Chairperson of the Conference of Court of Appeal Judges and one other Court of Appeal Judge;

(c) The President of the District Judges Association and one other District Judge;

  1. The President of the City Judges Association;
  1. The Judicial Administrator; and

(f) The President of the Louisiana State Bar Association.

The members of said Committee shall be selected and appointed in the following manner and for the terms indicated:

  1. The Chief Justice of the Supreme Court shall always be a member and shall be chairperson during his or her term of office as Chief Justice;
  1. The Supreme Court shall select an Associate Justice who shall serve for a term of two years;
  1. The Conference of Court of Appeal Judges shall select one member to serve on the Committee for two years;
  1. The District Judges Association shall select one member to serve on the Committee for two years;
  1. The Chairperson of the Conference of Court of Appeal Judges, the President of the District Judges Association, the President of the City Judges Association, the Judicial Administrator, and the President of the Louisiana State Bar Association shall, ex officio, be members of the Committee and shall serve during their respective terms of office.

The Judicial Administrator shall be Secretary of the Committee. The Committee shall make its own rules and select members to serve in such other offices as it creates.

The Committee shall act upon all inquiries as promptly as the nature of the case requires.


Maine

RULES OF COURT

ADMINISTRATIVE ORDERS OF THE SUPREME JUDICIAL COURT

Current with amendments received through 5-15-95

JUDICIAL ETHICS COMMITTEE - Effective November 15, 1993

All of the Justices concurring therein, the administrative order establishing a Judicial Ethics Committee, effective March 1, 1991, is hereby withdrawn and the following substituted in its place:

1. Establishment of Judicial Ethics Committee. A seven-member committee shall act as a Judicial Ethics Committee with the powers and duties provided in this order. The Chair and members of the Committee shall be appointed by the Supreme Judicial Court. The terms of members of the Committee shall be three years, and no member shall serve more than three terms. In the initial appointment to the Committee, two members shall be designated whose terms expire in 1994, three members shall be designated whose terms expire in 1995, and two members shall be designated whose terms expire in 1996.

2. Quorums and Actions. A quorum shall exist for the purpose of the Committee's exercise of its powers and duties when a majority of its members are present. The concurrence of a majority of such members present shall be sufficient for any action taken.

3. Powers and Duties. The Judicial Ethics Committee shall have the following powers and duties:

  1. The Committee shall render advisory opinions on matters involving the interpretation and application of the Maine Code of Judicial Conduct on its own initiative, or at the request of any court in this state, or the Committee on Judicial Responsibility and Disability, or an individual judge, or a candidate for judicial office, provided that an opinion may not be issued on a matter that is pending before a court or the Committee on Judicial Responsibility and Disability except on request of that court or that Committee.
  1. The Committee shall maintain and publish compilations of its redacted opinions, indexed and up-to-date, in a manner that will make them available to the courts, the Committee on Judicial Responsibility and Disability, individual judges, and members of the public.
  1. The Committee may make recommendations to the Supreme Judicial Court regarding amendments to the Maine Code of Judicial Conduct.

4. Compliance. A judge or candidate for judicial office who has requested and received an advisory opinion of the Judicial Ethics Committee shall not be immune from disciplinary action for conduct in reliance on that opinion, but compliance with the advisory opinion is a factor properly to be taken into account in any disciplinary proceedings arising from such conduct.

5. Effect of Opinions in Proceedings. Advisory opinions of the Judicial Ethics Committee may be received and considered on questions involving the interpretation of the Maine Code of Judicial Conduct in any proceeding in the courts of this state or before the Committee on Judicial Responsibility and Disability.

6. Immunity of Committee Members. Members of the Judicial Ethics Committee and its staff shall be immune from liability for any conduct in the course of their official duties relating directly or indirectly to their advisory opinions.

7. Confidentiality. With the exception of redacted opinions approved for publication pursuant to this order, all inquiries, replies, records, documents, files, and proceedings pertaining to the interpretation of the Maine Code of Judicial Conduct and the rendering of advisory opinions with respect thereto shall be confidential, and unless otherwise ordered by the Supreme Judicial Court shall not be open to the public, the media, or any person not involved in the rendering of the advisory opinions, excepting only the staff and members of the Judicial Ethics Committee and their professional associates actively involved in working on an advisory opinion for any member, and any justice of the Supreme Judicial Court. No member of the Committee, its staff, or professional associates shall publicly disclose the identity of another individual whose conduct or inquiry was the subject of an advisory opinion without the consent of that individual.

Comment

Following the adoption of a revised Code of Judicial Conduct, effective September 1, 1993, the Supreme Judicial Court accepted the recommendation of its Advisory Committee on the Code of Judicial Conduct that, having completed its task, the Committee be disbanded. As a result, it became necessary to ensure the continued existence of the Judicial Ethics Committee, which had originally been established as a panel of the Committee on the Code of Judicial Conduct, by providing for the appointment of its members by the Supreme Judicial Court. In addition, two public members are added to the membership of the Committee. The original order establishing the Judicial Ethics Committee may be found at Me.Rptr., 576-588 A.2d CXXIX-CXXXII.


Maryland

MARYLAND RULES OF COURT, Rule 1231, Code of Jud. Conduct, Canon 7

MARYLAND RULES OF PROCEDURE CHAPTER 1200. COURT ADMINISTRATION PART

Current with amendments received through 3-1-96

Canon 7. Judicial Ethics Committee

  1. The Chief Judge of the Court of Appeals shall appoint annually an Ethics Committee consisting of not less than seven and not more than nine members. One member shall be appointed from each of the Court of Special Appeals, the Circuit Courts, and the District Court. Three members may not be judges and of these one may not be a lawyer or an employee or officer within the judicial branch of government. The remaining members shall be judges appointed from any of the above courts, but not from the Court of Appeals. The Chief Judge shall designate one of the members as chairperson. In addition to its others duties, the Committee
  1. is designated as the body to give advice with respect to the application of the provisions of Subtitles 5 and 6 of Title 15 of the State Government Article, Annotated Code of Maryland, to State officials of the Judicial Branch as defined in Title 15 of the State Government Article; and
  1. shall from time to time submit to the Court of Appeals recommendations for necessary or desirable changes in the Code of Judicial Conduct, and the Code of Conduct for Masters, Examiners, Auditors, Referees and District Court Commissioners.

B. Any judge may in writing request the opinion of the Committee on the proper interpretation of the Code of Judicial Conduct as contained in Rule 1231, or as to the provisions of Subtitle 5 or 6 of Title 15 of the State Government Article, Annotated Code of Maryland. A judge who has requested an opinion and who is in compliance with that opinion is protected from a charge of violation of Code or statute construed in that opinion.

  1. A judge or any person who is subject to the Code of Conduct for Masters, Examiners, Auditors, Referees and District Court Commissioners and the Rules of Conduct as contained in Rule 1232 may in writing request the opinion of the Committee on the proper interpretation of the rules of conduct. A person who has requested an opinion and who is in compliance with it is protected from a charge of violation of the Code construed in that opinion.

D. Any person, other than a judge, who is a State official of the Judicial Branch within the meaning of that term as used in S 15-104(2) of the State Government Article, Annotated Code of Maryland, may in writing request the opinion of the Committee on the proper interpretation of Subtitle 5 or 6 of Title 15 of the State Government Article. The person who requests an opinion and who is in compliance with it is protected from a charge of violation of the statute construed in that opinion.

  1. Every opinion issued pursuant to this rule shall be filed with the Secretary of the Maryland Judicial Conference. The filed opinion is confidential and not public information unless the Court of Appeals otherwise directs. However, the Secretary shall prepare an edited version of each opinion, in which the identity of the person who has requested the opinion, the specific court or geographical location of that person, and the identity of other individuals, organizations or groups mentioned in the opinion, may not be disclosed. Edited opinions shall be published in the manner the Secretary deems proper.

Massachusetts

MASSACHUSETTS GENERAL LAW 211C 11

St. 1987, c.656, 2, was approved Jan. 4, 1988

The supreme judicial court may establish an advisory committee on the code of judicial conduct, which may render advisory opinions to judges at their request or on its own motion.

RULES OF THE MASSACHUSETTS SUPREME JUDICIAL COURT

ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW

Current with amendments received through 1-15-96

RULE 3:11 COMMITTEE ON JUDICIAL ETHICS

  1. There shall be a Committee on Judicial Ethics (Committee) consisting of five persons appointed by this court, at least three of whom shall be judges or former judges. No Justice currently serving on this court shall be a member of the Committee. The members of the Committee shall serve without compensation but shall be reimbursed for necessary expenses incurred in the performance of their official duties. When the Committee is first selected, the members shall be appointed respectively to five, four, three, two and one year terms. On the expiration of the term of office of a member, a successor shall be appointed for a term of five years. Members may be reappointed to the Committee, but no member shall be appointed to more than two successive full terms.
  1. The Committee shall render advisory opinions with respect to the interpretation of rules of court relating to the ethical and professional conduct of judges. Except for emergency opinions, the opinions of the Committee shall be in writing and shall be rendered only in response to a written request, signed by the judge requesting the opinion. The written request shall set forth fully all facts bearing on the question or questions on which the judge requests advice. The Committee shall not render opinions on hypothetical questions or on issues pending before a court, agency, or commission, including the Judicial Conduct Commission. The Committee may decline to render an opinion for any reasons which it deems sufficient.
  1. Each written opinion shall contain a statement of the facts and a discussion of the application of the relevant rules to the facts. The Committee may publish its opinions but the name of the judge requesting the opinion and any other identifying information shall not be included in a published opinion unless the judge consents to such inclusion. If the judge did not omit or misstate any material fact in his request for an opinion, the judge may rely on a written opinion until and unless revised or revoked. This court shall not subject a judge to discipline where the conduct of the judge at issue in a proceeding was undertaken in reasonable reliance on that opinion.
  1. This court shall designate one of the members of the Committee as Chairperson and another as Vice Chairperson. A quorum of the Committee shall consist of three members. The Committee may render written opinions only by an affirmative vote of at least three members. By rule the Committee may delegate particular types of matters, including the issuance of oral opinions on emergency matters, to a lesser number of members or to the secretary to the Committee. This court shall designate one of its employees to serve as the secretary and principal administrative officer of the Committee.
  1. The Committee shall make rules, subject to the approval of this court, implementing this rule. In January of each year, the Committee shall submit to the court a report of its activities, together with any recommendations.

