RULE 2.1
Giving Precedence to the Duties ofJudicial Office
The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge's personal and extrajudicial activities.
COMMENT
[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3. [2] Although it is not a duty of judicial office unless prescribed by law,* judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system. See Rule 3.7. [3] With respect to time devoted to personal and extrajudicial activities, this Rule must be construed in a reasonable manner. Family obligations, illnesses, and emergencies may require a judge's immediate attention. Attending to those obligations and situations is not prohibited by this Rule. RULE 2.2
Impartiality and Fairness
A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*
COMMENT
[1] To ensure impartiality* and fairness to all parties, a judge must be objective and open-minded. [2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law* without regard to whether the judge apprwes or disapproves of the law* in question. [3] When applying and interpreting the law,* a judge sometimes may make goodfaith errors of fact or law.* Errors of this kind do not violate this Rule. In the absence of fraud, corrupt motive, or clear indication that the judge's conduct was in bad faith or otherwise violates this Code, it is not a violation for a judge to make findings of fact, reach legal conclusions, or apply the law as the judge understands it.[4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure self-represented litigants are provided the opportunity to have their matters fairly heard. See Rule 2.6(A). RULE 2.3
Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties, without bias, prejudice, or harassment.(B)A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice or engage in harassment, including bias, prejudice, or harassment based upon a person's status or condition. A judge also shall not permit court personnel* or others subject to the judge's direction and control to engage in such prohibited behavior.(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice or engaging in harassment against parties, witnesses, lawyers, or others, including bias, prejudice, or harassment based upon a person's status or condition.(D)This rule does not preclude judges or lawyers from making legitimate reference to a person's status or condition when it is relevant to an issue in a proceeding.COMMENT
[1] A judge who manifests bias or prejudice or engages in harassment in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. A judge must avoid words or conduct that may reasonably be perceived as manifesting bias or prejudice or engaging in harassment. [2] As used in this Rule, examples of status or condition include but are not limited to race, color, sex, gender identity or expression, religion, nationality, national origin, ethnicity, citizenship or immigration status, ancestry, disease or disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.[3] As used in this Rule, examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; improper suggestions of connections between status or condition and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey an appearance of bias or prejudice to parties and lawyers in the proceeding, jurors, the media, and others. [4] As used in this Rule, harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as those listed in Comment [2]. [5] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.RULE 2.4
External Influences on Judicial Conduct
(A)A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.(B)A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment.(C)A judge shall not conveyor permit others to convey the impression that any person or organization is in a position to influence the judge.COMMENT
[1] An independent judiciary requires that judges decide cases according to the law* and facts, without regard to whether particular laws* or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family. Confidence in the judiciary is eroded if judicial decision-making is perceived to be subject to inappropriate outside influences. RULE 2.5
Competence, Diligence, and Cooperation
(A)A judge shall perform judicial and administrative duties competently, diligently, and in a timely manner.(B)A judge shall cooperate with other judges and court officials in the administration of court business.COMMENT [1] Competence in the performance of judicial duties requires the legal knowledge,* skill, thoroughness, and preparation reasonably necessary to perform a judge's responsibilities of judicial office.
