Me. Code. Jud. Cond. Introductory Note
The Maine Code of Judicial Conduct is promulgated by the Supreme Judicial Court following its second comprehensive review since the Court originally adopted the Code of Judicial Conduct in 1974. The original Code was based on the American Bar Association's (ABA) 1972 Code of Judicial Conduct, with adjustments to accommodate Maine practice. In 1990, the ABA adopted the Model Code of Judicial Conduct. In 1991, the Court initiated its first comprehensive review of the Maine Code of Judicial Conduct. After that review, a revision of the Maine Code of Judicial Conduct was adopted in 1993. Since 1993 the Court has, on a few occasions, adopted amendments to the Code, particularly to clarify financial reporting requirements, recognize judges' capacity to enable settlement discussions, and support fair participation in judicial processes by unrepresented individuals, but the Code remains largely as adopted in 1993.
In 2007 the ABA revised its Model Code of Judicial Conduct. In late 2010, at the suggestion of the Committee on Judicial Responsibility and Disability (the Committee), the Court initiated a second comprehensive review of the rules and practices relevant to judicial ethics issues. Initially the Committee had proposed that most of the changes in the judicial ethics rules recommended in the 2007 ABA revision be incorporated into the Maine Code of Judicial Conduct. In 2011, the Court published the Committee's recommendations for public comment. After receiving comments, and upon further review, the Court determined that the proposed amendments to the 1993
Maine Code recommended by the Committee were so substantial that the Court should, instead, develop a draft that follows the organization of the ABA recommended Model Code, with appropriate adjustments for Maine practice. Adoption of the ABA Model Code's suggested numbering and organization for the rules governing judicial ethics will simplify research and comparison with judicial ethics practice in other jurisdictions.
In 2012, the Court produced a draft of the Maine Code of Judicial Conduct that tracked the organization and numbering of the 2007 ABA Model Code, updated by the ABA with a 2011 edition. The Court's original revision was not supported by comments or advisory notes. However, considering the relatively brief and very general nature of the Canons and Rules based on the ABA Model Code, it was evident that, as with the 1993 revision of the Maine Code of Judicial Conduct, detailed Advisory Notes are necessary.
The Advisory Notes associated with the individual Canons and Rules that follow are drafted to support application of the Canons and Rules and to recognize aspects of Maine practice that differ from national models. They are intended to provide guidance to judges, the Committee, the bar, and the public for application of the Code to the nuanced factual and legal issues that regularly arise as the Canons and the Rules are applied to specific situations in the sometimes difficult and emotionally charged court proceedings from which ethics issues tend to arise-usually involving highly ethical judges trying to do their best. The Canons, Rules and supporting Advisory Notes must also be read and applied in a context that recognizes that not every error that a judge may make constitutes an ethical violation. One recent national review of judicial ethics issues, comparing appellate review and ethics review, has recognized a "general principle" that
| when judges make honest mistakes, the appropriate remedy is appeal, not discipline. To reverse judges for honest mistakes is salutary; to punish judges for honest mistakes threatens their decisional independence. Although state judges have an ethical duty to "uphold and apply the law," errors are subject to reversal, not discipline, unless the errors are so egregious or chronic as to manifest bad faith or incompetence. |
Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 Fla. L. Rev. 493, 526-27 (April 2013).
The Preamble to this Code, in language very similar to that appearing in the Preamble and Scope section on the ABA Model Code,1 states:
| Although the black letter of the Rule is binding and enforceable when using terms such as "shall" or "must", it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline is warranted should be determined through a reasonable and reasoned application of the Rules, with consideration of the seriousness of the transgression, the extent of any pattern of improper activity, any previous violations, and the effect of the improper activity upon the judicial system or others. |
1See ABA Model Code of Judicial Conduct (2011 ed.), Scope, ¶ 6.
Maine practice has some special attributes that are important to respect in drafting and applying a Code of Judicial Conduct. Pursuant to the Maine Constitution, judges in the State Judiciary are appointed by the Governor for seven-year terms, subject to confirmation by the Legislature.2 Every recent Governor of the State of Maine has made judicial appointments based on recommendations, after careful review of qualifications, by a committee of experienced attorneys and members of the public. Those recommended to the Governor for appointment have tended to be applicants for appointment viewed by the committee as most qualified for judicial service, often without regard to partisan or political considerations. Governors have usually followed their committees' recommendations in making appointments. The combination of the qualifications- and integrity-focused judicial selection process and the significant accountability fostered by the seven-year terms has produced a judiciary that is generally well qualified and sensitive to issues of ethics, skill, and temperament that are important for fostering public respect for the judiciary.
2Maine's Probate Judges are elected in each county for four-year terms. Probate Judges are subject to the Maine Code of Judicial Conduct, which includes, for Probate Judges and judicial election candidates, special accommodations to recognize their election processes.
