Last reviewed and edited September 24, 2024

Last reviewed and edited September 24, 2024

Includes amendments effective September 23, 2024

MAINE CODE OF JUDICIAL CONDUCT

Introductory Note

The Maine Code of Judicial Conduct is promulgated by the Supreme

Judicial Court following its second comprehensive review since the Court

originally adopted the Code of Judicial Conduct in 1974. The original Code

was based on the American Bar Association’s (ABA) 1972 Code of Judicial

Conduct, with adjustments to accommodate Maine practice. In 1990, the

ABA adopted the Model Code of Judicial Conduct. In 1991, the Court initiated

its first comprehensive review of the Maine Code of Judicial Conduct. After

that review, a revision of the Maine Code of Judicial Conduct was adopted in

1993. Since 1993 the Court has, on a few occasions, adopted amendments

to the Code, particularly to clarify financial reporting requirements,

recognize judges’ capacity to enable settlement discussions, and support fair

participation in judicial processes by unrepresented individuals, but the

Code remains largely as adopted in 1993.

In 2007 the ABA revised its Model Code of Judicial Conduct. In late

2010, at the suggestion of the Committee on Judicial Responsibility and

Disability (the Committee), the Court initiated a second comprehensive

review of the rules and practices relevant to judicial ethics issues. Initially

the Committee had proposed that most of the changes in the judicial ethics

rules recommended in the 2007 ABA revision be incorporated into the

Maine Code of Judicial Conduct. In 2011, the Court published the

Committee’s recommendations for public comment. After receiving

comments, and upon further review, the Court determined that the proposed

amendments to the 1993 Maine Code recommended by the Committee were

so substantial that the Court should, instead, develop a draft that follows the

organization of the ABA recommended Model Code, with appropriate

adjustments for Maine practice. Adoption of the ABA Model Code’s

suggested numbering and organization for the rules governing judicial ethics

will simplify research and comparison with judicial ethics practice in other

jurisdictions.

In 2012, the Court produced a draft of the Maine Code of Judicial

Conduct that tracked the organization and numbering of the 2007 ABA

Model Code, updated by the ABA with a 2011 edition. The Court’s original

revision was not supported by comments or advisory notes. However,

considering the relatively brief and very general nature of the Canons and

Rules based on the ABA Model Code, it was evident that, as with the 1993

revision of the Maine Code of Judicial Conduct, detailed Advisory Notes are

necessary.

The Advisory Notes associated with the individual Canons and Rules

that follow are drafted to support application of the Canons and Rules and to

recognize aspects of Maine practice that differ from national models. They

are intended to provide guidance to judges, the Committee, the bar, and the

public for application of the Code to the nuanced factual and legal issues that

regularly arise as the Canons and the Rules are applied to specific situations

in the sometimes difficult and emotionally charged court proceedings from

which ethics issues tend to arise—usually involving highly ethical judges

trying to do their best. The Canons, Rules and supporting Advisory Notes

must also be read and applied in a context that recognizes that not every

error that a judge may make constitutes an ethical violation. One recent

national review of judicial ethics issues, comparing appellate review and

ethics review, has recognized a “general principle” that

when judges make honest mistakes, the appropriate remedy is

appeal, not discipline. To reverse judges for honest mistakes is

salutary; to punish judges for honest mistakes threatens their

decisional independence. Although state judges have an ethical

duty to “uphold and apply the law,” errors are subject to reversal,

not discipline, unless the errors are so egregious or chronic as to

manifest bad faith or incompetence.

Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 Fla. L. Rev.

493, 526-27 (April 2013).

The Preamble to this Code, in language very similar to that appearing

in the Preamble and Scope section on the ABA Model Code,1 states:

Although the black letter of the Rule is binding and enforceable

when using terms such as “shall” or “must”, it is not contemplated

that every transgression will result in the imposition of discipline.

Whether discipline is warranted should be determined through a

reasonable and reasoned application of the Rules, with

consideration of the seriousness of the transgression, the extent of

any pattern of improper activity, any previous violations, and the

effect of the improper activity upon the judicial system or others.

1 See ABA Model Code of Judicial Conduct (2011 ed.), Scope, ¶ 6.

2

Maine practice has some special attributes that are important to

respect in drafting and applying a Code of Judicial Conduct. Pursuant to the

Maine Constitution, judges in the State Judiciary are appointed by the

Governor for seven-year terms, subject to confirmation by the Legislature.2

Every recent Governor of the State of Maine has made judicial appointments

based on recommendations, after careful review of qualifications, by a

committee of experienced attorneys and members of the public. Those

recommended to the Governor for appointment have tended to be applicants

for appointment viewed by the committee as most qualified for judicial

service, often without regard to partisan or political considerations.

Governors have usually followed their committees’ recommendations in

making appointments. The combination of the qualifications- and integrityfocused judicial selection process and the significant accountability fostered

by the seven-year terms has produced a judiciary that is generally well

qualified and sensitive to issues of ethics, skill, and temperament that are

important for fostering public respect for the judiciary.

Maine practice also differs from that of some other states in valuing

close and regular professional contacts between the bench and the bar and

in fostering involvement of judges with lawyers and nonlawyers in the larger

community where judges live and work. The value of the regular

professional contacts that characterize bench-bar relations in Maine was

recognized by Judge William J. Kayatta of the United States Court of Appeals

for the First Circuit at a 2014 investiture ceremony for a new Bankruptcy

Judge.3 There Judge Kayatta observed:

Now, some of you may have been to investitures before, I’ve been

to a few, and I will tell you that in the larger metropolitan areas of

this country, these investitures are somewhat like a coming out

party. Notables and observers gather to take their first look, in

some cases, at this new person who they may not know very [well]

who is going to now be wielding federal judicial power in their area.

In Maine, though, it’s so different. We generally come to know one

another in our communities and our professional lives, and so it’s

Maine’s Probate Judges are elected in each county for four-year terms. Probate Judges are

subject to the Maine Code of Judicial Conduct, which includes, for Probate Judges and judicial

election candidates, special accommodations to recognize their election processes.

2

Investiture Ceremony for Bankruptcy Judge Peter G. Cary, United States Bankruptcy Court,

Portland, Maine, May 9, 2014 (Tr. 4).

3

3

not a coming out party. In some ways, it’s more of a celebration.

Our familiarity with each other means that our new Bankruptcy

Judge . . . has been carried to his new position by a well-earned

reputation upon which we can ground our expectations for future

success. I suspect that this also accounts for the smiles I see in this

courtroom here today. His reputation precedes him widely.4

The close professional relations of the bench and the bar, and the

resulting importance of reputation, foster maintenance of high ethical

standards by both, supported by a prevailing assumption that judges and

lawyers know each other and their reputations, and that how they act and

what they say in a proceeding today can affect both that proceeding and a

matter that may be of importance five or ten or more years in the future.

As the Law Court has recognized, “the legal and judicial communities

are small and lawyers and judges necessarily know one another and enjoy

cordial professional relationships.” Samsara Mem’l Trust v. Kelly, Remmel &

Zimmerman, 2014 ME 107, ¶ 24, 102 A.3d 757. Rejecting a claim that a judge

erred by not recusing or disclosing a professional relationship with an

individual who was of counsel to a law firm-litigant and had previously

served with the judge on the bench for eighteen years, the Law Court

observed:

It is unavoidable, and indeed desirable, that judges who serve on

the bench together will necessarily develop close professional

relationships. We do not expect that such cordial relationships will

end if a judge leaves the bench and returns to the practice of law.

We are cognizant that the party status of the law firm in this

instance makes this case somewhat different from those where a

former colleague is simply an advocate for a party before the court.

However, it remains a “fact of litigation in small Maine communities

that a judge, or members of his or her family, may know of a party,

or a witness, or someone related to a party or a witness, or may

even have done business with somebody whose name may come

up in a case.”

Id. ¶ 35 (quoting Charette v. Charette, 2013 ME 4, ¶ 24, 60 A.3d 1264).

Bankruptcy Judge Peter G. Cary began his professional career as a law clerk serving several

Justices of the Maine Superior Court. He then joined a law firm that maintained a statewide

practice in many areas of the law and became well known to the bench and the bar through court

appearances and participation in bar events and other professional development activities.

4

4

This revised Maine Code of Judicial Conduct and its Advisory Notes

recognize and respect these special attributes of Maine practice.

The Code of Judicial Conduct reaffirms the commitment of the Maine

Judiciary to the highest standards of ethical conduct and assures the public

that Maine judges are subject to specific and nationally recognized standards

of conduct and are accountable for compliance with those standards.

The Preamble and each Canon and Rule in the republished Code are

supported by Advisory Notes providing interpretive guidance for each Rule

and indicating the provision of the 1993 Maine Code to which the Canon or

Rule is most closely related. The Advisory Notes also address Maine

variations from the 2011 edition of the ABA Model Code of Judicial Conduct

and refer, when appropriate, to relevant precedent addressing judicial ethics

issues. Reviewers should also recognize that many Rules, following the ABA

numbering system, have provisions that are sometimes similar or repetitive

in effect.5 Thus, portions of Advisory Notes to one Rule may have application

to another Rule that addresses a similar issue.

The guidance in the Advisory Notes is supplemented by citations to

relevant Comments to the Rules in the 2011 edition of the ABA Model Code

or the Advisory Committee’s Notes supporting the 1993 Maine Code of

Judicial Conduct. Some interpretive guidance may also be found in the

Comments to the individual Rules in the ABA Model Code, when the Model

Code Rule at issue is the same or substantially similar to the wording of the

Maine version of that Rule.

In accordance with past practice, the Advisory Notes, like the 1993

Advisory Committee’s Notes, “will be considered as contemporaneous

manifestations of intent that may serve as authoritative aids to

interpretation.” Maine Code of Judicial Conduct, Introductory Advisory

Committee’s Notes, at 22 (West 1993) (citing 1 Field, McKusick & Wroth,

Maine Civil Practice § 1.4 (2d ed. 1970)). As the ABA Model Code notes, its

Comments “provide guidance regarding the purpose, meaning, and proper

application of the Rules.”6

See, for example, Rule 1.1, addressing a duty to comply with the law, and Rule 2.2, addressing

a duty to uphold and apply the law; or Rules 2.2 and 2.11, addressing judicial impartiality; or

Rules 2.11 and 3.11, addressing impartiality in relation to personal finance, family, and prior

professional relationships; or Rules 3.1, 3.7, and 3.12, addressing extrajudicial activities; or Rules

2.3 and 3.6, addressing certain bias and discrimination issues.

5

6 ABA Model Code of Judicial Conduct (2011 ed.), Scope, ¶ 3.

5

This revised Code, like its predecessors, is adopted pursuant to the

inherent authority of the Supreme Judicial Court to prescribe rules

governing the conduct of the judges of all courts that constitute the Maine

Judiciary. See 4 M.R.S. §§ 1, 7, 9-B (2014); In re Dunleavy, 2003 ME 124,

¶¶ 8-10, 838 A.2d 338; In re Cox, 658 A.2d 1056, 1057 (Me. 1995); In re

Benoit, 487 A.2d 1158, 1170-71 (Me. 1985).

This Code has been adopted by the Court after consideration of

comments and suggestions from members of the bench, bar, and public.

Issues concerning Probate Court judges’ part-time status, particularly their

representation of clients in probate court matters, generated substantial

negative comments. That issue, however, is a matter that can only be

addressed by legislative action.

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MAINE CODE OF JUDICIAL CONDUCT

TABLE OF CONTENTS

INTRODUCTORY NOTE

TABLE OF CONTENTS

COVERAGE AND EFFECTIVE DATE

PREAMBLE

TERMINOLOGY

CANON 1

A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND

IMPARTIALITY OF THE JUDICIARY; SHALL AVOID IMPROPRIETY; AND SHOULD

AVOID THE APPEARANCE OF IMPROPRIETY.

RULE 1.1

RULE 1.2

RULE 1.3

Compliance with the Law

Promotion of Confidence in the Judiciary

Avoiding Abuse of the Prestige of Judicial Office

CANON 2

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,

COMPETENTLY, AND DILIGENTLY.

RULE 2.1

RULE 2.2

RULE 2.3

RULE 2.4

RULE 2.5

RULE 2.6

RULE 2.7

RULE 2.8

RULE 2.9

RULE 2.10

RULE 2.11

RULE 2.12

RULE 2.13

RULE 2.14

RULE 2.15

RULE 2.16

Giving Precedence to the Duties of Judicial Office

Impartiality and Fairness; Upholding the Law

Bias, Prejudice, and Harassment

External Influences on Judicial Conduct

Competence, Diligence, and Cooperation

Ensuring the Right to Be Heard

Responsibility to Decide

Decorum, Demeanor, and Communication with Jurors

Ex Parte Communications

Judicial Statements on Pending and Impending Cases

Disqualification or Recusal

Supervisory Duties

Administrative Appointments

Disability and Impairment

Disciplinary Responsibilities

A Judge Shall Comply with Disciplinary Authorities

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CANON 3

A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL

ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF

JUDICIAL OFFICE.

RULE 3.1

RULE 3.2

RULE 3.3

RULE 3.4

RULE 3.5

RULE 3.6

RULE 3.7

RULE 3.8

RULE 3.9

RULE 3.10

RULE 3.11

RULE 3.12

RULE 3.13

RULE 3.14

Extrajudicial Activities in General

Governmental, Civic, or Charitable Activities

Testifying as a Character Witness

Appointments to Governmental Positions

Use of Nonpublic Information

Affiliation with Discriminatory Organizations

Participation in Educational, Religious, Charitable, Fraternal, or Civic

Organizations and Activities

Fiduciary Activities

Service as Arbitrator or Mediator

Practice of Law

Financial Activities

Compensation for Extrajudicial Activities

Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other

Things of Value

Reimbursement of Expenses and Waivers of Fees or Charges

CANON 4

A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN

POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE

INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.

RULE 4.1

RULE 4.2

RULE 4.3

RULE 4.4

RULE 4.5

Political Conduct of Incumbent Judges and Judicial Candidates in General

Political Conduct of Candidates for Election as Judge of Probate

Political Conduct of Candidates Seeking Appointments to Judicial Office

Campaign Committees

Activities of Judges Who Become Candidates for Nonjudicial Office

CANON 5 [RESERVED]

CANON 6

A JUDGE SHALL FILE ANNUAL FINANCIAL DISCLOSURE REPORTS.

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MAINE CODE OF JUDICIAL CONDUCT

COVERAGE AND EFFECTIVE DATE

I.

IN GENERAL

(A) Every justice, judge, family law magistrate, active retired justice,

and active retired judge of the Supreme Judicial Court, the Superior

Court, and the District Court shall comply with the provisions of this

Code from the time the justice, judge, or magistrate takes the oath of

office.

(B) A judge of the Probate Courts shall comply with the provisions

of this Code, except that a judge of probate:

(1) Is required to comply with Rules 2.10 and 3.2 only while

serving as a judge, or as to matters pending in the judge’s court;

and

(2) Is not required to comply with Rules 3.8, 3.9, 3.10, 3.11(B),

3.12, and 4.1(A)(1)-(4). A judge of probate shall not, however,

act as a lawyer in a proceeding in which the judge has served as

a judge or in any other proceeding related thereto.

II.

EFFECTIVE DATE

This Code takes effect on September 1, 2015.

III.

TIME FOR COMPLIANCE

All persons to whom this Code is applicable on the effective date, and

all persons to whom this Code thereafter becomes applicable, shall comply

immediately with all provisions of this Code except Rules 3.6, 3.8, 3.11(B),

and 3.11(C), and should comply with these provisions as soon as reasonably

possible and shall do so in any event within the period of one year.

IV.

TITLE

This Code may be known and cited as the Maine Code of Judicial

Conduct.

9

Advisory Notes – 2015

The Coverage and Effective Date section is similar to Part II, sections 1,

2, and 4 of the 1993 Code, with changes in terminology to reference current

judicial officers and applicable sections of the revised Code. It is also drawn

from the Application section of the ABA Model Code (2011 ed.), but it is very

different from the Application section of the ABA Model Code, which

addresses in detail categories of judges that are not relevant to Maine

practice.

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MAINE CODE OF JUDICIAL CONDUCT

PREAMBLE

An independent, fair, competent, and impartial judiciary is

indispensable to our system of justice. The United States legal system is

based upon the principle that an independent, fair, competent, and impartial

judiciary, composed of men and women of integrity, will interpret and apply

the law that governs our society. The judiciary plays a central role in

preserving the principles of justice and the rule of law. Inherent in the rules

contained in this Code are the precepts that judges, individually and

collectively, must respect and honor the judicial office as a public trust and

strive to maintain and enhance confidence in the justice system.

