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CANON 2

A JUDGE SHALL PERFORMTHE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,* COMPETENTLY, AND DILIGENTLY.

RULE 2.1

Giving Precedence tothe Duties of Judicial Office

The duties ofjudicial office, as prescribed by law,* shall take precedence over all of ajudge?s personal and extrajudicial activities.

COMMENT

[1] To ensure thatjudges are available to fulfill their judicial duties, judges must conducttheir personal and extrajudicial activities to minimize the risk of conflictsthat would result in frequent disqualification. See Canon 3.

[2] Although it isnot a duty of judicial office unless prescribed by law, judges are encouragedto participate in activities that promote public understanding of andconfidence 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] 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.

[2] When applying and interpreting the law, a judge may make good-faith errors of fact or law. Errors of this kind do not violate this Rule. A judge can be disciplined for legal error only if a ruling was made contrary to clear and established law about which there is no confusion or reasonable question as to its interpretation, and the judge intentionally disregarded the law or the judge?s ruling resulted from animus toward a party or counsel.

[3] 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, Harassment*, and Abusive Conduct*

(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, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, 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 take reasonable measures to require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

(E) A judge shall not engage in abusive conduct*.

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; 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] Examples of sexual harassment include but are 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 Influenceson Judicial Conduct

(A) A judge shall notbe swayed by public clamor or fear of criticism.

(B) A judge shall notpermit family, social, political, financial, or other interests orrelationships to influence the judge?s judicial conduct or judgment.

(C) A judge shall notconvey or permit others to convey the impression that any person ororganization is in a position to influence the judge.

COMMENT

[1] An independentjudiciary requires that judges decide cases according to the law and facts,without regard to whether particular laws or litigants are popular or unpopularwith the public, the media, government officials, or the judge?s friends orfamily. Confidence in the judiciary is eroded if judicial decision making isperceived to be subject to inappropriate outside influences.

RULE 2.5

Competence,Diligence, and Cooperation

(A) A judge shallcompetently and diligently perform judicial and administrative duties.

(B) A judge shallcooperate with other judges and court officials in the administration of courtbusiness.

COMMENT

[1] Competence in theperformance of judicial duties requires the legal knowledge, skill,thoroughness, and preparation reasonably necessary to perform a judge?sresponsibilities of judicial office.

[2] A judge shouldseek the necessary docket time, court staff, expertise, and resources todischarge all judicial and administrative responsibilities.

[3] Competent anddiligent disposition of the court?s business requires a judge to devoteadequate time to judicial duties, to be punctual in attending court andexpeditious in determining matters under submission, and to take reasonablemeasures to ensure that court officials, litigants, and their lawyers cooperatewith the judge to that end.

[4] In competentlyand diligently performing judicial and administrative duties, a judge mustdemonstrate due regard for the rights of parties to be heard and to have issuesresolved without unnecessary cost or delay. A judge should monitor andsupervise cases in ways that reduce or eliminate dilatory practices, avoidabledelays, and unnecessary costs.

RULE 2.6

Ensuring the Right toBe Heard

(A) A judge shallaccord to every person who has a legal interest in a proceeding, or thatperson?s lawyer, the right to be heard according to law.*

(B) A judge mayencourage parties to a proceeding and their lawyers to settle matters indispute but shall not act in a manner that coerces any party into settlement.

COMMENT

[1] The right to beheard is an essential component of a fair and impartial system of justice.Substantive rights of litigants can be protected only if procedures protectingthe right to be heard are observed.

[2] If a judgeparticipates in the settlement of disputes, the judge should be careful thatefforts to further settlement do not undermine any party?s right to be heard accordingto law. The judge should keep in mind the effect that the judge?s participationin settlement discussions may have, not only on the judge?s own views of thecase, but also on the perceptions of the lawyers and the parties if the caseremains with the judge after settlement efforts are unsuccessful. Among thefactors that a judge may consider when deciding upon an appropriate settlementpractice for a case are (1) whether the parties have requested or voluntarilyconsented to a certain level of participation by the judge in settlementdiscussions, (2) whether the parties and their counsel are relativelysophisticated in legal matters, (3) whether the case will be tried by the judgeor a jury, (4) whether the parties participate with their counsel in settlementdiscussions, (5) whether any parties are unrepresented by counsel, and (6)whether the matter is civil or criminal.

