Me. Code. Jud. Cond. 4.1
Me. Code. Jud. Cond. 4.1
Advisory Note - August 2017
Rule 4.1 must be read in conjunction with Section 1(B)(2) of the Code, which discusses the applicability of the Code to probate judges. It states, "A judge of the Probate Courts shall comply with the provisions of this Code, except that a judge of probate [i]s not required to comply with Rules 3.8, 3.9, 3.10, 3.11(B), 3.12, and 4.1(A)(l)-(4)." With the amendment above, therefore, judges of probate are not permitted to "[s]olicit funds for, pay an assessment to, or make a contribution to a political organization or a candidate for public office," but are permitted to "[ajttend political gatherings."
Before 2015, probate judges and candidates for the office of Probate Judge were permitted to attend political gatherings but were not permitted to solicit funds for or make political contributions to political organizations or candidates. M. Code Jud. Conduct Part 11, §1(B); M. Code Jud. Conduct Canon 5(A) (Tower 2014) (repealed and replaced effective Sept. 1, 2015). When the new Code was adopted, these activities were transposed, so that Probate judges and candidates for the office of Probate Judge could solicit funds and make contributions, but could not attend political gatherings.
The amendment to Rule 4.1(A) is intended to correct the transposition that occurred when the new Code was adopted.
Advisory Notes - 2015
Rule 4.1(A) is the equivalent of 1993 Canon 5(A)(1)(a)-(f), with the addition of a new prohibition, in Rule 4.1(A)(7), on the use of court staff and facilities for campaigning. The solicitation prohibition in what is now Rule 4.1(A)(4) and was formerly Canon 5(A)(1)(e) was affirmed against a constitutional challenge by a Probate Judge who solicited funds to run for a legislative office. In re Dunleavy, 2003 ME 124, ¶¶ 25-31, 838 A.2d 338.
The reference in Rule 4.1(B) to Rule 8.2 of the Maine Rules of Professional Conduct establishes that the Rule applies to any candidate for any elected or appointed judicial office.
Rule 4.1(B) is similar to 1993 Canon 5(D).
1993 Advisory Committee's Note to Canon 5(A)(1) and (D)
Canon 5A applies only to incumbent judges, setting standards for their political conduct in general, as well as their conduct when seeking reappointment, appointment, reelection, or election to any public office. Canon 5A(1) prohibits incumbent judges from engaging in political activity that involves organizational leadership, public appearances, or fundraising. Probate judges and candidates for that office are excepted from many of these limitations by Canon 5C and Part II, Section 1B(l)(b), in reflection of their part-time status and the political nature of the office.
The provisions of Canon 5A(1) [Rule 4.1(A) ] do not prevent a judge from participating in the political process as a voter or from privately expressing views on candidates for public office. ABA Model Code (1990), Commentary to Section 5A(1). Thus, a judge may attend and vote at a town meeting but should refrain from public advocacy of candidates or measures there. The prohibition against attendance at "political gatherings" precludes attendance at party caucuses. In the case of either town meeting advocacy or caucus attendance, undue weight might be given to the judge's views. Canon 5A(l)(f) [Rule 4.1(A)(6) ] is not intended to prohibit "a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government." ABA Model Code (1990), Commentary to Section 5D. See Canons 4B, 4C(1), and Advisory Committee's Notes. A judge may also appear pro se before a body such as a local planning board to advance the judge's private interests. See Canon 4C(1).
Canons 5A(2) and (3) [Rule 4.3(D) and Rule 4.5(A) ] govern candidacy for appointive or elective office. A person becomes subject to the provisions governing candidacy at the times specified in the definition of "candidate," Part II, Section 3B. Canon 5A(2) makes clear that an incumbent judge seeking reappointment, or seeking appointment either to a different state or federal judgeship or to state or federal executive office, is subject to Canon 5B [Rule 4.3 ]. In particular, the requirement of Canon 5B(1) [Rule 4.3(A) ] that a candidate "act in a manner consistent with the integrity and independence of the judiciary" means that an incumbent judge is subject to the provisions of Canons 1, 2, and 3 requiring a judge to treat the responsibilities of the office as paramount and not to allow the quest for another office to influence the judge's conduct or judgment or become a distraction from judicial duties. Canons 4 and 6 also apply to incumbents. Under Canon 5A(3) [Rule 4.5(A) ], an appointed judge who seeks election as judge of probate, or to any other office, must resign. "Elective office" is intended to include the office of Attorney General and other Constitutional offices filled by election in a joint convention of the Legislature. The exception for probate judges is necessary to allow incumbents to run for reelection without disrupting the probate courts.
Canon 5D [Rule 4.1(B) ] makes clear that violations of the Code are subject to discipline whether or not the candidate succeeds. A successful candidate and an unsuccessful incumbent are subject to discipline on complaint to the Committee on Judicial Responsibility and Disability. A lawyer candidate who is unsuccessful is subject to discipline on complaint to the Board of Overseers of the Bar. A simultaneous amendment is being proposed to add Rule 3.2(c)(3) to the Maine Bar Rules [now Maine Rule of Professional Conduct 8.2 ], providing that "A lawyer who is a candidate for appointment or election to judicial office shall comply with the applicable provisions of the Maine Code of Judicial Conduct."