Judges should maintain the dignity of judicial office at all times, and

avoid both impropriety and the appearance of impropriety in their

professional and personal lives. They should aspire at all times to conduct

that ensures the greatest possible public confidence in their independence,

integrity, fairness, and competence.

The Code of Judicial Conduct establishes standards for the ethical

conduct of judges and judicial candidates. It is not intended as an exhaustive

guide for the conduct of judges and judicial candidates, who are governed in

their judicial and personal conduct by general ethical standards as well as by

the Code. The Code is intended, however, to provide guidance and assist

judges in maintaining the highest standards of judicial and personal conduct,

and to provide a basis for regulating their conduct through disciplinary

agencies.

The Code of Judicial Conduct consists of five Canons, Canons 1, 2, 3, 4,

and 6. Canon 6 is generally unchanged from current Canon 6. There is no

Canon 5. Numbered Rules appear under each Canon. The Terminology

section provides additional guidance in interpreting and applying the Code.

The Canons state overriding principles of judicial ethics that all judges

must observe. Although a judge may be disciplined only for violating a Rule

or the Canons, supporting Advisory Notes provide important guidance in

interpreting the Rules. When a Rule contains a permissive term, such as

“may” or “should,” the conduct being addressed is committed to the personal

and professional discretion of the judge or candidate in question, and no

disciplinary action is authorized for action or inaction within the bounds of

such discretion.

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To implement fully the principles of this Code as articulated in the

Canons, judges should strive to exceed the standards of conduct established

by the Rules, holding themselves to the highest ethical standards and seeking

to achieve those aspirational goals, thereby enhancing the dignity of the

judicial office.

This Code sets forth rules of reason that should be applied consistent

with constitutional requirements, statutes, other court rules, and decisional

law, and with due regard for all relevant circumstances. The Code is not to

be construed or applied in any manner that would impinge upon the

essential independence of judges in making judicial decisions.

The Code is designed to provide standards for the regulation of judicial

conduct through disciplinary proceedings when necessary. Although the

black letter of the Rule is binding and enforceable when using terms such as

“shall” or “must,” it is not contemplated that every transgression will result

in the imposition of discipline. Whether discipline is warranted should be

determined through a reasonable and reasoned application of the Rules,

with consideration given to the seriousness of the transgression, the extent

of any pattern of improper activity, any history of previous violations, and

the effect of the improper activity upon the judicial system or others.

The Code does not establish any basis for civil or criminal liability. Nor

is it intended to be the basis for litigants to seek collateral remedies against

each other or to obtain tactical advantages in proceedings before a court.

Advisory Notes – 2015

The Preamble paragraphs incorporate, though with significant

revision, what appeared within the paragraphs of the Preamble in the 1993

Maine Code of Judicial Conduct. The paragraphs are divided to track the

organizational style of the ABA Model Code. The separation between the

Preamble and Scope sections suggested in the ABA Model Code is eliminated

in this revision, which combines the Preamble and Scope sections into a

single Preamble section as exists in the 1993 Maine Code of Judicial Conduct.

The 2011 edition of the ABA Model Code provided no commentary to

support the Preamble or Scope sections. The 1993 Advisory Committee’s

Notes that supported adoption of the Preamble at that time continue to

provide useful guidance to interpretation.

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The Preamble now states the purposes of the Code and the general

substantive and interpretive principles that underlie it. The Preamble notes

that “[t]he Canons state overriding principles of judicial ethics that all judges

must observe.” The Preamble then notes:

This Code sets forth rules of reason that should be applied

consistent with constitutional requirements, statutes, other court

rules, and decisional law, and with due regard for all relevant

circumstances. The Code is not to be construed or applied in any

manner that would impinge upon the essential independence of

judges in making judicial decisions.

To apply this Code properly, one must examine a judge’s action that is

subject to inquiry in light of the totality of the circumstances and the statutes,

precedents, court rules, this Code of Judicial Conduct, its Introductory Note,

the Advisory Notes to this Code, the 1993 Advisory Committee’s Notes, and

any Advisory Notes to amendments to the 1993 Code since 1993 in deciding

whether a judge complied with his or her ethical obligations.

1993 Advisory Committee’s Note to the Preamble

The Preamble states the purposes of the Code and the

general substantive and interpretive principles that underlie it.

Specifically, the Preamble makes clear that all parts of the Code are

“authoritative,” that is, set out rules that govern judicial conduct.

Those rules are mandatory when the word “shall” is used and

aspirational when “should” is used. The 1974 Code used “should”

throughout, but its provisions were characterized by the Supreme

Judicial Court as mandatory “minimum standards of conduct and

propriety” in the first case to arise under the Code and have been

so viewed in all subsequent cases. See Matter of Ross, 428 A.2d 858,

861 (Me. 1981); see, e.g., Matter of Kellam, 503 A.2d 1308, 1311

(Me. 1986) (canon “requires” certain conduct); Matter of Barrett,

512 A.2d 1030, 1033-34 (Me. 1986) (canon “directed [judge] in

plain language” to take certain action); Matter of Benoit, 523 A.2d

1381, 1383 (Me. 1987) (“the plain proscription” of canon); see also

ABA Code (1972), Introduction (“The canons and text establish

mandatory standards unless otherwise indicated”); United States v.

Anderson, 798 F.2d 919 (7th Cir., 1986) (“should” interpreted as

mandatory in applying state Code of Judicial Conduct). The use of

“shall” and “should” eliminates any confusion as to which

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provisions are mandatory and which are aspirational. See ABA

Standing Committee, Report 5. Violation of mandatory rules by a

judge may result in disciplinary action.

The Preamble makes clear that the Code is to be interpreted

reasonably in accordance with other laws and in light of the

circumstances and conditions in which judges must operate. The

Preamble also sets out factors of seriousness, pattern, and effect

that are to be weighed in determining whether discipline is

appropriate and the sanction to be applied. These guidelines and

factors should be viewed as giving definition to the requirement of

paragraph 9(ii) of the Order Establishing the Committee on Judicial

Responsibility and Disability, 385-388 A.2d LX, LXI, that a violation

to be reported to the Court be “of a serious nature so as to warrant

formal disciplinary action.”

Disciplinary decisions under the 1974 Code reflect the

application of similar guidelines and factors and will continue to

serve as authority. See, e.g., Matter of Benoit, 487 A.2d 1158, 116368 (Me. 1985) (unlawful use of bail and contempt power in civil

cases and pre-trial detention of juvenile offender without counsel

were “obviously and seriously wrong” under “reasonably prudent

and competent judge” standard); Matter of Benoit, supra, 523 A.2d

at 1383 (“difficult to conceive of a more egregious violation” of

canon intended to protect individual rights and prevent public

perception of unfairness than trial judge’s publication of letters

critical of appellate court pending final disposition of matters);

compare Matter of Kellam, supra, 503 A.2d at 1311 (more than 40

incidents “reveal a pattern of discourtesy to laypersons of such

consistency and duration as to present a serious violation” of the

Code), with Matter of Hart, 577 A.2d 351, 355 (Me. 1990) (no

discipline for alleged discourteous treatment of lawyer occurring

as isolated incident in chambers with no loud or undignified

language in course of judge’s review of perceived attorney

misconduct).

In Hart, supra, the Court asserted that disciplinary

proceedings are appropriate “only in those instances of judicial

misconduct that exceed in seriousness the mistakes and frailties of

the ordinary judge.” Nevertheless, the Court has proscribed

“Lawless judicial conduct—the administration, in disregard of the

law, of a personal brand of justice in which the judge becomes a law

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unto himself and has recognized that “To the end that a courtroom

may truly be a temple of justice and not the personal domain of the

man or woman who happens to be presiding, any differences in

style [of judicial behavior] must always result in justice

administered according to law and must be in accord with” the

Code of Judicial Conduct. Matter of Ross, supra, 428 A.2d at 861.

Departures from this standard are not justified by the admittedly

difficult working conditions of the District Court, which “projects to

the mass of our citizens their image of the administration of

justice.” Id. at 866. See also id. at 867; Matter of Kellam, supra, 503

A.2d at 1311; but see Matter of Hart, supra.

In assessing sanctions, the Court has repeatedly relied upon

its statement in Matter of Ross, supra, 428 A.2d at 868-69, ordering

a disciplinary suspension, that “Any sanction must be designed to

preserve the integrity and independence of the judiciary and to

restore and reaffirm the public confidence in the administration of

justice. Any sanction must be designed to announce publicly our

recognition that there has been misconduct; it must be sufficient to

deter the individual being sanctioned from again engaging in such

conduct and to prevent others from engaging in similar misconduct

in the future.” See, e.g., Matter of Kellam, supra, 503 A.2d at 1312

(censure, suspension, salary forfeiture); Matter of Barrett, supra,

512 A.2d at 1034 (reprimand); Matter of Benoit, supra, 523 A.2d at

1384 (censure, suspension, salary forfeiture, completion of Judicial

Ethics course).

The Preamble also makes clear that the Code is not intended

to set standards for the civil or criminal liability of judges. Existing

law will govern such issues. See Richards v. Ellis, 233 A.2d 37 (Me.

1967) (absolute immunity from civil liability for adjudicative acts);

Forrester v. White, 484 U.S. 219 (1988) (judge may be liable under

42 U.S.C. § 1983 for acts in administrative capacity); Pulliam v.

Allen, 466 U.S. 522 (1984) (judicial immunity does not bar

injunctive relief or award of attorney’s fees under 42 U.S.C. §§ 1983,

1988); but see United States v. Anderson, supra (in perjury

prosecution of state judge, Code of Judicial Conduct held to have

force of law); cf. Ferrell v. Cox, 617 A.2d l003, 1007 (Me. 1992) (not

error to allow inquiry concerning Canon 5C(4)(c) of 1974 Code

directed to judge who was defendant in civil suit).

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Textual Note to Preamble of 1993 Code

The Preamble is new. It is based on ABA Model Code (1990),

Preamble, adapted for Maine, with certain further modifications in

the interests of clarity and simplicity.

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TERMINOLOGY

Unless the context requires otherwise, the following terms have the

following meanings in interpreting and applying this Code:

“Appropriate authority” means the authority having responsibility for

initiation of disciplinary process in conjunction with the violation to be

reported.

“Committee” means the Committee on Judicial Responsibility and Disability

established by order of the Maine Supreme Judicial Court.

“Contribution” includes both financial and in-kind contributions, such as

goods, professional or volunteer services, advertising, and other types of

assistance, which, if obtained by the recipient otherwise, would require a

financial expenditure.

“Court staff” means employees of the court, including full-time, part-time,

temporary, or contract employees, interns, externs, volunteers, and employees

of the several counties while engaged in support of a judge in the performance

of judicial duties, but does not include lawyers advocating for or representing

a party in a proceeding before a judge.

“De minimis,” in the context of interests pertaining to a disqualification of a

judge, means an insignificant interest that could not raise a reasonable question

regarding the judge’s impartiality or integrity.

“Domestic partner” means a person with whom another person maintains a

household and an intimate relationship, other than a person to whom he or she

is legally married.

“Economic interest” means ownership of more than a de minimis legal or

equitable interest. Except for situations in which the 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;

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(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)

Ownership of government securities.

“Election” includes primary, general, and special elections.

“Fiduciary” includes positions as personal representative, executor,

administrator, trustee, or guardian.

“Honorarium” means a payment of money or any thing of significant value for

an appearance, speech, or article, not including reimbursement or payment for

actual and necessary expenses for travel, food, and lodging incident to an

appearance or speech.

“Impartial,” “impartiality,” and “impartially” mean absence of bias or

prejudice in favor of, or against, particular parties or classes of parties, as well

as maintenance of an open mind in considering issues that may come before the

judge.

“Impending matter” is a matter that is imminent or expected to occur in the

near future.

“Impropriety” is conduct that violates the law, court rules, or provisions of this

Code, and that undermines a judge’s independence, integrity, or impartiality.

“Income” includes, but is not limited to, compensation for services rendered

(other than amounts paid by the State of Maine for performance of judicial

duties), dividends, interest, rent, royalties, capital gains, and amounts received

from a trade or business, trust, estate, pension (other than amounts paid under

a pension plan administered by a state or by the federal government), or other

financial arrangement. “Income” does not include honoraria, gifts, bequests,

18

favors, reimbursement or payment of expenses, or payments of alimony,

spousal support, child support, or separate maintenance.

“Independence” means a judge’s freedom from influence or controls other

than those established by law.

“Integrity” means probity, fairness, honesty, uprightness, and soundness of

character.

“Judicial candidate” means any person, including a sitting judge, who is

seeking selection for or retention in a judicial office by election or appointment.

A person becomes a candidate for judicial office as soon as he or she makes a

public announcement of candidacy; declares or files as a candidate with the

election authority; authorizes or, where permitted, engages in solicitation or

acceptance of contributions or support; or is nominated for election or

appointment to office.

“Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge

of the fact in question. Actual knowledge may be inferred from the

circumstances.

“Law” encompasses court rules, statutes, administrative rules and regulations,

constitutional provisions, and decisional law.

“Member of the judge’s family” means a spouse, domestic partner, child,

grandchild, parent, grandparent, or other relative or a person with whom the

judge maintains a close familial relationship.

“Member of a judge’s family residing in the judge’s household” means any

relative of a judge by blood, marriage, or adoption, or a person treated by a

judge as a member of the judge’s family, who resides in the judge’s household.

“Nonpublic information” means information that is not available to the public.

Nonpublic information may include, but is not limited to, information that is

sealed by statute or court order, impounded, or communicated in camera, and

information offered in grand jury proceedings, presentencing reports, child

protective cases, or psychiatric reports.

19

“Pending matter” is a matter that has commenced. A matter continues to be

pending through any appellate process until final disposition.

“Personally solicit” means a direct request made by a judge or a judicial

candidate for financial support or in-kind services, whether made by letter,

telephone, or other means of communication.

“Political organization” means a political party or other group sponsored by

or affiliated with a political party or candidate, or an independent political

action committee, the principal purpose of which is to further the election or

appointment of candidates for political office. For purposes of this Code, the

term does not include a judicial candidate’s campaign committee.

“Require.” The rules prescribing that a judge “require” certain conduct of

others are, like all of the rules in this Code, rules of reason. The use of the term

“require” in that context means a judge is to exercise reasonable direction and

control over the conduct of those persons while they are subject to the judge’s

direction and control.

“The 1993 Code.” References to the 1993 Code, the 1993 Maine Code of

Judicial Conduct, the 1993 Canons, or similar references to the 1993 Code or

Canons, include any amendments adopted since 1993 and until the 2015

adoption of this revised Maine Code of Judicial Conduct, unless the context

indicates that the reference is limited to actions taken in 1993.

“Third degree of relationship” includes the following persons: greatgrandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild,

great-grandchild, nephew, and niece.

Advisory Note – September 2024

The Committee on the Rules of Professional Conduct raised the concern

that any lawyer who sends a letter of interest to the Governor's Judicial

Selection Committee could be deemed to be declaring or filing as a candidate

with the appointment authority, even if nothing else happens. This amendment

makes clear that the Code applies to a lawyer seeking a judicial appointment

when the lawyer is nominated. There is no change as to when the Code applies

to a lawyer seeking election as a probate judge.

20

Advisory Notes – 2015

The “Terminology” section appears as “Definitions” in Part II, Section 3 of

the 1993 Maine Code of Judicial Conduct. The 2010 Committee on Judicial

Responsibility and Disability Report to the Court recommended that definitions

of “domestic partner,” “impending matter,” “impropriety,” “independence,”

“integrity,” “member of a judge’s family residing in the judge’s household,”

“pending matter,” and “personally solicit” that appear in the ABA Model Code

be added to this Code. The Committee also recommended that the definitions

of “court personnel,” “election,” “honorarium,” and “income” from the 1993

Maine Code not be included in the revised Code because those terms were not

included in the Committee draft. Because those terms appear in this draft,

those definitions are retained. “Court personnel” is now referenced as “court

staff,” and the definition is broadened to include the full range of persons who

may be engaged by the Judicial Branch or the Probate Courts in support of

judges in the performance of their judicial duties. In the definition of “Economic

interest,” paragraph 4 is clarified to be “Ownership of government securities”

rather than the more obscure “interest in an issuer of government securities.”

