N.M. Code. Jud. Cond. 21-004
N.M. Code. Jud. Cond. 21-004
Committee commentary. -
Applicability of this Code
[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 on the supposition that, to the extent possible, a uniform system of ethical principles should apply to all those authorized to perform judicial functions.
[2] In recent years many jurisdictions have created what are often called "problem solving" courts, in which judges are authorized by court rules to act in nontraditional ways. For example, judges presiding in drug courts and monitoring the progress of participants in those courts' programs may be authorized and even encouraged to communicate directly with social workers, probation officers, and others outside the context of their usual judicial role as independent decision makers on issues of fact and law. When local rules specifically authorize conduct not otherwise permitted under these rules, they take precedence over the provisions set forth in the Code. Nevertheless, judges serving on "problem solving" courts shall comply with this Code except to the extent local rules provide and permit otherwise.
Part-time Judge
[3] The exceptions for part-time judges from the reporting requirements of Rule 21-315 NMRA do not apply to extrajudicial activities that are related to the judge's judicial duties. The Committee believes reporting is required for activities that are related to the judge's general duties as a judge as well as activities that concern the same subject matter as those addressed by the judge in the course of the judge's judicial duties. For example, if a part-time judge receives payment, reimbursement, or a waiver of fees for presenting at or attending a conference on improving the judiciary, this payment, reimbursement, or waiver is required to be reported under the rules (unless the reimbursement or waiver is provided by a governmental entity or entity funded by state or federal funds in connection with judicial education and training). Likewise, if a part-time judge who handles DWI cases receives payment, reimbursement, or a waiver of fees for presenting at or attending a DWI conference, this payment, reimbursement, or waiver is required to be reported under the rules. But a part-time judge who, for example, is a realtor and sells real estate for compensation, or presents at or attends a real estate conference and receives payment, reimbursement, or a waiver of fees, would not be required to report that payment, reimbursement, or waiver. The Committee notes that although there may be an overlap of subject matter in some circumstances, compensation from the judge's outside employment will not need to be reported in most instances. For example, extrajudicial compensation received from a judge's representation of clients in the course of the judge's law practice is not contemplated by the Committee to be subject to the reporting requirements of the rules.
[4] When a person who has been a part-time judge is no longer a part-time judge, that person may act as a lawyer in a proceeding in which the person has served as a judge or in any other proceeding related thereto only with the informed written consent of all parties and approval of the court, and under any applicable rules of professional conduct.
Hearing Officers and Special Commissioners
[5] Application of the Code to certain types of hearing officers and special commissioners as a condition of employment is required by statute. See NMSA 1978, § 40-4B-4 (child support hearing officers); NMSA 1978, § 40-13-9 (domestic violence special commissioners).
Time for Compliance
[6] If serving as a fiduciary when selected as a judge, a new judge may, notwithstanding the prohibitions in Rule 21-308 NMRA, 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 21-311 NMRA, continue in that activity for a reasonable period, but in no event longer than one year.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012; as amended by Supreme Court Order No. 15-8300-013, effective December 31, 2015; as amended by Supreme Court Order No. 17-8300-021, effective December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-021, effective December 31, 2017, consolidated certain provisions of the rule relating to part-time probate and part-time municipal judges, provided that the exceptions for part-time judges from the reporting requirements of Rule 21-315 NMRA do not apply to extrajudicial activities that are related to the judge's judicial duties, made technical revisions to the rule, and revised the Committee commentary; in Paragraph A, after "provided in", deleted "either a particular rule or this Application provision" and added "this rule or another particular rule"; in Paragraph B, in Subparagraph B(1), after each occurrence of "part-time probate", added "or municipal", in Subparagraph B(1)(a), after "(Practice of law),", added "and", after "business activities)", deleted "21-315 (Reporting requirements)", and after the semicolon, deleted "and", added new Subparagraph B(1)(b) and redesignated former Subparagraph B(1)(b) as Subparagraph B(1)(c), deleted former Subparagraph B(2) and redesignated former Subparagraph B(3) as Subparagraph B(2), in Subparagraph B(2)(a), after "(Practice of law),", added "and", after "business activities)", deleted "21-315 (Reporting requirements)", and after the semicolon, deleted "and", and added new Subparagraph B(2)(b) and redesignated former Subparagraph B(2)(b) as Subparagraph B(2)(d). The 2015 amendment, approved by Supreme Court Order No. 15-8300-013, effective December 31, 2015, completely rewrote the rule; added the Rule Number "21-004" to the Application of the Code of Judicial Conduct; deleted Section I, which provided for the Applicability of the Code of Judicial Conduct; deleted Section II, which provided for judges serving repeatedly on a part-time basis by election under a continuing appointment or by contract; deleted Section III, which provided for judges serving on a periodic part-time basis under a separate appointment or by contract; deleted Section IV, which provided for pro-tempore part-time judges who serve once or only sporadically on a part-time basis under a separate appointment or by contract; deleted Section V, which provided for the time allowed for compliance with the Code of Judicial Conduct; added new Paragraphs A through D; and deleted the former committee commentary and added the new committee commentary.