[3] Judges must bemindful of the effect settlement discussions can have, not only on theirobjectivity and impartiality, but also on the appearance of their objectivityand impartiality. Despite a judge?s best efforts, there may be instances wheninformation obtained during settlement discussions could influence a judge?sdecision making during trial, and, in such instances, the judge should considerwhether disqualification may be appropriate. See Rule 2.11(A)(1).

RULE 2.7

Responsibility toDecide

A judge shall hearand decide matters assigned to the judge, except when disqualification isrequired or permitted.

COMMENT

[1] Judges must beavailable to decide the matters that come before the court. Although there aretimes when disqualification is necessary to protect the rights of litigants andpreserve public confidence in the independence, integrity, and impartiality ofthe judiciary, judges must be available to decide matters that come before thecourts. A judge should not use disqualification to avoid cases that presentdifficult, controversial, or unpopular issues.

RULE 2.8

Decorum, Demeanor,and Communication with Jurors

(A) A judge shalltake reasonable measures to require order and decorum in proceedings before thecourt.

(B) A judge shall bepatient, dignified, and courteous to litigants, jurors, witnesses, lawyers,court staff, court officials, and others with whom the judge deals in anofficial capacity, and shall take reasonable measures to require similarconduct of lawyers, court staff, court officials, and others subject to thejudge?s direction and control.

(C) A judge shall notcommend or criticize jurors for their verdict other than in a court order oropinion in a proceeding.

COMMENT

[1] The duty to hearall proceedings with patience and courtesy is consistent with the duty imposedin Rule 2.5 to dispose competently and diligently of the business of the court.Judges can be efficient and businesslike while being patient and deliberate.

[2] Commending orcriticizing jurors for their verdict may imply a judicial expectation in futurecases and may impair a juror?s ability to be fair and impartial in a subsequentcase.

[3] A judge who isnot otherwise prohibited by law from doing so may meet with jurors who chooseto remain after trial but should be careful not to discuss the merits of thecase.

RULE 2.9

Ex ParteCommunications

(A) A judge shall notinitiate, permit, or consider ex parte communications, or consider othercommunications made to the judge outside the presence of the parties or theirlawyers, concerning a pending* or impending matter,* except as follows:

(1) Whencircumstances require it, ex parte communication for scheduling,administrative, or emergency purposes, which does not address substantivematters, is permitted, provided:

(a) the judgereasonably believes that no party will gain a procedural, substantive, ortactical advantage as a result of the ex parte communication; and

(b) the judge makesprovision promptly to notify all other parties of the substance of the ex partecommunication and gives the parties an opportunity to respond.

(2) A judge mayobtain the written advice of a disinterested expert on the law* applicable to aproceeding before the judge, if the judge gives advance notice to the partiesof the person to be consulted and the subject matter of the advice to besolicited and affords the parties a reasonable opportunity to object and respondto the notice and to the advice received.

(3) A judge mayconsult with court staff and court officials whose functions are to aid thejudge in carrying out the judge?s adjudicative responsibilities, or with other judges,provided the judge makes reasonable efforts to avoid receiving factualinformation that is not part of the record and does not abrogate theresponsibility to personally decide the matter.

(4) A judge may, withthe consent of the parties, confer separately with the parties and theirlawyers in an effort to settle matters pending before the judge.

(5) A judge mayinitiate, permit, or consider any ex parte communication when expresslyauthorized by law to do so.

(B) If a judgeinadvertently receives an unauthorized ex parte communication bearing upon thesubstance of a matter, the judge shall make provision promptly to notify theparties of the substance of the communication and provide the parties with anopportunity to respond.

(C) A judge shall notinvestigate facts in a matter independently, and shall consider only theevidence presented and any facts that may properly be judicially noticed.

(D) A judge shallmake reasonable efforts to ensure that the judge does not receive inappropriateex parte communications through or from court staff, court officials, andothers subject to the judge?s direction and control.

COMMENT

[1] To the extentreasonably possible, all parties or their lawyers shall be included incommunications with a judge.

[2] Whenever thepresence of a party or notice to a party is required by this Rule, it is theparty?s lawyer, or if the party is unrepresented, the party, who is to bepresent or to whom notice is to be given.

[3] The proscriptionagainst communications concerning a proceeding includes communications withlawyers, law teachers, and other persons who are not participants in theproceeding, except to the limited extent permitted by this Rule.

