In re: Arkansas Bar Association Petition to Amend Code of Judicial Conduct
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SUPREME COURT OF ARKANSAS
No.
08-924
Opinion Delivered: 4-23-09
IN RE: ARKANSAS BAR
ASSOCIATION PETITION
TO AMEND CODE OF
JUDICIAL CONDUCT
PER CURIAM
The Arkansas Bar Association filed a petition with the court to adopt the 2007
American Bar Association Code of Judicial Conduct, as revised by the Arkansas Bar
Association, to replace the Arkansas Code of Judicial Conduct, which was adopted in 1993
and amended over the years. On October 2, 2008, we discussed the process that had gotten
us to that point, explained the proposed replacement code, and published the proposal for
comment. In Re Arkansas Bar Association Petition to Amend Code of Judicial Conduct, 374 Ark.
Appx. 399 (2008). We thank everyone who reviewed the proposal and submitted comments,
and we again express our deep appreciation to the Arkansas Bar Association and especially the
members of the Bar’s Task Force on the Code of Judicial Conduct for their work on this
project.
Pursuant to, inter alia, Ark. Const. amend. 80 §§ 1 and 4, we now adopt the 2007
American Bar Association Code of Judicial Conduct, as amended by the Arkansas Bar
Association and this court, as set out below, to be known as the “Arkansas Code of Judicial
Conduct.” It shall replace the code adopted in 1993 and shall be effective July 1, 2009.
ARKANSAS CODE OF JUDICIAL CONDUCT
TABLE OF CONTENTS
PREAMBLE
SCOPE
TERMINOLOGY
APPLICATION
CANON 1
A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE,
INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL
AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.
RULE 1.1 Compliance with the Law
RULE 1.2 Promoting Confidence in the Judiciary
RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office
CANON 2
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE
IMPARTIALLY, COMPETENTLY, AND DILIGENTLY.
RULE
RULE
RULE
RULE
RULE
RULE
RULE
RULE
RULE
RULE
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RULE
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RULE
2.1 Giving Precedence to the Duties of Judicial Office
2.2 Impartiality and Fairness
2.3 Bias, Prejudice and Harassment
2.4 External Influences on Judicial Conduct
2.5 Competence, Diligence, and Cooperation
2.6 Ensuring the Right to Be Heard
2.7 Responsibility to Decide
2.8 Decorum, Demeanor, and Communication with Jurors
2.9 Ex Parte Communications
2.10 Judicial Statements on Pending and Impending Cases
2.11 Disqualification
2.12 Supervisory Duties
2.13 Administrative Appointments
2.14 Disability and Impairment
2.15 Responding to Judicial and Lawyer Misconduct
2.16 Cooperation with Disciplinary Authorities
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CANON 3
A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND
EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT
WITH THE OBLIGATIONS OF JUDICIAL OFFICE.
RULE 3.1 Extrajudicial Activities in General
RULE 3.2 Appearances before Governmental Bodies and Consultation with
Government Officials
RULE 3.3 Testifying as Character Witness
RULE 3.4 Appointments to Governmental Positions
RULE 3.5 Use of Nonpublic Information
RULE 3.6 Affiliation with Discriminatory Organizations
RULE 3.7 Participation in Educational, Religious, Charitable, Fraternal, or
Civic Organizations and Activities
RULE 3.8 Appointments to Fiduciary Positions
RULE 3.9 Service as Arbitrator or Mediator
RULE 3.10 Practice of Law
RULE 3.11 Financial, Business, or Remunerative Activities
RULE 3.12 Compensation for Extrajudicial Activities
RULE 3.13 Acceptance and Reporting of Gifts, Loans, Bequests,
Benefits, or Other Things of Value
RULE 3.14 Reimbursement of Expenses and Waivers of Fees or Charges
RULE 3.15 Reporting Requirements
CANON 4
A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE
IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT
WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE
JUDICIARY.
RULE 4.1 Political and Campaign Activities of Judges and Judicial Candidates in
General
RULE 4.2 Political and Campaign Activities of Judicial Candidates in Public
Elections
RULE 4.3 Activities of Candidates for Appointive Judicial Office
RULE 4.4 Campaign Committees
RULE 4.5 Activities of Judges Who Become Candidates for
Nonjudicial Office
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ARKANSAS CODE OF
JUDICIAL CONDUCT
PREAMBLE
[1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United
States legal system is based upon the principle that an independent, impartial, and competent judiciary,
composed of men and women of integrity, will interpret and apply the law that governs our society.
Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law.
Inherent in all the Rules contained in this Code are the precepts that judges, individually and
collectively, must respect and honor the judicial office as a public trust and strive to maintain and
enhance confidence in the legal system.
[2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and
the appearance of impropriety in their professional and personal lives. They should aspire at all times
to conduct that ensures the greatest possible public confidence in their independence, impartiality,
integrity, and competence.
[3] The Arkansas Code of Judicial Conduct establishes standards for the ethical conduct of judges
and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and
judicial candidates, who are governed in their judicial and personal conduct by general ethical
standards as well as by the Code. The Code is intended, however, to provide guidance and assist
judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis
for regulating their conduct through disciplinary agencies.
SCOPE
[1] The Arkansas Code of Judicial Conduct consists of four Canons, numbered Rules under each
Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections
provide additional guidance in interpreting and applying the Code. An Application section establishes
when the various Rules apply to a judge or judicial candidate.
[2] The Canons state overarching principles of judicial ethics that all judges must observe.
Although a judge may be disciplined only for violating a Rule, the Canons provide important
guidance in interpreting the Rules. Where a Rule contains a permissive term, such as “may” or
“should,” the conduct being addressed is committed to the personal and professional discretion of
the judge or candidate in question, and no disciplinary action should be taken for action or
inaction within the bounds of such discretion.
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[3] The Comments that accompany the Rules serve two functions. First, they provide guidance
regarding the purpose, meaning, and proper application of the Rules. They contain explanatory
material and, in some instances, provide examples of permitted or prohibited conduct. Comments
neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a
Comment contains the term “must,” it does not mean that the Comment itself is binding or
enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct
at issue.
[4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of
this Code as articulated in the Canons, judges should strive to exceed the standards of conduct
established by the Rules, holding themselves to the highest ethical standards and seeking to achieve
those aspirational goals, thereby enhancing the dignity of the judicial office.
[5] The Rules of the Arkansas Code of Judicial Conduct are rules of reason that should be applied
consistent with constitutional requirements, statutes, other court rules, and decisional law, and with
due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the
essential independence of judges in making judicial decisions.
[6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that
every transgression will result in the imposition of discipline. Whether discipline should be
imposed should be determined through a reasonable and reasoned application of the Rules, and
should depend upon factors such as the seriousness of the transgression, the facts and circumstances
that existed at the time of the transgression, the extent of any pattern of improper activity, whether
there have been previous violations, and the effect of the improper activity upon the judicial
system or others.
[7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended
to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages
in proceedings before a court.
TERMINOLOGY
“Aggregate,” in relation to contributions for a candidate, means not only contributions in cash or in kind made
directly to a candidate’s campaign committee, but also all contributions made indirectly with the understanding that
they will be used to support the election of a candidate or to oppose the election of the candidate’s opponent. See
Rules 2.11 and 4.4.
“Appropriate authority” means the authority having responsibility for initiation of disciplinary process in
connection with the violation to be reported. See Rules 2.14 and 2.15.
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“Contribution” means both financial and in-kind contributions, such as goods, professional or volunteer services,
advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial
expenditure. See Rules 2.11, 2.13, 3.7, 4.1, and 4.4.
“De minimis,” in the context of interests pertaining to disqualification of a judge, means an insignificant interest
that could not raise a reasonable question regarding the judge’s impartiality. See Rule 2.11.
“Domestic partner” means a person with whom another person maintains a household and an intimate
relationship, other than a person to whom he or she is legally married. See Rules 2.11, 2.13, 3.13, and 3.14.
“Economic interest” means ownership of more than a de minimis legal or equitable interest. Except for
situations in which the judge participates in the management of such a legal or equitable interest, or the interest
could be substantially affected by the outcome of a proceeding before a judge, it does not include:
(1) an interest in the individual holdings within a mutual or common investment fund;
(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization
in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, an officer, an
advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a
member of a mutual savings association or credit union, or similar proprietary interests; or
(4) an interest in the issuer of government securities held by the judge.
See Rules 1.3 and 2.11.
“Fiduciary” includes relationships such as executor, administrator, trustee, or guardian. See Rules 2.11, 3.2,
and 3.8.
“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against,
particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come
before a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and
4.2.
“Impending matter” is a matter that is imminent or expected to occur in the near future. See Rules 2.9, 2.10,
3.13, and 4.1.
