CANON 2
A JUDGE SHOULD PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY.
RULE 2.1
Giving Precedence to the Duties of Judicial 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.
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 approves or disapproves of the law in question.
[3] When applying and interpreting the law, a judge sometimes may make
good-faith errors of fact or law. Errors of this kind do not violate this
Rule.
[4] It is not a violation of this Rule for a judge to make reasonable
accommodations to ensure pro se litigants the opportunity to have their
matters fairly heard.
RULE 2.3
Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including
administrative duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or
conduct manifest bias or prejudice, or engage in harassment, and shall not
permit court staff, court officials, or others subject to the judge's
direction and control to do so.
(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.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or
lawyers from making reference to factors that are relevant to an issue in a proceeding.
COMMENT
[1] A judge who manifests bias or prejudice in a proceeding impairs the
fairness of the proceeding and brings the judiciary into disrepute.
[2] 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; suggestions of connections between race, ethnicity, or
nationality and crime; and irrelevant references to personal
characteristics. Even facial expressions and body language can convey to
parties and lawyers in the proceeding, jurors, the media, and others an
appearance of bias or prejudice. A judge must avoid conduct that may
reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or
physical conduct that denigrates or shows hostility or aversion toward a
person on bases such as race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status,
socioeconomic status, or political affiliation.
[4] 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.
[5] "Bias or prejudice" does not include references to or distinctions
based upon race, color, sex, religion, national origin, disability, age,
marital status, changes in marital status, pregnancy, parenthood, sexual
orientation, or social or economic status when these factors are
legitimately relevant to the advocacy or decision of the proceeding, or,
with regard to administrative matters, when these factors are legitimately
relevant to the issues involved.
RULE 2.4
External Influences on Judicial Conduct
(A) A judge shall not be swayed by 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 convey or authorize others to convey the impression that
any person or organization is in a position to influence the judge.
COMMENT
[1] Judges shall 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.
RULE 2.5
Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties, competently and
diligently.
(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] In accordance with GR 29, a judge should seek the necessary docket
time, court staff, expertise, and resources to discharge all adjudicative
and administrative responsibilities.
[3] Prompt 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 submission, and to take reasonable
measures to ensure that court officials, litigants, and their lawyers
cooperate with the judge to that end.
[4] In disposing of matters promptly and efficiently, 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.*
(B) Consistent with controlling court rules, a judge may encourage parties to
a proceeding and their lawyers to settle matters in dispute but should not
act in a manner that coerces any party into settlement.
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.
[2] The judge plays an important role in overseeing the settlement of
disputes, but should be careful that efforts to further settlement 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 in settlement
discussions 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 the case remains
with the judge after settlement efforts are unsuccessful. Among the
factors that a judge should consider when deciding upon an appropriate
settlement practice for a case are (1) whether the parties have requested
or voluntarily consented to a certain level of participation by the judge
in settlement discussions, (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 settlement discussions, (5) whether any parties are
unrepresented by counsel, and (6) whether the matter is civil or criminal.
[3] Judges must be mindful of the effect settlement 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 settlement
discussions could influence a judge's decision making during trial, and, in
such instances, the judge should consider whether disqualification or
recusal may be appropriate. See RULE 2.11(A)(1).
RULE 2.7
Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when
disqualification or recusal is required by RULE 2.11 or other law.*
COMMENT
[1] Judges must be available to decide the matters that come before the
court. 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 courts. 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 or recusal 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 staff, court officials, and others with whom the
judge deals in an official capacity, and shall require similar conduct of
lawyers, court staff, court officials, 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.
COMMENT
[1] The duty to hear 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 may imply a
judicial expectation in future cases and may impair a juror's ability to be
fair and impartial in a subsequent 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,*
before that judge's court except as follows:
(1) When circumstances require it, ex parte communication for
scheduling, administrative, or emergency purposes, which does not address
substantive matters, or ex parte communication pursuant to a written
policy or rule for a mental health court, drug court, or other
therapeutic court, 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 obtain the written advice of a disinterested expert on the
law applicable to a proceeding before the judge, if the judge affords the
parties a reasonable opportunity to object and respond to the advice received.
(3) A judge may consult with court staff and court officials whose
functions are to aid the judge in carrying out the judge's adjudicative
responsibilities, or with other judges, provided the judge makes
reasonable efforts to avoid receiving factual information that is not
part of the record, and does not abrogate the responsibility personally
to decide the matter.
(4) A judge may, with the consent of the parties, confer separately with
the parties and their lawyers in an effort to settle matters pending
before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication
when expressly 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 and
provide the parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter pending or impending
before that judge, and shall consider only the evidence presented and any
facts that may properly be judicially noticed, unless expressly authorized by law.