[4] A judge mayinitiate, permit, or consider ex parte communications expressly authorized bylaw, such as when serving on therapeutic or problem-solving courts, mentalhealth courts, or drug courts. In this capacity, judges may assume a moreinteractive role with parties, treatment providers, probation officers, socialworkers, and others.

[5] A judge mayconsult with other judges on pending matters, but must avoid ex partediscussions of a case with judges who have previously been disqualified fromhearing the matter, and with judges who have appellate jurisdiction over thematter.

[6] The prohibitionagainst a judge investigating the facts in a matter extends to informationavailable in all mediums, including electronic.

[7] A judge mayconsult ethics advisory committees, outside counsel, or legal expertsconcerning the judge?s compliance with this Code. Such consultations are notsubject to the restrictions of paragraph (A)(2).

RULE 2.10

Judicial Statementson Pending* and Impending* Cases

(A) A judge shall notmake any public statement that might reasonably be expected to affect the outcomeor impair the fairness of a matter pending or impending in any court, or makeany nonpublic statement that might substantially interfere with a fair trial orhearing.

(B) A judge shallnot, in connection with cases, controversies, or issues that are likely to comebefore the court, make pledges, promises, or commitments that are inconsistentwith the impartial* performance of the adjudicative duties of judicial office.

(C) A judge shalltake reasonable measures to require court staff, court officials, and otherssubject to the judge?s direction and control to refrain from making statementsthat the judge would be prohibited from making by paragraphs (A) and (B).

(D) Notwithstandingthe restrictions in paragraph (A), a judge may make public statements in thecourse of official duties, may explain court procedures, and may comment on anyproceeding in which the judge is a litigant in a personal capacity.

(E) Subject to therequirements of paragraph (A), a judge may respond directly or through a thirdparty to allegations in the media or elsewhere concerning the judge?s conductin a matter.

COMMENT

[1] This Rule?srestrictions on judicial speech are essential to the maintenance of theindependence, integrity, and impartiality of the judiciary.

[2] This Rule doesnot prohibit a judge from commenting on proceedings in which the judge is alitigant in a personal capacity. In cases in which the judge is a litigant inan official capacity, such as a writ of mandamus, the judge must not commentpublicly.

[3] Depending uponthe circumstances, the judge should consider whether it may be preferable for athird party, rather than the judge, to respond or issue statements inconnection with allegations concerning the judge?s conduct in a matter.

RULE 2.11

Disqualification

(A) A judge shall disqualify himself or herselfin any proceeding in which the judge?s impartiality* might reasonably bequestioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudiceconcerning a party or a party?s lawyer, or personal knowledge* of facts thatare in dispute in the proceeding.

(2) The judge knows* that the judge, the judge?sspouse or domestic partner,* or a person within the third degree ofrelationship* to either of them, or the spouse or domestic partner of such aperson is:

(a) a party to theproceeding, or an officer, director, general partner, managing member, ortrustee of a party;

(b) acting as a lawyerin the proceeding;

(c) a supervisor of, oris supervised by, a lawyer in the proceeding;

(d) a person who hasmore than a de minimis* interest that could be substantiallyaffected by the proceeding; or

(e) likely to be amaterial witness in the proceeding.

(3) The judge knows that he or she, individuallyor 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 tothe proceeding.

(4) The judge knows or learns by means of atimely motion that a party, a party?s lawyer, or the law firm of a party?slawyer has within the previous three years made aggregate* contributions* tothe judge?s retention in an amount that is greater than $50 .

(5) The judge, while a judge or a judicialcandidate,* has made a public statement, other than in a court proceeding,judicial decision, or opinion, that commits or appears to commit the judge toreach a particular result or rule in a particular way in the proceeding orcontroversy.

(6) The judge:

(a) served as a lawyerin the matter in controversy, or was associated with a lawyer who participatedsubstantially as a lawyer in the matter during such association;

(b) served ingovernmental employment, and in such capacity participated personally andsubstantially as a lawyer or public official concerning the proceeding, or haspublicly expressed in such capacity an opinion concerning the merits of theparticular matter in controversy;

(c) was a materialwitness concerning the matter; or

(d) previously presidedas a judge over the matter in another court and is now acting as a judge whowould hear the appeal or trial de novo.