“Impropriety” includes conduct that violates the law, court rules, or provisions of this Code, and conduct that
undermines a judge’s independence, integrity, or impartiality. See Canon 1 and Rule 1.2.
“Independence” means a judge’s freedom from influence or controls other than those established by law. See
Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2.
“Integrity” means probity, fairness, honesty, uprightness, and soundness of character. See Canon 1 and Rule
1.2.
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“Judicial candidate” means any person, including a sitting judge, who is seeking selection for or retention in
judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes
a public announcement of candidacy, declares or files as a candidate with the election or appointment authority,
authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated
for election or appointment to office. See Rules 2.11, 4.1, 4.2, and 4.4.
“Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in question. A
person’s knowledge may be inferred from circumstances. See Rules 2.11, 2.13, 2.15, 2.16, 3.6, and 4.1.
“Law” encompasses court rules as well as statutes, constitutional provisions, and decisional law. See Rules 1.1,
2.1, 2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9, 3.12, 3.13, 3.14, 3.15, 4.1, 4.2, 4.4, and 4.5.
“Member of the candidate’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent,
or other relative or person with whom the candidate maintains a close familial relationship.
“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or
other relative or person with whom the judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10,
and 3.11.
“Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or
marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household.
See Rules 2.11 and 3.13.
“Nonpublic information” means information that is not available to the public. Nonpublic information may
include, but is not limited to, information that is sealed by statute or court order or impounded or communicated
in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric
reports. See Rule 3.5.
“Pending matter” is a matter that has commenced. A matter continues to be pending through any appellate
process until final disposition. See Rules 2.9, 2.10, 3.13, and 4.1.
“Personally solicit” means a direct request made by a judge or a judicial candidate for financial support or inkind services, whether made by letter, telephone, or any other means of communication. See Rule 4.1.
“Political organization” means a political party or other group sponsored by or affiliated with a political party
or candidate, the principal purpose of which is to further the election or appointment of candidates for political office.
For purposes of this Code, the term does not include a judicial candidate’s campaign committee created as
authorized by Rule 4.4. See Rules 4.1 and 4.2.
“Public election” includes primary and general elections. See Rules 4.2 and 4.4.
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“Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle,
aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Rule 2.11.
COMMENT
[1] Regarding the term “judicial candidate,” in Arkansas, there are no retention elections, and
selection by appointment arises in limited situations, such as to fill a newly created judgeship or a
vacancy.
APPLICATION
The Application section establishes when the various Rules apply to a judge or judicial
candidate.
I. APPLICABILITY OF THIS CODE
(A) The provisions of the Code apply to all full-time judges. Parts II through V of this section
identify those provisions that apply to four distinct categories of part-time judges. The four
categories of judicial service in other than a full-time capacity are necessarily defined in general
terms because of the widely varying forms of judicial service. Canon 4 applies to judicial
candidates.
(B) A judge, within the meaning of this Code, is anyone who is authorized to perform judicial
functions, including an officer such as a, magistrate, special master, referee, or member of the
administrative law judiciary.
COMMENT
[1] The Rules in this Code have been formulated to address the ethical obligations of any person who
serves a judicial function, and are premised upon the supposition that a uniform system of ethical
principles should apply to all those authorized to perform judicial functions.
[2] The determination of which category and, accordingly, which specific Rules apply to an
individual judicial officer, depends upon the facts of the particular judicial service.
[3] In recent years many jurisdictions have created what are often called “problem solving” courts,
in which judges are authorized by court rules to act in nontraditional ways. For example, judges
presiding in drug courts and monitoring the progress of participants in those courts’ programs may
be authorized and even encouraged to communicate directly with social workers, probation officers,
and others outside the context of their usual judicial role as independent decision makers on issues
of fact and law.
II. [Reserved]
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III. CONTINUING PART-TIME JUDGE
A judge who serves repeatedly on a part-time basis by election or under a continuing
appointment, including a retired judge subject to recall who is permitted to practice law
(“continuing part-time judge”),
(A) is not required to comply:
(1) with Rules 2.10(A) and 2.10(B) (Judicial Statements on Pending and Impending
Cases), except while serving as a judge; or
(2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.8
(Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10
(Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.14
(Reimbursement of Expenses and Waivers of Fees or Charges), 3.15 (Reporting
Requirements); and
(B) shall not practice law in the court on which the judge serves, shall not appear in any
criminal matter in the county in which the judge serves, and shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other proceeding related
thereto.
COMMENT
[1] When a person who has been a continuing part-time judge is no longer a continuing part-time
judge, including a retired judge no longer subject to recall, that person may act as a lawyer in a
proceeding in which he or she has served as a judge or in any other proceeding related thereto only
with the informed consent of all parties, and pursuant to any applicable Arkansas Rules of Professional
Conduct.
[2A] Paragraph (B) does not, as a general rule, prohibit a continuing part-time judge from practicing
law. However the position of a judge in presiding over a criminal matter and then appearing as a
criminal defense attorney in a court of general jurisdiction and opposing that same prosecutor
creates an appearance of impropriety, even when the proceedings are separate. Accordingly,
continuing part time judges are prohibited from appearing in any criminal matter in the county where
the judge serves, regardless of how the criminal matter arises.
[3A] Because the position of the judge is paramount to the judge’s private law practice, the judge
should be particularly sensitive to conflicts that may arise when the judge presides over matters
involving particular attorneys and then, in his or her private law practice, appears in adversary
proceedings in a court of general jurisdiction opposing the same attorneys who appear before the
judge. Opposing counsel may be hampered in vigorous advocacy against an attorney who wears
judicial robes and presides over cases involving that counsel. The primacy of judicial service and the
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obligation to avoid even the appearance of impropriety mandate caution in accepting civil cases in
disputed matters.
IV. PERIODIC PART-TIME JUDGE
A periodic part-time judge who serves or expects to serve repeatedly on a part-time basis, but under
a separate appointment for each limited period of service or for each matter,
(A) is not required to comply:
(1) with Rule 2.10 (Judicial Statements on Pending and Impending Cases), except
while serving as a judge; or
(2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.7
(Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations
and Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator
or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative
Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or
Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political and Campaign
Activities of Judges and Judicial Candidates in General), and 4.5 (Activities of Judges
Who Become Candidates for Nonjudicial Office); and
(B) shall not practice law in the court on which the judge serves or in any court subject to the
appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in
a proceeding in which the judge has served as a judge or in any other proceeding related
thereto.
V. PRO TEMPORE PART-TIME JUDGE
A pro tempore part-time judge who serves or expects to serve once or only sporadically on a part-time
basis under a separate appointment for each period of service or for each case heard is not required to
comply:
(A) except while serving as a judge, with Rules 1.2 (Promoting Confidence in the Judiciary),
2.4 (External Influences on Judicial Conduct), 2.10 (Judicial Statements on Pending and
Impending Cases), or 3.2 (Appearances before Governmental Bodies and Consultation with
Government Officials); or
(B) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.6 (Affiliation
with Discriminatory Organizations), 3.7 (Participation in Educational, Religious, Charitable,
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Fraternal, or Civic Organizations and Activities), 3.8 (Appointments to Fiduciary Positions),
3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or
Remunerative Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits,
or Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political and Campaign
Activities of Judges and Judicial Candidates in General), and 4.5 (Activities of Judges Who
Become Candidates for Nonjudicial Office).
VI. TIME FOR COMPLIANCE
A person to whom this Code becomes applicable shall comply immediately with its provisions, except
that those judges to whom Rules 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial,
Business, or Remunerative Activities) apply shall comply with those Rules as soon as reasonably
possible, but in no event later than one year after the Code becomes applicable to the judge.
COMMENT
[1] If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions
in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary to avoid serious
adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one
year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may,
notwithstanding the prohibitions in Rule 3.11, continue in that activity for a reasonable period but
in no event longer than one year.
CANON 1
A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY,
AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY
AND THE APPEARANCE OF IMPROPRIETY.
RULE 1.1
Compliance with the Law
A judge shall comply with the law, including the Arkansas Code of Judicial Conduct.
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RULE 1.2
Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.
COMMENT
[1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the
appearance of impropriety. This principle applies to both the professional and personal conduct of a
judge.
[2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome
if applied to other citizens, and must accept the restrictions imposed by the Code.
[3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality
of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such
conduct, the Rule is necessarily cast in general terms.
[4] Judges should participate in activities that promote ethical conduct among judges and lawyers,
support professionalism within the judiciary and the legal profession, and promote access to justice for
all.