The definitions of “Committee” referring to the Committee on Judicial

Responsibility and Disability, and of “the 1993 Code” are added.

The 2007 and 2011 editions of the ABA Model Code are organized so that

an asterisk * appears at each point when a defined word first appears in the

Code. That designation has been eliminated in this draft.

The 1993 Advisory Committee’s Note to the Definitions in Part II of the

Maine Code of Judicial Conduct, stated as follows:

The definition of “candidate” [now “Judicial candidate”] in

Section 3B includes individuals seeking initial appointment or

election as a judge, judges seeking reappointment or reelection as

a judge, and judges seeking appointment or election to nonjudicial

office. The language of the definition in ABA Model Code (1990),

Terminology Section, has been changed to reflect the actualities of

political activity in Maine. See Advisory Committee’s Note to Canon

5.

21

The definition of “court personnel” in Section 3C makes clear

that lawyers are not “court personnel” as that term is used in the

Code, regardless of their traditional status and obligations as

“officers of the court.” Court officers and other support personnel

are within the definition, however, even when technically

employed by the county.

The definition of “de minimis” in Section 3D departs from

that in ABA Model Code (1990), Terminology Section, with the

substitution of “too trivial” for “insignificant.” The change is for

consistency with the definition of de minimis offenses in the Maine

Criminal Code, 17-A M.R.S.A. § 12.

The definition of “economic interest” in Section 3E, taken

without change from the definition in ABA Model Code (1990),

Terminology Section, is a modification of the definition of “financial

interest” in ABA Code (1972), Section 3C(3)(c). That provision was

not incorporated in Maine Code (1974), Section 3C. See Advisory

Committee’s Note to Section 3E.

The definition of “election” in Section 3F is adapted from the

definition of “public election” in ABA Model Code (1990),

Terminology Section, to reflect the operation of the Maine political

system.

In the definition of “fiduciary” in Section 3G, the term

“personal representative” has been added for consistency with the

Maine Probate Code, 18-A M.R.S.A. § 1-201(13), (30). The

definition is derived from ABA Code (1972), Section 3C(3)(b), not

incorporated in Maine Code (1974), Section 3C. See Advisory

Committee’s Note to Section 3E.

The definitions of “honorarium” in Section 3H and “income”

in Section 31 are taken from Maine Code (1974), Canon 8B(l)(a)

and (b), added in 1990. They have been eliminated from those

paragraphs, which are Canons 6B(l)(a) and (b) in the revised Code.

For discussion of these definitions, see Advisory Committee’s Note

to August 15, 1990, promulgation of Canons 8B(l)(a) and (b), Me.

Rptr., 576-588 A.2d LXXV-LXXVI.

22

In the definition of “law” in Section 3K, the phrase

“administrative rules and regulations” has been added to the list of

forms of law found in the definition in ABA Model Code (1990),

Terminology Section.

In the definition of “nonpublic information” in Section 3M,

the final sentence of the definition in ABA Model Code (1990),

Terminology Section, listing types of nonpublic information, has

been eliminated in favor of a generic reference to information

rendered unavailable “by law or court order.”

In the definition of “political organization” in Section 3N, the

word “public” was substituted for “political,” modifying “office” at the

end of the sentence in the definition in ABA Model Code (1990),

Terminology Section.

The definition of “third degree of relationship” in Section 3P,

taken without change from the definition in ABA Model Code (1990),

Terminology Section, is derived from ABA Code (1972), Section

3C(3)(a), Commentary. That provision was not incorporated in

Maine Code (1974), Section 3C. See Advisory Committee’s Note to

Section 3E.

23

CANON 1

A judge shall uphold and promote the independence, integrity, and

impartiality of the judiciary; shall avoid impropriety; and should avoid

the appearance of impropriety.

Advisory Notes – 2015

Canon 1 is based on the ABA Model Code (2011 ed.) with the words

“should avoid” added before the words “appearance of impropriety.” Canon 1

is similar to the first sentence of 1993 Canon 1. Because the 1993 Canons had

no Rules subdivisions, Canon 1 of the 1993 Canons included three additional

sentences that read as follows:

An independent and honorable judiciary is indispensable to justice

in our society. A judge should participate in establishing,

maintaining, and enforcing high standards of conduct, and shall

personally observe those standards so that the integrity and

independence of the judiciary will be preserved. The provisions of

this Code are to be construed and applied to further that objective.

Canon 1 and Rule 1.1 are not supported by any Comments in the 2011

ABA Model Code.

1993 Advisory Committee’s Note to Canon 1

Canon 1 sets forth the substantive duty of each judge to

observe “high standards of conduct . . . so that the integrity and

independence of the judiciary will be maintained.” The latter

purpose is also an interpretive principle to be observed in the

construction and application of the Code. In addition, the Canon

exhorts judges to “participate in establishing, maintaining, and

enforcing” those standards. This provision is cast in aspirational

rather than mandatory form because it is too general to admit of

disciplinary enforcement.

The integrity and independence of judges is of fundamental

importance, because public confidence in these attributes is

essential to that “[d]eference to the judgments and rulings of

24

courts” upon which “the system of government under law

depends.”

Public confidence is maintained or diminished

accordingly as judges observe or violate the Code. See ABA Model

Code (1990), Commentary to Section 1A.

In a number of cases, the Supreme Judicial Court has held

that the virtually identical provisions of Canon 1 of the 1974 Code

were violated by conduct violative of one or more of the specific

provisions of other canons. See, e.g., Matter of Ross, 428 A.2d 858,

867 (Me. 1981); Matter of Benoit, 523 A.2d 1381,1382 (Me. 1987);

Matter of Cox, 553 A.2d 1255, 1256, 1258 (Me. 1989). A direct

violation of Canon 1 was found in Matter of Cox, 532 A.2d 1017 (Me.

1987) (angry conversation with police officer concerning traffic

violation by judge’s son).

Textual Note to 1993 Code

Canon 1 is identical to ABA Model Code (1990), Canon 1 and

Section 1A. The language of Canon 1 is also virtually identical to

the 1974 Maine Code. The only substantial changes are for the

purpose of identifying those standards that are mandatory. Thus,

the first “should” is retained in the second sentence, but “shall” has

been substituted for the second “should.” In the final sentence, “are

to” has been used in lieu of “shall” or “should” because the sentence

is a directive concerning interpretation, not conduct. See ABA

Model Code (1990), Committee Note to Section 1A.

25

RULE 1.1

Compliance with the Law

A judge shall comply with the law and the Maine Code of Judicial Conduct.

Advisory Notes – 2015

Rule 1.1 is similar to the first phrase in 1993 Canon 2(A), which stated,

“A judge shall respect and comply with the law . . . .” The obligation to comply

with the law is similar to the obligation stated in Rule 2.2 to “uphold and apply

the law.” The meaning of the ethical obligation addressed in Rule 1.1, and the

necessary prerequisites to raise a question about an ethical violation alleging

failure to comply with the law or failure to be faithful to the law are addressed

in detail in the Advisory Notes to Rule 2.2.

Reference to the 1993 Advisory Committee’s Note for 1993 Canon 2

follows the discussion of Rule 1.2.

26

RULE 1.2

Promotion of Confidence in the Judiciary

A judge shall act at all times in a manner that promotes public confidence in the

independence, integrity, and impartiality of the judiciary; shall avoid

impropriety; and should avoid the appearance of impropriety.

Advisory Notes – 2015

Rule 1.2 is based on the language in ABA Model Code Rule 1.2. 7 This

language expands the second phrase of 1993 Canon 2(A), which directed that a

judge “shall act at all times in a manner that promotes public confidence in the

integrity and impartiality of the judiciary.” The reference that a judge “shall

avoid impropriety and should avoid the appearance of impropriety” is new,

although covered by other provisions in the 1993 Code.8

The Comments to Rule 1.2 of the ABA Model Code (2011 ed.) state:

[1] Public confidence in the judiciary is eroded by improper

conduct and conduct that creates the appearance of impropriety.

This principle applies to both the professional and personal

conduct of a judge.

[2] A judge should expect to be the subject of public scrutiny that

might be viewed as burdensome if applied to other citizens, and

must accept the restrictions imposed by the Code.

[3] Conduct that compromises or appears to compromise the

independence, integrity, and impartiality of a judge undermines

public confidence in the judiciary. Because it is not practicable to

list all such conduct, the Rule is necessarily cast in general terms.

[4] Judges should participate in activities that promote ethical

conduct among judges and lawyers, support professionalism

The title in the ABA version is “Promoting” rather than “Promotion of” Confidence in the

Judiciary.

7

See 1993 Canons 1, 3(B)(6), 4(B), 4(C)(3), and 4(D)(2) addressing appearance issues with the

directive “should” or “may” that are addressed to the reasonable exercise of a judge’s discretion.

8

27

within the judiciary and the legal profession, and promote access

to justice for all.

[5] Actual improprieties include violations of law, court rules or

provisions of this Code. The test for appearance of impropriety is

whether the conduct would create in reasonable minds a

perception that the judge violated this Code or engaged in other

conduct that reflects adversely on the judge’s honesty, impartiality,

temperament, or fitness to serve as a judge.

[6] A judge should initiate and participate in community outreach

activities for the purpose of promoting public understanding of and

confidence in the administration of justice. In conducting such

activities, the judge must act in a manner consistent with this Code.

The 1993 Advisory Committee’s Note to Canon 2 and 2(A) stated:

Canon 2 requires judges to serve the basic purpose of

maintaining public confidence in the judiciary by avoiding

impropriety and the appearance of impropriety in all of their

activities, both professional and personal. Because of the

inevitability of “constant public scrutiny,” a judge must “accept

restrictions on the judge’s conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely and

willingly.” ABA Model Code (1990), Commentary to Section 2A.

Canon 2A makes clear that the obligation includes both the

duty of respect for and compliance with law and the avoidance of

“irresponsible and improper conduct . . . that is harmful though not

specifically mentioned in the Code. Actual improprieties under this

standard include violations of law, court rules, or other provisions

of this Code. The test for appearance of impropriety is whether the

conduct would create in reasonable minds a perception that the

judge’s ability to carry out judicial responsibilities with integrity,

impartiality and competence is impaired.” Id.

In a number of cases, the Supreme Judicial Court has held

that the virtually identical provisions of Canon 2A of the 1974 Code

were violated by conduct that violated one or more of the specific

28

provisions of other canons. See, e.g., Matter of Kellam, 503 A.2d

1308, 1310 ([Me.] 1986); Matter of Benoit, 523 A.2d 1381,1382

(Me. 1987). In Matter of Cox, 553 A.2d 1255, 1256, 1258 (Me.

1989), the Court articulated the reasoning for this conclusion,

noting that the purpose of former Canon 3A(1), (4), to assure

“fairness in the administration of justice” was in furtherance of the

goal of Canon 2 to sustain public confidence in the judiciary and

holding that a trial judge’s violation of former Canon 3A(1), (4), by

direct participation in plea negotiations “strikes at the heart of the

public’s perception of impartiality.” The Court has also found

particular conduct to be in direct violation of Canon 2A. See Matter

of Ross, 428 A.2d 858 (Me. 1981) (imposing sentence without

hearing, seeking to influence a witness in judicial disciplinary

hearing); Matter of Cox, 532 A.2d 1017 (Me. 1987) (angry

conversation with police officer concerning traffic violation by

judge’s son was “appearance of impropriety”).

29

RULE 1.3

Avoiding Abuse of the Prestige of Judicial Office

A judge shall not abuse the prestige of judicial office to advance the personal or

economic interests of the judge or others; nor shall a judge convey or permit

others to convey the impression that any person or organization is in a special

position to influence the judge.

Advisory Notes – 2015

The language that appears after “judge or others” is much more detailed

than the phrase “or allow others to do so” that appears in Rule 1.3 of the ABA

Model Code. Rule 1.3 also incorporates the provision in ABA Model Code Rule

2.4(C) that prohibits a judge from allowing persons to suggest they have special

influence with the judge.

A Comment to the 2011 ABA Model Code states that Rule 1.3 allows a

judge to provide a reference or recommendation for an individual based upon

a judge’s personal knowledge.

[2] A judge may provide a reference or recommendation for an

individual based upon the judge’s personal knowledge. The judge

may use official letterhead if the judge indicates that the reference

is personal and if there is no likelihood that the use of the

letterhead would reasonably be perceived as an attempt to exert

pressure by reason of the judicial office.

See also Advisory Committee on the Maine Code of Judicial Conduct Opinion

98-3 (concluding that under certain circumstances the Code does not prohibit

the judge from writing a letter of recommendation on official court stationery).

Model Code Comment [3] to Rule 1.3 indicates that participation in a

judicial selection process is not prohibited by the rule.

[3] Judges may participate in the process of judicial selection by

cooperating with appointing authorities and screening

committees, and by responding to inquiries from such entities

concerning the professional qualifications of a person being

considered for judicial office.

30

Participation in judicial selection and election processes is addressed in

this Code in Canon 4 and its Rules and Advisory Notes.

Model Code Comment [4] to Rule 1.3 addresses judges writing for certain

publications:

[4] Special considerations arise when judges write or contribute to

publications of for-profit entities, whether related or unrelated to

the law. A judge should not permit anyone associated with the

publication of such materials to exploit the judge’s office in a

manner that violates this Rule or other applicable law. In contracts

for publication of a judge’s writing, the judge should retain

sufficient control over the advertising to avoid such exploitation.

Rule 1.3 is the replacement for 1993 Canon 2(B), but it is more broadly

worded. The 1993 Canon 2(B) states:

B. Preventing Improper Influence. A judge shall not allow family,

social, political, or other relationships to influence the judge’s

judicial conduct or judgment. A judge shall not lend the prestige of

judicial office to advance the private interests of the judge or

others; nor shall a judge convey or permit others to convey the

impression that they are in a special position to influence the judge.

A judge shall not testify voluntarily as a character witness.

The 1993 Advisory Committee’s Note to Canon 2(B) states:

Canon 2B forbids a number of specific actions that are in

effect per se improprieties because they diminish the prestige of the

judicial office so essential to the proper functioning of an

independent judiciary. Examples of improper activities offered in

ABA Model Code (1990), Commentary to Section 2B, include

alluding to judicial status in an effort to gain deferential treatment

when stopped for a traffic offense, use of judicial letterhead for

personal business, use of judicial status to gain advantage for a

family member in a civil suit, and allowing exploitation of the

judge’s office in the advertising of published writings. Proper

activities identified in the ABA Commentary include serving as a

reference or writing a letter of recommendation based on personal

31

knowledge, and supplying names and responding to official

inquiries regarding judicial appointments. In particular, the ABA

Commentary notes, it would be improper for a judge voluntarily to

supply information to a probation officer or sentencing judge, and

Canon 2B specifically forbids formal testimony as a character

witness because of the impact of the office and the effect on lawyers

involved. A judge may, however, engage in such activities when

formally requested or summoned, though the judge should

ordinarily discourage a party from summoning the judge as a

character witness.

The Supreme Judicial Court found violations of the similar

provisions of Canon 2B of the 1974 Code in two decided cases.

Matter of Ross, supra, 428 A.2d at 864-65 (causing traffic infraction

complaints against personal acquaintances to be filed); Matter of

Cox, supra, 532 A.2d at 1019 (angry conversation with police officer

concerning traffic violation by judge’s son).

A 1993 Textual Note to Canon 2, referencing Canon 2(A) and 2(B)

observed:

Canon 2 adopts ABA Model Code (1990), Canon 2 and

Sections 2A-2C, with variations appropriate to Maine. The

principal change from the 1974 Maine Code is the addition of

Canon 2C. Canons 2A and 2B are identical to the provisions of ABA

Model Code (1990), Sections 2A, 2B. There are no substantial

changes from Canon 2A of the 1974 Maine Code. Canon 2B departs

from Canon 2B of the 1974 Maine Code in adding political

relationships to those by which a judge must not be influenced and

in including the judge’s own private interests among those which

the judge may not seek to benefit through the prestige of the

judicial office. See ABA Model Code (1990), Committee Note to

Section 2B.

32

CANON 2

A judge shall perform the duties of judicial office impartially,

competently, and diligently.

Advisory Notes – 2015

Canon 2 is identical to ABA Model Code Canon 2. It is similar to 1993

Canon 3, but with the addition of the word “competently.”