MASSACHUSETTS RULES OF THE COMMITTEE ON JUDICIAL ETHICS

  1. Opinion Requests. Requests for advisory opinions should be made by letter, addressed to Henry Clay, Esq., Secretary, Committee on Judicial Ethics, 1300 New Court House, Boston, Massachusetts 02108. A request may only by made by a judge or a person who has been nominated to be a judge.
  1. Form of Request. The letter should be signed by the judge (or nominee) requesting the advice and should set forth fully all facts bearing on the question or questions on which he requests advice. Because Supreme Judicial Court Rule 3:11(2) precludes the committee from rendering opinions "on issues pending before a court, agency, or commission, including the Judicial Conduct Commission," the request should contain an affirmation that, to the best of the information and belief of the judge (or nominee) requesting the opinion, no issue raised thereby, whether in reference to himself or to any other person, is presently pending before any court, agency, or commission.
  1. Scope of Question. Under Supreme Judicial Court Rule 3:11, advisory opinion requests must relate "to the interpretation of rules of court relating to the ethical and professional conduct of judges." The committee will not render opinions on hypothetical questions nor upon questions relating to the conduct of persons other than the requesting judge (or nominee).
  1. Opinion. Opinions of the committee require the affirmative vote of at least three members and, except for emergency opinions, will be rendered in writing. The committee may publish its opinions but the name of the judge (or nominee) requesting the opinion and any other identifying information shall not be included in a published opinion unless the requester consents to such inclusion. Pursuant to Supreme Judicial Court Rule 3:11(3), if "the judge did not omit or misstate any material fact in his request for an opinion, the judge may rely on a written opinion until and unless revised or revoked."
  1. Emergency Opinions. To offer guidance to judges faced unexpectedly with questions within the committee's jurisdiction that require an immediate response, the secretary with the approval of two members of the committee, or the chairperson or vice-chairperson with the concurrence of one other member of the committee, may give advice on an emergency basis. Whenever possible, the request for advice shall be in writing. The emergency advice will be given orally or in writing, as seems appropriate. Emergency advice shall be submitted to the full committee for action. If the committee agrees with the advice given, it will issue a written confirming opinion to the inquirer. If it disagrees, it will issue a written opinion to the inquirer setting forth the emergency advice that was given so that the judge will have the benefit of the protection given by S.J.C. Rule 3:11(3) as to conduct undertaken in reliance on that advice, but it will also set forth the view of the full committee on the issue presented. The view of the full committee will supersede all inconsistent emergency advice.
  1. Decision to Refuse Opinion. In addition to the reasons stated in rules 1, 2, and 3, the committee may decline to render an opinion for any other reason which it deems sufficient.

Michigan

The Michigan State Bar

Standing Committee on Professional and Judicial Ethics

Ethics Opinions

The State Bar Standing Committee on Professional and Judicial Ethics is authorized to provide its written opinion concerning the propriety of professional and judicial conduct when requested to do so by the bench, the bar or other specified agencies. The Committee may issue a written opinion in response to an inquiry from a lawyer or judge concerning the prospective conduct of the inquirer. Ethics opinions do not have the force and effect of law and cannot be relied upon as an absolute defense to a charge of ethical misconduct. The work of the committee is highly regarded by the courts and disciplinary agencies of the state, however, and opinions have been cited in many instances.

Ethics opinions are provided as a service to State Bar members to guide lawyers in ethical situations the lawyers may face. Formal opinions are approved by the State Bar Board of Commissioners as official State Bar policy and concern matters of widespread interest or import to the bar. Informal opinions are issued by the Committee in response to particular inquiries. An ethics opinion will reference the rules, cases and other authorities known to the Committee which bear upon the result reached in the opinion. The Committee does not resolve questions of law, however, ethics opinions may cite to relevant legal authorities which clarify the history, philosophy or application of ethical rules.


Missouri

Commission on Retirement, Removal and Discipline *

Internal Rule, Article VI Re: Advisory Opinions (adopted 7-14-88)

The Commission may render an opinion to any judge who inquires at to the propriety of contemplated judicial or nonjudicial conduct. Such opinion shall be advisory only and shall not be binding on the Commission. Compliance with an opinion of the Commission shall be considered by it to be a good faith effort to comply with the Code of Judicial Conduct. No opinion of the Commission shall be authority for the conduct or evidence of good faith of another judge unless the underlying facts are identical. The Commission may withdraw any opinion.

A request for an opinion shall be in writing and state the facts in detail and the question to be answered. The request shall also state any legal authority or theory known to the requesting judge which would aid the Commission in answering the question.

All opinions rendered by the Commission shall be in writing. A copy of each request and opinion shall be kept by the Commission in its file.

Opinions of the Commission may be released to the public, but all references to the name of the requesting judge shall be deleted therefrom.

* Also has judicial disciplinary responsibilities.


Nebraska

RULES OF THE SUPREME COURT/COURT OF APPEALS OF THE STATE OF NEBRASKA

NEBRASKA CODE OF JUDICIAL CONDUCTAPPENDICES

APPENDIX A. JUDICIAL ETHICS COMMITTEE

Current with amendments received through 12-15-95

APPENDIX A. JUDICIAL ETHICS COMMITTEE

  1. The Nebraska Supreme Court shall appoint a Judicial Ethics Committee consisting of seven members. Two members shall be appointed from each of the county and district courts and one from the Court of Appeals. The remaining members shall be judges appointed from any affected courts, but not from the Nebraska Supreme Court. The Supreme Court shall designate one of the members as chairperson and one member as vice-chairperson who may serve in the event of disqualification or unavailability of the chairperson. When the Committee is first appointed, all members shall commence their service forthwith and serve until December 31, 1992, and thereafter one of such members shall be designated to serve for a term of one year expiring December 31, 1993, and in like manner, one for a term of two years, one for a term of three years, one for a term of four years, one for a term of five years, one for a term of six years, and one for a term of seven years, and thereafter all regular terms shall be seven years. No member of the Committee shall serve consecutive seven-year terms, but may, however, be reappointed to membership on the Committee after a lapse of one year.

B. The Judicial Ethics Committee so established shall have authority to:

  1. by the concurrence of a majority of its members, express its opinion on proper judicial conduct with respect to the provisions of this Code, either on its own initiative, at the request of a judge or candidate for judicial office, or at the request of a court or the Nebraska Commission on Judicial Qualifications, provided that an opinion may not be issued on a matter that is pending before a court or before the Commission except on request of the court or Commission;
  1. make recommendations to the Nebraska Supreme Court for amendment of this Code; and
  1. adopt rules relating to the procedures to be used in expressing opinions, including rules to assure a timely response to inquiries.

C. A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may offer the opinion in a disciplinary proceeding based on conduct conforming to that opinion.

  1. An opinion issued pursuant to this rule shall be filed with the State Court Administrator. Such an opinion is confidential and not public information unless the Nebraska Supreme Court otherwise directs. However, the State Court Administrator shall cause an edited version of each opinion to be prepared, in which the identity and geographic location of the person who has requested the opinion, the specific court involved, and the identity of other individuals, organizations or groups mentioned in the opinion are not disclosed. Opinions so edited shall be published periodically in the manner the Supreme Court deems proper.

New Jersey

RULES OF COURT, RULE 1:18A. ADVISORY COMMITTEE ON EXTRAJUDICIAL ACTIVITIES

Current with amendments received through 3-1-95

1:18A-1. Appointment and Organization

The Supreme Court shall appoint an Advisory Committee on Extrajudicial Activities consisting of at least 9 members serving for terms of 2 years with the terms of approximately one half of the members expiring each year. The Committee shall include one practicing attorney and one public member. A vacancy occurring during a term shall be filled for the unexpired portion thereof. The Court shall annually designate a member of the Committee to serve as chairperson. The Administrative Director of the Courts or designee shall serve as secretary of the Committee.

1:18A-2. Jurisdiction

The Committee shall accept inquiries concerning extrajudicial activities only from a judge or the Supreme Court.

1:18A-3. Form of Inquiry

All inquiries shall be addressed to the secretary, who shall transmit them to the Committee. They shall be in writing, shall set out the factual situation in detail, and shall be accompanied by a short memorandum citing the relevant Code of Judicial Conduct or Guidelines for Extrajudicial Activities.

1:18A-4. Disposition of Inquiries

Except as may otherwise be determined by the Committee in the case of routine inquiries that require a response before the Committee can act, no opinion shall be given by the Committee unless concurred in by a majority thereof. In every matter, the secretary shall convey the Committee's response in writing to the judge making the inquiry. The Committee may, in its discretion, issue, in addition, a formal opinion for distribution to all judges and make suitable arrangements for its publication. Formal opinions shall not, insofar as practicable, identify the judge making the inquiry.

1:18A-5. Inquiries From Supreme Court

The Committee shall consider and advise the Supreme Court or render opinions on such matters as the Supreme Court may submit to it from time to time. Those opinions shall not be published without prior approval of the Court.

1:18A-6. Procedure

The Committee shall prescribe the methods and procedure to be followed in considering inquiries and expressing opinions.