[5] Actual improprieties include violations of law, court rules or provisions of this Code. The test
for appearance of impropriety is whether the conduct would create in reasonable minds a
perception that the judge violated this Code or engaged in other conduct that reflects adversely on
the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
[6] A judge should initiate and participate in community outreach activities for the purpose of
promoting public understanding of and confidence in the administration of justice. In conducting
such activities, the judge must act in a manner consistent with this Code.
RULE 1.3
Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of
the judge or others, or allow others to do so.
COMMENT
[1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage
or deferential treatment of any kind. For example, it would be improper for a judge to allude to his
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or her judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge
must not use judicial letterhead to gain an advantage in conducting his or her personal business.
[2] A judge may provide a reference or recommendation for an individual based upon the judge’s
personal knowledge. The judge may use official letterhead if the judge indicates that the reference is
personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as
an attempt to exert pressure by reason of the judicial office.
[3] Judges may participate in the process of judicial selection by cooperating with appointing
authorities and screening committees, and by responding to inquiries from such entities concerning
the professional qualifications of a person being considered for judicial office.
[4] Special considerations arise when judges write or contribute to publications of for-profit entities,
whether related or unrelated to the law. A judge should not permit anyone associated with the
publication of such materials to exploit the judge’s office in a manner that violates this Rule or other
applicable law. In contracts for publication of a judge’s writing, the judge should retain sufficient
control over the advertising to avoid such exploitation.
CANON 2
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY.
RULE 2.1
Giving Precedence to the Duties of Judicial Office
The duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal
and extrajudicial activities.
COMMENT
[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal
and extrajudicial activities to minimize the risk of conflicts that would result in frequent
disqualification. See Canon 3.
[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to
participate in activities that promote public understanding of and confidence in the justice system.
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RULE 2.2
Impartiality and Fairness
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and
impartially.
COMMENT
[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.
[2] Although each judge comes to the bench with a unique background and personal philosophy, a
judge must interpret and apply the law without regard to whether the judge approves or disapproves
of the law in question.
[3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact
or law. Errors of this kind do not violate this Rule.
[4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se
litigants the opportunity to have their matters fairly heard.
RULE 2.3
Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties, without
bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias
or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others
subject to the judge’s direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting
bias or prejudice, or engaging in harassment, against parties, witnesses, lawyers, or others.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making
legitimate reference to personal characteristics when they are relevant to an issue in a
proceeding.
COMMENT
[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and
brings the judiciary into disrepute.
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[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs;
demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening,
intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and
crime; and irrelevant references to personal characteristics. Even facial expressions and body language
can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of
bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or
biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates
or shows hostility or aversion toward a person on the basis of personal characteristics.
[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature that is unwelcome.
RULE 2.4
External Influences on Judicial Conduct
(A) A judge shall not be swayed by public clamor or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other interests or relationships
to influence the judge’s judicial conduct or judgment.
(C) A judge shall not convey or permit others to convey the impression that any person or
organization is in a position to influence the judge.
COMMENT
[1] An independent judiciary requires that judges decide cases according to the law and facts, without
regard to whether particular laws or litigants are popular or unpopular with the public, the media,
government officials, or the judge’s friends or family. Confidence in the judiciary is eroded if judicial
decision making is perceived to be subject to inappropriate outside influences.
RULE 2.5
Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties, competently and diligently.
(B) A judge shall cooperate with other judges and court officials in the administration of court
business.
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COMMENT
[1] Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness,
and preparation reasonably necessary to perform a judge’s responsibilities of judicial office.
[2] A judge should seek the necessary docket time, court staff, expertise, and resources to discharge
all adjudicative and administrative responsibilities.
[3] Prompt disposition of the court’s business requires a judge to devote adequate time to judicial
duties, to be punctual in attending court and expeditious in determining matters under submission,
and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate
with the judge to that end.
[4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights
of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should
monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and
unnecessary costs.
RULE 2.6
Ensuring the Right to Be Heard
(A) A judge shall accord to every person who has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard according to law.
(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in
dispute but shall not act in a manner that coerces any party into settlement.
COMMENT
[1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive
rights of litigants can be protected only if procedures protecting the right to be heard are observed.
[2] The judge plays an important role in overseeing the settlement of disputes, but should be careful
that efforts to further settlement do not undermine any party’s right to be heard according to law. The
judge should keep in mind the effect that the judge’s participation in settlement discussions may have,
not only on the judge’s own views of the case, but also on the perceptions of the lawyers and the
parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors
that a judge should consider when deciding upon an appropriate settlement practice for a case are (1)
whether the parties have requested or voluntarily consented to a certain level of participation by the
judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated
16
in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties
participate with their counsel in settlement discussions, (5) whether any parties are unrepresented by
counsel, and (6) whether the matter is civil or criminal.
[3] Judges must be mindful of the effect settlement discussions can have, not only on their objectivity
and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge’s best
efforts, there may be instances when information obtained during settlement discussions could
influence a judge’s decision making during trial, and, in such instances, the judge should consider
whether disqualification may be appropriate. See Rule 2.11(A)(1).
RULE 2.7
Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when disqualification is required
by Rule 2.11 or other law.
COMMENT
[1] Judges must be available to decide the matters that come before the court. Although there are times
when disqualification is necessary to protect the rights of litigants and preserve public confidence in
the independence, integrity, and impartiality of the judiciary, judges must be available to decide
matters that come before the courts. Unwarranted disqualification may bring public disfavor to the
court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of
judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues
require that a judge not use disqualification to avoid cases that present difficult, controversial, or
unpopular issues.
RULE 2.8
Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers,
court staff, court officials, and others with whom the judge deals in an official capacity, and
shall require similar conduct of lawyers, court staff, court officials, and others subject to the
judge’s direction and control.
(C) A judge shall not commend or criticize jurors for their verdict other than in a court order
or opinion in a proceeding.
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COMMENT
[1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty
imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and
businesslike while being patient and deliberate.
[2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future
cases and may impair a juror’s ability to be fair and impartial in a subsequent case.
[3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who
choose to remain after trial but should be careful not to discuss the merits of the case.
RULE 2.9
Ex Parte Communications
(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication for scheduling,
administrative, or emergency purposes, which does not address substantive matters, is
permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication, and gives the parties an opportunity
to respond.
(2) A judge may obtain the written advice of a disinterested expert on the law
applicable to a proceeding before the judge, if the judge gives advance notice to the
parties of the person to be consulted and the subject matter of the advice to be
solicited, and affords the parties a reasonable opportunity to object and respond to the
notice and to the advice received.
(3) A judge may consult with court staff and court officials whose functions are to aid
the judge in carrying out the judge’s adjudicative responsibilities, or with other judges,
provided the judge makes reasonable efforts to avoid receiving factual information that
is not part of the record, and does not abrogate the responsibility personally to decide
the matter.
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(4) [Reserved]
(5) A judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so.
(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon
the substance of a matter, the judge shall make provision promptly to notify the parties of the
substance of the communication and provide the parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter independently, and shall consider only the
evidence presented and any facts that may properly be judicially noticed.
(D) A judge shall make reasonable efforts, including providing appropriate supervision, to
ensure that this Rule is not violated by court staff, court officials, and others subject to the
judge’s direction and control.
COMMENT
[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications
with a judge.
[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party’s
lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be
given.
[3] The proscription against communications concerning a proceeding includes communications with
lawyers, law teachers, and other persons who are not participants in the proceeding, except to the
limited extent permitted by this Rule.
[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law,
such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts.
In this capacity, judges may assume a more interactive role with parties, treatment providers, probation
officers, social workers, and others.
[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions
of a case with judges who have previously been disqualified from hearing the matter, and with judges
who have appellate jurisdiction over the matter.
[6] The prohibition against a judge investigating the facts in a matter extends to information available
in all mediums, including electronic.
[7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the
judge’s compliance with this Code. Such consultations are not subject to the restrictions of paragraph
(A)(2).
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RULE 2.10
Judicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that might reasonably be expected to affect
the outcome or impair the fairness of a matter pending or impending in any court, or make
any nonpublic statement that might substantially interfere with a fair trial or hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come
before the court, make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.
(C) A judge shall require court staff, court officials, and others subject to the judge’s direction
and control to refrain from making statements that the judge would be prohibited from
making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in
the course of official duties, may explain court procedures, and may comment on any
proceeding in which the judge is a litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly or through a
third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.
COMMENT
[1] This Rule’s restrictions on judicial speech are essential to the maintenance of the independence,
integrity, and impartiality of the judiciary.
[2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a
litigant in a personal capacity. In cases in which the judge is a litigant in an official capacity, such as
a writ of mandamus, the judge must not comment publicly.
[3] Depending upon the circumstances, the judge should consider whether it may be preferable for
a third party, rather than the judge, to respond or issue statements in connection with allegations
concerning the judge’s conduct in a matter.