[2] A judge should seek the necessary resources to discharge all adjudicative and administrative responsibilities. [3] Timely disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under advisement, and to take reasonable measures to ensure that court personnel,* litigants, and lawyers cooperate with the judge to that end. [4] In disposing of matters efficiently and in a timely manner, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.RULE 2.6
Ensuring the Right to be Heard
(A)A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.* A judge may make reasonable efforts, consistent with the law,* to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard. (B)A judge may encourage parties and their lawyers to resolve matters in dispute and, in accordance with applicable law,* may participate in settlement discussions in civil proceedings and plea discussions in criminal proceedings, but shall not act in a manner that coerces any party into settlement or resolution of a proceeding. COMMENT
[1] The right to be heard is an essential component of a fair and impartial* system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed. [1A] The judge has an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard. In the interest of ensuring fairness and access to justice, judges may make reasonable accommodations that help self-represented litigants to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law.* The judge should be careful that accommodations do not give self-represented litigants an unfair advantage or create an appearance of judicial partiality. In some circumstances, particular accommodations for self-represented litigants are required by decisional or other law.* In other circumstances, potential accommodations are within the judge's discretion. By way of illustration, a judge may:(1)construe pleadings liberally;(2)provide brief information about the proceeding and evidentiary and foundational requirements;(3)ask neutral questions to elicit or clarify information;(4)modify the manner or order of taking evidence or hearing argument;(5)attempt to make legal concepts understandable;(6)explain the basis for a ruling; and(7)make referrals as appropriate to any resources available to assist the litigants. For civil cases involving self-represented litigants, the Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants (April 2006) provides useful guidance to judges seeking to exercise their discretion appropriately so as to ensure the right to be heard.[2] A judge may encourage parties and their lawyers to resolve matters in dispute. A judge's participation in settlement discussions in civil proceedings and plea discussions in criminal proceedings must be conducted in accordance with applicable law.* Judicial participation may play an important role, but the judge should be careful that the judge's efforts do not undermine any party's right to be heard according to law.* The judge should keep in mind the effect that the judge's participation may have not only on the judge's own views of the case, but also on the perceptions of the lawyers and the parties if these efforts are unsuccessful and the case remains with the judge. Other factors that a judge should consider when deciding upon an appropriate practice for a case include: (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge;(2) whether the parties and their counsel are relatively sophisticated in legal matters;(3) whether the case will be tried by the judge or a jury;(4) whether the parties participate with their counsel in the discussions;(5) whether any parties are self-represented;(6) whether the matter is civil or criminal; and(7) whether there is a history of physical or emotional violence or abuse between the parties. See Rule 2.9(A)(4). [3] Judges must be mindful of the effect settlement or plea discussions can have not only on their objectivity and impartiality,* but also on the appearance of their objectivity and impartiality.* Despite a judge's best efforts, there may be instances when information obtained during such discussions could influence a judge's decision-making during trial, and, in such instances, the judge should consider whether disqualification may be appropriate. See Rule 2.11.RULE 2.7
Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.*
COMMENT
[1] Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence,* integrity,* and impartiality* of the judiciary, judges must be available to decide matters that come before the court. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge's respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.RULE 2.8
Decorum, Demeanor, and Communication with Jurors
(A)A judge shall require order and decorum in proceedings before the court. (B)A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court personnel,* and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court personnel,* and others subject to the judge's direction and control.(C)A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding but may express appreciation to jurors for their service to the jUdicial system and the community.COMMENT
[1] The duty to conduct all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.[2] Commending or criticizing jurors for their verdict, other than in a court order or opinion, may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial* in a subsequent case. Such commendations or criticisms of verdicts could also be perceived as calling into question the judge's ability to rule impartially* on any post-trial motions, or on remand, in the same case. [3] A judge who is not otherwise prohibited by law* from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case. RULE 2.9
Ex Parte Communications
