Me. Code. Jud. Cond. 2.15
Me. Code. Jud. Cond. 2.15
Advisory Notes - 2015
Rule 2.15 is similar to 1993 Canon 3(D)(1)-(3), including the differing uses of the terms "shall" and "should," depending on the clarity of the information indicating an ethical violation has been committed. The importance of the distinction between "shall" and "should" in light of the subjective judgments that must be made, often on less than complete information, is addressed in the 1993 Advisory Committee's Notes to Canon 3(D) as follows:
| Canon 3D covers a judge's responsibilities to the disciplinary systems governing other judges and lawyers. Canon 3D(1) establishes a two-tiered approach to judicial misconduct. If a judge "receives information that there is "a substantial likelihood" of a violation of the Code of Judicial Conduct, the subsection merely states that the judge "should take appropriate action," which could include direct communication with the other judge, referral to a substance abuse treatment agency, or filing a complaint with the Committee on Judicial Responsibility and Disability. See ABA Model Code (1990), Committee Note and Commentary to Section 3D. If, however, the judge has knowledge of a Code violation by another judge "that raises a substantial question as to the other judge's fitness for office," the judge is required to report the violation to the Committee or to "other appropriate authority," such as the Board of Overseers of the Bar if the conduct also violates the Maine Bar Rules [now the Maine Rules of Professional Conduct]. |
| The purpose of the two-tiered approach is to encourage remediation and rehabilitation by not requiring a formal disciplinary complaint in situations where the facts are uncertain or the violation is not serious. Where the violation is certain and substantial, however, a disciplinary complaint must be made. Thus, the second tier is not reached unless the judge has actual knowledge (see definition of "knowledge," Part II, Section 3J) of a violation, as opposed to "information" from other sources indicating that a violation is substantially likely. |
| Canon 3D(2) applies the same approach to lawyer misconduct. If the judge has information indicating that a violation of the Maine Bar Rules is substantially likely, the judge has the same range of options as with a fellow judge, as well as the further possibility of imposing sanctions in the proceeding. If the judge has actual knowledge of a Code violation "that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects" (the language of the mandatory reporting requirement of M. Bar R. 3.2(e)(1)), the judge must report the violation to the Board of Overseers of the Bar, or, if appropriate, the disciplinary authorities of another jurisdiction. The words "or take other appropriate action" make clear that the obligation to file a disciplinary complaint does not preclude the imposition of sanctions in the proceeding. |
| Canon 3D(3) makes provision for judicial immunity from civil actions predicated on the exercise of the obligation to report professional misconduct. This provision is declarative of existing substantive law. See, e.g., Forrester v. White, 484 U.S. 219 (1988) (absolute immunity for judicial acts, such as acting to disbar a lawyer for contempt, but not for administrative acts, such as firing a court employee); see also Richards v. Ellis, 233 A.2d 37 (Me. 1967). The provision is not intended to confer immunity from judicial discipline proceedings for improper conduct under proposed Canon 3D, however, even though such proceedings may be deemed "civil" in nature. |
Advisory Note - September 2023
A new subdivision (F) is added, modeled on the language of Rule 8.3(c) of the Maine Rules of Professional Conduct, which, as amended simultaneously with this amendment, provides:
(a) A lawyer who knows that another lawyer has committed a violation of the Maine Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
In Maine, the appropriate professional authority will be the Maine Board of Overseers of the Bar, or in certain circumstances, as described in the Maine Rules for Maine Assistance Program for Lawyers and Judges, the Maine Assistance Program for Lawyers and Judges.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate professional authority.
In Maine, the appropriate professional authority will be the Committee on Judicial Responsibility and Disability, or, in certain circumstances, as described in the Maine Rules for Maine Assistance Program for Lawyers and Judges, the Maine Assistance Program for Lawyers and Judges.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information obtained in the course of a lawyer's or judge's participation in the Maine Assistance Program for Lawyers and Judges, or an equivalent peer assistance program approved by a state's highest court.
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