Judges Now Have a New Code of Conduct to Follow

, The Legal Intelligencer


Sam Stretton
Samuel C. Stretton

But of interest is the fact that under Rule 2.9, a judge can get written advice of disinterested experts on law applicable to a proceeding. But the judge has to give advance notice to the parties if the judge is consulting with someone else. The parties have to be given an opportunity to object and respond.

Also, Rule 2.9 specifically allows a judge to consult with his or her court staff concerning the judge's adjudicative responsibilities.

There is a strong requirement now, under Rule 2.9(b), if a judge receives ex parte communication that is not authorized, that all parties be notified immediately and given an opportunity to respond. Under Subsection (c), a judge can't go out and investigate facts independently. Although that would seem obvious, it was never stated before.

But under Subsection (e) there is some lessening of the prohibitions of ex parte communications when the judge is serving on what the code calls a therapeutic problem solving court, such as mental health court or drug court.

Under Rule 2.10, judges are prohibited from speaking out and making statements on pending cases. Also, a judge is prohibited under Rule 2.10(b) to make any pledges or promises as to how cases will be handled that are inconsistent with the impartial duties of a judge.

Under Rule 2.11, for disqualification, there is now a specific requirement under Comment 4 to disqualify if a judge knows that a lawyer or a party has made direct or indirect contributions to the judicial campaign that would raise reasonable concerns about fairness or impartiality. But there is a rebuttal presumption under Subsection (4) for recusal if the contribution is made for reimbursement for transportation, lodging or hospitality. But that is limited by the new prohibition on gifts. A judge has an obligation to know the interest of the judge's spouse, domestic partner and children that may interfere with and require disqualification.

Under Rule 2.11, there is now a mandatory duty for a judicial officer to disqualify if the judge's impartiality might reasonably be questioned. This is a major change from the old code. The code then lists six instances where disqualification is warranted and mandatory.

Under Rule 2.12, a judge has to fully supervise his or her staff and ensure the staff complies with the Judicial Code. Under Section (b) there is a strong admonition for prompt disposition.

Under Rule 2.13, judges must now avoid nepotism, favoritism and unnecessary appointments. The days of appointing one's relatives or relatives of other judges are over. Further, a judge can't appoint a lawyer to a position if that person contributed within the prior two years to the judge's election. There are some exceptions to that, including if the person is not being compensated for the position.

Under Rule 2.14, the judge now has a duty to report or take steps to help lawyers or other judges who are impaired.

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