This Canon and the Rules that follow are not intended to make the sole

fact of a judge’s error of law or fact the basis for discipline. See Advisory Notes

to Rule 2.2. To show lack of professional competence or diligence, either a

pattern of decisions willfully or blatantly ignoring or misstating established

legal principles, or a demonstration of fraud, corrupt motive, or bad faith on the

judge’s part would be necessary. See In re Complaint of Judicial Misconduct, 631

F.3d 961, 962 (9th Cir. 2011).

The initial paragraph of the 1993 Advisory Committee’s Note for what

was then Canon 3 and is now Canon 2 stated:

Canon 3 governs judges in the performance of their official duties—

whether in an adjudicative or administrative role. The Canon also

sets forth a judge’s responsibilities for the discipline of other judges

and of lawyers and provides standards and procedures for judicial

disqualification for interest.

33

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.

Advisory Notes – 2015

Rule 2.1 is identical to ABA Model Code Rule 2.1. It is more generally

worded but has the same effect as 1993 Canon 3(A). The 1993 Advisory

Committee’s Note to Canon 3(A) stated: “Canon 3A emphasizes that the judge’s

official responsibilities have the first claim on the judge’s time and supersede

any personal or private interest.” Canon 3(A) emphasized that the

performance of the duties generally referenced in Canon 3(A) would be

governed by “the standards set forth in sections B through E of this Canon.”

The 2011 ABA Model Code Comments to Rule 2.1 state:

[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.

34

RULE 2.2

Impartiality and Fairness; Upholding the Law

A judge shall uphold and apply the law, and shall perform all judicial and

administrative duties promptly, fairly, and competently. An error of law in a

judicial decision, whether recognized on appeal or not, shall not constitute a

violation of this Code unless the judge’s action demonstrates willful or repeated

disregard of explicit requirements of the law.

Advisory Notes – 2015

The title to ABA Model Code Rule 2.2 is amended to add “Upholding the

Law” to reflect the dual purposes of the Rule articulated in its first sentence.

The second sentence has no counterpart in Model Code Rule 2.2, but reflects

precedent, discussed below, interpreting Model Code Rule 2.2 and similar

ethical obligations to uphold the law.

The language of the first sentence of Rule 2.2 is broader than ABA Model

Rule 2.2, which states: “A judge shall uphold and apply the law, and shall

perform all duties of judicial office fairly and impartially.” The first sentence of

Rule 2.2 is drawn from (1) the first sentence of 1993 Canon 3(B)(2), specifying

that a judge “shall be faithful to the law and maintain professional competence

in it,” and (2) 1993 Canon 3(B)(8), specifying that a judge “shall dispose of all

judicial matters promptly, efficiently, and fairly.”

2011 Model Code Comment [4] to Rule 2.2 indicates that Rule 2.2 is not

violated when a judge makes reasonable accommodations to ensure that

unrepresented litigants have their matters fairly heard. The issue of

unrepresented litigants is also addressed in Rule 2.6(C).

Upholding and Applying the Law

This portion of the June 2015 Advisory Notes is equally applicable to the

“comply with the law” portion of Rule 1.1. The terms of Rule 2.2 emphasize that

to give rise to an ethical concern, the error of law or failure to be “faithful to the

law” at issue must be much more serious and apparent than an error of law that

may lead to a trial court action being vacted or criticized for an error of law on

appeal. See In re Hart, 577 A.2d 351, 354-55 (Me. 1990) (single episode of

intemperate behavior did not support finding of a violation of judicial ethics).

35

A judicial disciplinary review authority such as the Committee is not a

court; it does not have the comprehensive record and advocacy that is available

on an appeal, and thus does not determine whether a judge’s rulings are

erroneous as a matter of law. See In re Complaint of Judicial Misconduct, 631

F.3d 961, 962 (9th Cir. 2011); In re Complaint of Judicial Misconduct, 579 F.3d

1062, 1064 (9th Cir. 2009). The Committee’s 2013 Annual Report states that

the Committee does not engage in appellate-type review: “The Committee is

not, however, an appellate court, it has no power to alter the decisions in the

cases about which complaints are made. Similarly, simple disagreement with

the merits of a judge’s decision is not a basis for violation of the Code.”

Committee on Judicial Responsibility and Disability, 2014 Annual Report, 3

(2015).

When there is appellate review of an issue that has also generated an

ethics concern, that appellate consideration of the issue may obviate the need

for judicial disciplinary review. See In re Charge of Judicial Misconduct, 47 F.3d

399, 400-401 (10th Cir. 1995); Lauer v. Strang, 788 F.2d 135, 138 (8th Cir.

1985).

Rule 2.2 states that, to find an ethical violation, the Committee must

determine that “the judge’s action demonstrates willful or repeated disregard

of explicit requirements of the law.”

To find an ethical violation: “The number of erroneous rulings must be

large enough that it could constitute a pattern. And the [judicial disciplinary

review authority] must also present ‘clear and convincing evidence’ that this

series of erroneous rulings reflects the judge’s ‘virtually habitual,’ ‘arbitrary

and intentional departure from prevailing law’ based on the judge’s

‘disagreement with, or willful indifference to, that law.’” In re Complaint of

Judicial Misconduct, 631 F.3d at 962-63 (citations omitted). “This can generally

be done by pointing to a particular error the judge continued to commit even

after having been repeatedly corrected on appeal.” Id. at 963.

Maine opinions finding judicial misconduct based on a pattern or practice

of violations of established law include In re Kellam, 503 A.2d 1308 (Me. 1986)

(more than forty separate incidents of rude or discourteous conduct in court);

In re Benoit, 487 A.2d 1158 (Me. 1985); and In re Ross, 428 A.2d 858 (Me. 1981).

36

Impartiality and Fairness

Application of the obligations of impartiality and fairness necessarily

requires recognition that a judge may have to make or write statements critical

or disbelieving of counsel, a party, or a witness in resolving legal or factual

issues presented for decision. Such statements, by themselves, do not establish

ethical violations or warrant an ethics complaint or inquiry. “That a court has

decided disputed issues of law and fact against a party is not, without more,

evidence of lack of impartiality.” Dalton v. Dalton, 2014 ME 108, ¶ 25, 99 A.3d

723 (citing Estate of Lipin, 2008 ME 16, ¶ 6, 939 A.2d 107); see also In re

Martinez‐Catalda, 129 F.3d 213, 219 (1st Cir. 1997) (“A judge is ordinarily

entitled to form a view of the parties that is favorable or unfavorable, so long as

it derives from information in the case; there may be exceptions but they are

‘rare’ indeed.”). “And without a firm foundation upon which accusations of

personal bias, prejudice, or impropriety can stand, baseless charges of

misconduct are patently inappropriate.” Dalton, 2014 ME 108, ¶ 25, 99 A.3d

723.

Adverse information about a party that a judge may acquire in an earlier

proceeding involving a party, or in an earlier stage of a pending proceeding,

does not prevent a judge from presiding in a subsequent proceeding involving

the same party. See State v. Lewis, 1998 ME 83, ¶ 3, 711 A.2d 119; State v.

Rameau, 685 A.2d 761, 763 (Me. 1996) (stating that a judge is not required to

recuse because of opinions based on information acquired in that proceeding

or a prior proceeding, unless the judge’s opinions “display a deep-seated

favoritism or antagonism that would make fair judgment impossible”).

The disqualification standards in the federal statutes are similar to

standards in the ABA Model Code. See United States v. Reynolds, 646 F.3d 63, 74

(1st Cir. 2011) (stating that opinions based on evidence introduced during the

course of a case are “properly and necessarily acquired in the course of the

proceedings,” and are indeed sometimes, as in a bench trial, “necessary to

completion of the judge’s task,” and are not a grounds for recusal); Khor Chin

Lim v. CourtCall, Inc., 683 F.3d 378, 380 (7th Cir. 2012) (stating that “adverse

decisions do not establish [bias] or even hint at bias” and finding bias

contention frivolous); 13D Federal Practice and Procedure § 3542, Grounds for

Disqualification – Bias and Prejudice (3d ed. updated April 2015) (discussing

ethical issues related to claims of bias and prejudice pursuant to the federal

recusal statutes, 28 U.S.C. §§ 144, 455 (2014)).

37

Writing in Liteky v. United States, 510 U.S. 540 (1994), an important

precedent addressing disqualification for partiality issues, Justice Scalia

observed:

First, judicial rulings alone almost never constitute a valid basis for

a bias or partiality motion. In and of themselves (i.e., apart from

surrounding comments or accompanying opinion), they cannot

possibly show reliance upon an extrajudicial source; and can only

in the rarest circumstances evidence the degree of favoritism or

antagonism required (as discussed below) when no extrajudicial

source is involved. Almost invariably, they are proper grounds for

appeal, not for recusal. Second, opinions formed by the judge on

the basis of facts introduced or events occurring in the course of

the current proceedings, or of prior proceedings, do not constitute

a basis for a bias or partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment

impossible. Thus, judicial remarks during the course of a trial that

are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality

challenge. They may do so if they reveal an opinion that derives

from an extrajudicial source; and they will do so if they reveal such

a high degree of favoritism or antagonism as to make fair judgment

impossible. . . . Not establishing bias or partiality, however, are

expressions of impatience, dissatisfaction, annoyance, and even

anger, that are within the bounds of what imperfect men and

women, even after having been confirmed as federal judges,

sometimes display. A judge’s ordinary efforts at courtroom

administration—even a stern and short-tempered judge’s ordinary

efforts at courtroom administration—remain immune.

Id. at 555-556 (citations omitted).

Concurring in Liteky, Justice Kennedy observed:

[The federal recusal statute] is triggered by an attitude or

state of mind so resistant to fair and dispassionate inquiry as to

cause a party, the public or a reviewing court to have reasonable

grounds to question the neutral and objective character of a judge’s

38

rulings or findings. I think all would agree that a high threshold is

required to satisfy this standard. Thus, under § 455(a), a judge

should be disqualified only if it appears that he or she harbors an

aversion, hostility or disposition of a kind that a fair-minded person

could not set aside when judging the dispute.

Id. at 557-558.

For an example of a case demonstrating what Justice Scalia characterized

as the “rarest circumstances” when reassignment on remand was ordered

based on a finding of a high degree of favoritism or antagonism when no

extrajudicial source was involved, see Sentis Group, Inc. v. Shell Oil Co., 559 F.3d

888, 897-98, 904-05 (8th Cir. 2009).

Partiality and fairness issues may also arise from a judge’s prior

employment in relation to a pending case. This issue was discussed

thoughtfully in a First Circuit opinion by Justice Souter, In re Bulger, 710 F.3d

42 (1st Cir. 2013), holding that a judge who had worked in the U.S. Attorney’s

Office while events at issue in a case were under investigation would be

required to recuse from hearing the case. In so holding the court looked not to

evidence of actual bias, but to “the existence of facts that would prompt a

reasonable question in the mind of a well-informed person about the judge’s

capacity for impartiality in the course of the trial and its preliminaries.” Id. at

46.

In his ruling, Justice Souter cautioned that disqualification motion

practice does not “confer a veto power on the assignment of his trial judge to

any heckling defendant who merely levels a charge that implicates a judge’s

defensive or vicariously defensive reaction. The recusal standard must be more

demanding because ‘the disqualification decision must reflect not only the need

to secure public confidence through proceedings that appear impartial, but also

the need to prevent parties from too easily obtaining the disqualification of a

judge, thereby potentially manipulating the system for strategic reasons,

perhaps to obtain a judge more to their liking.’” Id. at 47 (quoting In re Allied‐

Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989)).

Addressing a similar issue, a U.S. District Court Judge observed that a

party’s criticism of a judge should not require recusal:

39

Newspaper articles criticizing a judge’s performance are not

unusual. More important, a party cannot create a basis for

recusal by first criticizing a judge and then claiming the judge

is biased as a result. It is well settled that prior written attacks

upon a judge are legally insufficient to support a charge of bias

or prejudice on the part of the judge toward the author of such

a statement. Forcing judges to recuse because a litigant has

criticized the judge would give litigants veto power over

judges and allow forum shopping. It would also stretch the

recusal statutes far beyond their intended purpose and

potentially force disqualifications in a large number of cases.

Salt Lake Tribune Publ’g Co. v. AT&T Corp., 353 F. Supp. 2d 1160, 1176 (D. Utah

2005) (footnotes omitted) (citations omitted). See also Rodgers v. Knight, 781

F.3d 932, 943 (8th Cir. 2015) (fact that plaintiff’s counsel had filed judicial

conduct complaint against judge in previous, unrelated litigation, or that

federal district judge had formerly served as municipal judge in defendant city

did not establish that the judge’s impartiality in pending matter might

reasonably be questioned).

The Law Court adopted a similar position in State v. Murphy, 2010 ME

140, ¶ 18, 10 A.3d 697, rejecting claims that a judge should have recused

because the defendant had harshly criticized a judge in court and filed lawsuits

against the judge. See also Advisory Committee on the Maine Code of Judicial

Conduct, Opinion 91-1 (concluding that a judge is not required to recuse in a

case when one of the parties has filed a complaint against the judge with the

Committee).

In addition to these 2015 Advisory Notes, judicial ethics issues relating to

disqualification claims and allegations of partiality are addressed in detail in

Rules 2.11 and 3.11 and the Advisory Notes to those Rules.

1993 Advisory Committee’s Notes

The 1993 Advisory Committee’s Notes to Canon 3(B) paragraphs (2) and

(8) state:

40

For 3(B)(2):

Canon 3B(2) requires a judge both to observe the law and to

be professionally competent. In Matter of Ross, 428 A.2d 858

(Me. 1981), the Supreme Judicial Court found violations of the

identical provision of Maine Code (1974), Canon 3A(1), when “the

respondent willfully disregarded the requirements of the law” by

imprisoning a defendant for nonpayment of a civil forfeiture. In the

same case, the Court found additional violations of former Canon

3A(1) where the judge had caused traffic infraction complaints

against personal acquaintances to be “filed,” personally lecturing

the defendants instead of trying them, and had continued two OUI

cases against an individual for six months, one before sentencing,

the other without hearing, then entered judgments of not guilty in

both. The Court also cited the judge’s oath under Article IX, § 1, of

the Maine Constitution “to administer the law, not his personal

philosophy.” Id. at 865.

In Matter of Benoit, 487 A.2d 1158 (Me. 1985), the Court

established the standard of the “reasonably prudent and

competent judge.” Conduct violates former Canon 3A(1) if such a

judge “would consider that conduct obviously and seriously wrong

in all the circumstances.” Id. at 1163. Applying this standard, the

Court found that incarceration and imposition of public service

obligations in civil OUI cases and pretrial detention of an

unrepresented juvenile without hearing were violations of the

Canon because there was no legal authority or the actions were

plainly contrary to existing law. Incarceration of a civil debtor for

nonpayment under a payment order and denials of stays of

sentence pending appeal were found to be errors of law but not

Code violations, where the law was unclear or unsettled. Id. at

1164-70. See also Matter of Cox, 553 A.2d 1255 (Me. 1989) (judge’s

involvement in plea negotiations contrary to explicit provision of

M.R. Cr. P. 11(e) violated former Canon 3A(1)).

41

For 3(B)(8):

Canon 3B(8) is intended to assure that the “interests in

fairness, efficiency and economy are properly balanced.” ABA

Model Code (1990), Committee Note to Section 3B(8). In attaining

the proper balance, “a judge must demonstrate due regard for the

rights of the parties to be heard and to have issues resolved without

unnecessary cost or delay

. . . . A judge should encourage and

seek to facilitate settlement, but parties should not feel coerced

into surrendering the right to have their controversy resolved by

the courts.” ABA Model Code (1990), Commentary to Section

3B(8).

Promptness requires diligence, punctuality, and

expeditiousness on the part of the judge and that the judge “insist

that court officials, litigants and their lawyers cooperate with the

judge to that end.” Id. In Matter of Barrett, supra, 512 A.2d at 1034,

the Court found violations of the virtually identical provisions of

former Canon 3A(5), where a probate judge deliberately delayed

decision in two contested matters “out of a belief that he knew best

what would advance harmony among the litigating parties before

his court,” thus administering “his own personal brand of justice.”

In a third matter, a six-month delay without more, while not

condoned by the Court, was held not to be a violation standing

alone. Id.

42

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 for or against an individual or a party,

or engage in harassment, including but not limited to bias, prejudice, or

harassment based upon, race, sex, gender, gender identity, 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, while 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,

based upon attributes including but not limited to race, sex, gender,

gender identity, religion, national origin, ethnicity, disability, age, sexual

orientation, marital status, socioeconomic status, or political affiliation

against parties, witnesses, lawyers, court staff, or others.