1:18A-7. Petitions for Review

  1. Notice. Within 30 days after a judge is notified in writing of the response to the inquiry, or, if a formal opinion has been rendered, within 20 days after its publication, the judge, if aggrieved thereby, may seek review thereof by filing a notice of petition for review with the Clerk of the Supreme Court.
  1. Record on Petition for Review. If the petition for review is granted, the record on review shall be the formal opinion, if any, or the Committee's written response to the judge issued pursuant to R. 1:18A-4, the inquiry or memorandum submitted, and any documents relied on by the Committee in arriving at its determination.
  1. Form of Petition for Review. A petition for review shall contain a short statement of the matter involved, the question presented, the errors complained of, and the arguments in support of the petitioner's position.
  1. Service and Filing of Petition for Review. Within 10 days after filing of the notice of petition for review 2 copies of the petition shall be served on the secretary of the Committee and 9 copies thereof shall be filed with the Clerk of the Supreme Court.
  1. Final Determination. The final determination of a petition for review may be either by written opinion or by order of the Supreme Court and shall state whether the opinion or other action of the Committee is affirmed, reversed, or modified, or shall provide for such other final disposition as is appropriate.

Note: Adopted November 29, 1988, to be effective January 2, 1989.


New York

STANDARDS AND ADMINISTRATIVE POLICIES

RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS

PART 101. ADVISORY COMMITTEE ON JUDICIAL ETHICS

Current with amendments received through 12/1/95

101.1 Establishment

There shall be an Advisory Committee on Judicial Ethics to issue advisory opinions to judges and justices of the Unified Court System concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties.

101.2 Membership

  1. The Chief Administrator of the Courts, in consultation with the Administrative Board of the Courts and with the approval of the Chief Judge of the State of New York, shall appoint members to the Committee in such numbers as deemed necessary to effectively carry out its duties and shall designate one member of the Committee to be its chair.

(b) Each member shall be an active or former judge or justice of the Unified Court System.

  1. The members and the chair shall serve at the pleasure of the Chief Administrator and shall be appointed for terms of up to two years. The service of a term as member or chair shall not preclude reappointment either upon expiration of the term or at some other time.

101.3 Duties

  1. The Committee shall issue advisory opinions, in writing, to the judge or justice making the request. The Committee may decline to respond to any question it deems inappropriate for the exercise of its jurisdiction.
  1. The Committee may respond to questions concerning judicial ethics posed by persons who exercise quasi-judicial duties in the Unified Court System but who are not judges or justices of the Unified Court System.

101.4 Procedure

  1. Unless the chair provides otherwise, all requests for advisory opinions shall be submitted in writing. Requests shall detail the particular facts and circumstances of the case. The Committee may request such supplemental material as it deems necessary.
  1. The Committee shall adopt procedures for the formulation and transmission of its advisory opinions.

101.5 Compensation

Members of the Committee shall serve without compensation but shall be reimbursed for expenses actually and necessarily incurred in the performance of their official duties for the Committee.

101.6 Confidentiality

Except as set forth in section 101.7, requests for advisory opinions, advisory opinions issued by the Committee, and the facts and circumstances on which they are based shall be confidential and shall not be disclosed by the Committee to any person other than the individual making the request. Deliberations by the Committee shall be confidential.

101.7 Publication

The Committee shall publish its formal advisory opinions, at such times and in such manner as approved by the Chief Administrator, with appropriate deletions of names of persons, places, or things that might tend to identify the judge or justice making the request or any other judge or justice of the Unified Court System.


North Dakota

Code of Jud.Conduct Compliance

NORTH DAKOTA CODE OF JUDICIAL CONDUCT

Current with amendments received through 1-15-96

COMPLIANCE WITH THE CODE OF JUDICIAL CONDUCT

Compliance with a written advisory letter or formal opinion issued by the Judicial Ethics Advisory Committee of the Judicial Conference shall constitute evidence of good faith for consideration in any sanction decision pursuant to a disciplinary proceeding.

Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, or surrogate judge is a judge within the meaning of this Code. All judges shall comply with this code except as provided below.

  1. Part-Time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge. A part-time judge:
  1. except when using the judge's office or title, or when a candidate [FN*] for judicial office, is not required to comply with Sections 4C(2); 4D(2), (3); 4E; 4F; 4G; 4H(2); 5A(1), (2); and 5C(1)(a), (b).
  1. may not practice law in the court on which the part-time judge serves or in any court subject to the appellate jurisdiction of the court on which the part-time judge serves, or act as a lawyer in a proceeding in which the part- time judge has served as a judge or in any other proceeding related thereto.
  1. Judge Pro Tempore. A judge pro tempore is a person who is appointed to act temporarily as a judge.
  1. While acting as such, a judge pro tempore is not required to comply with Sections 4C(2); 4D(2), (3); 4E; 4F; 4G; 4H(2); 5A(1), (2); and 5C(1)(a), (b).
  1. A person who has been a judge pro tempore shall not act as a lawyer in a proceeding in which the person has served as a judge or in any other proceeding related thereto.
  1. Retired Judge. A retired judge who is eligible for recall to judicial service pursuant to statute or rule shall comply with the provisions of these canons governing part-time judges.

Commentary

A(2) The "court on which the part-time judge serves" refers only to the particular municipal court in the jurisdiction in which the part-time judge presides and exercises judicial authority. A part-time judge is not barred from practicing law in all courts of similar character in other jurisdictions. Thus, a part-time municipal judge may practice law in any municipal court in the state in which the part-time judge does not have the authority and jurisdiction of a municipal judge.

FN* Publisher's Note: This term is explained in the section entitled "Terminology."


Ohio

SUPREME COURT RULES FOR THE GOVERNMENT OF THE BAR

Current with amendments received through 1-1-96

GOV BAR R V DISCIPLINARY PROCEDURES

Section 1. Creation of Board of Commissioners on Grievances and Discipline of the Supreme Court *

  1. Composition. There shall be a Board of Commissioners on Grievances and Discipline of the Supreme Court consisting of twenty-eight members as follows: seventeen attorneys admitted to the practice of law in Ohio, seven active or voluntarily retired judges of the state of Ohio or judges retired pursuant to Article IV, Section 6 of the Ohio Constitution, and four nonattorney members.
  1. Distribution. The attorney members of the Board shall be appointed from Ohio appellate districts as follows: First District, two members; Second District, one member; Third District, one member; Fourth District, one member; Fifth District, one member; Sixth District, two members; Seventh District, one member; Eighth District, three members; Ninth District, one member; Tenth District, two members; Eleventh District, one member; and Twelfth District, one member. The active and retired judge members shall be members at large appointed from separate appellate districts, and the nonattorney members of the Board shall be members at large appointed from separate appellate districts.
  1. Term of office. The term of office of each member of the Board shall be three years, beginning on the first day of January next following the member's appointment. Any member of the Board whose term has expired and who has an uncompleted assignment as a member of a panel may continue to serve for the purpose of the assignment until it is concluded before the Board. The successor member shall take no part in the proceedings of the Board concerning the assignment.
  1. Appointments. The Chief Justice and Justices of the Supreme Court each shall appoint members of the Board. Appointments to terms commencing the first day of January of any year shall be made prior to the first day of December of the preceding year. Vacancies for any cause shall be filled for the unexpired term by the Justice who appointed the person causing the vacancy or by the successor of that Justice. A member appointed to a term of fewer than three years may be reappointed to not more than two three-year terms. No person may be appointed to more than two consecutive three-year terms on the Board.
  1. Chair and vice-chair. The Board shall each year elect a judge or attorney member as chair and vice-chair. The chair, vice-chair, and Secretary each may execute journal entries on behalf of the Board and of panels of the Board. The chair and vice-chair shall serve in that capacity for no longer than two years.
  1. Meetings. The Board shall meet in Columbus at least six times each year. The chair, vice-chair, or Secretary may call additional meetings of the Board when necessary.
  1. Campaign Contributions. Members and employees of the Board, the Disciplinary Counsel, or employees of the Office of Disciplinary Counsel shall not make any contribution to, or for the benefit of, or take part in the campaign of, or campaign for or against, any justice, judge, or judicial candidate in this state. A Board member who is a candidate for a judicial office or for reelection to a judicial office may contribute to, may make a contribution for the benefit of, or take part in his or her own campaign.

Section 2. Jurisdiction and powers of the board

  1. Exclusive jurisdiction. All grievances involving alleged misconduct by justices, judges, or attorneys, all proceedings with regard to mental illness, all proceedings for the discipline of justices, judges, attorneys, persons under suspension, probation, or disbarred from the practice of law, and all proceedings for the reinstatement as an attorney shall be brought, conducted, and disposed of in accordance with the provisions of this rule.
  1. Powers. The Board shall receive evidence, preserve the record, make findings, and submit recommendations to the Supreme Court as follows:
  1. Concerning complaints of misconduct that are alleged to have been committed by a judge, an attorney, a person under suspension from the practice of law, or a person on probation;
  1. Concerning the mental illness of any judge or attorney;
  1. Relating to petitions for reinstatement as an attorney;
  1. Upon reference by the Supreme Court of conduct by a judge or an attorney affecting any proceeding under this rule, where the acts allegedly constitute a contempt of the Supreme Court or a breach of these rules but did not take place in the presence of the Supreme Court or a member of the Supreme Court, whether by willful disobedience of any order or judgment of the Supreme Court or the Board, by interference with any officer of the Supreme Court in the prosecution of any duty, or otherwise. This rule shall not limit or affect the plenary power of the Supreme Court to impose punishment for either contempt or breach of these rules committed in its presence, or the plenary power of any other court for contempt committed in its presence.

(C) Advisory opinions. The Board may issue informal, nonbinding advisory opinion letters in response to prospective or hypothetical questions directed to the Board regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary of Ohio, the Code of Professional Responsibility, the Code of Judicial Conduct, or the Attorney's Oath of Office. Subject to the approval of the Supreme Court, the Board shall adopt regulations for the issuance of advisory opinions.