(A)A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* except as follows:(1)When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:(a)the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.(2)A judge may engage in ex parte communications in specialty courts,* as authorized by law.*(3)A judge may consult with court personnel* whose function is to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, subject to the following:(a)a judge shall take all reasonable steps to avoid receiving from court personnel* or other judges factual information concerning a case that is not part of the case record. If court personnel* or another judge nevertheless brings information about a matter that is outside of the record to the judge's attention, the judge may not base a decision on it without giving the parties notice of that information and an opportunity to respond. Consultation is permitted between a judge, clerk-magistrate, or other appropriate court personnel* and a judge taking over the same case or session in which the case is pending with regard to information learned from prior proceedings in the case that may assist in maintaining continuity in handling the case;(b)when a judge consults with. a probation officer, housing specialist, or comparable court employee about a pending* or impending* matter, the consultation shall take place in the presence of the parties who have availed themselves of the opportunity to appear and respond, except as provided in Rule 2.9(A)(2);(c)a judge shall not consult with an appellate judge, or a judge in a different Trial Court Department, about a matter that the judge being consulted might review on appeal; and (d)no judge shall consult with another judge about a pending matter* before one of them when the judge initiating the consultation knows* the other judge has a financial, personal or other interest that would preclude the other judge from hearing the case, and no judge shall engage in such a consultation when the judge knows* he or she has such an interest.(4)A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle civil matters pending before the judge.(5)A judge may initiate, permit, or consider any ex parte communication when authorized by law* to do so. (B)If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication.(C)A judge shall consider only the evidence presented and any adjudicative facts that may properly be judicially noticed, and shall not undertake any independent investigation of the facts in a matter.(D)A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court personnel.*COMMENT
[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge. [1A]"Ex parte communication" means a communication pertaining to a proceeding that occurs without notice to or participation by all other parties or their representatives between a judge (or court personnel* acting on behalf of a judge) and (i) a party or a party's lawyer, or (ii) another person who is not a participant in the proceeding.[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party's lawyer, or if the party is self-represented, the party, who is to be present or to whom notice is to be given, unless otherwise required by law.* For example, court rules with respect to Limited Assistance Representation may require that notice be given to both the party and the party's limited assistance attorney. [3] The proscription against ex parte communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the· limited extent permitted by this Rule. [4] Paragraph (A)(2) permits a judge to engage in ex parte communications in conformance with law,* including court rules and standing orders, governing operation of specialty courts.* [4A] Ex parte communications with probation officers, housing specialists, or other comparable court employees are permitted in specialty courts* where authorized by law.* See Paragraph (A)(2) and Comment [4]. Where ex parte communications are not permitted, a judge may consult with these employees ex parte about the specifics of various available programs so long as there is no discussion about the suitability of the program for a particular party. [5] A judge may consult with other judges, subject to the limitations set forth by this Rule. This is so whether or not the judges serve on the same court. A judge must avoid ex parte communications about a matter with a judge who has previously been disqualified from hearing the matter or with an appellate judge who might be called upon to review that matter on appeal. The same holds true with respect to those instances in which a judge in one department of the trial court may be called upon to review a case decided by a judge in a different department; for example, a judge in the Superior Court may be required to review a bail determination made by a judge in the District Court. The appellate divisions of the Boston Municipal Court and of the District Court present a special situation. The judges who sit as members of these appellate divisions review on appeal cases decided by judges who serve in the same court department. However, the designation of judges to sit on the appellate divisions changes quite frequently; every judge on the Boston Municipal Court will, and every judge on the District Court may, serve for some time as a member of that court's appellate division. Judges in the same court department are not barred from consulting with each other about a case, despite the possibility that one of the judges may later review the case on appeal. However, when a judge is serving on an appellate division, the judge must not review any case that the judge has previously discussed with the judge who decided it; disqualification is required. Consultation between or among judges, if otherwise permitted, is appropriate only if the judge before whom the matter is pending* does not abrogate the responsibility personally to decide it. [6] The prohibition in Paragraph (C) against a judge independently investigating adjudicative facts applies equally to information available in all media, including electronic media.[7] A judge may consult the Committee on Judicial Ethics, the State Ethics Commission, outside counsel, or legal experts concerning the judge's compliance with this Code.RULE 2.10
Judicial Statements on Pending and Impending Cases
