Rule 3-109. Ethics Advisory
Committee.
Intent:
To establish the Ethics Advisory Committee as a resource for judges to
request advice on the interpretation and application of the Code of Judicial
Conduct.
To establish a process for recording and disseminating opinions on
judicial ethics.
Applicability:
This rule shall apply to all employees of the judicial branch of
government who are subject to the Code of Judicial Conduct.
Statement of the Rule:
(1) The Ethics Advisory Committee is responsible for providing opinions
on the interpretation and application of the Code of Judicial Conduct to
specific factual situations.
(2) The Administrative Office shall provide staff support through the
Office of General Counsel and shall distribute opinions in accordance with this
rule.
(3) Duties of the committee.
(3)(A) Preparation of opinions.
(3)(A)(i) The Ethics Advisory Committee
shall, in appropriate cases, prepare and publish written opinions concerning
the ethical propriety of professional or personal conduct when requested to do
so by the Judicial Council, the Boards of Judges, the Judicial Conduct
Commission, judicial officers and employees, judges pro tempore or candidates
for judicial office. The Committee may interpret statutes, rules, and case law
as may be necessary to answer a request for an opinion.
(3)(A)(ii) The Committee shall respond to an inquiry into the conduct
of others only if
(3)(A)(ii)(a) the inquiry is made by the Judicial Council, a Board of
Judges, or the Judicial Conduct Commission; and
(3)(A)(ii)(b) the inquiry is limited to matters of general interest to
the judiciary or a particular court level.
(3)(A)(iii) The Committee shall not answer requests for legal opinions
or inquiries concerning conduct which has already taken place, unless it is of
an ongoing nature.
(3)(B) The Committee may receive proposals from the Judicial Council,
the Boards of Judges, the Judicial Conduct Commission, and judicial officers
and employees or initiate its own proposals for necessary or advisable changes
in the Code of Judicial Conduct and shall submit appropriate recommendations to
the Supreme Court for consideration.
(4) Submission of requests.
(4)(A) Requests for advisory opinions shall be in writing addressed to
the Chair of the Committee, through General Counsel, and shall include the
following:
(4)(A)(i) A brief statement of the
contemplated conduct.
(4)(A)(ii) Reference to the relevant section(s) of the Code of Judicial
Conduct.
(4)(A)(iii) Citation to any relevant ethics opinions or other
authority, if known.
(4)(B) The request for an opinion and the identity of the requesting
party is confidential unless waived in writing by the requesting party.
(5) Consideration of requests.
(5)(A) As used in these rules, the term "informal opinion"
refers to an opinion which has been prepared and released by the Committee. The
term "formal opinion" refers to an opinion which has been considered
and released by the Judicial Council. "Formal opinions" will usually
be reserved for situations of substantial and general interest to the public or
the judiciary.
(5)(B) Upon receipt of a request for an advisory opinion, General
Counsel shall research the issue and prepare a preliminary recommendation for
the Committee's consideration. The opinion request, preliminary recommendation
and supporting authorities shall be distributed to the Committee members within
15 days of receipt of the request.
(5)(C) The Committee members shall review the request and
recommendation and submit comments to General Counsel within 10 days of their
receipt of the request and preliminary recommendation.
(5)(D) General Counsel shall review the comments submitted by the
Committee members and, within 10 days of receipt of the comments, prepare a
responsive informal opinion in writing which shall be distributed to the
Committee members for approval.
(5)(E) A majority vote of the Committee members is required for
issuance of an opinion and may be obtained by electronic means or, upon the
request of a Committee member, the Chair may continue the vote until the next
meeting of the Committee.
(5)(F) Informal opinions shall be released to the requesting party
within 45 days of receipt of the request unless the opinion is contrary to
previous opinions of the Committee or the matter is referred to the Judicial
Council.
(5)(G) Upon the written request of a party and for good cause, the
Committee may issue a response to a request within a shorter period of time
than provided for in these rules. The requesting party has the responsibility
of establishing that the request is of an emergency nature and requires an
abbreviated response time.
(6) Referral to Judicial Council. Upon an affirmative vote of a
majority of the Committee members, a motion of the requesting party, or a
motion by the Judicial Council, an opinion request and Committee recommendation
shall be referred to the Judicial Council for consideration. Within 60 days of
receipt of the referral, the Council shall consider the request and
recommendation and take the following action:
(6)(A) Approve or modify the opinion and direct the Committee to
release the opinion, as initially drafted or modified, to the requesting party
as an informal opinion of the Committee, or
(6)(B) Approve or modify the opinion and release the opinion as a
formal opinion of the Council.
(7) Reconsideration of opinions.
(7)(A) Within 10 days of the issuance of an opinion, the requesting
party or a Committee member may request reconsideration. Requests for
reconsideration of informal opinions must be made in the first instance to the
Committee and then to the Judicial Council. Requests for reconsideration of
formal opinions shall be made to the Judicial Council. Requests for
reconsideration shall be in writing addressed to the Chair of the Committee or
the Presiding Officer of the Council, through General Counsel, and shall
include the following:
(7)(A)(i) A brief statement explaining the
reasons for reconsideration.
(7)(A)(ii) Identification of any new facts or authorities not
previously submitted or considered.
(7)(B) The Committee or Council shall consider the request as soon as
practicable and may take the following action:
(7)(B)(i) Approve the request for
reconsideration and modify the opinion;
(7)(B)(ii) Approve the request for reconsideration and approve the
opinion as originally published; or
(7)(B)(iii) Deny the request.
(7)(C) The Committee shall be kept advised of the status of any request
to reconsider an opinion.
(8) Recusal. Circumstances which require recusal of a judge shall
require recusal of a Committee member from participation in Committee action.
If the chair is recused, a majority of the remaining
members shall select a chair pro tempore. If a member is recused,
the chair may appoint a judge of the same court and if applicable the same
geographic division or a lawyer to assist the Committee with its deliberations.
Preference should be given to former members of the Committee.
(9) Publication. All opinions of the Committee and the Judicial Council
shall be numbered upon issuance, and published in a format approved by the
Judicial Council. No published opinion rendered by the Committee or the Council
shall identify the requesting party whose conduct is the subject of the opinion
unless confidentiality of the requesting party is waived in writing.
(10) Legal effect. Compliance with an informal opinion shall be
considered evidence of good faith compliance with the Code of Judicial Conduct.
Formal opinions shall constitute a binding interpretation of the Code of
Judicial Conduct.