(D) Sections B and C of this Rule do not preclude judges or lawyers

from making legitimate reference to the listed factors or other similar

factors when they are relevant to an issue in a proceeding.

Advisory Notes – 2015

Rule 2.3 follows fairly closely the words of paragraphs (5) and (6) of 1993

Canon 3(B) but with the mandatory “shall” substituted for the aspirational

“should” that appeared in 1993 Canon 3(B)(6), and with references to “gender”

and “gender identity” added to recognize more current references to protected

classes of individuals. Rule 2.3 also follows the language of ABA Model Code

Rule 2.3, but with the addition of “for or against an individual or party” in the

first sentence of (B). Also, recognizing that language barriers sometimes pose

particular problems, judges must endeavor to ensure that all individuals

understand and are allowed to participate fully in court proceedings, while

ensuring that the judge’s actions do not manifest any prejudice or bias.

43

Bias claims subjecting a judge to disciplinary complaints may arise from

either judicial or administrative actions. Although administrative decisions

such as hiring and discipline of court personnel are administrative functions,

not judicial functions, a judge may commit judicial misconduct when

performing administrative functions. In re Complaint of Judicial Misconduct,

726 F.3d 1060, 1061 (9th Cir. 2013). “But any such charges of misconduct must

allege more than disagreement with the judge’s administrative decision. The

complaint must document conduct by the judge that is wrongful, independent

of whether the judge’s decision is correct. The misconduct process cannot be

used to second-guess the judge’s administrative decision; nor can it result in a

reversal of that decision.” Id.

The 1993 Advisory Committee’s Note to paragraphs (5) and (6) of Canon

3(B) stated:

Canons 3B(5) and (6) are intended “to emphasize the

requirements of impartial decision-making and the appearance of

fairness in the courtroom.” ABA Model Code (1990), Committee

Note to Sections 3B(5), (6). The Commentary to ABA Model Code

(1990), Section 3B(5), emphasizes that the purpose is to assure

impartiality and fairness in the performance of judicial duties.

Manifestation of bias may impair “the fairness of the proceeding”

and bring “the judiciary into disrepute.” A judge “must be alert to

avoid behavior that may be perceived as prejudicial.” The

provision includes “[f]acial expression and body language, in

addition to oral communication,” all of which can convey the

appearance of bias “to parties or lawyers . . . , jurors, the media and

others.” Id. As in Canon 3B(4), the duty to control the conduct of

others is aspirational, rather than mandatory.

Canon 3B(6) is also aspirational in form. Judges “should

require” lawyers to observe the standards imposed on judges and

court personnel by Canon 3B(5). The provision is not mandatory,

because judges have no line supervisory authority over lawyers

and can control lawyers’ behavior only through the drastic

sanctions of contempt or professional discipline. This section

imposes no obligation upon judges to intervene in the exercise of

peremptory challenges in the ordinary case. The decisions of the

United States Supreme Court in Georgia v. McCollum, [505] U.S [42],

44

112 S.Ct. 2348 (1992); Edmonson v. Leesville Concrete Co., 500 U.S.

[614], 111 S. Ct. 2077 (1991); and Batson v. Kentucky, 476 U.S. 79

(1986), prohibit discriminatory use of peremptory challenges to

exclude jurors solely on account of their race. If the objecting party

makes a prima facie showing that the challenge was based on race,

the challenging party must offer a racially neutral explanation for

the challenge. In light of the burdens placed upon the objecting

party by these cases, the judge’s only obligation is to follow the

procedure there outlined. In the absence of objection, a

peremptory challenge should be presumed to have been made

without discriminatory intent as an act of “legitimate advocacy”

permitted by the second sentence of section (6), unless other

circumstances, such as the lawyer’s demeanor in the voir dire or the

absence of any apparent tactical reason for the challenge, manifest

actual bias or prejudice.

45

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.

Advisory Notes – 2015

Rule 2.4 follows Rules 2.4(A) and (B) of the ABA Model Code. Rule 2.4(A)

is similar to the second sentence of 1993 Canon 3(B)(2) (“A judge shall not be

swayed by partisan interests, public clamor, or fear of criticism.”). Rule 2.4(B)

is similar to the first sentence of 1993 Canon 2(B) (“A judge shall not allow

family, social, political, or other relationships to influence the judge’s judicial

conduct or judgment.”). Rule 2.4(B) adds “financial” to the list of interests or

relationships that shall not influence judicial conduct. Issues relating to a

judge’s financial activities are addressed in Rule 3.11 and its Advisory Notes.

Perhaps because the two provisions were short and specific, neither was

subject to much comment in the 1993 Advisory Committee’s Notes.

Rule 2.4(C) of the ABA Model Code, relating to others conveying the

impression that they have special influence with the judge, is now part of Rule

1.3, as it was part of 1993 Canon 2(B). The 2011 ABA Model Code Comment to

Rule 2.4 stated:

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.

Judges can be subject to discipline for conduct in private matters. In In re

Cox, 658 A.2d 1056, 1057-58 (Me. 1995), the Court disciplined a former judge

by disbarment from the practice of law for what the Court described as

“avaricious and dishonest conduct” involving fraud committed in a private real

46

estate transaction that occurred while sitting as a judge. The judge’s private

conduct had led to complaints to the Committee following the trial described in

Ferrell v. Cox, 617 A.2d 1003 (Me. 1992).

47

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 in the administration of

court business.

Advisory Notes – 2015

Rule 2.5 is identical to Rule 2.5 in the 2011 ABA Model Code. The

Comments to the ABA Model Code state:

[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 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 2.5 is similar to 1993 Canon 3(C)(1), but with references to bias

removed, as bias issues are covered in other Rules, including Rule 2.3 and Rule

3.6, in this redraft. In paragraph (B) “shall” is substituted for the 1993 Canon’s

“should.” The 1993 Advisory Committee’s Note for Canon 3(C)(1) stated:

48

Canon 3C covers a judge’s administrative responsibilities.

Canon 3C(1) is intended “to prohibit a judge from manifesting bias

or prejudice in the performance of administrative duties and to

encourage, rather than to require, the more practicable duty of

cooperation rather than facilitation” in dealings with other court

personnel. ABA Model Code (1990), Committee Note to Section

3C(1). Thus, “should,” rather than “shall,” is used in the second

sentence. See also Canons 2C, 3B(5), (6).

49

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) A judge may encourage parties to a proceeding and their lawyers

to settle matters in dispute but shall not act in a manner that forces any

party to settle. A judge may participate in case management conferences,

judicial settlement conferences, and dispositional conferences, and such

participation alone does not disqualify the judge from participating in

later adjudicatory proceedings.

(C) A judge may take affirmative steps, consistent with the law, as the

judge deems appropriate to enable an unrepresented litigant to be heard.

A judge may explain the requirements of applicable rules and statutes so

that a person appearing before the judge understands the process to be

employed. A judge may also inform unrepresented individuals of free or

reduced cost legal or other assistance that is available in the courthouse

or elsewhere.

Advisory Notes – 2015

Rule 2.6(A) is identical to the first sentence of 1993 Canon 3(B)(7). Most

of the remainder of 1993 Canon 3(B)(7), however, discusses ex parte

communications. Section B(7)(d) of 1993 Canon 3 discusses approved judicial

settlement promotion practices, but in terms different from new Rule 2.6(B).

Thus, 1993 Canon 3(B)(7)(d) states: “A judge may, with the consent of the

parties, confer separately with the parties with or without their lawyers

present, or separately with their lawyers alone, in an effort to mediate or settle

matters pending before the judge.” Rule 2.6(B) indicates that judges who

participate in trial management or settlement discussions or dispositional

conferences may also preside at adjudicatory proceedings in the same case.

However, a judge who participates in a formal settlement conference when

there is an explicit understanding that another judge will conduct any trial or

contested hearing, is disqualified from further participation in that case, other

than placing any settlement reached on the record and, when necessary,

50

enforcing a settlement that has been reached, unless the parties explicitly agree

otherwise.

There is no Rule 2.6(C) in the ABA Model Code. Rule 2.6(C) is similar to

1993 Canon 3(B)(12) which states: “A Judge may explain the requirements of

applicable rules and statutes so that a person appearing before the judge

understands the process to be employed. A judge may also inform

unrepresented persons of free legal aid and similar assistance that is available

in the courthouse or otherwise.” A change in the Rule adds the capacity to

provide information about reduced cost assistance that may be available.

Rule 2.6 should be regarded as providing continuing ethical guidance for

judges participating in case management and settlement discussions, and for

judges providing appropriate support for unrepresented litigants to assure that

the goals of fairness and equal access to the judicial process are supported.

51

RULE 2.7

Responsibility to Decide

A judge shall hear and decide matters except when disqualification or recusal

is required.

Advisory Notes – 2015

The duty to hear and decide maters, except when disqualification or

recusal is required, is also addressed in the Advisory Notes to Rule 2.11. Rule

2.7 somewhat duplicates the requirements of Rules 2.1 and 2.5 and is very

similar to 1993 Canon 3(B)(1).

The only Model Code Comment to Rule 2.7 addresses the Rule as relevant

to a duty not to disqualify except when disqualification is required. Such

caution is necessary to support timely resolution of pending matters and

efficient use of judicial and litigant resources. The extent of the duty not to

disqualify is discussed in more detail in the Advisory Notes to Rule 2.11. Rule

2.7 also requires judges to give full attention to their judicial caseload and to

avoid unnecessary repetition or delay in resolving pending matters. See In re

Barrett, 512 A.2d 1030 (Me. 1986); State v. Aubut, 261 A.2d 48, 51 (Me. 1970)

(stating that a judge should not heed a motion for disqualification that is

frivolous).

52

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, law enforcement and corrections officers,

members of the public, and others with whom the judge deals in an

official capacity, and shall require similar conduct of lawyers, court staff,

court officers, 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.

Advisory Notes – 2015

Rule 2.8(A) is identical to 1993 Canon 3(B)(3), except for the substitution

of the word “court” for the word “judge” at the end of the sentence. The 1993

Advisory Committee’s Note to Canon 3(B)(3) indicated that it stated “a rule of

reason” for control of conduct of persons subject to the judge’s direction and

control. Rule 2.8(B) is similar to 1993 Canon 3(B)(4) although it substitutes

“shall” for “should” in addressing the judge’s responsibilities regarding the

conduct of others. Rule 2.8(C) is identical to 1993 Canon 3(B)(10), though the

language after “proceeding” does not appear in the ABA Model Code. The 1993

Advisory Committee’s Note to Canon 3(B)(10) indicated that it was

intended to protect jurors from improper influence by judges and

“to preserve the appearance of fairness in judicial decisionmaking.” ABA Model Code (1990), Committee Note to Section

3B(10). The provision reflects the concern, found also in ABA

Standards of Juror Use and Management, Standard 18(a), that

commendation or criticism “may imply a judicial expectation in

future cases and may impair a juror’s ability to be fair and impartial

in a subsequent case.” ABA Model Code (1990), Commentary to

Section 3B(10) and Committee Note to Commentary.

53

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) Where circumstances require it, ex parte communication for

scheduling, administrative, or emergency purposes that 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 obtain the written advice of a disinterested

expert on the law applicable to a specific proceeding before the

judge if the judge (a) gives notice to the parties of the person to be

consulted and the subject matter of the advice to be solicited, and

(b) affords the parties a reasonable opportunity to object and

respond to the notice and the advice requested.

(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 with or without their lawyers present,

or separately with their lawyers alone.

54

(5) A judge may initiate or consider any ex parte

communications when expressly authorized by law, court rule, or

administrative order to do so, such as when serving in judicially

assisted settlement conferences or on therapeutic or problemsolving courts, mental health courts, or drug courts. In this capacity,

judges may assume a more interactive role with parties, counsel,

treatment providers, probation officers, social workers, and others.

(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) Except when receiving case-related information about events in or

around the courthouse that is relevant to assuring a fair trial and

protecting the integrity of the judicial process, a judge shall not

investigate facts in a matter independently and shall consider only the

evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including by 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.

Advisory Notes – 2015

Rule 2.9 is developed from 1993 Canon 3(B)(7), but with significant

changes, reflecting, among other things, the differences inherent in today’s

digital information age and the greater role judges are encouraged to play in

discussions or negotiations promoting resolution of cases.

Addressing the proposed changes in Canon 3(B)(7) (Rule 2.9 in this

revision), the 2010 Report from the Committee on Judicial Responsibility and

Disability noted:

[T]he Maine Code exempts from the prohibition on ex parte

communications those communications that are expressly

authorized by law. The Model Code retains this exemption in Rule

55

2.9(A)(5), but adds, in comment [4], that the exemption includes

service on various problem-solving courts. Because of the

increasing prevalence of such courts in Maine, the Committee

recommends including the language in the ABA’s comment relating

to them in the Maine Canon itself, and adding a provision that the

permitted ex parte communications may be authorized by court

rule or administrative orders, a provision that the exemption also

applies to judicially assisted settlement conferences, and a

provision adding counsel to the list of persons with whom the

permitted ex parte communications may occur.

The Model Code adds new Canons 3(B)(7)(f), (g), and (h) [Rule

2.9(B), (C), and (D)], concerning a judge’s receipt of an inadvertent

ex parte communication, a judge’s ability to investigate relevant

facts independently and a judge’s responsibility to insure that the

rules concerning ex parte communications are not violated by

court staff or officials.

Rule 2.9(A)(2) does not in any way limit the long accepted judicial

practice of referencing legal treatises, practice books, law review articles, and

other legal writings in researching and preparing judicial decisions. Because

parties should reasonably anticipate that judges may conduct such research in

the course of their judicial duties, no advance notice of such research activities

is required. The Rule likewise does not limit or require disclosure of a judge’s

communications with law clerks or other court employees.

Rule 2.9(C) is amended from the Model Code version to clarify that a

judge may seek and receive information of events in or around the courthouse

that relate to assuring a fair trial and protecting the integrity of the judicial

process. Examples of such information include reports of a witnesses being

intimidated, or of a juror improperly speaking or communicating about the

case, or of a defendant in shackles potentially being seen by jurors. Receipt of

such information is proper.

Comment [6] to Rule 2.9 in the 2011 ABA Model Code notes: “The

prohibition against a judge investigating the facts in a matter extends

to information available in all mediums, including electronic.” A judge’s

independent investigation of the facts, in violation of Rule 2.9(C), can be a basis

for ethics complaints and disqualification. See In re United States, 441 F.3d 44,

56

66-68 (1st Cir. 2006) (ordering recusal, pursuant to federal recusal statute, 28

U.S.C. § 455(a), of judge who had initiated and maintained investigation of

grand jury process and information from grand jury). In its opinion, the First

Circuit noted the heavily fact specific nature of each recusal review and ordered

recusal after determining that the record did “establish a reasonable basis for

questioning the impartiality of the district court judge.” Id. at 68. The court

then noted, “We do so with no criticism of the judge, who was faced with a series

of difficult issues.” Id.

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RULE 2.10

Judicial Statements on Pending and Impending Cases

(A) A judge shall not make any public statement that might 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

might subsequently interfere with a fair trial or hearing.

(B) A judge shall require court staff and others subject to the judge’s

discretion and control to refrain from making statements that the judge

would be prohibited from making.

(C) Notwithstanding the restrictions, a judge may make public

statements in the course of official duties and may explain court

procedures.

(D) Notwithstanding the restrictions, a judge may comment on any

proceeding in which the judge is a litigant in a personal capacity.

(E) Subject to this rule, a judge may respond directly or through a third

party to statements in the media or elsewhere concerning the judge’s

conduct in a matter.

(F) This rule is not violated by any statement a judge may make in the

course of managing or deciding matters pending before the judge or in

the course of fulfilling the judge’s administrative responsibilities,

provided that such statements are relevant to judicial proceedings or

administrative matters within the judge’s authority.

Advisory Notes – 2015

Rule 2.10 is a revision of 1993 Canon 3(B)(9). Subpart (E) does not have

any counterpart in the 1993 Code, though it is similar to Rule 2.10(E) in the ABA

Model Code. Subpart (E) clarifies that present practice allowing public

response to public complaints about a judge’s conduct does not violate Rule

2.10 or Canon 3(B)(9). Subpart (F) is added, perhaps to state the obvious—that

Rule 2.10 is not violated by any statement made by a judge in the course of

fulfilling the judge’s judicial or administrative responsibilities, when the

statement is relevant to those responsibilities.