20
RULE 2.11
Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a
person within the third degree of relationship to either of them, or the spouse or
domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner,
managing member, or trustee of a party;
b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be
substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s
spouse, domestic partner, parent, or child, or any other member of the judge’s
family residing in the judge’s household, has an economic interest in the subject
matter in controversy or in a party to the proceeding.
(4) [Reserved]
(5) The judge, while a judge or a judicial candidate, has made a public statement,
other than in a court proceeding, judicial decision, or opinion, that commits or
appears to commit the judge to reach a particular result or rule in a particular way
in the proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a
lawyer who participated substantially as a lawyer in the matter during such
association;
(b) served in governmental employment, and in such capacity participated
personally and substantially as a lawyer or public official concerning the
proceeding, or has publicly expressed in such capacity an opinion
concerning the merits of the particular matter in controversy;
(c) was a material witness concerning the matter; or
(d) previously presided as a judge over the matter in another court.
21
(B) A judge shall keep informed about the judge’s personal and fiduciary economic
interests, and make a reasonable effort to keep informed about the personal economic
interests of the judge’s spouse or domestic partner and minor children residing in the
judge’s household.
(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under
paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may
ask the parties and their lawyers to consider, outside the presence of the judge and court
personnel, whether to waive disqualification. If, following the disclosure, the parties and
lawyers agree, without participation by the judge or court personnel, that the judge should not
be disqualified, the judge may participate in the proceeding. The agreement shall be
incorporated into the record of the proceeding.
COMMENT
[1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be
questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply.
In many jurisdictions, the term “recusal” is used interchangeably with the term “disqualification.”
[2] A judge’s obligation not to hear or decide matters in which disqualification is required applies
regardless of whether a motion to disqualify is filed.
[3] The rule of necessity may override the rule of disqualification. For example, a judge might be
required to participate in judicial review of a judicial salary statute, or might be the only judge
available in a matter requiring immediate judicial action, such as a hearing on probable cause or a
temporary restraining order. In matters that require immediate action, the judge must disclose on the
record the basis for possible disqualification and make reasonable efforts to transfer the matter to
another judge as soon as practicable.
[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the
judge is affiliated does not itself disqualify the judge. If, however, the judge’s impartiality might
reasonably be questioned under paragraph (A), or the relative is known by the judge to have an
interest in the law firm that could be substantially affected by the proceeding under paragraph
(A)(2)(c), the judge’s disqualification is required.
[4A] The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or
publicly supported the judge in his or her election does not of itself disqualify the judge. However,
the size of contributions , the degree of involvement in the campaign, the timing of the campaign and
the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise
questions as to the judge’s impartiality under paragraph (A).
[5] A judge should disclose on the record information that the judge believes the parties or their
lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge
believes there is no basis for disqualification.
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[6] “Economic interest,” as set forth in the Terminology section, means ownership of more than a de
minimis legal or equitable interest. Except for situations in which a judge participates in the
management of such a legal or equitable interest, or the interest could be substantially affected by the
outcome of a proceeding before a judge, it does not include:
(1) an interest in the individual holdings within a mutual or common investment fund;
(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic
organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves
as a director, officer, advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary interests the judge may
maintain as a member of a mutual savings association or credit union, or similar proprietary
interests; or
(4) an interest in the issuer of government securities held by the judge.
RULE 2.12
Supervisory Duties
(A) A judge shall require court staff, court officials, and others subject to the judge’s direction
and control to act in a manner consistent with the judge’s obligations under this Code.
(B) A judge with supervisory authority for the performance of other judges shall take
reasonable measures to ensure that those judges properly discharge their judicial responsibilities,
including the prompt disposition of matters before them.
COMMENT
[1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when
those persons are acting at the judge’s direction or control. A judge may not direct court personnel
to engage in conduct on the judge’s behalf or as the judge’s representative when such conduct would
violate the Code if undertaken by the judge.
[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient
administration of justice, a judge with supervisory authority must take the steps needed to ensure that
judges under his or her supervision administer their workloads promptly.
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RULE 2.13
Administrative Appointments
(A) In making administrative appointments, a judge:
(1) shall exercise the power of appointment impartially and on the basis of merit; and
(2) shall avoid nepotism, favoritism, and unnecessary appointments.
(B) [Reserved]
(C) A judge shall not approve compensation of appointees beyond the fair value of services
rendered.
(D) No judge shall employ a spouse or other relative unless it has been affirmatively
demonstrated to the Arkansas Judicial Discipline and Disability Commission that it is
impossible for the judge to hire any other qualified person to fill the position.
COMMENT
[1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special
masters, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the
parties to an appointment or an award of compensation does not relieve the judge of the obligation
prescribed by paragraph (A).
[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the
third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse
or domestic partner of such relative.
[3][Reserved]
RULE 2.14
Disability and Impairment
A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by
drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which
may include a confidential referral to a lawyer or judicial assistance program.
24
COMMENT
[1] “Appropriate action” means action intended and reasonably likely to help the judge or lawyer in
question address the problem and prevent harm to the justice system. Depending upon the
circumstances, appropriate action may include but is not limited to speaking directly to the impaired
person, notifying an individual with supervisory responsibility over the impaired person, or making
a referral to an assistance program.
[2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a
judge’s responsibility under this Rule. Assistance programs have many approaches for offering help to
impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care
professionals. Depending upon the gravity of the conduct that has come to the judge’s attention,
however, the judge may be required to take other action, such as reporting the impaired judge or
lawyer to the appropriate authority, agency, or body. See Rule 2.15.
[3A] Judges may exercise discretion in referring a lawyer or another judge to the Arkansas Judges and
Lawyers Assistance Program. See Rule 2.15.
RULE 2.15
Responding to Judicial and Lawyer Misconduct
(A) A judge having knowledge that another judge has committed a violation of this Code that
raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge
in other respects shall inform the appropriate authority.
(B) A judge having knowledge that a lawyer has committed a violation of the Arkansas Rules
of Professional Conduct that raises a substantial question regarding the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.
(C) A judge who receives information indicating a substantial likelihood that another judge
has committed a violation of this Code shall take appropriate action.
(D) A judge who receives information indicating a substantial likelihood that a lawyer has
committed a violation of the Arkansas Rules of Professional Conduct shall take appropriate
action.
COMMENT
[1] Taking action to address known misconduct is a judge’s obligation. Paragraphs (A) and (B) impose
an obligation on the judge to report to the appropriate disciplinary authority the known misconduct
of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness,
25
or fitness of that judge or lawyer. Ignoring or denying known misconduct among one’s judicial
colleagues or members of the legal profession undermines a judge’s responsibility to participate in
efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those
offenses that an independent judiciary must vigorously endeavor to prevent.
[2] A judge who does not have actual knowledge that another judge or a lawyer may have committed
misconduct, but receives information indicating a substantial likelihood of such misconduct, is required
to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but is not
limited to, communicating directly with the judge who may have violated this Code, communicating
with a supervising judge, or reporting the suspected violation to the appropriate authority or other
agency or body. Similarly, actions to be taken in response to information indicating that a lawyer has
committed a violation of the Arkansas Rules of Professional Conduct may include but are not limited
to communicating directly with the lawyer who may have committed the violation, or reporting the
suspected violation to the appropriate authority or other agency or body.
[3A] This rule does not apply to a member of the Lawyer Assistance Committee of the Arkansas
Judges and Lawyers Assistance Program (ArJLAP) or a volunteer acting pursuant to the Rules
regarding information received in one’s capacity as a Committee member or volunteer, acting in good
faith, unless it appears to the member or volunteer that the lawyer or judge in question, after entry
into the ArJLAP, is failing to desist from said violation, or is failing to cooperate with a program of
assistance to which said lawyer or judge has agreed, or is engaged in the sale of a controlled substance
or theft of property constituting a felony under Arkansas law, or the equivalent thereof if the offense
is not within the State’s jurisdiction.
[4A] Except as provided by this Code or the Rules of ArJLAP, no information received,
gathered, or maintained by the Committee, its members or volunteers, or by an employee of the
ArJLAP in connection with the work of the Committee may be disclosed to any person nor be
subject to discovery or subpoena in any administrative or judicial proceeding, except upon the
express written release of the subject lawyer or judge. However, the Committee may refer any
lawyer or judge to a professional assistance entity, and may, in good faith, communicate
information to the entity in connection with the referral. If information obtained by a member of
the Committee, a volunteer, or an employee of the ArJLAP gives rise to reasonable suspicion of a
direct threat to the health or safety of the subject lawyer, judge or other person, then the
obligation of confidentiality shall not apply, and the Committee member, volunteer, or ArJLAP
employee may make such communications as are necessary for the purpose of avoiding or
preventing said threat.