(A)A judge shall not make any statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any Massachusetts court.(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before any Massachusetts court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the duties of judicial office.(C)A judge shall require court personnel* to refrain from making statements that the judge would be prohibited from making by Paragraphs (A) and (B).(D)Subject to the restrictions in Paragraphs (A) and (B), a judge may make statements that explain the procedures of the court, general legal principles, or what may be learned from the public record in a case. A judge may comment on any proceeding in which the judge is a litigant in a personal capacity.(E)Subject to the restrictions in Paragraphs (A) and (B), a judge may respond directly or through a third party to public criticisms of the judge's behavior, but shall not respond to public criticisms of the substance of the judge's rulings other than by statements consistent with Paragraph (D).(F)Subject to the restrictions in Paragraphs (A) and (B), a judge may speak, write, or teach about issues in pending* or impending* matters, but not matters pending* or impending* before that judge, when such comments are made in legal education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals, and bar publications.COMMENT
[1] This Rule's restrictions on judicial speech are essential to the maintenance of the independence,* integrity,* and impartiality* of the judiciary. [2] Paragraph (A) does not apply to any oral or written statement or decision by a judge in the course of adjudicative duties. A judge is encouraged to explain on the record at the time decisions are made the basis for those decisions or rulings, including decisions concerning bail and sentencing. By helping litigants to understand the basis for decisions in cases, the judge also promotes public understanding ofjudicial proceedings. [3] "[A]ny Massachusetts court" for purposes of this Rule means any state or federal court within the Commonwealth of Massachusetts. [4] The requirement that a judge abstain from statements regarding a pending* or impending* matter continues throughout the appellate process and until final disposition. [5] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. However, even in such instances, a judge must act in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety* and the appearance of impropriety.* [6] Paragraph (D) permits the dissemination of public information to educate and inform the public, while assuring the public that cases are tried only in the judicial forum devoted to that purpose. A judge may explain to the media or general public the procedures of the court and general legal principles such as the procedures and standards governing a "dangerousness hearing" under G. L. c. 276, § 58A, or restraining orders under G. L. c. 209A. A judge may also explain to the media or the general public what may be learned from the public record in a particular case. For example, a judge may respond to questions from a reporter about a judicial action that was taken and may correct an incorrect media report by referring to matters that may be learned from pleadings, documentary evidence, and proceedings held in open court. Paragraph (D) permits similar responsive comments or explanations by a judge acting in accordance with the judge's administrative duties. [7] As used in Paragraph (E), "behavior" does not include the substance of a judge's rulings. For example, a judge may respond to criticism that the judge is disrespectful to litigants, but may not respond to criticism that the judge made an incorrect ruling other than by statements allowed by Paragraph (D). [8] The authorizations to comment in this Rule are. permissive, not suggestive. A judge is not required to respond to statements in the media or elsewhere. Depending on the circumstances, the judge should consider the timing of any response and whether it may be preferable for a third party, rather than the judge, to respond. [9] When speaking, writing, or teaching about issues in cases or matters, a judge must take care that the judge's comments do not impair public confidence in the independence,* integrity,* or impartiality* of the judiciary. [10] When a judge orally renders a decision and intends to explain the judge's reasons in a written memorandum, the judge should simultaneously inform the parties that an explanatory memorandum will be forthcoming. When a judge has not indicated at the time the judge issues the underlying order that a written explanatory comment will be forthcoming and such a memorandum has not been requested by a party or by an appellate single justice or court, a judge has the discretion to issue an explanatory memorandum. The exercise of that discretion should be informed by the following guidance: (i) Ajudge should weigh, at a minimum, the following factors:·the importance of avoiding or alleviating the. parties' or the public's misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge's earlier decision;
· the amount of time that has elapsed since the order was issued and the extent to which the judge's reasons for the decision remain fresh in the judge's mind;
· the risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order; and
· the danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence,* integrity,* and impartiality* ofjudges.
(ii) An explanatory memorandum is appropriate only if issued within a reasonable time of the underlying order and if the judge clearly recalls the judge's reasons for the decision. An explanatory memorandum should not rely on any information that was not in the record before the judge at the time of the underlying order. (iii) A judge may not issue an explanatory memorandum if the court no longer has authority to alter or amend the underlying order. For example, a judge may not issue an explanatory memorandum when: · the underlying order is the subject of an interlocutory appeal, report, or other appellate proceeding that has already been docketed in the appellate court, unless such a memorandum has been requested by an appellate single justice or court;
· the case has been finally adjudicated in the trial court, no timely-filed postjudgment motions are pending,* and the time within which the court may modify its orders and judgments on its own initiative has passed; or
· an appeal has been taken from a final order or judgment, and the appeal has been docketed in the appellate court.