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RULE 2.11

Disqualification or Recusal

(A) A judge shall disqualify or recuse 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 the judge has personal knowledge of facts

that are in dispute in the proceeding when the personal knowledge

that would form the basis for disqualification has been gained

outside the regular course of present or prior judicial proceedings.

(2) The judge knows that the judge, individually or as a fiduciary,

the judge’s spouse, domestic partner, a person within the third

degree of relationship to either of them, or any other member of

the judge’s family residing in the judge’s household

(a) Is a party to the proceeding, or an officer, director,

general partner, managing member, or trustee of a party;

(b)

Is acting as a lawyer in the proceeding;

(c) Is a person who has more than a de minimis interest

that could be substantially affected by the proceeding; or

(d)

Is likely to be a material witness in the proceeding.

(3) The judge, while a judge or a judicial candidate, has made a

public statement, other than in a court proceeding, judicial decision,

judicial opinion, or judicial administrative matter, that commits or

appears to commit the judge to reach a particular result or rule in

a particular way in the proceeding or controversy.

(4)

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;

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(b) Served in government 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 merit of the particular matter in controversy; or

(c)

Was a material witness concerning the matter.

A judge who disqualifies or recuses himself or herself in any proceeding

need not state the grounds for disqualification or recusal.

(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.

However, the obligation to keep reasonably informed about personal

economic interests does not extend to knowledge of each stock or other

security or property interest held within a mutual fund, retirement

account, deferred compensation plan, or other similar investment

account in which the decision to purchase or sell particular investments

is made by an individual or entity other than the judge or the judge’s

spouse or domestic partner.

(C) A judge subject to disqualification or recusal under this Rule, other

than for bias or prejudice under section A of this Rule, may disclose on

the record the basis of the judge’s disqualification or recusal and may ask

the parties and their lawyers to consider, outside the presence of the

judge and court personnel, whether to waive disqualification or recusal.

If, following the disclosure, the parties and lawyers agree, without

participation by the judge or court personnel, that the judge should not

be disqualified or recused, the judge may participate in the proceeding.

The agreement shall be incorporated into the record of the proceeding.

(D) The filing of a complaint with the Committee on Judicial

Responsibility and Disability by a party or attorney involved in litigation

pending before the judge does not require the judge to disqualify or

recuse himself or herself.

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(E) A judge may decline to disqualify or recuse himself or herself in any

proceeding in which disqualification or recusal might otherwise be

required under section A of this Rule if no other judge or court is available

and disqualification or recusal will result in a failure of justice. In such a

case, the judge shall disclose on the record the basis for disqualification

or recusal and the reason why the judge is declining to disqualify or

recuse himself or herself under this Rule, and the judge shall thereafter

disqualify or recuse himself or herself if at any time it becomes possible

to transfer the proceeding to another judge or court without a failure of

justice.

Advisory Notes – 2015

In discussion of this issue, the term “recusal” is used interchangeably

with the term “disqualification,” which is why both terms are incorporated. See

Comment [1] to ABA Model Rule 2.11. Rule 2.11 represents a substantial

revision and reordering of 1993 Canon 3(E) addressing disqualification or

recusal. It also differs from ABA Model Code Rule 2.11, which includes more

references to issues relating to judicial elections and campaigns.

Generally, a judge must recuse on motion made by any party only if (i)

the judge’s “impartiality might reasonably be questioned” or (ii) the judge has

a “personal bias or prejudice concerning a party or personal knowledge of

disputed evidentiary facts concerning the proceeding.” Charette v. Charette,

2013 ME 4, ¶ 21, 60 A.3d 1264; Decambra v. Carson, 2008 ME 127, ¶ 8, 953 A.2d

1163; see also Hughes v. Black, 156 Me. 69, 74-81, 160 A.2d 113, 116-19 (1960)

(providing detailed discussion of recusal policy when a personal relationship

or personal interest in a matter is an issue).9

Applying 1993 Canon 3(E), the Law Court has observed:

Maine Code of Judicial Conduct Canon 3(E) establishes two

instances where a judge’s recusal or disqualification from a case is

9 A useful survey of developments and current practice regarding recusal has been provided by a

Judge of the United States Court of Appeals for the Ninth Circuit in a presentation for a 2011

symposium on Review of Litigation at the University of Texas School of Law. See M. Margaret

McKeown, To Judge or Not to Judge: Transparency and Recusal in the Federal System, 30 Rev. Litig. 653

(2011). Review of that survey and several of the opinions cited in it demonstrate that close recusal

questions tend to be highly fact specific, requiring significant investigation before a determination

can be made that an ethical violation may have occurred and recusal is warranted.

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warranted. First, “[a] judge shall disqualify himself or herself on

the judge’s own initiative in any proceeding in which the judge has

reason to believe that he or she could not act with complete

impartiality.” M. Code Jud. Conduct 3(E)(1). “This is a purely

subjective test which the judge should apply based on his or her

own understanding of personal feelings or attitudes or factual

matters involved in the proceeding.” Advisory Comm.’s Notes to the

M. Code Jud. Conduct at 34 (effective Sept. 1, 1993) (hereinafter,

“Advisory Notes”). “A judge acting under this subsection . . . need

not state the grounds of disqualification.” M. Code Jud. Conduct

3(E)(1).

Second, “[a] judge may disqualify himself or herself on the judge’s

own initiative without stating the grounds of disqualification, and

shall disqualify himself or herself on a motion for recusal made by

a party, in any proceeding in which the judge’s impartiality might

reasonably be questioned.” M. Code Jud. Conduct 3(E)(2). Canon

3(E)(2) establishes an objective test that asks, “[r]egardless of the

judge’s own belief about his or her ability to act impartially,

[whether] the judge’s impartiality might reasonably be questioned

by others.” Advisory Notes at 34-35. Canon 3(E)(2) also sets forth

a nonexhaustive list of examples of when a judge’s impartiality

might reasonably be questioned, such as when “the judge has a

personal bias or prejudice concerning a party or a party’s lawyer.”

M. Code Jud. Conduct 3(E)(2)(a).

Samsara Mem’l Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶¶ 32-33,

102 A.3d 757 (alterations in original).

Recusal “is a matter within the broad discretion of [a] trial court.” State v.

Atwood, 2010 ME 12, ¶ 20, 988 A.2d 981; Johnson v. Amica Mut. Ins. Co., 1999 ME

106, 733 A.2d 977. “Accordingly, a decision by a trial judge not to recuse is

reviewed [on appeal] for an abuse of discretion.” Atwood, 2010 ME 12, ¶ 20,

988 A.2d 981; In re Bulger, 710 F.3d 42, 45 (1st Cir. 2013); Estate of Dineen,

1998 ME 268, ¶ 8, 721 A.2d 185. Further, “‘[t]he mere belief that a judge might

not be completely impartial is insufficient to warrant recusal.’” Samsara, 2014

ME 107, ¶ 38, 102 A.3d 757 (quoting Atwood, 2010 ME 12, ¶ 21, 988 A.2d 981).

62

A claim of bias or a motion to recuse asserted only after an adverse ruling

should be examined with caution, particularly if the basis for any objection was

known, or could with reasonable diligence have been known, prior to the

hearing leading to the questioned judicial action. See Samsara, 2014 ME 107,

¶¶ 25-27, 102 A.3d 757; Charette, 2013 ME 4, ¶ 22, 60 A.3d 1264; In re Kaitlyn

P., 2011 ME 19, ¶¶ 8-9, 12 A.3d 50. As the Second Circuit has noted, “First a

prompt application [to recuse] affords the district judge an opportunity to

assess the merits of the application before taking further steps that may be

inappropriate for the judge to take. Second, [it] avoids the risk that a party is

holding back a recusal application as a fall-back position in the event of adverse

rulings on pending matters.” In re International Business Machines Corporation,

45 F.3d 641, 643 (2d Cir. 1995).

When recusal is warranted, “a judge is under no obligation to disclose the

grounds for disqualification.” Atwood, 2010 ME 12, ¶¶ 22, 25, 988 A.2d 981. A

judge need not disclose the grounds for disqualification because the reasons for

a judge’s disqualification may be private and personal and/or unrelated to the

proceedings.

Prior Rulings, Information Gained in the Course of Judicial Proceedings

The fact that a judge has ruled against a party or has learned of

information adverse to a party in the proper course of judicial proceedings is

not a basis for recusal. Dalton v. Dalton, 2014 ME 108, ¶ 25, 99 A.3d 723; In re

Michael M., 2000 ME 204, ¶¶ 11-14, 761 A.2d 865; see also Stevenson v. Bank of

America, N.A., 597 F. App’x 4 (2d Cir. 2015). “Without more, an adverse ruling

does not support a claim for recusal . . . and the on-the-record hearing, of which

Appellants had notice and neglected to attend, does not constitute an improper

ex parte contact.” Stevenson, 597 F. App’x at 6; Liteky v. United States, 510 U.S.

540, 555-556 (1994); Khor Chin Lim v. Courtcall, Inc., 683 F.3d 378, 380 (7th

Cir. 2012); State v. Lewis, 1998 ME 83, ¶ 3, 711 A.2d 119.

When a judge has ruled against a party at an earlier stage of a proceeding

and uses information gained in the earlier proceeding in decision-making at a

later stage of the proceeding, use of that information does not make the judge a

material witness in the proceeding, see Rule 2.11(A)(5)(c), or otherwise require

recusal, as the judge’s knowledge of the facts was gained in the course of the

proceeding. In re C.M., 103 A.3d 1192 (N.H. 2014) (applying an identically

worded Rule 2.11(A)(5)(c) in a child protective case when the judge who

63

presided in an earlier neglect proceeding also presided at the termination of

parental rights proceeding); see also Brown v. Oil States Skagit Smatco, 664 F.3d

71, 78-81 (5th Cir. 2011) (magistrate judge who used information gained at

settlement conference as a basis for later imposition of sanctions not required

to recuse as material witness, and information was not from an “extrajudicial”

source but was learned in the same or a related proceeding).

But in State v. Rameau, 685 A.2d 761, 763 (Me. 1996), the Law Court

recognized an exception to this general rule and noted that a judge is required

to recuse because of opinions based on information acquired in that proceeding

or a prior judicial proceeding if the judge’s opinions “display a deep-seated

favoritism or antagonism that would make fair judgment impossible.” See also

Brown, 664 F.3d at 81 (“[W]e have explained that ‘[o]pinions formed by the

judge that are based on . . . events occurring during the proceedings do not

constitute a basis for recusal unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible.’” (citation omitted)).

The First Circuit has observed that “[r]ecusal is only required by a state

of mind ‘so resistant to fair and dispassionate inquiry as to cause a party, the

public, or a reviewing court to have reasonable grounds to question the neutral

and objective character of a judge’s rulings or findings.’” In re Lupron Marketing

& Sales Practices Litig., 677 F.3d 21, 36 (1st Cir. 2012) (quoting In re United

States, 158 F.3d 26, 34 (1st Cir. 1998)); see also Nickerson‐Malpher v. Baldacci,

522 F. Supp. 2d 293, 295 (D. Me. 2007).

Prior Professional and Financial Relationships

Judicial participation in matters involving former law firms, law partners,

employees, or clients can raise disqualification issues. Prior professional

relationships and related matters regarding financial issues and interests of

family members are also addressed in Rule 3.11 and its Advisory Notes.

In Allphin v. United States, 758 F.3d 1336, 1343-1344 (Fed. Cir. 2014), the

Federal Circuit addressed a recusal motion directed at a judge who from 1976

to 1996 had been an attorney for the Department of Justice and then the Navy,

a party to the pending case. Although the plaintiffs asserted that they doubted

the judge’s impartiality, the court held that the standard for whether the judge’s

impartiality might reasonably be questioned

64

is an objective test that mandates recusal “when a reasonable

person, knowing all the facts, would question the judge’s

impartiality.” . . . Appellants’ subjective beliefs about the judge’s

impartiality are irrelevant. The judge’s prior work for the

Department of Justice and the Navy over seventeen years ago does

not raise a reasonable question as to her impartiality. A “mere prior

association [does not] form a reasonable basis for questioning a

judge’s impartiality.”

Id. at 1344 (citations omitted).

In In re Martinez‐Catala, 129 F.3d 213, 221 (1st Cir. 1997), the First

Circuit addressed judicial participation in cases in which former employees or

former clients are involved:

It is common knowledge in the profession that former law clerks

practice regularly before judges for whom they once clerked.

Courts often have prophylactic rules that forbid a former law clerk

from appearing in that court for a year or more after the clerkship,

see, e.g., 1st Cir. R. 46, but no such rule is claimed to have been

violated in this case. And any lawyer who studies a judge’s past

rulings can make an informed guess as to how the judge is likely to

approach an issue.

So, too, appointees to the bench have sometimes had a former

active connection with a political party. But many judges also sit,

usually after a self-imposed cooling off period, on cases involving

former clients (assuming always no current financial ties and that

the judge did not work on the same or a related matter while in

practice).

Noting the highly fact specific nature of such questions, the

Massachusetts Appeals Court ordered that a judge should be disqualified in a

case when a party was represented by the judge’s former law firm when, after

leaving the firm, the judge had been involved in litigation of separation

compensation issues with the firm. Commonwealth v. Morgan RV Resorts, LLC,

992 N.E.2d 369 (Mass. App. Ct. 2013).

65

The facts here do not present the ordinary situation of a judge who

was affiliated with a firm before joining the bench, where recusal

from that firm’s cases may be warranted for a limited time. See

generally Flamm, Judicial Disqualification: Recusal and

Disqualification of Judges § 8.9, at 225–229 (2d ed. 2007), and

authorities cited. Nor is it simply the case of a partner who left to

start a competing firm, which may give rise to some discord. The

judge’s relationship with [the firm] was more difficult and is

distinguishable from those that we have found in other recusal

cases. As the recusal determination “is extremely fact driven,” we

must consider the totality of the circumstances to determine

whether recusal was warranted.

Id. at 376.

Similarly, a judge presiding in matters that were pending or under

investigation while the judge was employed in a prosecutor’s office before

becoming a judge can lead to disqualification issues. See In re Bulger,

710 F.3d 42, 45-47 (1st Cir. 2013), addressed in the Advisory Notes to Rule 2.2.

Compare Matson v. Board of Education of City School Dist. of N.Y., 631 F.3d 57,

63 n. 5 (2d Cir. 2011) (rejecting plaintiff’s claim that judge should recuse

because judge’s niece was then employed by defendant Board of Education and

judge had previously served as Corporation Counsel for the City).

The Obligation Not to Recuse Except When Necessary

Although the granting or denying of a motion to recuse is within the

discretion of the court, the Law Court has noted that a judge who disqualifies

himself or herself “‘for no reason other than an unfounded and meritless claim

of partiality, has abused the judge’s discretion.’” Charette, 2013 ME 4, ¶ 23, 60

A.3d 1264 (quoting In re Michael M., 2000 ME 204, ¶ 15, 761 A.2d 865); State v.

Murphy, 2010 ME 140, ¶ 18, 10 A.3d 697; Atwood, 2010 ME 12, ¶ 22, 988 A.2d

981; see also Rule 2.7. Thus, if there is no reasonable basis for recusal, a judge

is obliged not to recuse to assure that the proceeding may have a timely

conclusion for all parties. See In re Michael M., 2000 ME 204, ¶¶ 14-15, 761

A.2d 865; Rule 2.7. “[J]udges must not allow litigants to utilize the process of a

recusal motion to delay or thwart the judicial proceedings where there is no

reasonable basis for the motion and it is obvious on its face that it was intended

to halt or delay the litigation.” In re Michael M., 2000 ME 204, ¶ 14, 761 A.2d

66

865 (citing In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir.

1988)); see also In re United States of America, 441 F.3d 44, 67 (1st Cir. 2006)

(“The trial judge has a duty not to recuse himself or herself if there is no

objective basis for recusal.”); Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir.

2004) (noting that “a federal judge has a duty to sit where not disqualified

which is equally as strong as the duty to not sit where disqualified,” in rejecting

a litigant’s claim that a judge should not sit when the judge’s immediate family

member was an at-will employee in the office representing a party in litigation

before the court); Nickerson‐Malpher v. Worley, 560 F. Supp. 2d 75, 76-77 (D.

Me. 2008) (dismissing recusal demand as frivolous).