* Also has judicial disciplinary responsibilities


Pennsylvania

RULES OF COURT - CODE OF JUDICIAL CONDUCT

Current with amendments received through 12-1-95

RELIANCE ON ADVISORY OPINIONS

The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, justices and other judicial officers subject to the Code of Judicial Conduct, and, although such opinions are not per se binding upon either the Judicial Inquiry and Review Board or the Supreme Court of Pennsylvania, action taken in reliance thereupon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.

Added Sept. 9, 1991.


Rhode Island

Sup.Ct.Rules, Art. VI, Code of Jud.Conduct, Advisory Committee

Current with amendments received through 10-1-95

RULE 1. RHODE ISLAND CODE OF JUDICIAL CONDUCT

ADVISORY COMMITTEE ON THE CODE OF JUDICIAL CONDUCT

In order to assist judges in complying with the foregoing canons, an advisory committee has been appointed by the Supreme Court with authority to interpret the canons and to provide an opinion upon the request of any judge concerning a proposed action and its propriety in the light of said canons. The advisory committee consists of five (5) members of the judiciary, not more than two of whom may be from the same court. The advisory committee will give the inquiring judge an opinion in respect to the propriety or impropriety of the judge's proposed action. An opinion from the advisory committee that it is proper for the judge to take certain action will give rise to a conclusive presumption that the judge has acted properly. Any judge who acts in accordance with an opinion given by the advisory committee shall be presumed to have abided by the Canons of The Code of Judicial Conduct.


South Carolina

APPELLATE COURT RULES, Rule 503

Current with amendments received through 5-15-95

RULE 503. ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT

Section A. There is hereby created an Advisory Committee on Standards of Judicial Conduct. The purpose of the Committee shall be to render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and nonjudicial conduct.

Section B. The Committee shall consist of one Circuit Court judge, one Family Court judge, and one active member of the South Carolina Bar who does not hold and has never held a judicial office. Committee members shall be appointed by the Supreme Court and shall hold office for a period of three (3) years. The terms of the members shall be staggered so that one term expires each year. The Supreme Court shall appoint one of the members of the Committee as the Chairman.

Section C. Two members of the Committee shall constitute a quorum for the transaction of any Committee business, including the issuance of any advisory opinion, whether in a meeting or by circulated writing.

Section D. All opinions shall be advisory in nature only. No opinion shall bind the Board of Commissioners on Judicial Standards in any proceeding properly before that body. However, in the discretion of the Board of Commissioners on Judicial Standards, an opinion of the Committee may be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct.

Section E. All requests for opinions shall be in writing, addressed to the Committee and signed by the requesting judge. All opinions rendered by the Committee shall be in writing and shall, within the body of the opinion, state the facts on which it is based. The name of the requesting judge and any other party or parties shall not be contained in the opinion and shall remain confidential. A copy of each opinion shall be filed with the Clerk of the Supreme Court and with the Board of Commissioners on Judicial Standards. Upon filing with the Clerk of the Supreme Court, opinions shall become a matter of public record. All other files and records of the Committee shall be confidential and shall not be disclosed except upon order of the Supreme Court.

Section F. No member of the Committee shall participate in any matter before the Committee in which he has a direct or indirect interest.

Section G. Any determination of the propriety or impropriety of particular conduct by the Board of Commissioners on Judicial Standards shall supersede any conflicting opinion of the Committee.

Section H. No individual shall serve simultaneously on the Advisory Committee on Standards of Judicial Conduct and the Board of Commissioners on Judicial Standards.

[Former Supreme Court Rule 42 adopted effective November 21, 1979. Adopted as Rule 503, SCACR, effective September 1, 1990; amended effective July 13, 1993; August 26, 1993.]


South Dakota

Resolution of South Dakota Judges' Association

PRELUDE:

"A judge should uphold the integrity and independence of the judiciary. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved."

Canon 1 of the South Dakota Code of Judicial Conduct. Canon 1 is the foundation upon which the South Dakota Code of Judicial Conduct is built. The Judge's Association of the State of South Dakota recognizes that its members must follow high ethical standards consistent with the South Dakota Code of Judicial Conduct. To assist this state's judges in meeting those high standards, the Judge's Association of the State of South Dakota hereby forms the "THE COMMITTEE ON JUDICIAL ETHICS."

PURPOSE:

The purposes of the committee are as follows:

  1. To express its opinion, when requested to do so by any justice, circuit judge or law-trained magistrate of the state of South Dakota, concerning proper professional or judicial conduct. However, an opinion shall no be issued on questions or cases pending before any court.
  1. Make its issued opinions known to the judicial community by periodic publication in summary or complete form.
  1. Make recommendations for amendment to or clarification of the South Dakota Code of Judicial Conduct, when such change appears advisable.

3. COMPOSITION OF COMMITTEE:

The committee shall be composed of three members, two of whom shall be circuit court judges and one of whom shall be a law-trained magistrate (part-time or full-time). The members shall be elected for three year terms at the annual judge's association meeting. The chairman of the committee shall be one of the three members of the committee and shall be elected annually by a majority vote of the members of the committee.

  1. OPINIONS:

All opinions shall be adopted at a called meeting by majority vote of the members of the committee. If a majority vote of the members of the committee cannot be obtained, no opinions shall be issued.

The committee will not issue opinions on questions of law or matters pertaining to conduct which is the subject of pending litigation or pending action by the Judicial Qualifications Commission. The committee will not issue opinions involving past conduct or the conduct of someone other than the inquirer.

  1. DISBURSEMENT OF OPINION:

Any opinion issued by the ethics committee will be issued to the inquirer in letter form. The opinion shall also be published in complete or summary form to all justices, circuit court judges, and law-trained magistrates, with all identifying references of the inquirer removed.

  1. STANDARD OF CONDUCT:

The South Dakota Code of Judicial Conduct, as amended from time to time, will provide the standard to be applied by the committee in formulating opinions pertaining to judicial conduct. The committee may look for assistance in interpreting the Sourth Dakota Code of Judicial Conduct to opinions of the Committee on Professional Ethics, published by the American Bar Foundation in collaboration with the American Bar Association, to the Code of Judicial Conduct and Annotations as adopted by the American Bar Association, to the Code of Judicial Conduct and Annotations for Federal Judges, and to any other source which would aid in the interpretation of the South Dakota Code of Judicial Conduct.

  1. EFFECT OF OPINION:

Opinions rendered by the Committee shall be advisory opinions only. These opinions have no binding force or effect. The opinions are issued solely for the purpose of advising members of the judiciary upon the ethical propriety of their contemplated professional, personal or judicial conduct.


Tennessee

RULES OF THE SUPREME COURT

RULE 10. CODE OF JUDICIAL CONDUCT

Current with amendments received through 7-15-95.

OPINIONS OF JUDICIAL STANDARDS COMMISSION [COURT OF THE JUDICIARY AND JUDICIAL ETHICS COMMITTEE] [FN*]

The Judicial Standards Commission as organized under Chapter 101 of the Public Acts of 1971 (T.C.A. SS 17-801 through 17-816) during the administration of the affairs of that commission, shall issue opinions as to whether certain conduct does or does not violate a particular canon or canons. These opinions shall be given publicity through normal judicial channels such as the "Tennessee Judge" or similar publications.

FN* Publisher's Note: The Judicial Standards Commission has been replaced by the Court of the Judiciary (see T.C.A. S 17-5-101 et seq.), which is authorized "to investigate, hear and determine charges sufficient to warrant discipline or removal" of judges. T.C.A. S 17-5-301.

FN The Judicial Ethics Committee appointed by the Supreme Court (Supreme Court Rule 9, S 26.6) may issue Formal Ethics Opinions "when requested to do so by a judge who is governed by the Code of Judicial Conduct." Supreme Court Rule 9, S 26.6(f).

  1. Tennessee Statute
  1. There is hereby created a committee which shall be known as the Judicial Ethics Committee to consist of five (5) members appointed by this Court as follows:

One (1) judge from the Court of Appeals or Court of Criminal Appeals;

One (1) trial judge from each grand division of the state; and

One (1) general sessions judge licensed to practice law in this state.

  1. The committee shall select its own chair.
  1. Each member shall serve for a term of four (4) years. Vacancies on the committee for an unexpired term shall be filled for the remainder of the term.
  1. The committee shall act under the rules it may from time to time promulgate, but shall act only with the concurrence of three (3) or more members.
  1. Members of the committee shall receive no compensation for their services but may be reimbursed by the Administrative Director of the Courts for their travel and other expenses incidental to the performance of their duties.
  1. The committee shall exercise the powers and perform the ordinary and necessary duties usually carried out by judicial ethics advisory bodies. By the concurrence of a majority of its members it shall issue Formal Ethics Opinions on proper professional conduct when requested to do so by a judge who is governed by the Code of Judicial Conduct, except that an opinion may not be issued in a matter that is the subject of a pending disciplinary proceeding. Formal Ethics Opinions shall be filed by the committee in the Administrative Office of the Courts. Said officer shall distribute a copy of such opinions to all judges governed by the Code of Judicial Conduct or see that such opinions are published in a publication generally available to judges.
  1. Requests for Formal Ethics Opinions shall be addressed to the committee, in writing, stating the factual situation, in detail, accompanied by a short brief or memorandum citing the Canons of the Code of Judicial Conduct involved and any other pertinent authorities and shall contain a certificate with the opinion that the matter is not the subject of a pending disciplinary proceeding.
  1. A Formal Ethics Opinion shall constitute a body of principles and objectives upon which judges can rely for guidance.

Utah

RULES OF COURT

CODE OF JUDICIAL ADMINISTRATION Judicial Administration Rule 3-109

Current with amendments received through 5-15-95

RULE 3-109. ETHICS ADVISORY COMMITTEE

Intent. To establish the Ethics Advisory Committee as a resource for judges to request advice on the interpretation and application of the Code of Judicial Conduct. To establish a process for recording and disseminating opinions on judicial ethics.