(D) A judge shall make reasonable efforts, including providing appropriate
supervision, to ensure that this Rule is not violated by court staff, court
officials, and others subject to the judge's direction and control.
COMMENT
[1] To the extent reasonably possible, all parties or their lawyers shall
be included in communications with a judge.
[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 unrepresented, the
party, who is to be present or to whom notice is to be given.
[3] The proscription against 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] A judge may initiate, permit, or consider ex parte communications
expressly authorized by law, such as when serving on therapeutic or problem-
solving courts, mental health courts, or drug courts. In this capacity,
judges may assume a more interactive role with parties, treatment
providers, probation officers, social workers, and others.
[5] A judge may consult with other judges on pending matters, but must
avoid ex parte discussions of a case with judges who have previously been
disqualified from hearing the matter, and with judges who have appellate
jurisdiction over the matter.
[6] The prohibition against a judge investigating the facts in a matter
extends to information available in all mediums, including electronic.
[7] A judge may consult ethics advisory committees, outside counsel, or
legal experts concerning the judge's compliance with this Code. Such
consultations are not subject to the restrictions of paragraph (A)(2).
RULE 2.10
udicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that would reasonably be
expected to affect the outcome or impair the fairness of a matter pending*
or impending* in any court, or make any nonpublic statement that would
reasonably be expected to substantially interfere with a fair trial or hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that
are likely to come before the court, make pledges, promises, or commitments
that are inconsistent with the impartial* performance of the adjudicative
duties of judicial office.
(C) A judge shall require court staff, court officials, and others subject to
the judge's direction and control to refrain from making statements that
the judge would be prohibited from making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public
statements in the course of official duties, may explain court procedures, and
may comment on any proceeding in which the judge is a litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly
or through a third party to allegations in the media or elsewhere
concerning the judge's conduct in a matter.
COMMENT
[1] This Rule's restrictions on judicial speech are essential to the
maintenance of the independence, integrity, and impartiality of the judiciary.
[2] This Rule does not prohibit a judge from commenting on proceedings in
which the judge is a litigant in a personal capacity. In cases in which the
judge is a litigant in an official capacity, such as a writ of mandamus,
the judge must not comment publicly.
[3] Depending upon the circumstances, the judge should consider whether it
may be preferable for a third party, rather than the judge, to respond or
issue statements in connection with allegations concerning the judge's
conduct in a matter.
[4] A judge should use caution in discussing the rationale for a decision
and limit such discussion to what is already public record or controlling law.
RULE 2.11
Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which 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* 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 in a party to the proceeding.
(4) [Reserved]
(5) The judge, while a judge or a judicial candidate,* has made a public
statement, other than in a court proceeding, judicial decision, or
opinion, that commits the judge to reach a particular result or rule in a
particular way in the proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated
with a lawyer who participated substantially as a lawyer or a material
witness in the matter during such association;
(b) served in governmental employment, and in such capacity participated
personally and substantially as a 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 disqualified by the terms of RULE 2.11(A)(2) or RULE 2.11(A)(3)
may, instead of withdrawing from the proceeding, disclose on the record the
basis of the disqualification. If, based on such disclosure, the parties
and lawyers, independently of the judge's participation, all agree in
writing or on the record that the judge's relationship is immaterial or
that the judge's economic interest is de minimis, the judge is no longer
disqualified, and may participate in the proceeding. When a party is not
immediately available, the judge may proceed on the assurance of the lawyer
that the party's consent will be subsequently given.
(D) A judge may disqualify himself or herself if the judge learns by means of
a timely motion by a party that an adverse party has provided financial
support for any of the judge's judicial election campaigns within the last
six years in an amount that causes the judge to conclude that his or her
impartiality might reasonably be questioned. In making this determination
the judge should consider:
(1) the total amount of financial support provided by the party relative
to the total amount of the financial support for the judge's election,
(2) the timing between the financial support and the pendency of the matter, and
(3) any additional circumstances pertaining to disqualification.
COMMENT
[1] Under this Rule, a judge is disqualified whenever the judge's
impartiality might reasonably be questioned, regardless of whether any of
the specific provisions of paragraphs (A)(1) through (5) apply. In many
jurisdictions in Washington, the term "recusal" is used interchangeably
with the term "disqualification."