Attempts to Provoke Recusal

Attempts by a party to secure the recusal of a judge through the use of

intentional disrespect or the strategic filing of a complaint with the Committee

or a civil action against the judge are inappropriate and ordinarily should be

rejected by the judge. The Law Court addressed such an attempt to secure a

recusal that included criticism of the judge in court and filing suits against the

judge in State v. Murphy, 2010 ME 140, ¶ 18, 10 A.3d 697, stating:

Despite Murphy’s provocations and claims that the judge should

have recused because of Murphy’s filing actions against the judge

and criticism of the judge, the court appropriately maintained the

proceedings to their completion. Recusal is discretionary and, as

we have observed, judges should avoid recusal in situations when

parties engage in actions seeking to cause recusal.

In Advisory Opinion 91-1, the Advisory Committee on the Maine Code of

Judicial Conduct concluded that a judge is not required to recuse from a case on

the sole ground that a party to that action has filed a complaint against the judge

with the Committee. See also Rodgers v. Knight, 781 F.3d 932, 943 (8th Cir.

2015) (that plaintiff’s counsel had filed a judicial conduct complaint against

judge in previous, unrelated litigation did not require recusal in pending

litigation).

****

The Advisory Notes to Rule 2.2 also discuss recusal-disqualification

issues, particularly as they relate to the ethical obligation of impartiality, in

67

some detail. The Advisory Notes to Rule 3.11 also discuss recusaldisqualification issues, particularly as they relate to financial interest and

family relationship issues, in some detail.

The 1993 Advisory Committee’s Note addressing 1993 Canon 3(E) noted

some differences between 1993 Canon 3(E) and the 1990 ABA Model Code:

Canon 3E establishes specific standards and procedures for

disqualification in situations where a judge’s impartiality is or may

be in question. The Canon is meant to apply at any time during a

proceeding when potential grounds for disqualification become

apparent to the judge or to the parties or their lawyers. In the

context of this Canon, “proceeding” means an adjudicative

proceeding. Under Canon 3C, a judge is bound to carry out

administrative duties without bias or prejudice, but no formal

procedure for disqualification in administrative matters is

required because those duties are ordinarily carried out in an

informal and nonadversarial setting.

Canon 3E(1) provides for self-disqualification on the judge’s

own motion whenever a judge believes that he or she cannot act

impartially. This is a purely subjective test which the judge should

apply based on his or her own understanding of personal feelings

or attitudes or factual matters involved in the proceeding. The

Court found a violation of the predecessor of this section, former

Canon 3C(1), when a judge, far from disqualifying himself, caused

speeding complaints to be filed in cases involving personal

acquaintances. Matter of Ross, supra, at 864-65. Under Canon

3E(1), the judge is not required to state on the record the reasons

for self-disqualification. As noted above in discussion of Canon

3B(1), however, a judge who self-disqualifies might have to state

the grounds in response to a judicial conduct complaint under that

subsection.

Canon 3E(2) embodies an objective test. Regardless of the

judge’s own belief about his or her ability to act impartially, if the

judge’s impartiality might reasonably be questioned by others, the

judge may self-disqualify on her or his own motion and must

disqualify himself or herself on a motion to recuse brought by one

68

of the parties. When the judge self-disqualifies on the judge’s own

motion, the grounds need not be stated, except as noted above with

regard to Canon 3B(1).

The same standard applies to

self-disqualification and to a motion to recuse, because the judge

may take a different view of the appearance of partiality when it

has been presented on motion and argued by counsel. The judge,

of course, remains free to deny the motion if the moving party fails

to establish a reasonable basis for questioning impartiality. See

Estate of Tingley, 610 A.2d 266 (Me. 1992) (probate judge had

broad discretion to refuse to disqualify himself where nephew was

board member of creditor with claim against estate).

Canon 3E(2) sets forth specific instances where impartiality

might be questioned. The list is not intended to be exclusive. As

stated in the Commentary to the comparable provision of the ABA

Model Code (1990), Section 3E(1), “Under this rule, a judge is

disqualified whenever the judge’s impartiality might reasonably be

questioned, regardless whether any of the specific rules in Section

3E(1) apply. For example, if a judge were in the process of

negotiating for employment with a law firm, the judge would be

disqualified from any matters in which that law firm appeared.”

Canon 3E(2)(a) requires disqualification on the basis of bias,

prejudice, or personal knowledge of disputed facts. Although the

text only specifies bias or prejudice against a party or lawyer, other

situations, such as a judge’s prejudice against a witness in a nonjury trial or extreme prejudice on the issues, could require

disqualification under the non-exclusive terms of Canon 3E(2).

When a party to a pending proceeding sues or files a disciplinary

complaint against the judge, paragraph (a) does not require

disqualification if the circumstances indicate that the suit or

complaint has been brought solely as a tactic to obtain the judge’s

disqualification. Note that “personal knowledge” as used in

paragraph (a) is not intended to include the kind of generalized

knowledge that is the basis of judicial notice.

Canon 3E(2)(b) requires disqualification when the judge or

a previous associate has been involved as a lawyer, or the judge is

a material witness. Canon 3E(2)(c) requires disqualification when

69

the judge or a family member has “an economic interest” in the

controversy, or in a party, or has “any other more than de minimis

interest” that could be substantially affected. The phrase

“de minimis” is the key to this standard, because “economic

interest” is defined in Part II, section 3E, as “ownership of a more

than de minimis legal or equitable interest,” or an active role in the

affairs of a party. “De minimis” is defined in Part II, section 3D, as

“an interest too trivial to raise reasonable question as to a judge’s

impartiality.” The standard is consistent with prior Maine case law

holding that a pecuniary interest must be “direct, definite and

capable of demonstration; not remote, uncertain, unsubstantial,

speculative, or theoretic.” Hughes v. Black, 156 Me. 69, 75 [(1960)].

Canon 3E(2)(d) requires disqualification when the judge, a

spouse, “a person within the third degree of relationship to either

of them,” or such a relation’s spouse is a party, officer, or lawyer of

a party, or, to the judge’s knowledge, has “a more than de minimis

interest that could be substantially affected by the proceeding, or

is likely to be a material witness.” The definition of “third degree

of relationship” incorporates the civil law system and includes

great-grandparents, great-grandchildren, nephews and nieces, but

not first cousins. See Part n, Section 3P, and Advisory Committee’s

Note. By statute a relationship in the sixth degree according to the

civil law, which includes second cousins, is a ground for

disqualification for interest. 1 M.R.S.A. § 71(6). The third degree is

retained in the Code, however, despite a dictum in Hughes v. Black,

supra, 156 Me. at 77, finding the statute applicable. The purpose of

the Code is to limit the number of unnecessary mandatory

disqualifications. The Code like the statute does incorporate the

concept of affinity as well as kinship. Of course, a judge having any

kind of significant personal or economic connection with a relative

beyond the third degree should self-disqualify under Canon 3E(1)

or (2).

Under Canon 3E(3), a judge who does not self-disqualify

under Canon 3E(1) or (2) is required to disclose to the parties any

factual connection to the proceeding that is relevant to a

determination of impartiality. The purpose of the provision is to

assure that parties trying to determine whether to seek recusal are

70

aware of relevant information in more specific detail than is

provided in the general judicial financial disclosures required

under Canon 6. The relevance standard for disclosure is lower than

that for disqualification or recusal. The test of relevance is that of

M.R. Evid. 401: A fact that must be disclosed is one “having any

tendency” to make the fact of impartiality “more probable or less

probable than it would be without the” fact.

Canon 3E(4) sets forth a “rule of necessity” that may be a

basis for a judge’s refusal to disqualify himself or herself even in

the specific circumstances set forth in Canon 3E(2). Examples

include situations in which, “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.” ABA Model Code (1990), Commentary to

Section 3E(1). The rule adds the further requirement that

disqualification would result in a failure of justice—that is, an

inability of the parties to obtain any judicial determination of the

issues which they have raised. If the rule of necessity is relied upon,

the judge must disclose the grounds upon which disqualification

might otherwise be appropriate and must step down at the earliest

opportunity. The possibility of a rule of necessity has been

recognized by the Law Court. See Cunningham v. Long, 125 Me.

494, 497, 135 A. 198 (1926).

The 1993 Textual Note to Canon 3, as it addresses Canon 3(E) further

notes:

Proposed Canon 3E combines provisions of ABA Model Code

(1990), Section 3E, with provisions intended to clarify and develop

the original intent of Maine Code (1974), Canon 3C.

Canon 3C of the 1974 Maine Code did not incorporate the

detailed provisions of ABA Code (1972), Canon 3C, defining specific

instances in which a judge should disqualify himself or herself

because the judge’s “impartiality might reasonably be questioned.”

The 1974 Maine Code incorporated the ABA standard without the

specific instances and added a provision for self-disqualification

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when the judge “has reason to believe that” the judge “could not act

with complete impartiality.” Additionally, under Maine Code

(1974), Canon 3C(2), the judge must “promptly inform the parties

. . . concerning any matter which might reasonably cause” the

judge’s “impartiality to be questioned.” The provisions of ABA

Code (1972), Canon 3D, for disclosure followed by remittal of

disqualification on agreement of the parties were not adopted. The

Maine provisions were intended to limit disqualification because

substitute judges were deemed rarely readily available. Further

proceedings upon disclosure or disqualification were the

responsibility of counsel. See Maine Code (1974), Committee Note

to Canon 3C, 8 Me.Bar Bull, No. 3, at 31.

Canon 3E(1) retains the test of Maine Code (1974), Canon

3C(1) for self-disqualification, with the addition of the final

sentence. Canon 3E(2) carries forward the objective test of Maine

Code (1974), Canon 3C(1), for either self-disqualification or

disqualification on motion to recuse. The framework of selfdisqualification and recusal is unique to Maine but paragraphs (a)(e), new to Maine, are taken without change from ABA Model Code

(1990), Section 3E(1), which was derived from ABA Code (1972),

Canon 3C(1). The “de minimis” standard of paragraph (c) is

substituted for the requirement of ABA Code (1972), Canons

3C(l)(c), (3)(c), that disqualification result from “ownership of a

legal or equitable interest, however small.”

Canon 3E(3) is unique to the Maine Code. It substitutes a

requirement of disclosure of relevant information for the duty to

inform the parties of a potentially disqualifying matter in Maine

Code (1974), Canon 3C(2). Canon 3E(4), also unique to Maine, is

adopted from ABA Model Code (1990), Commentary to Section

3E(1).

ABA Model Code (1990), Section 3E(2), requiring a judge to

keep informed about the judge’s own interests and to make a

reasonable effort to keep informed about the interests of the

judge’s spouse and minor children has not been adopted. The

subsection is superfluous in light of the extensive disclosure

requirements of proposed Canon 6.

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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 in a manner consistent with the

judge’s obligations under this Code.

(B) A judge with supervisory authority for the performance of other

judges should take reasonable measures to ensure that those judges

properly discharge their judicial responsibilities, including the prompt

disposition of matters before them.

Advisory Notes – 2015

Rule 2.12 is similar to 1993 Canon 3(C)(2) and (3). Rule 2.12(A) though

more broadly stated, is somewhat duplicative of Rule 2.8(B) and 2.10(B). It is

maintained here to keep consistency with organization and numbering of the

2011 ABA Model Code. References in 1993 Canon 3(C)(2) to a judge’s

responsibility to avoid bias or prejudice are now addressed in Rule 2.3. Maine

1993 Canon 3(C)(3) states: “A judge with supervisory authority for the judicial

performance of other judges shall take reasonable measures to assure the

prompt disposition of matters before them and the proper performance of their

other judicial responsibilities.”

Rule 2.12(B) does not include the final phrase “and the proper

performance of their other judicial responsibilities” that appears in 1993 Canon

3(C)(3) after the words “before them.” Rule 2.12(B) uses the term “should” to

recognize that supervisory judges have appropriately limited authority to

mandate the conduct of other judges and cannot always assure that judges will

follow suggested directions.

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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

appointments.

nepotism,

favoritism,

and

unnecessary

(B) A judge shall not appoint a lawyer to a position if the judge either

knows that the lawyer, or the lawyer’s spouse or domestic partner, has

contributed any amount within the past four years to the judge’s election

campaign, or learns of such a contribution by means of a timely motion

by a party or other person properly interested in the matter, 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 competent for the

position and is willing and able to accept the position.

(C) A judge shall not approve compensation of appointees beyond the

fair value of services rendered.

Advisory Notes – 2015

Rule 2.13 is drawn from 1993 Canon 3(C)(4), but with much more detail,

particularly addressing (1) appointment of persons who have made

contributions in Probate Judge elections, and (2) listing exceptions to the

prohibitions on appointments. The appointments addressed in this Rule are

those where the appointment is made and compensation, if any, is set or is

subject to approval by the court for services to be performed in specific cases

pending before the court. The Rule does not apply to appointments made and

74

compensation approved or determined by the Maine Commission on Indigent

Legal Services. The Rule also does not apply to the hiring of employees of the

Judicial Branch. Such hiring is governed by separate statutes, court rules,

administrative orders, and collective bargaining agreements.

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RULE 2.14

Disability and Impairment

A judge who has actual knowledge 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 the Maine Assistance Program.

Advisory Notes – 2015

Rule 2.14 is derived from the 2011 ABA Model Code. There is no

comparable provision in the 1993 Code of Judicial Conduct. The impairment

issue as to both judges and lawyers is addressed in detail in the Rules for the

Maine Assistance Program. When a disability or impairment issue arises,

reference to those Rules for determination of possible appropriate action is a

reasonable choice.

Rule 2.14 recognizes that the ethical obligation to take appropriate action

arises only when a judge has “actual knowledge” that a lawyer’s or a judge’s

performance is impaired by one or a combination of the described conditions.

When a judge may have 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, the judge may take appropriate action, which may include a

confidential referral to the Maine Assistance Program. Application of this Rule

will require good judgment and flexibility because of the highly subjective

nature of the evaluations and actions a judge is encouraged to take.

76

RULE 2.15

Disciplinary Responsibilities

(A) A judge having knowledge that another judge has committed a

violation of this Code that raises a substantial question as to the judge’s

honesty, trustworthiness, or fitness as a judge in other respects shall

inform the Committee on Judicial Responsibility and Disability or the

appropriate authority.

(B) A judge having knowledge that a lawyer has committed a violation

of the Maine Rules of Professional Conduct that raises a substantial

question regarding the lawyer’s honesty, trustworthiness, or fitness as a

lawyer in other respects shall inform the Board of Overseers of the Bar

and any other appropriate authority including disciplinary boards of

other jurisdictions in which the lawyer is admitted to practice. The fact

that a judge has referred an attorney to the Maine Assistance Program or

has filed a disciplinary complaint against an attorney with the Board of

Overseers of the Bar does not provide a good faith basis for recusal when

the basis for the complaint would not otherwise require recusal.

(C) A judge who receives information indicating a substantial

likelihood that another judge has committed a violation of this Code

should take appropriate action.

(D) A judge who receives information indicating a substantial

likelihood that a lawyer has committed a violation of the Maine Rules of

Professional Conduct should take appropriate action.

(E) Acts or omissions of a judge, in the discharge of disciplinary

responsibilities required or permitted by sections A through D of this rule,

are a part of a judge’s judicial duties and shall be absolutely privileged,

and no civil actions predicated thereon may be instituted against the

judge.

(F) This Rule does not require disclosure of information obtained in

the course of a lawyer’s or judge’s participation in the Maine Assistance

Program for Lawyers and Judges, or an equivalent peer assistance

program approved by a state’s highest court.

77

Advisory Notes – 2015

Rule 2.15 is similar to 1993 Canon 3(D)(1)-(3), including the differing

uses of the terms “shall” and “should,” depending on the clarity of the

information indicating an ethical violation has been committed. The

importance of the distinction between “shall” and “should” in light of the

subjective judgments that must be made, often on less than complete

information, is addressed in the 1993 Advisory Committee’s Notes to Canon

3(D) as follows:

Canon 3D covers a judge’s responsibilities to the disciplinary

systems governing other judges and lawyers. Canon 3D(1)

establishes a two-tiered approach to judicial misconduct. If a judge

“receives information that there is “a substantial likelihood” of a

violation of the Code of Judicial Conduct, the subsection merely

states that the judge “should take appropriate action,” which could

include direct communication with the other judge, referral to a

substance abuse treatment agency, or filing a complaint with the

Committee on Judicial Responsibility and Disability. See ABA

Model Code (1990), Committee Note and Commentary to Section

3D. If, however, the judge has knowledge of a Code violation by

another judge “that raises a substantial question as to the other

judge’s fitness for office,” the judge is required to report the

violation to the Committee or to “other appropriate authority,”

such as the Board of Overseers of the Bar if the conduct also

violates the Maine Bar Rules [now the Maine Rules of Professional

Conduct].