RULE 2.11
Disqualification
(A)A judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial* or the judge's impartiality* might reasonably be questioned, including but not limited to the following circumstances:(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge* of facts that are in dispute in the proceeding.(2)The judge knows* that the judge, the judge's spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner* of such a person is:(a)a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b)acting as a lawyer in the proceeding;(c)a person who has more than a de minimis financial or other interest that could be substantially affected by the proceeding; or(d) likely to be a material witness in the proceeding.(3)The judge knows* that he or she, individually or as a fiduciary,* or the judge's spouse, domestic partner,* parent, or child, or any other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or is a party to the proceeding.(4)The judge, while a judge or a judicial applicant* or judicial nominee,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.(5)The judge:(a)served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;(b)served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;(c)was a material witness concerning the matter; or(d)previously presided as a judge over the matter in another court.(B)A judge shall keep informed about the judge's personal and fiduciary* economic interests,* and make a reasonable effort to keep informed about the personal economic interests* of the judge's spouse or domestic partner* and minor children residing in the judge's household.(C)A judge subject to disqualification under this Rule, other than for bias or prejudice under Paragraph (A)(l), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of and without participation by the judge and court personnel,* whether to waive disqualification. If, following a consultation that is free from coercion, express or implied, the parties and lawyers agree that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.COMMENT
[1] A judge is disqualified from any matter if the judge cannot satisfy both a subjective and an objective standard. The subjective standard requires disqualification if the judge concludes that he or she cannot be impartial.* The objective standard requires disqualification whenever the judge's impartiality* might reasonably be questioned by a fullyinformed disinterested observer, regardless of whether any of the specific provisions of Paragraphs (A)(I) through (5) apply. By way of example, a judge must disqualify himself or herself from any proceeding in which the judge is a client of a party's lawyer or the lawyer's firm. Whether a judge must continue to disqualify himself or herself after this attorney-client relationship has concluded should be determined by considering all relevant factors, including the terms on which the lawyer provided representation, the length of time since the representation concluded, the nature and subject matter of the representation, and the extent of the attorney-client relationship, including the length of the relationship and the frequency of contacts between the judge and the lawyer. A judge must also bear in mind that social relationships may contribute to a reasonable belief that the judge cannot be impartial. [2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed. [3] The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable. [4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, under the circumstances, the judge's impartiality* might reasonably be questioned under Paragraph (A), then the judge's disqualification is required. [5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.[6] The filing of a judicial discipline complaint during the pendency of a matter does not necessarily require disqualification of the judge presiding over the matter. The judge's decision to disqualify in such circumstances must be resolved on a case-by-case basis.RULE 2.12
Supervisory Duties
(A)A judge shall require court personnel* and others subject to the judge's direction and control to act in a manner consistent with the judge's obligations under this Code. (B)A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them. COMMENT
[1] A judge may not direct court personnel* to engage in conduct on the judge's behalf or as the judge's representative when such conduct would violate the Code if undertaken by the judge.[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that those under the judge's supervision administer their workloads promptly.RULE 2.13
Administrative Appointments
(A) In making administrative appointments, a judge shall:(1)exercise the power of appointment impartially* and on the basis of merit; and(2)avoid nepotism, favoritism, and unnecessary appointments.(B)A judge shall not approve compensation of appointees beyond the fair value of services rendered. COMMENT
[1] Appointees of a judge may include assigned counsel, guardians ad litem, special masters, receivers, and any court personnel* subject to appointment by a judge. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by this Rule. Compliance with court rules pertaining to fee-generating appointments satisfies the judge's obligations under Paragraph (A). See SJC Rule 1:07. [2] Unless otherwise defined by law,* nepotism is the appointment or hiring of any relative within the third degree of relationship* of either the judge or the judge's spouse or domestic partner,* or the spouse or domestic partner* of such relative. See also Trial Court Personnel Policies and Procedures Manual, § 4.304. RULE 2.14
Disability and Impairment
A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.
