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Rule 3-109. Ethics Advisory Committee.

Intent:

To establish the EthicsAdvisory Committee as a resource for judges to request advice on theinterpretation and application of the Code of Judicial Conduct.

To establish a processfor recording and disseminating opinions on judicial ethics.

Applicability:

This rule shall apply toall employees of the judicial branch of government who are subject to the Codeof Judicial Conduct.

Statement of the Rule:

(1) The Ethics AdvisoryCommittee is responsible for providing opinions on the interpretation andapplication of the Code of Judicial Conduct to specific factual situations.

(2) The AdministrativeOffice shall provide staff support through the Office of General Counsel andshall distribute opinions in accordance with this rule.

(3) Duties of thecommittee.

(3)(A) Preparation ofopinions.

(3)(A)(i) The EthicsAdvisory Committee shall, in appropriate cases, prepare and publish writtenopinions concerning the ethical propriety of professional or personal conductwhen requested to do so by the Judicial Council, the Boards of Judges, theJudicial Conduct Commission, judicial officers and employees, judges protempore or candidates for judicial office. The Committee may interpretstatutes, rules, and case law as may be necessary to answer a request for anopinion.

(3)(A)(ii) The Committeeshall 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 ofJudges, or the Judicial Conduct Commission; and

(3)(A)(ii)(b) the inquiry is limited to matters of general interest to thejudiciary or a particular court level.

(3)(A)(iii) TheCommittee shall not answer requests for legal opinions or inquiries concerningconduct that has already taken place, unless it is of an ongoing nature.

(3)(B) The Committee mayreceive proposals from the Judicial Council, the Boards of Judges, the JudicialConduct Commission, and judicial officers and employees or initiate its ownproposals for necessary or advisable changes in the Code of Judicial Conductand shall submit appropriate recommendations to the Supreme Court forconsideration.

(4) Submission ofrequests.

(4)(A) Requests foradvisory opinions shall be in writing addressed to the Chair of the Committee,through General Counsel, and shall include the following:

(4)(A)(i) A briefstatement of the contemplated conduct.

(4)(A)(ii) Reference tothe relevant section(s) of the Code of Judicial Conduct.

(4)(A)(iii) Citation toany relevant ethics opinions or other authority, if known.

(4)(B) The request foran opinion and the identity of the requesting party is confidential unlesswaived in writing by the requesting party.

(5) Consideration ofrequests.

(5)(A) As used in theserules, the term "informal opinion" refers to an opinion that has beenprepared and released by the Committee. The term "formal opinion"refers to an opinion that has been considered and released by the JudicialCouncil. "Formal opinions" will usually be reserved for situations ofsubstantial and general interest to the public or the judiciary.

(5)(B) Upon receipt of arequest for an advisory opinion, General Counsel shall research the issue andprepare a preliminary recommendation for the Committee's consideration. Theopinion request, preliminary recommendation and supporting authorities shall bedistributed to the Committee members within 21 days of receipt of the request.

(5)(C) The Committeemembers shall review the request and recommendation and submit comments toGeneral Counsel within 14 days of their receipt of the request and preliminaryrecommendation.

(5)(D) General Counselshall review the comments submitted by the Committee members and, within 14days of receipt of the comments, prepare a responsive informal opinion in writingwhich shall be distributed to the Committee members for approval.

(5)(E) A majority voteof the Committee members is required for issuance of an opinion and may beobtained by electronic means or, upon the request of a Committee member, theChair may continue the vote until the next meeting of the Committee.

(5)(F) Informal opinionsshall be released to the requesting party within 60 days of receipt of therequest unless the chair determines that additional time is needed for thecommittee members to deliberate and finalize the opinion or the matter isreferred to the Judicial Council.

(5)(G) Upon the writtenrequest of a party and for good cause, the Committee may issue a response to arequest within a shorter period of time than provided for in these rules. Therequesting party has the responsibility of establishing that the request is ofan emergency nature and requires an abbreviated response time.

(6) Referral to JudicialCouncil. Upon an affirmative vote of a majority of the Committee members, amotion of the requesting party, or a motion by the Judicial Council, an opinionrequest and Committee recommendation shall be referred to the Judicial Councilfor consideration. Within 60 days of receipt of the referral, the Council shallconsider the request and recommendation and take the following action:

(6)(A) Approve or modifythe opinion and direct the Committee to release the opinion, as initiallydrafted or modified, to the requesting party as an informal opinion of theCommittee, or

(6)(B) Approve or modifythe opinion and release the opinion as a formal opinion of the Council.

(7) Reconsideration ofopinions.

(7)(A) Within 14 days ofthe issuance of an opinion, the requesting party or a Committee member mayrequest reconsideration. Within 30 days of the issuance of the opinion, a Boardof Judges may request reconsideration if the Board was not the requesting partyand the opinion addresses matters of general interest to the judiciary or to aparticular court level. Requests for reconsideration of informal opinions mustbe made in the first instance to the Committee and then to the JudicialCouncil. Requests for reconsideration of formal opinions shall be made to theJudicial Council. Requests for reconsideration shall be in writing addressed tothe Chair of the Committee or the Presiding Officer of the Council, throughGeneral Counsel, and shall include the following:

(7)(A)(i) A briefstatement explaining the reasons for reconsideration.

(7)(A)(ii)Identification of any new facts or authorities not previously submitted orconsidered.

(7)(B) The Committee orCouncil shall consider the request as soon as practicable and may take thefollowing action:

(7)(B)(i) Approve the request for reconsideration and modify theopinion;

(7)(B)(ii) Approve therequest for reconsideration and approve the opinion as originally published; or

(7)(B)(iii) Deny therequest.

(7)(C) The Committeeshall be kept advised of the status of any request to reconsider an opinion.

(8) Recusal.Circumstances that require recusal of a judge shall require recusal of aCommittee member from participation in Committee action. If the chairis recused, a majority of the remaining members shall select a chair protempore. If a member is recused, the chair may appoint a judge of the samecourt and if applicable the same geographic division or a lawyer to assist theCommittee with its deliberations. Preference should be given to former membersof the Committee.

(9) Publication. Allopinions of the Committee and the Judicial Council shall be numbered uponissuance, and published in a format approved by the Judicial Council. Nopublished opinion rendered by the Committee or the Council shall identify therequesting party whose conduct is the subject of the opinion unlessconfidentiality of the requesting party is waived in writing.

(10) Legal effect.Compliance with an informal opinion shall be considered evidence of good faithcompliance with the Code of Judicial Conduct. Formal opinions shall constitutea binding interpretation of the Code of Judicial Conduct.