Applicability. This rule shall apply to all employees of the judicial branch of government who are subject to the Code of Judicial Conduct.

Statement of the Rule.

  1. The Ethics Advisory Committee is responsible for providing opinions on the interpretation and application of the Code of Judicial Conduct to specific factual situations.
  1. The Ethics Advisory Committee shall develop procedures for the submission of questions and the issuance and publication of opinions. These rules shall be reviewed and approved by the Council before their effective date.
  1. The Administrative Office shall provide staff support through the Office of General Counsel and shall distribute opinions in accordance with the procedures of the Committee.
  2.  

UTAH RULES OF COURT - Ethics Advisory Committee Rule 8

UTAH CODE OF JUDICIAL ADMINISTRATION

APPENDIX B. RULES OF PROCEDURE FOR ETHICS ADVISORY COMMITTEE

Current with amendments received through 5-15-95

RULE 8. LEGAL EFFECT

Compliance with an informal opinion shall be considered evidence of good faith compliance with the Code of Judicial Conduct. Formal opinions shall constitute a binding interpretation of the Code of Judicial Conduct.


Vermont

Administrative Order No. 35

COURT RULES ADMINISTRATIVE ORDERS OF THE SUPREME COURT

Current with amendments received through 9-15-95

ADMINISTRATIVE ORDER NO. 35. JUDICIAL ETHICS COMMITTEE

Pursuant to the Vermont Constitution, Chapter II, Section 30, the Supreme Court hereby issues the following Administrative Order effective September 1, 1995:

  1. Effective September 1, 1995, a Judicial Ethics Committee of five members is established consisting of three members of the Judiciary and two other members to be appointed by the Supreme Court. Initial appointments shall be for staggered terms--two members for three years, two members for two years, and one member for one year. The initial appointments of the members of the Judiciary shall be for one three-year term, one two-year term, and one one-year term. Thereafter appointments shall be for a three-year term. Whenever a member resigns or the office is otherwise vacant, the Supreme Court shall appoint a successor to fill the unexpired term. The chair shall be designated by the Supreme Court.
  1. The members of the Committee shall be reimbursed for reasonable and necessary expenses related to the performance of their duties and shall receive per diem compensation equivalent to that provided by law for comparable boards and commissions. The members of the Judiciary shall be reimbursed the normal state employee expenses. The commissioner of Finance and Management shall pay from the judicial appropriation all expenses of the Committee when expenses are submitted on proper vouchers approved by the Court Administrator or the Court Administrator's designee.
  1. The Committee
  1. shall render advisory opinions on matters involving the interpretation and application of the Vermont Code of Judicial Conduct on its own initiative, or at the request of any court in this state, or the Judicial Conduct Board, or an individual judge, or a candidate or potential candidate for judicial office, provided that an opinion may not be issued on a matter that is pending before a court or the Judicial Conduct Board against a judge or candidate that involves a claim of violation of the Code of Judicial Conduct by that judge or candidate except on request of the court or that Board.
  1. shall maintain and publish compilations of its redacted opinions, indexed and up-to-date, in a manner that will make them available to the courts, the Judicial Conduct Board, individual judges, and members of the public.
  1. may make recommendations to the Supreme Court regarding amendments to the Vermont Code of Judicial Conduct.
  1. A judge or candidate or potential candidate for judicial office who has requested and received an advisory opinion of the Judicial Ethics Committee shall not be immune from disciplinary action for conduct in reliance on that opinion, but compliance with the advisory opinion is a factor properly to be taken into account in any disciplinary proceeding arising from such conduct.
  1. Advisory opinions of the Judicial Ethics Committee may be received and considered on questions involving the interpretation of the Vermont Code of Judicial Conduct in any proceeding in the courts of this state or before the Judicial Conduct Board.
  1. With the exception of redacted opinions approved for publication pursuant to this order, all inquiries, replies, records, documents, files, and proceedings pertaining to the interpretation of the Vermont Code of Judicial Conduct and the rendering of advisory opinions with respect thereto shall be confidential, and unless otherwise ordered by the Supreme Court shall not be open to the public, the media, or any person not involved in the rendering of the advisory opinions, excepting only the staff and members of the Judicial Ethics Committee and their professional associates actively involved in working on an advisory opinion for any member, and any justice of the Supreme Court. No member of the Committee, its staff, or professional associates shall publicly disclose the identity of another individual whose conduct or inquiry was the subject of an advisory opinion without the consent of that individual.

Washington

COURT RULES OF GENERAL APPLICATION GENERAL RULES

Current with amendments received through 9-1-95

RULE 10. ETHICS ADVISORY COMMITTEE REGARDING ADVISORY OPINIONS ON JUDICIAL CONDUCT

  1. The Chief Justice shall appoint an Ethics Advisory Committee consisting of seven members. Of the members first appointed, four shall be appointed for 2 years, and three shall be appointed for 3 years. Thereafter, appointments shall be for a 2-year term. One member shall be appointed from the Court of Appeals, two members from the superior courts, two members from the courts of limited jurisdiction, one member from the Washington State Bar Association, and the Administrator for the Courts. The Chief Justice shall designate one of the members as chairman. The committee (1) is designated as the body to give advice with respect to the application of the provisions of the Code of Judicial Conduct to officials of the Judicial Branch as defined in article 4 of the Washington Constitution and (2) shall from time to time submit to the Supreme Court recommendations for necessary or advisable changes in the Code of Judicial Conduct.
  1. Any judge may in writing request the opinion of the committee. Compliance with an opinion issued by the committee shall be considered as evidence of good faith by the Supreme Court.
  1. Every opinion issued pursuant to this rule shall be circulated by the Administrator for the Courts. A request for an opinion is confidential and not public information unless the Supreme Court otherwise directs. The Administrator for the Courts shall publish regularly opinions issued pursuant to this rule.

[Adopted effective September 1, 1983; amended effective November 11, 1983; May 25, 1984.]


West Virginia

JUDICIAL INVESTIGATION COMMISSION *

RULES OF JUDICIAL DISCIPLINARY PROCEDURE

Current with amendments received through 10-1-95

RULE 2.13 ADVISORY OPINIONS

  1. The Administrative Director of the Courts or a judge may by written request of Disciplinary Counsel seek an advisory opinion as to whether certain specific actions contemplated may constitute a violation of the Code of Judicial Conduct.
  1. Disciplinary Counsel shall file a report on each request for an advisory opinion with the Commission.
  1. The Commission may render in writing such advisory opinion as it may deem appropriate or may return the report to Disciplinary Counsel for further review. The Commission shall forward a copy of every advisory opinion to the Chairperson of the Judicial Hearing Board, the Office of Disciplinary Counsel, the Administrative Director of the Courts, and the requesting judge.
  1. An advisory opinion is not binding on the Judicial Hearing Board or the Court, but shall be admissible in any subsequent disciplinary proceeding involving the requesting judge.
  1. No member of the Commission rendering an advisory opinion may serve on the Judicial Hearing Board in a proceeding involving a complaint or charge arising from conduct which was the subject of the advisory opinion.

[Adopted effective July 1, 1994.]

* Also has judicial disciplinary responsibilities


The American Bar Association

Model Code of Judicial Conduct 1990, APPENDIX*

Judicial Ethics Committee

  1. The [chief judge of the highest court of the jurisdiction] shall appoint a Judicial Ethics Committee consisting of [nine] members. [Five] members shall be judges; [two] shall be non-0judge lawyers; and ]two] members shall be public members. Of the judicial members, one member shall be appointed form each of [the highest court, the intermediate levels of courts, and the trial courts]. The remaining judicial members shall be judges appointed from any of the above courts, but not from the [highest court of the jurisdiction]. The [chief judge] shall designate one of the members as chairperson. Members shall serve three-year terms; terms shall be staggered; and no individual shall serve for more than two consecutive terms.
  1. The Judicial Ethics Committee so established shall have authority to:
  1. by the concurrence of a majority of its members, express its opinion on proper judicial conduct with respect to the provisions of [the code of judicial conduct adopted by the jurisdiction and any other specified sections of law of the jurisdiction regarding the judiciary, such as financial reporting requirements], either on its own initiative, at the request of a judge or candidate for judicial office, or at the request of a court or an agency charged with the administration of judicial discipline in the jurisdiction, provided that an opinion may not be issued on a matter that is pending before a court or before such an agency except on request of the court or agency;
  1. make recommendations to [the highest court of the jurisdiction] for amendment of the Code of Judicial Conduct [of the jurisdiction]; and
  1. adopt rules relating to the procedures to be used in expressing opinions, including rules to assure a timely response to inquiries.
  1. A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may not be disciplined for conduct conforming to that opinion.
  1. An opinion issued pursuant to this rule shall be filed with [appropriate official of the judicial conference of the jurisdiction]. Such an opinion is confidential and not public information unless [the highest court of the jurisdiction] otherwise directs. However, the [appropriate official of the judicial conference of the jurisdiction] shall cause an edited version of each opinion to be prepared, in which the identity and geographic location of the person who has requested the opinion, the specific court involved, and the identity of other individuals, organizations or groups mentioned in the opinion are not disclosed. Opinions so edited shall be published periodically in the manner [the appropriate official of the judicial conference of the jurisdiction] deems proper.

* Because of the need to encourage the establishment of judicial ethics committees in jurisdictions that do not have such committees either as free-standing entities or in combination with lawyer ethics committees, the following Appendix is provided. It is offered not as a model but simply as an example of provisions that a jurisdiction might adopt. PLEASE NOTE: The Appendix is not a part of the Model Code of Judicial Conduct as adopted on August 7, 1990 by the ABA House of Delegates.


The American Judicature Society

Model procedural Rules for Judicial

Ethics Advisory Committees

NOTE: It is not expected that every advisory committee will adopt every model rule. However, the model rules illustrate the provisions committees have adopted to facilitate their operations and may suggest to existing committees solutions to problems they have experienced or to new committees solutions to problems They anticipate.

