The Application section establishes when the various Rules apply to a judge.
I. APPLICABILITY OF THIS CODE (a) The provisions of this Code apply to full-time judges. Parts II and III of this section identify those provisions that apply to two distinct categories of part-time judges. The two categories of judicial service in other than full-time capacity are necessarily defined in general terms because of the widely varying forms of judicial service. (b) A judge, within the meaning of this Code, is anyone who performs judicial functions, including an officer such as a master or referee, but not including an arbitrator or mediator. However, with respect to a master or referee, the determination of which specific Code provisions apply to an individual judicial officer depends upon the facts of the particular judicial service. Code Comparison
The Hawai'i Revised Code of Judicial Conduct modifies ABA Model Code paragraph (B) by not applying the Code to justice of the peace, magistrate, court commissioner, and 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.II. RETIRED JUDGE RECALLED TO SERVICE This Code applies to a retired judge recalled to service, who is not actively engaged in the practice of law, except a retired judge is not required to comply with either of the following:
(a) Rule 3.9 (Service as Arbitrator or Mediator), except while serving as a judge; or (b) Rule 3.8 (Appointments to Fiduciary Positions) at any time. COMMENT:
[1] For the purposes of this section, as long as a retired judge is recalled to service, the judge is considered to "perform judicial functions." III. PART-TIME JUDGE (a) This Code applies to a part-time judge, including a retired judge recalled to service who is permitted to practice law and a per diem judge ("part-time judge"), except that a part-time judge is not required to comply with either of the following: (1) Rules 2.10(a) and 2.10(b) (Judicial Statements on Pending and Impending Cases), except while serving as a judge; or (2) 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), 4.1 (Political Activities of Judges in General), and 4.3 (Activities of Judges Seeking Retention in or Appointment to Judicial Office), at any time.(b) A part-time judge shall not practice law in 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.(c) Courts Distinguished. For purposes of Part III(b) of this section, the District Family Courts and the District Courts are separate courts. A part-time judge assigned to preside solely in District Court is not disqualified from practicing before the District Family Court, and a part-time judge assigned to preside solely in the District Family Court is not disqualified from practicing before the District Court. Code Comparison
The Hawai'i Revised Code of Judicial Conduct modifies ABA Model Code Section III by (1) defining a part-time judge as including a "per diem" judge rather than a judge "who serves repeatedly on a part-time basis by election or under a continuing appointment," (2) not including the resign-to-run Rule 4.5 as a rule that does not apply to per diem judges, and (3) adding paragraph (c).
COMMENT:
[1] When a person who has been a part-time judge is no longer a part-time judge, including a retired judge who is no longer recalled, 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 in accordance with the Hawai'i Rules of Professional Conduct. 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.
Amended December 10, 2008, effective 1/1/2009.COMMENT:
[1] If serving as a fiduciary when sworn into judicial office, 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.