26
RULE 2.16
Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary
agencies.
(B) A judge shall not retaliate, directly or indirectly, against a person known or suspected to
have assisted or cooperated with an investigation of a judge or a lawyer.
COMMENT
[1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as
required in paragraph (A), instills confidence in judges’ commitment to the integrity of the judicial
system and the protection of the public.
CANON 3
A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL
ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS
OF JUDICIAL OFFICE.
RULE 3.1
Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law or this Code.
However, when engaging in extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the proper performance of the
judge’s judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
(E) make use of court premises, staff, stationery, equipment, or other resources, except
for incidental use for activities that concern the law, the legal system, or the
administration of justice, or unless such additional use is permitted by law.
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COMMENT
[1] To the extent that time permits, and judicial independence and impartiality are not
compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges
are uniquely qualified to engage in extrajudicial activities that concern the law, the legal
system, and the administration of justice, such as by speaking, writing, teaching, or
participating in scholarly research projects. In addition, judges are permitted and encouraged
to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not
conducted for profit, even when the activities do not involve the law. See Rule 3.7.
[2] Participation in both law-related and other extrajudicial activities helps integrate judges into
their communities, and furthers public understanding of and respect for courts and the judicial
system.
[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the
judge’s official or judicial actions, are likely to appear to a reasonable person to call into
question the judge’s integrity and impartiality. Examples include jokes or other remarks that
demean individuals based upon their personal characteristics. For the same reason, a judge’s
extrajudicial activities must not be conducted in connection or affiliation with an organization
that practices invidious discrimination. See Rule 3.6.
[4] While engaged in permitted extrajudicial activities, judges must not coerce others or take
action that would reasonably be perceived as coercive. For example, depending upon the
circumstances, a judge’s solicitation of contributions or memberships for an organization, even
as permitted by Rule 3.7(A), might create the risk that the person solicited would feel
obligated to respond favorably, or would do so to curry favor with the judge.
[5A] Before speaking or writing about social or political issues, judges should consider the
impact of their statements. Comments may suggest that the judge lacks impartiality. See
Rule 1.2. They may create the impression that a judge has or manifests bias or prejudice
toward individuals with contrary social or political views. See Rule 2.3. Public comments
may require the judge to disqualify himself or herself when litigation involving those issues
comes before the judge. See Rule 2.11. When making such statements, a judge should
acknowledge the overarching judicial obligation to apply and uphold the law, without
regard to his or her personal views.
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RULE 3.2
Appearances before Governmental Bodies and Consultation with Government
Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with,
an executive or a legislative body or official, except:
(A) in connection with matters concerning the law, the legal system, or the
administration of justice;
(B) in connection with matters about which the judge acquired knowledge or
expertise in the course of the judge’s judicial duties; or
(C) when the judge is acting pro se in a matter involving the judge’s legal or
economic interests, or when the judge is acting in a fiduciary capacity.
COMMENT
[1] Judges possess special expertise in matters of law, the legal system, and the
administration of justice, and may properly share that expertise with governmental bodies
and executive or legislative branch officials.
[2] In appearing before governmental bodies or consulting with government officials,
judges must be mindful that they remain subject to other provisions of this Code, such as
Rule 1.3, prohibiting judges from using the prestige of office to advance their own or
others’ interests, Rule 2.10, governing public comment on pending and impending
matters, and Rule 3.1(C), prohibiting judges from engaging in extrajudicial activities that
would appear to a reasonable person to undermine the judge’s independence, integrity, or
impartiality.
[3] In general, it would be an unnecessary and unfair burden to prohibit judges from
appearing before governmental bodies or consulting with government officials on matters
that are likely to affect them as private citizens, such as zoning proposals affecting their real
property. In engaging in such activities, however, judges must not refer to their judicial
positions, and must otherwise exercise caution to avoid using the prestige of judicial office.
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RULE 3.3
Testifying as a Character Witness
A judge shall not testify as a character witness in a judicial, administrative, or other
adjudicatory proceeding or otherwise vouch for the character of a person in a legal
proceeding, except when duly summoned.
COMMENT
[1] A judge who, without being subpoenaed, testifies as a character witness abuses the prestige
of judicial office to advance the interests of another. See Rule 1.3. Except in unusual
circumstances where the demands of justice require, a judge should discourage a party from
requiring the judge to testify as a character witness.
RULE 3.4
Appointments to Governmental Positions
A judge shall not accept appointment to a governmental committee, board, commission, or
other governmental position, unless it is one that concerns the law, the legal system, or the
administration of justice.
COMMENT
[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities
that concern the law, the legal system, or the administration of justice. Even in such instances,
however, a judge should assess the appropriateness of accepting an appointment, paying
particular attention to the subject matter of the appointment and the availability and allocation
of judicial resources, including the judge's time commitments, and giving due regard to the
requirements of the independence and impartiality of the judiciary.
[2] A judge may represent his or her country, state, or locality on ceremonial occasions or in
connection with historical, educational, or cultural activities. Such representation does not
constitute acceptance of a government position.
30
RULE 3.5
Use of Nonpublic Information
A judge shall not intentionally disclose or use nonpublic information acquired in a judicial
capacity for any purpose unrelated to the judge’s judicial duties.
COMMENT
[1] In the course of performing judicial duties, a judge may acquire information of commercial
or other value that is unavailable to the public. The judge must not reveal or use such
information for personal gain or for any purpose unrelated to his or her judicial duties.
[2] This rule is not intended, however, to affect a judge’s ability to act on information as
necessary to protect the health or safety of the judge or a member of a judge’s family, court
personnel, or other judicial officers if consistent with other provisions of this Code.
RULE 3.6
Affiliation with Discriminatory Organizations
(A) A judge shall not hold membership in any organization that practices invidious
discrimination.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows
or should know that the organization practices invidious discrimination. A judge’s
attendance at an event in a facility of an organization that the judge is not permitted
to join is not a violation of this Rule when the judge’s attendance is an isolated event
that could not reasonably be perceived as an endorsement of the organization’s
practices.
COMMENT
[1] A judge’s public manifestation of approval of invidious discrimination gives rise to the
appearance of impropriety and diminishes public confidence in the integrity and impartiality
of the judiciary. A judge’s membership in an organization that practices invidious
discrimination creates the perception that the judge’s impartiality is impaired.
31
[2] Invidious discrimination will generally be demonstrated if an organizations’s exclusionary
membership practices are arbitrary, irrational, or the result of hostility or animus toward an
identifiable group. Whether an organization practices invidious discrimination is a complex
question to which judges should be attentive. The answer cannot be determined from a mere
examination of an organization’s current membership rolls, but rather, depends upon how the
organization selects members, as well as other relevant factors, such as whether the
organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate
common interest to its members, or whether it is an intimate, purely private organization
whose membership limitations could not constitutionally be prohibited.
[2A] A judge may ordinarily be a member of an organization which is in fact and effect an
intimate, purely private organization whose membership limitations could not be
constitutionally prohibited, even though that organization is a single sex or single race
organization. Likewise, a judge may ordinarily be a member of an organization which is
dedicated to the preservation of religious, ethnic or cultural values of legitimate common
interest to its members, even though in fact its membership is limited. Similarly, a judge may
have or retain membership with a university related or other living group, even though its
membership is single sex. However, public approval of, or participation in, any discrimination
that gives the appearance of impropriety and diminishes public confidence in the integrity and
impartiality of the judiciary violates this Code. For example, an organization that conducts
lobbying or advocacy on behalf of its members may raise such concerns. Ultimately, each
judge must determine in the judge's own conscience whether participation in such an
organization violates Rule 3.6.
[3] When a judge learns that an organization to which the judge belongs engages in invidious
discrimination, the judge must resign immediately from the organization.
[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of
religion is not a violation of this Rule.
[5] This Rule does not apply to national or state military service.