Text in brackets Is alternative or optional. Provisions that would not he appropriate unless the committee Is established by the supreme court have been marked with an asterisk.

Enabling Provisions

A judicial ethics advisory committee is hereby established to render advisory opinions concerning the compliance of proposed future conduct with the code of judicial conduct. The committee shall have members. __ members shall be active or retired judges appointed by: ___ members shall be attorneys appointed by ___; and ___ members shall be lay persons appointed by ___. Committee members shall serve for three-year terms from the date of appointment, except that, to achieve staggered terms, -of the members first appointed shall be appointed for one year, - shall be appointed for two years, and ___ shall be appointed for three years. Committee members may be reappointed, but no member shall serve for more than two lull consecutive terms.

A request for an advisory opinion may be made by any judge or candidate [or nominee] for judicial office [or any person whose conduct is subject to the code of judicial conduct]. The committee may not issue an opinion in a manor known to be the subject of a past or pending litigation or disciplinary proceeding or investigation. The committee may also issue opinions at its own initiative on matters of interest to the judiciary. [Notwithstanding any other provision of law,] with the exception of edited opinions, all opinions, inquiries, replies, circulated drafts. records, documents, files, communications with staff, and proceedings of the committee shall be confidential.

All opinions shall be advisory only, and no opinion shall be binding on the judicial conduct commission or the supreme court in the exercise of its judicial discipline responsibilities. However, the judicial conduct commission and the supreme court [shall] [may in their discretion] consider compliance with an advisory opinion [by the requesting Individual] to be evidence of a good faith effort to comply with the code of judicial conduct [provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are identical].

Membership

NOTE: If advisory opinions are issued by the state judicial conduct organization. the number of members and related terms are set by constitution, statute, or court rule, and the provisions In this section are not necessary.

  1. The committee shall have __ members. Members of the state judicial conduct commission may not serve simultaneously on the judicial ethics advisory committee.
  1. ____members shall be either active or retired judges. One judge member shall be appointed from each of the trial level courts and from the court of appeals. No member of the state's highest court may be appointed to the judicial ethics advisory committee. No two judge members may be from the same court. At least one judge member shall be from an urban area court and at least one shall be from a rural area court.

See Guide at 5-7.

  1. The judge members of the committee shall be [appointed by the supreme court]* [ by their respective courts]*.

NOTE: Members Of committees established by a judges' association or bar association are generally chosen by the president of the association.

  1. __ members shall be attorneys admitted to the practice of taw in this state for at least ten years, who shall not be judges nor ever have been judges. The attorney members shall not be employees or officers within any branch of government except that they may be employees of educational institutions. The attorney members shall be selected [by the state bar association's governing body] [the supreme court].*

NOTE: The exception for employees of educational institutions was Included to allow law professors at public universities to be committee members

  1. __ members shall be citizens who are not admitted to practice law in any state and who are not employees or officers within any branch of government except that they may be employees of educational institutions. The public members shall be appointed by the [governor] [supreme court].*

NOTE: See Guide at 4-5. States may also want to consider prohibiting persons (both lay and attorney) who are members of other state regulatory or advisory boards from being members of the committee.

  1. Committee members shall serve for three-year terms from the date of appointment, except that, to achieve staggered terms,___ of the members first appointed shall be appointed for one year, __ shall be appointed for two years, and __ shall be appointed for three years. Committee members may be reappointed, but no member shall serve for more than two full consecutive terms.
  1. A vacancy shall occur when a committee member resigns, ceases to be a member of the category from which the member was appointed, or becomes unable to serve for any reason. Vacancies shall be filled in the same manner as the original appointment, and appointments to fill a vacancy shall be for the balance of the term vacated. A member whose term expires shall continue to serve until a successor is appointed.

General Provisions

  1. Members should be reimbursed for expenses actually and necessarily incurred in the performance of their duties for the committee.
  1. To encourage judges to seek advice from the committee, the judge members of the committee, when acting in their advisory capacity, shall be exempt from the provisions regarding disciplinary responsibilities in the code of judicial conduct, and the attorney members of the committee, when acting in their advisory capacity shall be exempt from the provisions regarding reporting misconduct in the rules of professional responsibility.*
  1. Members of the committee [and its staff] shall be immune from liability for any conduct relating directly or indirectly to their duties for the committee [unless they engage in improper conduct intentionally or with gross negligence].*
  1. Committee business, including the issuance of an advisory opinion, may be transacted in person, by telephone conference call, or by writing circulated to all members.
  1. By the concurrence of a majority of its members [subject to approval by the supreme court]*, the committee may promulgate additional rules of procedure not inconsistent with these rules.
  1. The chair of the committee shall be [elected by the members of the committee] [appointed by the supreme court]* [appointed by the chief justice].* The chair shall serve for a term of one year and shall not serve more than two successive terms. The chair is authorized to call meetings as needed, to preside over those meetings, and to coordinate the work of the committee.

NOTE: Existing advisory committees are almost evenly divided between those in which the chair is chosen by the supreme court, those in which the chair is chosen by the chief justice, and those in which the chair is chosen by committee member.

States may also want to consider having a vice chair (the current practice for at least six advisory committees) to preside in the absence of the chair and to perform any duties delegated by the chair. The vice chair could be selected in the same manner as the chair or chosen by the chair.

  1. No member of the committee shall participate in any request for a advice in which he or she has a direct or indirect interest, including his or her personal inquiry.

NOTE: Several states have rules specifying when a committee member cannot participate in the response to a request. In Pennsylvania, "members shall not vote on their personal inquiry or because of similar extraordinary circumstances." Rule 12 of the Rules, Practices and Guidelines of the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges. The rules In Utah provide, "[c]ircumstances which require recusal of a judge shall require recusal of a committee member from participation in committee action." Rule 6 of the Utah Ethics Advisory Committee. The model rule Is based on provisions in Florida and South Carolina. See Petition of the Committee on Standards of Conduct for Judges, 387 So. 2d 825 (Florida 1979); Rule 503F of the South Caroline Appellate Court.

  1. The committee may submit to the supreme court recommendations for amendments to the code of judicial conduct.

NOTE: Many Judicial ethics advisory committees have the authority to make recommendations to the supreme court for amendments to the code of judicial conduct. The Florida Supreme Court described the advisory committee as the "natural body to make Code change recommendations to the Court," although it noted that was not "the principal or primary purpose of the Committee." Petition of the Committee on Standards of Conduct for Judges, 367 So.2d 625 (Florida 1979).

In addition, the Utah Ethics Advisory Committee is directed to "develop and provide educational programs to assist judicial officers and employees In their understanding of the Code of Judicial Conduct and the role of the Judicial Conduct Commission, the Judicial Council and the Supreme court in issues of professional conduct." Rule 1 of the Rules of the Utah Ethics Advisory Committee. The Arizona Judicial Ethics Advisory Committee is also authorized to "make recommendations regarding appropriate subjects for judicial education programs." Rule 82(b)(3) of the Arizona Supreme Court.

  1. Each year, the committee shall submit [ the supreme court a report of Its activities.
  1. The [administrative office of the courts]* [judicial conduct commission] [judges] [bar] association] shall provide administrative [and research] support sufficient to carry out the committee's functions.

NOTE: If a supreme court, judges' association, or other organization wishes to create an advisory committee, it should make the commitment to provide the committee with at least the administrative staff it needs to adequately carry out its responsibilities. See Guide at 7.

Jurisdiction

  1. Any judge or candidate [or nominee] for judicial office [or any person whose conduct is subject to the code of judicial conduct] may request an advisory opinion about the propriety of his or her own conduct. The committee may decline to respond to an inquiry from someone who is not a member of the judiciary.

NOTE: States may want to consider specifically listing positions or agencies other than judges who are able to request opinions. Examples from rules for existing advisory' committees include non-judicial court employees, retired Judges, members of a judge's family aspirants to judicial office, agencies charged with judicial administration, the state court administrator, the judicial conduct organization, the supreme court, and the attorney discipline agency.

Although the judicial advisory committees in several states can issue opinions at the request of the judicial conduct organization, the Florida Supreme Court denied the request of the committee on Standards of Conduct for Judges for such authority. Noting that the committee's authority was carefully confined to giving advice concerning "contemplated conduct, the court stated it could conceive of no way in which the commission on Judicial Qualifications could be legitimately concerned with proposed acts of members of the judiciary. Petition of the Committee on Standards of Conduct for Judges, 367 So. 2d 625 (Florida 1979).

  1. The committee shall not render opinions regarding the proposed conduct of someone other than the inquirer, except the committee may respond to requests from a judge about a person subject to the judge's direction and control from a judge about the judge's relatives, or from a judge with supervisory responsibilities.

NOTE: lithe judicial conduct organization, the state court administrator, and/or the supreme court are allowed to request advisory opinions, they should also be listed in the exceptions to this rule.

  1. The committee shall only issue opinions that address contemplated or proposed future conduct and shall not issue opinions addressing past or current conduct unless the past or current conduct relates to future conduct or is continuing. The committee may not issue an opinion in a matter known to be the subject of a past or pending litigation or disciplinary investigation or proceeding [unless the commission on judicial conduct or the supreme court requests such an opinion].

NOTE: The rules of the Colorado Judicial Ethics Advisory Board require the requesting Individual to Include "a statement that an opinion is not sought with respect to past or current conduct and that the request is not the subject of a past or pending disciplinary proceeding before the Colorado Commission on Judicial Discipline." Section XB of Colorado Supreme Court Directive 94-01.

  1. The committee may in its discretion decline to respond to any inquiry where the committee determines that a response would be inappropriate or that an opinion will not aid the judge, benefit the judiciary as a whole, or serve the public interest.