The purpose of the two-tiered approach is to encourage

remediation and rehabilitation by not requiring a formal

disciplinary complaint in situations where the facts are uncertain

or the violation is not serious. Where the violation is certain and

substantial, however, a disciplinary complaint must be made.

Thus, the second tier is not reached unless the judge has actual

knowledge (see definition of “knowledge,” Part II, Section 3J) of a

violation, as opposed to “information” from other sources

indicating that a violation is substantially likely.

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Canon 3D(2) applies the same approach to lawyer

misconduct. If the judge has information indicating that a violation

of the Maine Bar Rules is substantially likely, the judge has the same

range of options as with a fellow judge, as well as the further

possibility of imposing sanctions in the proceeding. If the judge has

actual knowledge of a Code violation “that raises a substantial

question as to the lawyer’s honesty, trustworthiness, or fitness as a

lawyer in other respects” (the language of the mandatory reporting

requirement of M. Bar R. 3.2(e)(1)), the judge must report the

violation to the Board of Overseers of the Bar, or, if appropriate, the

disciplinary authorities of another jurisdiction. The words “or take

other appropriate action” make clear that the obligation to file a

disciplinary complaint does not preclude the imposition of

sanctions in the proceeding.

Canon 3D(3) makes provision for judicial immunity from

civil actions predicated on the exercise of the obligation to report

professional misconduct. This provision is declarative of existing

substantive law. See, e.g., Forrester v. White, 484 U.S. 219 (1988)

(absolute immunity for judicial acts, such as acting to disbar a

lawyer for contempt, but not for administrative acts, such as firing

a court employee); see also Richards v. Ellis, 233 A.2d 37 (Me.

1967). The provision is not intended to confer immunity from

judicial discipline proceedings for improper conduct under

proposed Canon 3D, however, even though such proceedings may

be deemed “civil” in nature.

Advisory Note – September 2023

A new subdivision (F) is added, modeled on the language of Rule 8.3(c)

of the Maine Rules of Professional Conduct, which, as amended simultaneously

with this amendment, provides:

RULE 8.3

(a)

REPORTING PROFESSIONAL MISCONDUCT

A lawyer who knows that another lawyer has committed a violation

of the Maine Rules of Professional Conduct that raises a substantial

question as to that lawyer’s honesty, trustworthiness or fitness as a

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lawyer in other respects, shall inform the appropriate professional

authority.10

(b) A lawyer who knows that a judge has committed a violation of

applicable rules of judicial conduct that raises a substantial question

as to the judge’s fitness for office shall inform the appropriate

professional authority.11

(c)

This Rule does not require disclosure of information otherwise

protected by Rule 1.6 or information obtained in the course of a

lawyer’s or judge’s participation in the Maine Assistance Program for

Lawyers and Judges, or an equivalent peer assistance program approved

by a state’s highest court.

(Emphasis added.)

In Maine, the appropriate professional authority will be the Maine Board of

Overseers of the Bar, or in certain circumstances, as described in the Maine Rules for

Maine Assistance Program for Lawyers and Judges, the Maine Assistance Program for

Lawyers and Judges.

11 In Maine, the appropriate professional authority will be the Committee on

Judicial Responsibility and Disability, or, in certain circumstances, as described in the

Maine Rules for Maine Assistance Program for Lawyers and Judges, the Maine

Assistance Program for Lawyers and Judges.

10

80

RULE 2.16

A Judge Shall Comply 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 lawyer.

Advisory Notes – 2015

Rule 2.16 has no counterpart in the 1993 Canons. It is identical to Rule

2.16 in the 2011 ABA Model Code. Rule 2.16 does not preclude a judge from

denying and sanctioning a frivolous motion to recuse or other tactic intended

to delay or confuse litigation, even if the party sanctioned has filed a complaint

with the Committee. In such an action, the judge would not be responding to

the complaint that was made to the Committee but to the tactic of filing a

motion to recuse or other similar action intended to delay or confuse the

proceedings.

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CANON 3

A judge shall conduct the judge’s personal and extrajudicial activities to

minimize the risk of conflict with the obligations of judicial office.

Advisory Notes – 2015

There is no Comment supporting Canon 3 in the ABA Model Code. Canon

3 is a nonsubstantive rewording of Canon 4 of the 1993 Code. Canon 4 of the

1993 Code states: “A Judge Shall so Conduct the Judge’s Extra-Judicial Activities

as to Minimize the Risk of Conflict With Judicial Obligations.” The introductory

paragraph of the 1993 Advisory Committee’s Note to Canon 4 stated:

Canon 4 governs all activities of judges conducted in other

than a judicial capacity, including personal and private activity.

Additional specific provisions covering political activity are set

forth in Canon 5. Everything that a judge does is, of course, subject

to the overriding provisions of Canon 2A that a judge “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

judiciary.”

The differences between the subdivisions of 1993 Canon 4 and the Rules

applying new Canon 3 are more significant than were the differences between

1993 Canon 3 and the Rules applying new Canon 2. Thus, the 1993 Advisory

Committee’s Note for 1993 Canon 4 is not as easy to tie to particular Rules in

new Canon 3. Accordingly, for each new Rule the most relevant subdivision of

1993 Canon 4 will be referred to in the Advisory Notes. To review the

implementing Advisory Committee’s Note for the 1993 Canon 4 subdivision,

one should consult the complete copy of the 1993 Canons and Advisory

Committee’s Notes.

82

RULE 3.1

Extrajudicial Activities in General

A judge may engage in extrajudicial activities, except as prohibited by law or

this Code. However, when engaging in extrajudicial activities, a judge shall not

(A) Participate in activities that will interfere with the proper

performance of the judge’s judicial duties;

(B) Participate in activities that will lead to frequent disqualification of

the judge;

(C) Participate in activities that would appear to a reasonable person

to undermine the judge’s independence, integrity, or impartiality;

(D) Engage in conduct that would appear to a reasonable person to be

coercive;

(E) Make use of court premises, staff, stationery, equipment, or other

resources, except for incidental use and for activities that concern the

law, the legal system, or the administration of justice, or unless such

additional use is permitted by law; or

(F)

Demean the judicial office.

Advisory Notes – 2015

Rule 3.1 appears to have the same general introductory purpose, and the

same title, as 1993 Canon 4(A), but the wording of Rule 3.1 addressing

extrajudicial activities is different and much more detailed. The wording of

Rule 3.1 is identical to the 2011 ABA Model Code, with the addition of

paragraph (F) indicating that a judge shall not “Demean the judicial office.” The

2011 ABA Model Code Comment to Rule 3.1 states, in part:

[1] To the extent that time permits, and judicial independence and

impartiality are not compromised, judges are encouraged to

engage in appropriate extrajudicial activities. Judges are uniquely

qualified to engage in extrajudicial activities that concern the law,

83

the legal system, and the administration of justice, such as by

speaking, writing, teaching, or participating in scholarly research

projects. In addition, judges are permitted and encouraged to

engage in educational, religious, charitable, fraternal or civic

extrajudicial activities not conducted for profit, even when the

activities do not involve the law.

[2] Participation in both law-related and other extrajudicial

activities helps integrate judges into their communities and

furthers public understanding of and respect for courts and the

judicial system.

[Comments 3 and 4 address bias and solicitations addressed in

more detail in Rules 2.3, 3.6, and 3.7.]

As noted in the 1993 Advisory Committee’s Note to Canon 4(A), the

purpose of the Canons addressing extrajudicial activities “is to encourage

appropriate extrajudicial activity, rather than to forbid all such activity.” As the

1990 ABA Model Code Commentary to Canon 4A noted: “Complete separation

of a judge from extrajudicial activities is neither possible nor wise; a judge

should not become isolated from the community in which the judge lives.” See

Samsara Memorial Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶ 36, 102

A.3d 757 (citing precedent from other states to note that participation by a

judge in community activities and knowing people in a community is not a basis

for disqualification and “is not necessarily a bad thing” (citing Medley v. State,

600 So. 2d 957, 961 (Miss. 1992) and quoting Tatham v. Rogers, 283 P.3d 583,

603 (Wash. Ct. App. 2012))). Thus, new Canon 3, like 1993 Canon 4, is intended

to give the maximum scope to personal freedom that is consistent with its

overriding purposes.

The ABA Model Code Comment [3] to Rule 3.1 notes that judges must

avoid discriminatory actions and expressions of bias or prejudice, even outside

the judge’s official or judicial actions and must avoid connection or affiliation

with organizations that practice “invidious discrimination.” This Maine Code

revision, when addressing prohibited discrimination issues, uses the specific

and definable term “unlawful discrimination” rather than the subjective and

ambiguous term “invidious discrimination.” See new Rule 3.6. The 1993

Textual Note to Canon 2 indicates that a similar wording change substituting

84

“unlawful discrimination” for “invidious discrimination” occurred in drafting

1993 Canon 2, altering the 1990 ABA Model Code.

85

RULE 3.2

Governmental, Civic, or Charitable Activities

A judge shall not appear voluntarily at a public hearing before, or otherwise

consult with, an executive or a legislative body or official, except

(A) In connection with matters concerning the law, the legal system, or

the administration of justice or the appointment or reappointment of the

judge;

(B) In connection with matters about which the judge acquired

knowledge or expertise in the course of the judge’s judicial duties; or

(C) When the judge is acting in a matter involving the judge’s personal,

legal, or economic interests, or when the judge is acting in a fiduciary

capacity.

Advisory Notes – 2015

Rule 3.2 is stated more broadly than 1993 Canon 4(C)(1) which has a

similar purpose. Like Rule 3.1, the purpose of Rule 3.2 is to enable outreach in

areas where judges may provide useful observations and advice without

compromising judicial independence, integrity, or impartiality. Thus the 2011

ABA Model Code Comment to Rule 3.2 notes in part: “Judges possess special

expertise in matters of law, the legal system, and the administration of justice,

and may properly share that expertise with governmental bodies and executive

and legislative branch officials.”

Judicial actions related to appointment and reappointment are also

addressed in 1993 Canon 5, the Advisory Notes to Rule 1.3, and new Canon 4.

86

RULE 3.3

Testifying as a Character Witness

A judge shall not testify as a character witness in a judicial, administrative, or

other adjudicatory proceeding, or otherwise vouch for the character of a person

in a legal proceeding, except when duly summoned.

Advisory Notes – 2015

Rule 3.3 is similar to 1993 Canon 2(B). The history of this provision and

its reference to “in a legal proceeding” indicates that it is focused on proscribing

testimony before adjudicatory fact-finding hearings as a character witness.

This restriction is designed to prevent misuse of the prestige of the judicial

office, and to help assure that no one can convey the impression that he or she

is in a special position to influence the judge as addressed in Rule 1.3. See 1993

Canon 2(B) and its related Advisory Committee’s Notes.

Rule 3.3 does not prevent a judge from responding to an appropriate

inquiry about the qualifications, skills, or integrity of an individual whose work

the judge has observed in the course of performing his or her judicial duties.

Such comments may be requested and responded to in the course of an

investigation of an individual being considered for hiring or appointment to

another position.

87

RULE 3.4

Appointments to Governmental Positions

A judge shall not accept appointment to a governmental committee, board,

commission, or other governmental position unless it is one that concerns the

law, the legal system, or the administration of justice.

Advisory Notes – 2015

Rule 3.4 is identical to Rule 3.4 in the 2011 ABA Model Code.

Interpretation of Rule 3.4 must recognize the complete separation of powers

required by Article III of the Maine Constitution and the limitation on judges

holding office specified in Article VI, § 5 of the Maine Constitution. See In re

Dunleavy, 2003 ME 124, ¶¶ 6, 18-19, 24, 838 A.2d 338 (holding that a Probate

Judge could not run for the State Senate while holding the office of probate

judge, and that a statute that purported to allow a sitting judge to seek an

elective office would be violative of Article III of the Maine Constitution if so

construed).

The prohibition on judges seeking other elected offices is stated in Rule

4.5(A). There is a similar ban on a judge holding other appointed offices, but a

judge seeking an appointed office may remain a judge while seeking the

appointed office. See Rule 4.5(B). A judge may remain a judge while seeking

appointment to any executive, legislative, or other judicial office when securing

the office does not require an election, respecting of course the directives of

Rules 1.3 and 2.1.

88

RULE 3.5

Use of Nonpublic Information

A judge shall not intentionally disclose or use nonpublic information acquired

in a judicial capacity for any purpose unrelated to the judge’s judicial duties,

except that disclosure of nonpublic information is allowed when reasonably

necessary to protect public health and safety.

Advisory Notes – 2015

Rule 3.5 is similar to Canon 3(B)(11) in the 1993 Code, and the first part

of Rule 3.5 is identical to Rule 3.5 in the 2011 ABA Model Code. The ABA Model

Code Comments note that in their official duties judges “may acquire

information of commercial or other value that is unavailable to the public. The

judge must not reveal or use such information for personal gain or for any

purpose unrelated to his or her judicial duties.” Comment [2] then notes an

important exception: “The rule is not intended . . . to affect a judge’s ability to

act on information as necessary to protect the health or safety of the judge or a

member of the judge’s family, court personnel, or other judicial officers if

consistent with other provisions of this Code.” Extending this health and safety

exception to the bar and the general public reflects a modern understanding of

the extent of the information presented to and/or statements made to courts.

Rule 3.5 from the ABA Model Code is amended to include in the Rule such an

exception for acts or disclosures reasonably necessary to protect public health

and safety.

89

RULE 3.6

Affiliation with Discriminatory Organizations

(A) A judge shall not hold membership in any organization that

practices unlawful discrimination. A judge who is a member of such an

organization at the effective date of this Rule, or who learns at a later time

that an organization of which the judge is a member practices unlawful

discrimination, may retain membership in the organization for a

reasonable time not exceeding one year, but must resign if the

organization does not discontinue its discriminatory practices within

that time.

(B) A judge shall not use the benefits or facilities of an organization if

the judge knows or should know that the organization practices unlawful

discrimination. A judge’s attendance at an event in a facility of an

organization that the judge is not permitted to join is not a violation of

this Rule when the judge’s attendance is an isolated event that could not

reasonably be perceived as an endorsement of the organization’s

practices.

(C) A judge’s membership in a religious organization as a lawful

exercise of the freedom of religion is not a violation of this Rule.

Advisory Notes – 2015

Rule 3.6 is based on the 2011 ABA Model Code and is similar to 1993

Canon 2(C) which is supported by an extensive 1993 Advisory Committee’s

Note. Rule 3.6 differs in three ways from the 2011 Model Code.

First, it substitutes the term “unlawful discrimination” for the term

“invidious discrimination” that appears in the Model Code. The change is made

because the term “unlawful discrimination” is specific and definable by

reference to anti-discrimination laws and judicial interpretations of those laws,

while the term “invidious discrimination” is subjective and ambiguous and

could invite many disputes about what acts are discriminatory based on an

individual’s perspective. See Advisory Notes to Rule 3.1.

Second, the redraft retains the current one-year window in 1993 Canon

2(C) for a judge, once he or she discovers that an organization is engaging in

90

discriminatory practices, to withdraw from the organization if the

discriminatory practices do not end. There is no similar window in the ABA

Model Code.

Third, the redraft adds, as paragraph (C), a protection from complaint for

a judge’s membership in a religious organization. This addition is consistent

with the purpose of Rule 3.6, as noted in Comment [4] to the 2011 Model Code.

91

RULE 3.7

Participation in Educational, Religious, Charitable, Fraternal, or Civic

Organizations and Activities

(A) Subject to the requirements of Rule 3.1, a judge may participate in

activities concerned with the law, the legal system, or the administration

of justice, and those sponsored by or on behalf of educational, religious,

charitable, fraternal, or civic organizations not conducted for profit as

follows:

(1) A judge may assist such an organization or entity in planning

related to fund-raising and participating in the management and

investment of the organization’s or entity’s funds.

(2) A judge shall not personally participate in the solicitation of

such funds or other fund-raising activities, except that a judge may:

(a) Solicit funds from members of the judge’s family or

from other judges over whom the judge does not exercise

supervisory or appellate authority;

(b) Be listed as an officer, director, or trustee of such an

organization on it

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