Rule 28 - Advisory OpinionsA.Director's Opinions. The Director and any other staff member designated by the Director or the Investigative Panel shall be authorized to render a Director's opinion concerning his or her interpretation of the Georgia Code of Judicial Conduct as applied to a given state of facts. The Director's opinion should address prospective conduct and may be issued in oral or written form. A Director's opinion is the opinion of the Director or staff member and is neither a defense to any complaint nor binding on the Investigative Panel, the Hearing Panel, or the Supreme Court, but action in accordance with and in reasonable reliance upon a written Director's opinion shall be considered in mitigation of discipline. If the person requesting a Director's opinion desires, the Director may transmit the opinion to the Hearing Panel for discretionary consideration of the drafting of a proposed formal advisory opinion.B.Formal Advisory Opinions.(1) On its own initiative, on the recommendation of the Investigative Panel, or at the request of any person, the Hearing Panel shall be authorized to draft a proposed formal advisory opinion concerning a proper interpretation of the Georgia Code of Judicial Conduct as applied to a given state of facts. The proposed formal advisory opinion should address prospective conduct and may respond to a request for review of a Director's opinion or a direct request for a formal advisory opinion.(2) When a formal advisory opinion is requested, the Hearing Panel should review the request and make a preliminary determination whether a proposed formal advisory opinion should be drafted. Factors to be considered by the Hearing Panel include whether the issue is of general interest to the members of the judiciary, the State Bar of Georgia, or the public; whether a genuine ethical issue is presented; the existence of opinions on the subject from other jurisdictions; the presence and relevant scope of prior opinions from Georgia; and the nature of the prospective conduct. The Hearing Panel may request the Director to provide research and an initial draft of a proposed formal advisory opinion.(3) When the Hearing Panel makes a preliminary determination that a proposed formal advisory opinion should be drafted, it shall publish the proposed formal advisory opinion on the website of the Commission and in an official publication and/or on the website of the Administrative Office of the Courts and the State Bar of Georgia, and shall solicit comments. After a reasonable time for receipt of comments, the Hearing Panel shall make a final determination either to file the proposed formal advisory opinion as drafted or as modified with the Supreme Court for review, or to reconsider its decision and decline to file the proposed formal advisory opinion.(4) After the Hearing Panel makes a final determination that the proposed formal advisory opinion should be drafted and filed, the formal advisory opinion shall be filed with the Supreme Court and republished on the Commission's website and in an official publication and/or on the website of the Administrative Office of the Courts and the State Bar of Georgia. Unless the Supreme Court grants review as provided herein, the formal advisory opinion shall be binding only on the Commission and the person who requested the opinion, and the Supreme Court shall treat the opinion as persuasive authority only. Within 20 days of the filing of the formal advisory opinion, the Hearing Panel or any person aggrieved by the proposed formal advisory opinion may file a petition for discretionary review thereof with the Supreme Court. The petition shall designate the formal advisory opinion sought to be reviewed. If the Supreme Court grants the petition for discretionary review or decides to review the opinion on its own motion, the record shall consist of the comments received by the Hearing Panel. The Supreme Court shall set a briefing schedule and may order oral argument. The Supreme Court shall review the formal advisory opinion and make a final determination either by written opinion, or by order, and shall state whether the formal advisory opinion is approved, modified, or disapproved, or shall provide for such other final disposition as is appropriate.(5) If the Supreme Court grants review and disapproves the opinion, it shall have absolutely no effect and shall not constitute either persuasive or binding authority. If the Supreme Court approves or modifies the opinion, it shall be binding on all judges and shall be published in the official Georgia Reports and on the website of the Commission. The Supreme Court shall accord such approved or modified opinion the same precedential authority given to the regularly published judicial opinions of the Court.(6) The Commission and the Supreme Court shall consider compliance with an approved or modified formal advisory opinion to be evidence of a good faith effort to comply with the Georgia Code of Judicial Conduct, but only to the extent that the underlying facts are identical. Action in compliance with and in reasonable reliance upon a formal advisory opinion not reviewed by the Supreme Court shall be considered in mitigation of discipline.(7) The name of a person requesting a Director's opinion or formal advisory opinion will be kept confidential unless the person waives such confidentiality.R. Judi. Qual. Commi. Ga. 28
Adopted effective January 1, 2018.