RULE 3.7
Participation in Educational,
Organizations and Activities
Religious,
Charitable,
Fraternal,
or
Civic
(A) Subject to the requirements of Rule 3.1, a judge may participate in activities
sponsored by organizations or governmental entities concerned with the law, the legal
system, or the administration of justice, and those sponsored by or on behalf of
32
educational, religious, charitable, fraternal, or civic organizations not conducted for
profit, including but not limited to the following activities:
(1) assisting such an organization or entity in planning related to fund-raising,
and participating in the management and investment of the organization’s or
entity’s funds;
(2) soliciting contributions for such an organization or entity, but only from
members of the judge’s family, or from judges over whom the judge does not
exercise supervisory or appellate authority;
(3) soliciting membership for such an organization or entity, even though the
membership dues or fees generated may be used to support the objectives of
the organization or entity, as long as the solicitation cannot reasonably be
perceived as coercive;
(4) appearing or speaking at, receiving an award or other recognition at, being
featured on the program of, and permitting his or her title to be used in
connection with an event of such an organization or entity, but if the event
serves a fund-raising purpose, the judge may participate only if the event
concerns the law, the legal system, or the administration of justice;
(5) making recommendations to such a public or private fund-granting
organization or entity in connection with its programs and activities, but only
if the organization or entity is concerned with the law, the legal system, or the
administration of justice; and
(6) serving as an officer, director, trustee, or nonlegal advisor of such an
organization or entity, unless it is likely that the organization or entity:
(a) will be engaged in proceedings that would ordinarily come before
the judge; or
(b) will frequently be engaged in adversary proceedings in the court of
which the judge is a member, or in any court subject to the appellate
jurisdiction of the court of which the judge is a member.
(B) A judge may encourage lawyers to provide pro bono publico legal services.
COMMENT
[1] The activities permitted by paragraph (A) generally include those sponsored by or
undertaken on behalf of public or private not-for-profit educational institutions, and other
not-for-profit organizations, including law-related, charitable, and other organizations.
[2] Even for law-related organizations, a judge should consider whether the membership and
purposes of the organization, or the nature of the judge’s participation in or association with
the organization, would conflict with the judge’s obligation to refrain from activities that
33
reflect adversely upon a judge’s independence, integrity, and impartiality.
[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does
not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve
as an usher or a food server or preparer, or to perform similar functions, at fund-raising events
sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities
are not solicitation and do not present an element of coercion or abuse the prestige of judicial
office.
[4] Identification of a judge’s position in educational, religious, charitable, fraternal, or civic
organizations on letterhead used for fund-raising or membership solicitation does not violate
this Rule. The letterhead may list the judge’s title or judicial office if comparable designations
are used for other persons.
[5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases,
a judge may promote broader access to justice by encouraging lawyers to participate in pro
bono publico legal services, if in doing so the judge does not employ coercion, or abuse the
prestige of judicial office. Such encouragement may take many forms, including providing lists
of available programs, training lawyers to do pro bono publico legal work, and participating
in events recognizing lawyers who have done pro bono publico work.
RULE 3.8
Appointments to Fiduciary Positions
(A) A judge shall not accept appointment to serve in a fiduciary position, such as
executor, administrator, trustee, guardian, attorney in fact, or other personal
representative, except for the estate, trust, or person of a member of the judge’s family,
and then only if such service will not interfere with the proper performance of judicial
duties.
(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely
be engaged in proceedings that would ordinarily come before the judge, or if the
estate, trust, or ward becomes involved in adversary proceedings in the court on which
the judge serves, or one under its appellate jurisdiction.
(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on
engaging in financial activities that apply to a judge personally.
34
(D) If a person who is serving in a fiduciary position becomes a judge, he or she must
comply with this Rule as soon as reasonably practicable, but in no event later than one
year after becoming a judge.
COMMENT
[1] A judge should recognize that other restrictions imposed by this Code may conflict
with a judge’s obligations as a fiduciary; in such circumstances, a judge should resign as
fiduciary. For example, serving as a fiduciary might require frequent disqualification of a
judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of
stock held by a trust if the amount of stock held is more than de minimis.
RULE 3.9
Service as Arbitrator or Mediator
A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart
from the judge’s official duties unless expressly authorized by law.
COMMENT
[1] This Rule does not prohibit a judge from participating in arbitration, mediation, or
settlement conferences performed as part of assigned judicial duties. Rendering dispute
resolution services apart from those duties, whether or not for economic gain, is prohibited
unless it is expressly authorized by law.
RULE 3.10
Practice of Law
A judge shall not practice law. A judge may act pro se and may, without compensation,
give legal advice to and draft or review documents for a member of the judge’s family, but
is prohibited from serving as the family member’s lawyer in any forum.
COMMENT
[1] A judge may act pro se in all legal matters, including matters involving litigation and
matters involving appearances before or other dealings with governmental bodies. A judge
35
must not use the prestige of office to advance the judge’s personal or family interests. See
Rule 1.3.
RULE 3.11
Financial, Business, or Remunerative Activities
(A) A judge may hold and manage investments of the judge and members of the
judge’s family.
(B) A judge shall not serve as an officer, director, manager, general partner, advisor,
or employee of any business entity except that a judge may manage or participate
in:
(1) a business closely held by the judge or members of the judge’s family; or
(2) a business entity primarily engaged in investment of the financial
resources of the judge or members of the judge’s family.
(C) A judge shall not engage in financial activities permitted under paragraphs (A)
and (B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before the court
on which the judge serves; or
(4) result in violation of other provisions of this Code.
COMMENT
[1] Judges are generally permitted to engage in financial activities, including managing real
estate and other investments for themselves or for members of their families. Participation in
these activities, like participation in other extrajudicial activities, is subject to the requirements
of this Code. For example, it would be improper for a judge to spend so much time on
business activities that it interferes with the performance of judicial duties. See Rule 2.1.
Similarly, it would be improper for a judge to use his or her official title or appear in judicial
robes in business advertising, or to conduct his or her business or financial affairs in such a way
that disqualification is frequently required. See Rules 1.3 and 2.11.
[2] As soon as practicable without serious financial detriment, the judge must divest himself
or herself of investments and other financial interests that might require frequent
disqualification or otherwise violate this Rule.
36
RULE 3.12
Compensation for Extrajudicial Activities
A judge may accept reasonable compensation for extrajudicial activities permitted by this Code
or other law unless such acceptance would appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality.
COMMENT
[1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other
compensation for speaking, teaching, writing, and other extrajudicial activities, provided the
compensation is reasonable and commensurate with the task performed. The judge should be
mindful, however, that judicial duties must take precedence over other activities. See Rule
2.1.
[2] Compensation derived from extrajudicial activities may be subject to public reporting. See
Rule 3.15.
RULE 3.13
Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of
Value
(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value,
if acceptance is prohibited by law or would appear to a reasonable person to
undermine the judge’s independence, integrity, or impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the
following without publicly reporting such acceptance:
(1) items with little intrinsic value, such as plaques, certificates, trophies, and
greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value from friends,
relatives, or other persons, including lawyers, whose appearance or interest in
a proceeding pending or impending before the judge would in any event
require disqualification of the judge under Rule 2.11;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including special pricing
and discounts, and loans from lending institutions in their regular course of
business, if the same opportunities and benefits or loans are made available on
the same terms to similarly situated persons who are not judges;
37
(5) rewards and prizes given to competitors or participants in random drawings,
contests, or other events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or awards, if they are available
to similarly situated persons who are not judges, based upon the same terms
and criteria;
(7) books, magazines, journals, audiovisual materials, and other resource
materials supplied by publishers on a complimentary basis for official use; or
(8) gifts, awards, or benefits associated with the business, profession, or other
separate activity of a spouse, a domestic partner, or other family member of a
judge residing in the judge’s household, but that incidentally benefit the judge.
(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the
following items, and must report such acceptance to the extent required by Rule 3.15:
(1) gifts incident to a public testimonial;
(2) invitations to the judge and the judge’s spouse, domestic partner, or guest
to attend without charge:
(a) an event associated with a bar-related function or other activity
relating to the law, the legal system, or the administration of justice; or
(b) an event associated with any of the judge’s educational, religious,
charitable, fraternal or civic activities permitted by this Code, if the
same invitation is offered to nonjudges who are engaged in similar
ways in the activity as is the judge; and
(3) gifts, loans, bequests, benefits, or other things of value, if the source is a
party or other person, including a lawyer, who has come or is likely to come
before the judge, or whose interests have come or are likely to come before
the judge.
COMMENT
[1] Whenever a judge accepts a gift or other thing of value without paying fair market value,
there is a risk that the benefit might be viewed as intended to influence the judge’s decision
in a case. Rule 3.13 imposes restrictions upon the acceptance of such benefits, according to
the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the
acceptance would appear to undermine the judge’s independence, integrity, or impartiality is
low, and explicitly provides that such items need not be publicly reported. As the value of the
benefit or the likelihood that the source of the benefit will appear before the judge increases,
the judge is either prohibited under paragraph (A) from accepting the gift, or required under
paragraph (C) to publicly report it.
38
[2] Gift-giving between friends and relatives is a common occurrence, and ordinarily does not
create an appearance of impropriety or cause reasonable persons to believe that the judge’s
independence, integrity, or impartiality has been compromised. In addition, when the
appearance of friends or relatives in a case would require the judge’s disqualification under
Rule 2.11, there would be no opportunity for a gift to influence the judge’s decision making.
Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things
of value from friends or relatives under these circumstances, and does not require public
reporting.