Maine practice also differs from that of some other states in valuing close and regular professional contacts between the bench and the bar and in fostering involvement of judges with lawyers and nonlawyers in the larger community where judges live and work. The value of the regular professional contacts that characterize bench-bar relations in Maine was recognized by Judge William J. Kayatta of the United States Court of Appeals for the First Circuit at a 2014 investiture ceremony for a new Bankruptcy Judge.3 There Judge Kayatta observed:
| Now, some of you may have been to investitures before, I've been to a few, and I will tell you that in the larger metropolitan areas of this country, these investitures are somewhat like a coming out party. Notables and observers gather to take their first look, in some cases, at this new person who they may not know very [well] who is going to now be wielding federal judicial power in their area. |
| In Maine, though, it's so different. We generally come to know one another in our communities and our professional lives, and so it's not a coming out party. In some ways, it's more of a celebration. Our familiarity with each other means that our new Bankruptcy Judge . . . has been carried to his new position by a well-earned reputation upon which we can ground our expectations for future success. I suspect that this also accounts for the smiles I see in this courtroom here today. His reputation precedes him widely.4 |
3Investiture Ceremony for Bankruptcy Judge Peter G. Cary, United States Bankruptcy Court, Portland, Maine, May 9, 2014 (Tr. 4).
4 Bankruptcy Judge Peter G. Cary began his professional career as a law clerk serving several Justices of the Maine Superior Court. He then joined a law firm that maintained a statewide practice in many areas of the law and became well known to the bench and the bar through court appearances and participation in bar events and other professional development activities.
The close professional relations of the bench and the bar, and the resulting importance of reputation, foster maintenance of high ethical standards by both, supported by a prevailing assumption that judges and lawyers know each other and their reputations, and that how they act and what they say in a proceeding today can affect both that proceeding and a matter that may be of importance five or ten or more years in the future. As the Law Court has recognized, "the legal and judicial communities are small and lawyers and judges necessarily know one another and enjoy cordial professional relationships." Samsara Mem'l Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶ 24, 102 A.3d 757. Rejecting a claim that a judge erred by not recusing or disclosing a professional relationship with an individual who was of counsel to a law firm-litigant and had previously served with the judge on the bench for eighteen years, the Law Court observed:
| It is unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships. We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law. We are cognizant that the party status of the law firm in this instance makes this case somewhat different from those where a former colleague is simply an advocate for a party before the court. However, it remains a "fact of litigation in small Maine communities that a judge, or members of his or her family, may know of a party, or a witness, or someone related to a party or a witness, or may even have done business with somebody whose name may come up in a case." |
Id. ¶ 35 (quoting Charette v. Charette, 2013 ME 4, ¶ 24, 60 A.3d 1264).
This revised Maine Code of Judicial Conduct and its Advisory Notes recognize and respect these special attributes of Maine practice.
The Code of Judicial Conduct reaffirms the commitment of the Maine Judiciary to the highest standards of ethical conduct and assures the public that Maine judges are subject to specific and nationally recognized standards of conduct and are accountable for compliance with those standards.
The Preamble and each Canon and Rule in the republished Code are supported by Advisory Notes providing interpretive guidance for each Rule and indicating the provision of the 1993 Maine Code to which the Canon or Rule is most closely related. The Advisory Notes also address Maine variations from the 2011 edition of the ABA Model Code of Judicial Conduct and refer, when appropriate, to relevant precedent addressing judicial ethics issues. Reviewers should also recognize that many Rules, following the ABA numbering system, have provisions that are sometimes similar or repetitive in effect.5 Thus, portions of Advisory Notes to one Rule may have application to another Rule that addresses a similar issue.
5See, for example, Rule 1.1, addressing a duty to comply with the law, and Rule 2.2, addressing a duty to uphold and apply the law; or Rules 2.2 and 2.11, addressing judicial impartiality; or Rules 2.11 and 3.11, addressing impartiality in relation to personal finance, family, and prior professional relationships; or Rules 3.1, 3.7, and 3.12, addressing extrajudicial activities; or Rules 2.3 and 3.6, addressing certain bias and discrimination issues.
The guidance in the Advisory Notes is supplemented by citations to relevant Comments to the Rules in the 2011 edition of the ABA Model Code or the Advisory Committee's Notes supporting the 1993 Maine Code of Judicial Conduct. Some interpretive guidance may also be found in the Comments to the individual Rules in the ABA Model Code, when the Model Code Rule at issue is the same or substantially similar to the wording of the Maine version of that Rule.
In accordance with past practice, the Advisory Notes, like the 1993 Advisory Committee's Notes, "will be considered as contemporaneous manifestations of intent that may serve as authoritative aids to interpretation." Maine Code of Judicial Conduct, Introductory Advisory Committee's Notes, at 22 (West 1993) (citing 1 Field, McKusick & Wroth, Maine Civil Practice § 1.4 (2d ed. 1970)). As the ABA Model Code notes, its Comments "provide guidance regarding the purpose, meaning, and proper application of the Rules."6
6ABA Model Code of Judicial Conduct (2011 ed.), Scope, ¶ 3.
This revised Code, like its predecessors, is adopted pursuant to the inherent authority of the Supreme Judicial Court to prescribe rules governing the conduct of the judges of all courts that constitute the Maine Judiciary. See 4 M.R.S. §§1, 7, 9-B(2014); In re Dunleavy, 2003 ME 124, ¶¶ 8-10, 838 A.2d 338; In re Cox, 658 A.2d 1056, 1057 (Me. 1995); In re Benoit, 487 A.2d 1158, 1170-71 (Me. 1985).
This Code has been adopted by the Court after consideration of comments and suggestions from members of the bench, bar, and public. Issues concerning Probate Court judges' part-time status, particularly their representation of clients in probate court matters, generated substantial negative comments. That issue, however, is a matter that can only be addressed by legislative action.
Me. Code. Jud. Cond. Introductory Note