COMMENT
[1] Taking appropriate action to address disability or impairment pursuant to this Rule is part of a judge's judicial duties. This Rule requires a judge to take appropriate action even if the disability or impairment has not manifested itself in a violation of the Rules of Professional Conduct or the Code of Judicial Conduct. See Rule 2.15, which requires ajudgeto take action to address violations of the Rules of Professional Conduct or the Code of Judicial Conduct.[2] Appropriate action means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include but is not limited to speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program. If the lawyer is appearing before the judge, a judge may defer taking action until the matter has been concluded, but must do so as soon as practicable thereafter. However, immediate action is compelled when a lawyer is unable to provide competent representation to the lawyer's client. [3] Taking or initiating corrective action by way of referral to an assistance program may satisfy ajudge's responsibility under this Rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending upon the gravity of the conduct that has come to the judge's attention, however, the judge may be required to take other action. See Rule 2.15.RULE 2.15
Responding to Judicial and Lawyer Misconduct
(A)A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question regarding the judge's honesty, integrity,* trustworthiness, or fitness as a judge in other respects shall inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the judge sits, and if the judge is a Trial Court judge, the Chief Justice of the Trial Court.(B) A judge having knowledge* that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, integrity,* trustworthiness, or fitness as a lawyer in other respects shall inform the Office of Bar Counsel.(C)A judge having knowledge* of or receiving credible information indicating a substantial likelihood that another judge has otherwise violated this Code shall take appropriate action.(D)A judge having knowledge* of or receiving credible information indicating a substantial likelihood that a lawyer has otherwise violated the Rules of Professional Conduct shall take appropriate action.COMMENT
[1] Taking action to address known* misconduct is part of a judge's duties. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate authority the known* misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, integrity,* trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known* misconduct among one's judicial colleagues or members of the legal profession undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent. If the lawyer is appearing before the judge, a judge may defer making a report until the matter has been concluded, but the report should be made as soon as practicable thereafter. However, an immediate report is compelled when a person will likely be injured by a delay in reporting, such as where the judge has knowledge* that a lawyer has embezzled client or fiduciary* funds and delay may impair the ability to recover the funds. [2] A judge who has know1edge* or receives credible information indicating a substantial likelihood that a judge has otherwise violated this Code, or that a lawyer has otherwise violated the Rules of Professional Conduct, is required to take appropriate action under Paragraph (C) or (D). Appropriate action pursuant to Paragraph (C) may include communicating directly with the judge, reporting to the first justice or regional administrative justice of the court where the violation occurred or where that judge often sits, reporting to the Chief Justice of that judge's court, and/or calling the judicial hotline maintained by Lawyers Concerned for Lawyers. Appropriate action pursuant to Paragraph (D) may include communicating directly with the lawyer, reporting to the lawyer's supervisor or employer, and/or reporting to the Office of Bar Counsel. These lists of actions are illustrative and not meant to be limiting. If the lawyer is appearing before the judge, a judge may defer taking action until the matter has been concluded, but action should be taken as soon as practicable thereafter. Reporting a violation is especially important where the victim is unlikely to discover the offense, and an immediate report is compelled when a person will likely be injured by a delay in reporting.RULE 2.16
Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary authorities.(B)A judge shall not retaliate, directly or indirectly, against a person known* or suspected to have assisted or cooperated with an investigation of a judge or a lawyer.COMMENT
[1] Cooperation with investigations and proceedings ofjudicial and lawyer discipline authorities, as required in Paragraph (A), instills confidence in judges' commitment to the integrity* of the judicial system and the protection of the public.Mass. R. Sup. Jud. Ct. canon 2
Adopted October 8, 2015, effective 1/1/2016.