(B) A judge shall keep informed about thejudge?s personal and fiduciary economic interests, and make a reasonable effortto keep informed about the personal economic interests of the judge?s spouse ordomestic partner and minor children residing in the judge?s household.

(C) The disqualification requirement undersubparagraph (A)(2)(C) is eliminated if the entity that employs the judge?sfamily member removes the lawyer from the family member?s line of supervision,even if the judge?s family member supervises or is supervised by otheremployees in the department or division to which the lawyer is assigned. Thejudge should make publicly available, such as by posting on a court website,the actions taken by the entity that employs the judge?s family member toeliminate the conflict.

(D) A trial court judge subject todisqualification under this Rule, other than for bias or prejudice underparagraph (A)(1), may disclose on the record the basis of the judge?sdisqualification and may ask the parties and their lawyers to consider, outsidethe presence of the judge and court personnel, whether to waivedisqualification. If, following the disclosure, the parties and lawyers agree,without participation by the judge or court personnel, that the judge shouldnot be disqualified, the judge may participate in the proceeding. The agreementshall be incorporated into the record of the proceeding.

(E) An appellate court judge or justice subjectto disqualification under this Rule, other than for bias or prejudice underparagraph (A)(1), may send notice to the parties disclosing the basis for thejudge or justice?s disqualification and asking them to consider whether towaive disqualification. With respect to paragraphs (A)(2)or (A)(3), the judge or justice may participate in the decision of the case ifall parties, other than the party presumably benefitted by the apparent biasconstituting the disqualifying circumstance, waive the disqualification. Withrespect to paragraphs (A)(4) through (A)(6), the judgeor justice may participate in the decision of the case if all parties waive thedisqualification. The responses to a notice of a disqualifying circumstanceshall be included in the appellate file pertaining to the proceeding.

COMMENT

[1] Under this Rule, a judge is disqualified whenever the judge?simpartiality might reasonably be questioned, regardless of whether any of thespecific provisions of paragraphs (A)(1) through (6)apply.

[2] A judge?s obligation not to hear or decide matters in whichdisqualification is required applies regardless of whether a motion todisqualify is filed.

[3] The rule of necessity may override the rule ofdisqualification. For example, a judge might be required to participate injudicial review of a judicial salary statute, or might be the only judgeavailable in a matter requiring immediate judicial action, such as a hearing onprobable cause or a temporary restraining order. In matters that requireimmediate action, the judge must disclose on the record the basis for possibledisqualification and make reasonable efforts to transfer the matter to anotherjudge as soon as practicable.

[4] A judge is disqualified in proceedings involving a law firmthat employs the judge?s spouse, domestic partner, parent, or child, or anyother member of the judge?s family residing in the judge?s household as anequity holder in the law firm. A judge is not disqualified in other situationsunless the judge?s impartiality might reasonably be questioned under paragraph(A), or a relative is known by the judge to have an interest in the law firmthat could be substantially affected by the proceeding under paragraph (A)(2)(d).

[5] A judge should disclose on the record information that thejudge believes the parties or their lawyers might reasonably consider relevantto a possible motion for disqualification, even if the judge believes there isno basis for disqualification.

RULE 2.12

Supervisory Duties

(A) A judge shall take reasonable measures to require court staff, court officials, and others subject to the judge?s direction and control to act in a manner consistent with the judge?s fulfillment of his or her obligations under this Code.

(B) A judge shall not engage in abusive conduct.*

(C) 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 timely 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 judges under his or her supervision timely administer their workloads

RULE 2.13

AdministrativeAppointments

(A) In makingadministrative appointments, a judge:

(1) shall exercisethe power of appointment impartially* and on the basis of merit; and

(2) shall avoid nepotism,favoritism, and unnecessary appointments.

(B) A judge shall notappoint a lawyer to a position if the judge either knows* that the lawyer, orthe lawyer?s spouse or domestic partner,* has contributed more than $50 withinthe prior 3 years to the judge?s retention campaign, or learns of such acontribution* by means of a timely motion by a party or other person properlyinterested in the matter, unless:

(1) the position issubstantially uncompensated;

(2) the lawyer hasbeen selected in rotation from a list of qualified and available lawyerscompiled without regard to their having made contributions; or

(3) the judge oranother presiding or administrative judge affirmatively finds that no otherlawyer is willing, competent, and able to accept the position.

(C) A judge shall notapprove compensation of appointees beyond the fair value of services rendered.