NOTE: The rules of the judicial ethics committee of the Pennsylvania Conference of Trial Judges permit the committee to "decline to respond to a request that appears designed to embroil the committee In public controversy." Rule 52 Of the Rules, Practices and Guidelines of the Pennsylvania Conference of State Trial Judges.

  1. The committee may not issue an advisory opinion that interprets any constitutional provision, statute, rule, or regulation that doss not relate to judicial ethics.

NOTE: Many committees' rules provide that opinions will not address "questions of law," presumably to limit the committee's authority to ethical questions. However, that limitation may be too broad as the question whether conduct violates the code of judicial conduct may be considered a question of law. Model Rule 22 addresses the concern that the committee not exceed its authority without using the term "questions of law.' The types of questions intended to be beyond the committee's authority are, for example, whether a warrant issued by a magistrate who should have recused himself or herself is valid (Georgia Advisory Opinion 93 (1986)), whether a restriction In the code of Judicial conduct on judicial campaign speech violates the state and federal constitutions (Louisiana Advisory Opinion 61 (1984)), whether the state separation of powers doctrine prohibits a Judge from receiving compensation for teaching at a state university (Nebraska Advisory Opinion 95-2), or whether action by a Judicial candidate violates the state election laws (Maryland Advisory Opinion 41 (1970)). See also Model Rule 40.

  1. Notwithstanding any other provision of these rules, the committee may also issue opinions at its own initiative on matters of interest to the judiciary.

Procedures

  1. Except for an emergency request for an opinion (see Model Rule 48), a request for an advisory opinion must be In writing, signed by the person requesting the opinion, and sent to the committee1s address.
  1. A request shall contain a statement describing in detail all relevant facts and circumstances pertaining to the conduct for which an opinion is being sought. The request shall also include a clear, concise statement of the question of judicial ethics for which an opinion is sought and include references to the relevant section(s) of the code of judicial conduct, advisory opinions, case law, and other authority that the inquirer has already consulted.

spond within 15 days shall be deemed an assent to the proposed opinion. Each committee member will send his or her response to all other committee members, including the chair, and to staff. Members wilt have an additional 15 days to respond to the comments of other members.

  1. The chair (staff or any member may arrange a telephone conference call to discuss the proposed opinion and any comments.

33. The chair [staff] will maintain a record of the voting for all members.

  1. A majority of the members shall be required to concur in any advisory opinion issued by the committee.

35. Any member(s) of the committee may submit a minority opinion to be circulated for comment.

  1. If the committee is evenly divided with regard to an issue, an opinion stating that division, with the arguments of both sides, shall be issued, distributed, and published in the same manner as other opinions.

Formal Opinions

See sample advisory opinions in Appendix B.

  1. Formal opinions shall set forth the facts upon which the opinion is based and provide advice only with regard to those facts. Formal opinions shall cite the rules, cases, and other authorities that bear upon the advice rendered and shall quote the applicable provisions of the code of judicial conduct.
  1. Formal opinions shall contain a discussion section that analyzes the issues and provides the rationale for the advice given by the committee. If the opinion responds to more than one issue, each issue shall be answered separately.

NOTE: Committees may want to consider adopting drafting Instructions to guide committee members in drafting opinions. The State Bar of Michigan standing Committee on Professional and Judicial Ethics has adopted a "uniform format for ethics opinions drafting," and the Arizona Judicial Ethics Advisory Committee has adopted "format and style guidelines."

39. The names of each committee member subscribing to any formal opinion shall be set forth at the conclusion of the opinion.

  1. If the request raises issues under constitutional provisions, statutes, rules, or regulations other than the code of judicial conduct, the formal opinion may note the issues but shall indicate that the committee is not authorized to interpret a judge's obligations under any law other than the code of judicial conduct.

See Model Rule 22.

  1. Formal opinions shall state the authority of the committee and explain the effect of compliance with the opinion in disciplinary proceedings.

See Guide at 8-9; Appendix B.

Informal Opinions

  1. The committee may issue informal opinions as well as formal opinions. An informal advisory opinion may be issued if the opinion does not reverse prior formal opinions and the chair finds that the subject is not of general substantial Interest and continuing concern to the Judiciary or the public.

NOTE: A procedure allowing for informal opinions enables the committee to respond quickly to requests for advice that are not emergencies but do not raise questions of sufficient import effecting enough judges to justify resort to the more lengthy formal opinion process See Guide at 9-11.

43. Alternative A: Chair or staff may respond

If a request is made that requires only an informal opinion, the chair [staff] may render an informal opinion at once or solicit the advice of other members before rendering an informal opinion.

Alternative B: Chair or stuff must consult other members

If a request is made that requires only an informal opinion, the chair [staff] can render an informal opinion only after soliciting the advice of [two] [three] other members.

44. Informal opinions may be oral but shall subsequently be memorialized in writing.

45. The chair shall report in writing [at the next meeting of the committee], on all informal opinions. If one-third of the members of the committee disagree with an informal opinion, that opinion shall be resubmitted for further study and issuance of a formal opinion.

46. Compliance with an informal opinion shall not have the same effect as compliance with a formal opinion in judicial discipline proceedings.

See Model Rule 64.

47. Informal opinions will not be distributed or published in the same manner as formal opinions, but an edited version of informal opinions should be included in the annual report of the committee.

NOTE: See Model Rule 15. Committees should consider disseminating information about the advice rendered in informal opinions. For example, most of the opinions of the New Jersey Advisory Committee on Extrajudicial Activities are informal but are published as annotations to the Guidelines for Extrajudicial Activities. The California Judges Association Committee on Judicial Ethics publishes an annual report entitled Ethics Update that summarizes informal as well as formal opinions and is distributed to all members of the association.

Emergency Requests

  1. An emergency request for an opinion may be made by any [judge] person or agency who can request an advisory opinion] faced unexpectedly with a judicial ethics question that requires an Immediate response. Whenever possible, a request for an emergency opinion shall be in writing. An emergency request shall be accompanied by an explanation of the circumstances that make an immediate response necessary.
  1. When an emergency request is made, the chair [staff] may with the concurrence of [two] [three] members of the committee give a provisional response, orally or in writing. The response must make clear that the advice is provisional until consideration by the entire committee.
  1. The chair [staff] shall report, in writing, on all provisional responses. If a majority of the committee agrees with the advice given, a written. confirming opinion shall be issued to the inquirer If a majority disagrees, a written opinion shall be Issued to the inquirer setting forth the provisional response but also setting forth the view of the entire committee on the issue presented. The view of the lull committee shall supersede the inconsistent provisional response.
  1. Except with respect to the judge making the request who relies on the provisional response prior to notification that it is inconsistent with the view of the entire committee, compliance with a provisional response shall not have the same effect as compliance with a formal opinion in judicial disciplinary proceedings.

See Model Rule 64,

Distribution and Publication

  1. The original formal opinion shall be mailed to the person requesting the opinion, and copies shall be mailed to all committee members.
  1. The committee shall cause to be prepared an edited version of a formal opinion that omits the names of persons, courts, places, and any other information that might tend to identify either the person making the request or any other person. The edited opinion shall use neutral gender references. The chair [staff] shall review the edited opinion and add a heading.

NOTE: Each committee should determine whether preparing edited opinions that omit the inquirers name is consistent with the state's freedom of information act. See Guide at 16-17; Model Rule 65.

  1. Copies of edited opinions as they are prepared shall be sent to the supreme court, the judicial conduct organization, the director of the administrative office of the courts the state court administrator, the supreme court library, and all law school libraries in the state. The committee should send copies of edited opinions to the American Judicature Society.

NOTE: Committees may also want to consider sending copies of edited opinions to each clerk of court, all chief or presiding judges, and lawyer disciplinary agencies. See Appendix A.

  1. Copies (summaries) of edited opinions shall be published in a publication generally available to judges, such as a bar journal or supreme court advance sheets.

NOTE. Other methods of distribution and publication that should be considered by committees am discussed in the Guide at 12 and in Appendix A.

  1. Copies of all edited opinions shall be sent [by the administrative office of the courts]* to all judges at least [once] [twice] a year. An index shall be distributed to all judges annually. A complete set of the committee's edited opinions shall be provided to each new judge.
  1. A minority opinion shall be distributed and published in the same manner as the majority opinion of the committee.

58. The committee will release a copy of any edited opinion upon request.

Reconsideration and Modification

  1. Any determination of the propriety of particular conduct by the judicial conduct commission or the supreme court shall supersede any conflicting opinion of the committee. The committee shall examine and reconsider any of its opinions upon the request of the judicial conduct commission or the supreme court.
  1. At any time, a majority of the committee may modify or reverse any advisory opinion. The committee shall periodically review all of its opinions to determine if any are obsolete.
  1. No modification of an opinion shall be applied retroactively in any disciplinary proceedings.
  1. Alternative A: Reconsideration limited to person who requested opinion

Within thirty days after a formal opinion is mailed to the person who requested the opinion, he or she may petition the committee to reconsider the opinion by letter or memorandum explaining the basis for the request. The committee shall respond to the request by either reaffirming or revising the opinion. Revised opinions shall be distributed and published in the same manner as the original opinion.

Alternative B: Request by any person or court authorized to request an opinion

Within thirty days after the distribution of an edited opinion to all judges, any person, court, or agency authorized to request an opinion may petition the committee to reconsider the opinion by letter or memorandum explaining the basis for the request. The committee shall respond to the request by either reaffirming or revising the opinion. Revised opinions shall be distributed and published in the same manner as the original opinion.

See Guide at 12-13.

Effect

  1. All opinions shall be advisory only, and no opinion shall be binding on the judicial conduct commission or the supreme court in the exercise of their judicial discipline responsibilities.