[3] Businesses and financial institutions frequently make available special pricing, discounts, and
other benefits, either in connection with a temporary promotion or for preferred customers,
based upon longevity of the relationship, volume of business transacted, and other factors. A
judge may freely accept such benefits if they are available to the general public, or if the judge
qualifies for the special price or discount according to the same criteria as are applied to persons
who are not judges. As an example, loans provided at generally prevailing interest rates are not
gifts, but a judge could not accept a loan from a financial institution at below-market interest
rates unless the same rate was being made available to the general public for a certain period
of time or only to borrowers with specified qualifications that the judge also possesses.
[4] Rule 3.13 applies only to acceptance of gifts or other things of value by a judge.
Nonetheless, if a gift or other benefit is given to the judge’s spouse, domestic partner, or
member of the judge’s family residing in the judge’s household, it may be viewed as an
attempt to evade Rule 3.13 and influence the judge indirectly. Where the gift or benefit is
being made primarily to such other persons, and the judge is merely an incidental beneficiary,
this concern is reduced. A judge should, however, remind family and household members of
the restrictions imposed upon judges, and urge them to take these restrictions into account
when making decisions about accepting such gifts or benefits.
[5] Rule 3.13 does not apply to contributions to a judge’s campaign for judicial office. Such
contributions are governed by other Rules of this Code, including Rules 4.3 and 4.4.
RULE 3.14
Reimbursement of Expenses and Waivers of Fees or Charges
(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law, a judge may
accept reimbursement of necessary and reasonable expenses for travel, food, lodging,
or other incidental expenses, or a waiver or partial waiver of fees or charges for
registration, tuition, and similar items, from sources other than the judge’s employing
entity, if the expenses or charges are associated with the judge’s participation in
extrajudicial activities permitted by this Code.
39
(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental
expenses shall be limited to the actual costs reasonably incurred by the judge and,
when appropriate to the occasion, by the judge’s spouse, domestic partner, or guest.
(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of
fees or charges on behalf of the judge or the judge’s spouse, domestic partner, or guest
shall publicly report such acceptance as required by Rule 3.15.
COMMENT
[1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings,
seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to
attend educational programs, as both teachers and participants, in law-related and academic
disciplines, in furtherance of their duty to remain competent in the law. Participation in a
variety of other extrajudicial activity is also permitted and encouraged by this Code.
[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other
events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for
necessary travel, food, lodging, or other incidental expenses. A judge’s decision whether to
accept reimbursement of expenses or a waiver or partial waiver of fees or charges in
connection with these or other extrajudicial activities must be based upon an assessment of all
the circumstances. The judge must undertake a reasonable inquiry to obtain the information
necessary to make an informed judgment about whether acceptance would be consistent with
the requirements of this Code.
[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers
would not appear to a reasonable person to undermine the judge’s independence, integrity,
or impartiality. The factors that a judge should consider when deciding whether to accept
reimbursement or a fee waiver for attendance at a particular activity include:
(a) whether the sponsor is an accredited educational institution or bar association rather
than a trade association or a for-profit entity;
(b) whether the funding comes largely from numerous contributors rather than from
a single entity and is earmarked for programs with specific content;
(c) whether the content is related or unrelated to the subject matter of litigation
pending or impending before the judge, or to matters that are likely to come before
the judge;
(d) whether the activity is primarily educational rather than recreational, and whether
the costs of the event are reasonable and comparable to those associated with similar
events sponsored by the judiciary, bar associations, or similar groups;
(e) whether information concerning the activity and its funding sources is available
upon inquiry;
(f) whether the sponsor or source of funding is generally associated with particular
40
parties or interests currently appearing or likely to appear in the judge’s court, thus
possibly requiring disqualification of the judge under Rule 2.11;
(g) whether differing viewpoints are presented; and
(h) whether a broad range of judicial and nonjudicial participants are invited, whether
a large number of participants are invited, and whether the program is designed
specifically for judges.
[4A] Reimbursement of expenses from governmental entities need not be reported under
Rule 3.14 [C] or Rule 3.15.
RULE 3.15
Reporting Requirements
(A) A judge shall publicly report the amount or value of:
(1) compensation received for extrajudicial activities as permitted by Rule 3.12;
(2) gifts and other things of value as permitted by Rule 3.13(C), and
(3) reimbursement of expenses and waiver of fees or charges as permitted by
Rule 3.14(A).
(B) The scope of reporting, the time for reporting, the manner of reporting, and other
issues shall be as determined by state law.
CANON 4
A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN
POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH
THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE
JUDICIARY.
RULE 4.1
Political and Campaign Activities of Judges and Judicial Candidates in General
41
(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial
candidate shall not:
(1) act as a leader in, or hold an office in, a political organization;
(2) make speeches on behalf of a political organization;
(3) publicly endorse or oppose a candidate for any public office;
(4) solicit funds for, pay an assessment to, or make a contribution to a political
organization or a candidate for public office;
(5) [Reserved]
(6) publicly identify himself or herself as a candidate of a political organization;
(7) seek, accept, or use endorsements from a political organization;
(8) personally solicit or accept campaign contributions other than through a
campaign committee authorized by Rule 4.4;
(9) use or permit the use of campaign contributions for the private benefit of
the judge, the candidate, or others;
(10) use court staff, facilities, or other court resources in a campaign for judicial
office;
(11) knowingly, or with reckless disregard for the truth, make any false or
misleading statement;
(12) make any statement that would reasonably be expected to affect the
outcome or impair the fairness of a matter pending or impending in any court;
or
(13) in connection with cases, controversies, or issues that are likely to come
before the court, make pledges, promises, or commitments that are inconsistent
with the impartial performance of the adjudicative duties of judicial office.
(B) A judge or judicial candidate shall take reasonable measures to ensure that other
persons do not undertake, on behalf of the judge or judicial candidate, any activities
prohibited under paragraph (A).
COMMENT
GENERAL CONSIDERATIONS
[1] Even when subject to public election, a judge plays a role different from that of a legislator
or executive branch official. Rather than making decisions based upon the expressed views or
preferences of the electorate, a judge makes decisions based upon the law and the facts of every
case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the
greatest extent possible, be free and appear to be free from political influence and political
pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign
42
activities of all judges and judicial candidates, taking into account the various methods of
selecting judges.
[2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her
conduct.
PARTICIPATION IN POLITICAL ACTIVITIES
[3] Public confidence in the independence and impartiality of the judiciary is eroded if judges
or judicial candidates are perceived to be subject to political influence. Although judges and
judicial candidates may register to vote as members of a political party, they are prohibited by
paragraph (A)(1) from assuming leadership roles in political organizations.
[4] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches
on behalf of political organizations or publicly endorsing or opposing candidates for public
office, respectively, to prevent them from abusing the prestige of judicial office to advance the
interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning
on their own behalf, or from endorsing or opposing candidates for the same judicial office for
which they are running. See Rules 4.2(B)(2) and 4.2(B)(3).
[5] Although members of the families of judges and judicial candidates are free to engage in
their own political activity, including running for public office, there is no “family exception”
to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing
candidates for public office. A judge or judicial candidate must not become involved in, or
publicly associated with, a family member’s political activity or campaign for public office.
[6] Judges and judicial candidates retain the right to participate in the political process as voters
in both primary and general elections. Judges are permitted to request a ballot in a party’s
primary without violating this Code.
[6A] Judges are permitted to attend or purchase tickets for dinners or other events sponsored
by a political organization.
STATEMENTS AND COMMENTS MADE
DURING A CAMPAIGN FOR JUDICIAL OFFICE
[7] Judicial candidates must be scrupulously fair and accurate in all statements made by them
and by their campaign committees. Paragraph (A)(11) obligates candidates and their
43
committees to refrain from making statements that are false or misleading, or that omit facts
necessary to make the communication considered as a whole not materially misleading.
[8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made
by opposing candidates, third parties, or the media. For example, false or misleading statements
might be made regarding the identity, present position, experience, qualifications, or judicial
rulings of a candidate. In other situations, false or misleading allegations may be made that bear
upon a candidate’s integrity or fitness for judicial office. As long as the candidate does not
violate paragraphs (A)(11), (A)(12), or (A)(13), the candidate may make a factually accurate
public response. In addition, when an independent third party has made unwarranted attacks
on a candidate’s opponent, the candidate may disavow the attacks, and request the third party
to cease and desist.
[9] Subject to paragraph (A)(12), a judicial candidate is permitted to respond directly to false,
misleading, or unfair allegations made against him or her during a campaign, although it is
preferable for someone else to respond if the allegations relate to a pending case.