COMMENT

[1] Appointees of ajudge include assigned counsel, officials such as referees, commissioners,special masters, receivers, and guardians. Consent by the parties to anappointment or an award of compensation does not relieve the judge of theobligation prescribed by paragraph (A).

[2] Unless otherwisedefined by law, nepotism is the appointment or hiring of any relative withinthe third degree of relationship of either the judge or the judge?s spouse ordomestic partner, or the spouse or domestic partner of such relative.

[3] The rule againstmaking administrative appointments of lawyers who have contributed in excess ofa specified dollar amount to a judge?s retention campaign includes an exceptionfor positions that are substantially uncompensated, such as those for which thelawyer?s compensation is limited to reimbursement for out-of-pocket expenses.

RULE 2.14

Impairment

A judge having areasonable belief that the performance of a lawyer or another judge is impairedby drugs or alcohol, or by a mental, emotional, or physical condition, shalltake appropriate action, which may include a confidential referral to a lawyeror judicial assistance program.

COMMENT

[1] ?Appropriateaction? means action intended and reasonably likely to help the judge or lawyerin question address the problem and prevent harm to the justice system.Depending upon the circumstances, appropriate action may include but is notlimited to speaking directly to the impaired person, notifying an individualwith supervisory responsibility over the impaired person, or making a referralto an assistance program.

[2] Taking orinitiating corrective action by way of referral to an assistance program maysatisfy a judge?s responsibility under this Rule. Assistance programs have manyapproaches for offering help to impaired judges and lawyers, such asintervention, counseling, or referral to appropriate health care professionals.Depending upon the gravity of the conduct that has come to the judge?sattention, however, the judge may be required to take other action, such asreporting the impaired judge or lawyer to the appropriate authority, agency, orbody. See Rule 2.15.

RULE 2.15

Responding toJudicial and Lawyer Misconduct

(A) A judge havingknowledge* that another judge has committed a violation of this Code thatraises a substantial question regarding the judge?s honesty, trustworthiness,or fitness as a judge in other respects shall inform the appropriateauthority.*

(B) A judge havingknowledge that a lawyer has committed a violation of the Rules of ProfessionalConduct that raises a substantial question regarding the lawyer?s honesty,trustworthiness, or fitness as a lawyer in other respects shall inform theappropriate authority.

(C) A judge whoreceives information indicating a substantial likelihood that another judge hascommitted a violation of this Code should take appropriate action.

(D) A judge whoreceives information indicating a substantial likelihood that a lawyer hascommitted a violation of the Rules of Professional Conduct should takeappropriate action.

COMMENT

[1] A judge has anobligation to address a known violation by a judge or a lawyer of the Code orthe Utah Rules of Professional Conduct . Paragraphs (A) and (B) impose anobligation on the judge to report to the appropriate disciplinary authority theknown misconduct of another judge or a lawyer that raises a substantial questionregarding the honesty, trustworthiness, or fitness of that judge or lawyer.Ignoring or denying known misconduct among one?s judicial colleagues or membersof the legal profession undermines a judge?s responsibility to participate inefforts to ensure public respect for the justice system. This Rule limits thereporting obligation to those offenses that an independent judiciary mustvigorously endeavor to prevent.

[2] A judge who doesnot have actual knowledge that another judge or a lawyer may have violated theCode or the Utah Rules of Professional Conduct, but receives informationindicating a substantial likelihood of such misconduct, should take appropriateaction under paragraphs (C) and (D). Appropriate action may include, but is notlimited to, communicating directly with the judge who may have violated thisCode or reporting the suspected violation to the appropriate authority or otheragency or body. Similarly, actions to be taken in response to informationindicating that a lawyer has committed a violation of the Rules of ProfessionalConduct may include but are not limited to communicating directly with thelawyer who may have committed the violation or reporting the suspectedviolation to the appropriate authority or other agency or body.

RULE 2.16

Cooperation withDisciplinary Authorities

(A) A judge shallcooperate and be candid and honest with judicial and lawyer disciplinaryagencies.

(B) A judge shall notretaliate, directly or indirectly, against a person known* or suspected to haveassisted or cooperated with an investigation of a judge or a lawyer.

COMMENT

[1] Cooperation withinvestigations and proceedings of judicial and lawyer discipline agencies, asrequired in paragraph (A), instills confidence in judges? commitment to the integrityof the judicial system and the protection of the public.