ELC 2.6 HEARING OFFICER CONDUCT (a) “Hearing Officer” Includes Panel Members. In this rule, the term “hearing officer” includes hearing panel members. (b) Integrity of Hearing Officer System. The integrity and fairness of the disciplinary system requires that hearing officers observe high standards of conduct. To the extent applicable, the Code of Judicial Conduct should guide hearing officers. The following rules have been adapted from Canon 2 and Canon 3 of the Code of Judicial Conduct as particularly applicable to hearing officers, and the words “should” and “shall” have the meanings ascribed to them in those rules. (c) Hearing Officer’s Duty To Avoid Impropriety and the Appearance of Impropriety. Hearing officers should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the disciplinary system. Hearing officers should not allow family, social, or other relationships to influence their conduct or judgment. Hearing officers should not lend the prestige of the hearing officer position to advance the private interests of the hearing officer or others; nor should hearing officers convey or permit others to convey the impression that they are in a special position to influence them. Hearing officers should not be members of any organization practicing discrimination prohibited by law. (d) Conduct of Those on Hearing Officer List. A person on the hearing officer list should not: (1) testify voluntarily as a character witness in a disciplinary proceeding; (2) serve as an expert witness related to the professional conduct of lawyers in any proceeding; or (3) serve as special disciplinary counsel, adjunct investigative counsel, or respondent’s counsel. (e) Performing Duties Impartially and Diligently. When acting as a hearing officer, the following standards apply: (1) Adjudicative Responsibilities. (2) (A)Hearing officers should be faithful to the law and maintain professional competence in it. Hearing officers should be unswayed by partisan interests, public clamor, or fear of criticism. (B)Hearing officers should maintain order and decorum in proceedings before them. (C)Hearing officers should be patient, dignified, and courteous to parties, witnesses, lawyers, and others with whom hearing officers deal in their official capacity, and should require similar conduct of lawyers, and of the staff, and others subject to their direction and control. (D)Hearing officers should accord to every person who is legally interested in a proceeding, or that person’s lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. Hearing officers, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before them, by amicus curiae only, if they afford the parties reasonable opportunity to respond. (E)Hearing officers shall perform their duties without bias or prejudice. (F)Hearing officers should dispose promptly of assigned matters. (G)Hearing officers shall not, while a proceeding is pending or impending, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair hearing. The hearing officer shall require similar abstention on the part of personnel subject to the hearing officer’s direction and control. This section does not prohibit hearing officers from making public statements in the course of their official duties or from explaining for public information the procedures of the discipline system. (2) Administrative Responsibilities. (A) Hearing officers should diligently discharge their administrative responsibilities. (B) Hearing officers should require their staff and others subject to their direction and control to observe the standards of fidelity and diligence that apply to them. (3) Disciplinary Responsibilities. (A) Hearing officers having actual knowledge that another hearing officer has committed a violation of these rules should take appropriate action. Hearing officers having actual knowledge that another hearing officer has committed a violation of these rules that raises a substantial question as to the other hearing officer’s fitness for office should take or initiate appropriate corrective action, which may include informing the appropriate authority. (B) Hearing officers having actual knowledge that a lawyer has committed a violation of the Rules of Professional Conduct or Rules for Enforcement of Lawyer Conduct should take appropriate action. Hearing officers having actual knowledge that a lawyer has committed a violation of the Rules of Professional Conduct or Rules for Enforcement of Lawyer Conduct that raises a substantial question as to the lawyer’s fitness as a lawyer should take or initiate appropriate corrective action, which may include informing the appropriate authority. (4) Disqualification. (A) Hearing officers should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which: (i) the hearing officer has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (ii) the hearing officer previously served as a lawyer or was a material witness in the matter in controversy, or a lawyer with whom the hearing officer previously practiced law served during such association as a lawyer concerning the matter, or such lawyer has been a material witness concerning it; (iii) the hearing officer knows that, individually or as a fiduciary, the hearing officer or the hearing officer’s spouse or member of the hearing officer’s family residing in the hearing officer’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or is an officer, director or trustee of a party or has any other interest that could be substantially affected by the outcome of the proceeding, unless there is a remittal of disqualification; (iv) the hearing officer or the hearing officer's spouse or member of the hearing officer's family residing in the hearing officer's household, or the spouse of such a person: (a) is a party to the proceeding, or an officer, director, or trustee of a party; (b) is acting as a lawyer in the proceeding; (c) is to the hearing officer's knowledge likely to be a material witness in the proceeding. (B) Hearing officers should inform themselves about their personal and fiduciary economic interests, and make a reasonable effort to inform themselves about the personal economic interests of their spouse and minor children residing in their household. (5) Remittal of Disqualification. A hearing officer disqualified by the terms of subsections (e)(4)(A)(iii) or (iv) 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 hearing officer's participation, all agree in writing or on the record that the hearing officer's relationship is immaterial or that the hearing officer's economic interest is de minimis, the hearing officer is no longer disqualified and may participate in the proceeding. When a party is not immediately available, the hearing officer may proceed on the assurance of the lawyer that the party's consent will be subsequently given. [Adopted effective October 1, 2002.]
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