[10] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair
the fairness of pending or impending judicial proceedings. This provision does not restrict
arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings,
statements, or instructions by a judge that may appropriately affect the outcome of a matter.
PLEDGES, PROMISES, OR COMMITMENTS
INCONSISTENT WITH IMPARTIAL PERFORMANCE
OF THE ADJUDICATIVE DUTIES OF JUDICIAL OFFICE
[11] The role of a judge is different from that of a legislator or executive branch official, even
when the judge is subject to public election. Campaigns for judicial office must be conducted
differently from campaigns for other offices. The narrowly drafted restrictions upon political
and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct
campaigns that provide voters with sufficient information to permit them to distinguish
between candidates and make informed electoral choices.
[12] Paragraph (A)(13) makes applicable to both judges and judicial candidates the prohibition
that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are
inconsistent with the impartial performance of the adjudicative duties of judicial office.
[13] The making of a pledge, promise, or commitment is not dependent upon, or limited to,
the use of any specific words or phrases; instead, the totality of the statement must be
44
examined to determine if a reasonable person would believe that the candidate for judicial
office has specifically undertaken to reach a particular result.
[13A]
Before speaking or announcing personal views on social or political topics in a
judicial campaign, candidates should consider the impact of their statements. Such statements
may suggest that the judge lacks impartiality. See Rule 1.2. They may create the impression
that a judge has or manifests bias or prejudice toward individuals with contrary social or
political views. See Rule 2.3. Public comments may require the judge to disqualify himself
or herself when litigation involving those issues come before the judge. See Rule 2.11.
When making such statements, a judge should acknowledge the overarching judicial obligation
to apply and uphold the law, without regard to his or her personal views.
[14] A judicial candidate may make campaign promises related to judicial organization,
administration, and court management, such as a promise to dispose of a backlog of cases, start
court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also
pledge to take action outside the courtroom, such as working toward an improved jury
selection system, or advocating for more funds to improve the physical plant and amenities of
the courthouse.
[15] Judicial candidates may receive questionnaires or requests for interviews from the media
and from issue advocacy or other community organizations that seek to learn their views on
disputed or controversial legal or political issues. Paragraph (A)(13) does not specifically address
judicial responses to such inquiries. Depending upon the wording and format of such
questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments
to perform the adjudicative duties of office other than in an impartial way. To avoid violating
paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also
give assurances that they will keep an open mind and will carry out their adjudicative duties
faithfully and impartially if elected. Candidates who do not respond may state their reasons for
not responding, such as the danger that answering might be perceived by a reasonable person
as undermining a successful candidate’s independence or impartiality, or that it might lead to
frequent disqualification. See Rule 2.11.
RULE 4.2
Political and Campaign Activities of Judicial Candidates in Public Elections
(A) A judicial candidate in a public election shall:
(1) act at all times in a manner consistent with the independence, integrity, and
impartiality of the judiciary;
45
(2) comply with all applicable election, election campaign, and election
campaign fund-raising laws and regulations of this jurisdiction;
(3) review and approve the content of all campaign statements and materials
produced by the candidate or his or her campaign committee, as authorized by
Rule 4.4, before their dissemination; and
(4) take reasonable measures to ensure that other persons do not undertake on
behalf of the candidate activities, other than those described in Rule 4.4, that
the candidate is prohibited from doing by Rule 4.1.
(B) A judicial candidate in a public election may, unless prohibited by law, and not
earlier than 365 days before the first applicable election:
(1) establish a campaign committee pursuant to the provisions of Rule 4.4;
(2) speak on behalf of his or her candidacy through any medium, including but
not limited to advertisements, websites, or other campaign literature;
(3)[Reserved]
(4) attend or purchase tickets for dinners or other events sponsored by a
political organization;
(5) seek, accept, or use endorsements from any person or organization other
than a partisan political organization; and
(6)[Reserved].
(C)[Reserved].
COMMENT
[1] Paragraph (B) permits judicial candidates in public elections to engage in some political
and campaign activities otherwise prohibited by Rule 4.1. Candidates may not engage in
these activities earlier than 365 days before the first applicable election. See definition of
“judicial candidate,” which provides that a person becomes a candidate for judicial office as
soon as he or she makes a public announcement of candidacy, declares or files as a
candidate with the election authority, or authorizes or engages in solicitation or acceptance
of contributions or support. This rule does not prohibit private conversations with potential
supporters by a potential candidate as part of an effort to “test the waters” for a future
candidacy. It does prohibit establishing a campaign committee earlier than 365 days before
the election date.
[2] Despite paragraph (B), judicial candidates for public election remain subject to many of
the provisions of Rule 4.1. For example, a candidate continues to be prohibited from
soliciting funds for a political organization, knowingly making false or misleading
statements during a campaign, or making certain promises, pledges, or commitments
46
related to future adjudicative duties. See Rule 4.1(A), paragraphs (4), (11), and (13).
[3][Reserved]
[4] In nonpartisan elections, paragraph (B)(5) prohibits a candidate from seeking,
accepting, or using nominations or endorsements from a partisan political organization.
[5] Subject to the 365 day limitation, judicial candidates are permitted to attend or purchase
tickets for dinners and other events sponsored by political organizations. (Cf. Rule 4.1,
Comment 6A, Judges are permitted to attend or purchase tickets for dinners or other
events sponsored by a political organization.)
[6][Reserved]
[7][Reserved]
RULE 4.3
Activities of Candidates for Appointive Judicial Office
A candidate for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any
selection, screening, or nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or organization other
than a partisan political organization.
COMMENT
[1] When seeking support or endorsement, or when communicating directly with an
appointing or confirming authority, a candidate for appointive judicial office must not make
any pledges, promises, or commitments that are inconsistent with the impartial performance
of the adjudicative duties of the office. See Rule 4.1(A)(13).
RULE 4.4
Campaign Committees
(A) A judicial candidate subject to public election may establish a campaign committee
to manage and conduct a campaign for the candidate, subject to the provisions of this
47
Code. The candidate is responsible for ensuring that his or her campaign committee
complies with applicable provisions of this Code and other applicable law.
(B) A judicial candidate subject to public election shall direct his or her campaign
committee:
(1) to solicit and accept only such campaign contributions as are permitted by
state law.
(2) not to solicit or accept contributions for a candidate’s current campaign
more than 180 days before the applicable election, nor more than 45 days after
the last election in which the candidate participated; and
(3) to comply with all applicable statutory requirements for disclosure and
divestiture of campaign contributions.
(C) Any campaign fund surplus shall be returned to the contributors or turned
over to the State Treasurer as provided by law.
COMMENT
[1] Judicial candidates are prohibited from personally soliciting campaign contributions or
personally accepting campaign contributions. See Rule 4.1(A)(8). This Rule recognizes that
in many jurisdictions, judicial candidates must raise campaign funds to support their
candidacies, and permits candidates, other than candidates for appointive judicial office, to
establish campaign committees to solicit and accept reasonable financial contributions or inkind contributions.
[2] Campaign committees may solicit and accept campaign contributions, manage the
expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible
for compliance with the requirements of election law and other applicable law, and for the
activities of their campaign committees.
[2A] The forty-five day post-election restriction applies both to contested and
non-contested elections. Once a candidate’s campaign has ended, the candidate should only
raise funds for 45 more days. For example, if three candidates participate in a judicial election,
the candidate who is eliminated may raise funds for only an additional 45 days. However, the
two remaining candidates may continue to raise funds through the runoff election and 45 days
thereafter.
[3] At the start of a campaign, the candidate must instruct the campaign committee to solicit
or accept only such contributions as are reasonable in amount, appropriate under the
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circumstances, and in conformity with applicable law.
[3A] To reduce potential disqualification and to avoid the appearance of impropriety, judicial
candidates should, as much as possible, not be aware of those who have contributed to the
campaign.
RULE 4.5
Activities of Judges Who Become Candidates for Nonjudicial Office
(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign
from judicial office, unless permitted by law to continue to hold judicial office.
(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not
required to resign from judicial office, provided that the judge complies with the other
provisions of this Code.
COMMENT
[1] In campaigns for nonjudicial elective public office, candidates may make pledges,
promises, or commitments related to positions they would take and ways they would act if
elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning
is inconsistent with the role of a judge, who must remain fair and impartial to all who come
before him or her. The potential for misuse of the judicial office, and the political promises
that the judge would be compelled to make in the course of campaigning for nonjudicial
elective office, together dictate that a judge who wishes to run for such an office must resign
upon becoming a candidate.
[2] The “resign to run” rule set forth in paragraph (A) ensures that a judge cannot use the
judicial office to promote his or her candidacy, and prevents post-campaign retaliation from
the judge in the event the judge is defeated in the election. When a judge is seeking
appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the
“resign to run” rule.
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