64 Alternative A: Discretion to consider compliance as evidence of good faith

The judicial conduct commission and the supreme court may in their discretion consider compliance with a formal opinion [ the requesting Individual to be evidence of a good faith effort to comply with the code of judicial conduct provided that compliance with an opinion issued to another shall not be considered evidence of good faith unless the underlying facts are identical.*

Alternative B: Requirement that compliance be treated as evidence of good faith

The judicial conduct commission and the supreme court shall consider compliance with a formal opinion [by the requesting individual] to be evidence of a good faith effort to comply with the code of judicial conduct [provided that compliance with an opinion issued to another shall not be considered evidence of good faith unless the underlying facts are identical].*

See Guide at 13-16.

Confidentiality

  1. [Notwithstanding any other provision of law], with the exception of edited opinions, all opinions, inquiries, replies, circulated drafts, records, documents, files, communications with staff, and proceedings of the committee shall be confidential.

Note: See Guide at 16-17. The rules of the Michigan committee allow a "Committee member [to] seek input from sources outside the Committee regarding the legal or general factual background involved In an inquiry when doing so will assist the member in drafting or commenting on an opinion." Rule S of the Rules of the State Bar of Michigan Standing Committee on Professional and Judicial Ethics.

  1. Confidentiality does not apply if the person making the request expressly waives confidentiality in writing, if the person about whom the request is made expressly waives confidentiality, if a judge who requested an opinion
  2.  

Appendix

Opinions Bindings where there is Compliance

A.B.A. - "A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may not be disciplined for conduct conforming to that opinion." [emphasis added]

Alaska - "Reliance on the formal advisory opinion by the requesting judge is an absolute defense to subsequent disciplinary proceedings by the Commission concerning the identical facts addressed by the opinion. If there are distinguishing facts, reliance on the formal advisory opinion will be viewed as merely a good faith defense." [emphasis added]

Delaware - "A judge who has requested and relied upon an opinion shall be entitled to introduce that opinion as evidence that conduct conforming to the opinion is prima facie permissible pursuant to the Delaware Judges' Code of Judicial Conduct." [emphasis added]

Georgia - "It shall be a complete defense to any complaint under these rules that the judge complained against has acted in accordance with and in reliance upon any such advisory opinion." [emphasis added]

Hawaii - "An advisory opinion rendered by the Commission shall be admissible in any disciplinary proceeding involving a judge to whom the opinion is directed. It shall be a complete defense to any complaint under these rules that the judge complained against acted in accordance with and in reliance on an advisory opinion issued to the judge that certain specified conduct by the judge would not constitute a violation of the Code of Judicial Conduct. In addition, it shall be a mitigating factor in the consideration of any complaint under these rules that the judge complained against acted reasonably in reliance on any formal or informal advisory opinion not directed at the judge. " [emphasis added] [NOTE: Compliance with an opinion 'not' requested by the judge 'shall' be a mitigating factor.]

Maryland - "A person who has requested an opinion and who is in compliance with it is protected from a charge of violation of the Code construed in that opinion. " [emphasis added]

Massachusetts - "This court shall not subject a judge to discipline where the conduct of the judge at issue in a proceeding was undertaken in reasonable reliance on that opinion." [emphasis added]

Rhode Island - "Any judge who acts in accordance with an opinion given by the advisory committee shall be presumed to have abided by the Canons of The Code of Judicial Conduct." [emphasis added]

Tennessee - "A Formal Ethics Opinion shall constitute a body of principles and objectives upon which judges can rely for guidance." [emphasis added] [Note: This is my interpretation, since the Tennessee statute did not say that a Formal Ethics Opinion is one upon which judges "may" rely. Instead, it used the word "can" rely. ]

Utah - "Formal opinions shall constitute a binding interpretation of the Code of Judicial Conduct." [emphasis added] [Note: Informal opinions are evidence of good faith; however, formal opinions may under this language mean that opinions of the Utah Ethics Advisory Committee are binding.]


Opinion Not Binding, but Compliance is to be taken into Account

Kansas - "The fact that a judge or candidate for judicial office (as defined in the Terminology Section of this Code) has requested and relied upon an advisory opinion shall be taken into account by the Commission on Judicial Qualifications in its disposition of complaints and in determining whether to recommend to the Supreme Court discipline of a judge or judicial candidate. The advisory opinion, however, shall not be considered binding upon the Commission on Judicial Qualifications or the Supreme Court in the exercise of their judicial discipline responsibilities." [emphasis added]

Kentucky - "Both formal and informal opinions shall be advisory only; however, the commission and the Supreme Court shall consider reliance by a justice, judge, or trial commissioner upon the ethics committee opinion." [emphasis added]

Maine - " A judge or candidate for judicial office who has requested and received an advisory opinion of the Judicial Ethics Committee shall not be immune from disciplinary action for conduct in reliance on that opinion, but compliance with the advisory opinion is a factor properly to be taken into account in any disciplinary proceedings arising from such conduct." [emphasis added]

Pennsylvania - "…although such opinions are not per se binding upon either the Judicial Inquiry and Review Board or the Supreme Court of Pennsylvania, action taken in reliance thereupon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed." [emphasis added]

Vermont - "A judge or candidate or potential candidate for judicial office who has requested and received an advisory opinion of the Judicial Ethics Committee shall not be immune from disciplinary action for conduct in reliance on that opinion, but compliance with the advisory opinion is a factor properly to be taken into account in any disciplinary proceeding arising from such conduct." [emphasis added]


Opinions Not Binding, but Compliance is Evidence of Good Faith

Arkansas - "All opinions shall be advisory in nature only. No opinion shall be binding on the Judicial Discipline & Disability Commission or the Supreme Court in the exercise of their judicial discipline responsibilities. However, compliance by the requesting individual with a written advisory opinion of the Committee is evidence of a good faith effort to comply with the Arkansas Code of Judicial Conduct." [emphasis added]

Colorado - "All opinions shall be advisory in nature only. No opinion shall be binding on the Colorado Commission on Judicial Discipline or the Colorado Supreme Court in the exercise of their judicial disciplinary or other responsibilities. However, compliance by the requesting individual with a written advisory opinion of the board shall be considered to be evidence of a good faith effort by the requesting individual to comply with the Colorado Code of Judicial Conduct. An opinion given to a requesting individual in an oral conversation is neither binding on the board nor evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct." [emphasis added]

Indiana - "Compliance with an opinion of the Commission will be considered by it to be a good faith effort to comply with the Code of Judicial Conduct." [emphasis added]

Missouri - "Such opinion shall be advisory only and shall not be binding on the Commission. Compliance with an opinion of the Commission shall be considered by it to be a good faith effort to comply with the Code of Judicial Conduct. No opinion of the Commission shall be authority for the conduct or evidence of good faith of another judge unless the underlying facts are identical." [emphasis added] [Note: This language is very similar to Florida's, except that compliance "shall be considered" to be evidence of "good faith" in Missouri. Either Florida got its language from Missouri or visa-versa.]

North Dakota - "Compliance with a written advisory letter or formal opinion issued by the Judicial Ethics Advisory Committee of the Judicial Conference shall constitute evidence of good faith for consideration in any sanction decision pursuant to a disciplinary proceeding." [emphasis added]

Utah - "Compliance with an informal opinion shall be considered evidence of good faith compliance with the Code of Judicial Conduct." [emphasis added]

Washington - "Any judge may in writing request the opinion of the committee. Compliance with an opinion issued by the committee shall be considered as evidence of good faith by the Supreme Court." [emphasis added]


Opinion Not Binding, but Compliance is Evidence of Good Faith, at Discretion of Disciplinary Body

District of Columbia - "Written opinions will provide a body of guidance for the judges. Action in accordance with an advisory opinion may be considered by the District of Columbia Commission on Judicial Disabilities and Tenure as evidence of good faith in the course of any proceeding or investigation conducted by the Commission." [emphasis added]

Florida - "No opinion shall bind the Judicial Qualifications Commission in any proceeding properly before that body. An opinion of the Committee may, however, in the discretion of the Commission, be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct; provided that no opinion issued to one judge or justice shall be authority for the conduct, or evidence of good faith, of another judge or justice unless the underlying facts are identical." [emphasis added]

South Carolina - "All opinions shall be advisory in nature only. No opinion shall bind the Board of Commissioners on Judicial Standards in any proceeding properly before that body. However, in the discretion of the Board of Commissioners on Judicial Standards, an opinion of the Committee may be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct." [emphasis added]


Admissibility of the Opinion as a Defense

Alabama - "Any such opinion rendered by the Commission that certain specified conduct by the judge would not constitute a violation of the Canons of Judicial Ethics shall be admissible on behalf of the judge to whom it is directed in any disciplinary proceeding involving the propriety of such conduct by the judge to whom the opinion is directed." [emphasis added]

Arizona - "Reliance on a formal advisory opinion may be raised as a defense in any disciplinary proceeding." [emphasis added] [Note: The Rule does not require that the judge raising the defense must also have be the one who requested the opinion.]

Nebraska - "A judge or candidate for judicial office as defined in the Terminology Section of this Code who has requested and relied upon an opinion may offer the opinion in a disciplinary proceeding based on conduct conforming to that opinion." [emphasis added]

West Virginia - "An advisory opinion is not binding on the Judicial Hearing Board or the Court, but shall be admissible in any subsequent disciplinary proceeding involving the requesting judge." [emphasis added]


Opinion Not Binding

California - "Further, the opinion shall state that is so limited, and is advisory only." [emphasis added] [Note: These opinions are authored by the California Judges' Association.]

- "Michigan Ethics opinions do not have the force and effect of law and cannot be relied upon as an absolute defense to a charge of ethical misconduct." [emphasis added] [Note: While the committee primarily consists of judges, the opinions are created under the auspices by the state bar association.]

South Dakota - "Opinions rendered by the Committee shall be advisory opinions only. These opinions have no binding force or effect. The opinions are issued solely for the purpose of advising members of the judiciary upon the ethical propriety of their contemplated professional, personal or judicial conduct." [Note: This language is from a committee that was created by a judges' association. The committee is not a creature of the South Dakota legislature or its Supreme Court.]

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