[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, the judge's impartiality might reasonably be
questioned under paragraph (A), or the relative is known by the judge to
have an interest in the law firm that could be substantially affected by
the proceeding under paragraph (A)(2)(c), 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] "Economic interest," as set forth in the Terminology section, means
ownership of more than a de minimis legal or equitable interest. Except
for situations in which a judge participates in the management of such a
legal or equitable interest, or the interest could be substantially
affected by the outcome of a proceeding before a judge, it does not include:
(1) an interest in the individual holdings within a mutual or common
investment fund;
(2) an interest in securities held by an educational, religious,
charitable, fraternal, or civic organization in which the judge or the
judge's spouse, domestic partner, parent, or child serves as a director,
officer, advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary
interests the judge may maintain as a member of a mutual savings
association or credit union, or similar proprietary interests; or
(4) an interest in the issuer of government securities held by the judge.
[7] [Reserved]
[8] [Reserved]
RULE 2.12
Supervisory Duties
(A) A judge shall require court staff, court officials, and others subject to
the judge's direction and control to act with fidelity and in a diligent
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 is responsible for his or her own conduct and for the conduct
of others, such as staff, when those persons are acting at the judge's
direction or control. 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 judges
under his or her supervision administer their workloads promptly.
RULE 2.13
Administrative Appointments
(A) In making administrative appointments, a judge:
(1) shall exercise the power of appointment impartially* and on the
basis of merit; and
(2) shall avoid nepotism and unnecessary appointments.
(B) A judge shall not appoint a lawyer to a position under circumstances
where it would be reasonably to be interpreted to be quid pro quo for
campaign contributions or other favors, unless:
(1) the position is substantially uncompensated;
(2) the lawyer has been selected in rotation from a list of qualified
and available lawyers compiled without regard to their having made
political contributions; or
(3) the judge or another presiding or administrative judge
affirmatively finds that no other lawyer is willing, competent, and able
to accept the position.
(C) A judge shall not approve compensation of appointees beyond the fair value
of services rendered.
COMMENT
[1] Appointees of a judge include assigned counsel, officials such as
referees, commissioners, special masters, receivers, and guardians, and
personnel such as clerks, secretaries, and bailiffs. Consent by the parties
to an appointment or an award of compensation does not relieve the judge of
the obligation prescribed by paragraph (A).
[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.
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] "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.
[2] Taking or initiating corrective action by way of referral to an
assistance program may satisfy a judge'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, such as reporting the impaired judge or
lawyer to the appropriate authority, agency, or body. 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, trustworthiness, or fitness as a judge in other respects should
inform the appropriate authority.*
(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, trustworthiness, or fitness as a lawyer in
other respects should inform the appropriate authority.
(C) A judge who receives credible information indicating a substantial
likelihood that another judge has committed a violation of this Code should
take appropriate action.
(D) A judge who receives credible information indicating a substantial
likelihood that a lawyer has committed a violation of the Rules of
Professional Conduct should take appropriate action.
COMMENT
[1] Judges are not required to report the misconduct of other judges or
lawyers. Self regulation of the legal and judicial professions, however,
creates an aspiration that judicial officers report misconduct to the
appropriate disciplinary authority when they know of a serious violation of
the Code of Judicial Conduct or the Rules of Professional Conduct. An
apparently isolated violation may indicate a pattern of misconduct that
only a disciplinary violation can uncover. Reporting a violation is
especially important where the victim is unlikely to discover the offense.
[2] While judges are not obliged to report every violation of the Code of
Judicial Conduct or the Rules of Professional Conduct, the failure to
report may undermine the public confidence in legal profession and the
judiciary. A measure of judgment is, therefore, required in deciding
whether to report a violation. The term "substantial" refers to the
seriousness of the possible offense and not the quantum of evidence of
which the judge is aware. A report should be made when a judge or lawyer's
conduct raises a serious question as to the honesty, trustworthiness or
fitness as a judge or lawyer.
[3] Appropriate action under sections (C) and (D) may include
communicating directly with the judge or lawyer who may have violated the
Code of Judicial Conduct or the Rules of Professional Conduct,
communicating with a supervising judge or reporting the suspected violation
to the appropriate authority or other authority or other agency or body.
[4] Information about a judge's or lawyer's conduct may be received by a
judge in the course of that judge's participation in an approved lawyers or
judges assistance program. In that circumstance there is no requirement or
aspiration of reporting (APR 19(b) and DRJ 14(e)).
RULE 2.16
Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer
disciplinary agencies.
(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 of judicial and lawyer
disciplinary agencies, as required in paragraph (A), instills confidence in
judges' commitment to the integrity of the judicial system and the
protection of the public.
[Adopted September 9, 2010; effective January 1, 2011]
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