The Application section establishes when the various Rules apply to a judge,* judicial candidate,* or judicial nominee.*
I. APPLICABILITY OF THIS CODE The provisions of the Code apply to all judicial officers.* Parts II through IV of this section identify those provisions that apply to three distinct categories of retired or part- time judges. The categories of judicial service in other than a full-time capacity are necessarily defined in general terms because of the varying forms of judicial service. Judicial candidates* and judicial nominees* must abide by Canon 4.
COMMENT
[1] The Rules in this Code have been formulated to address the ethical obligations of any person who serves a judicial function, and are premised upon the supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions.[2] The determination of which category and, accordingly, which specific Rules apply to an individual judicial officer, depends upon the facts of the particular judicial service.[3] In recent years many jurisdictions have created what are often called "problem solving" courts, in which judges are authorized by court rules to act in nontraditional ways. For example, judges presiding in drug courts and monitoring the progress of participants in those courts' programs may be authorized and even encouraged to communicate directly with social workers, probation officers, and others outside the context of their usual judicial role as independent decision makers on issues of fact and law.* Judges serving on "problem solving" courts shall comply with this Code except to the extent court rules or other law provide and permit otherwise. II. RETIRED JUDGE SUBJECT TO RECALL (A) A retired judge subject to mandatory recall* for service by law* is not required to comply: (1) with Rule 3.8 (Appointment to Fiduciary Positions), except while serving as a judge;* or(2) with Rule 3.9 (Service as Arbitrator or Mediator), except while serving as a judge; or(3) with the prohibition on serving as an officer, director, manager, general partner, or advisor of any business entity in Rule 3.11(B) (Financial, Business, or Reumerative Activities), except while serving as a judge; or(4) with Rule 3.15(A) (Reporting Requirements) unless he or she has been recalled to service during the applicable reporting year.(B) A retired judge subject to voluntary recall* who files an election in writing to make himself or herself available for recall for service is not required to comply: (1) with Rule 3.8 (Appointment to Fiduciary Positions), except while serving as a judge; or(2) with Rule 3.9 (Service as Arbitrator or Mediator), except while serving as a judge; or(3) with Rule 3.11(B) (Financial, Business, or Remunerative Activities), except while serving as a judge; or(4) with Rule 3.15(A) (Reporting Requirements), unless he or she has been recalled to service during the applicable reporting year.COMMENT
[1] For the purposes of this section, as long as a retired judge is subject to being recalled for service, whether mandatory or voluntary, the judge is considered to "perform judicial functions."[2] Under this section, a retired judge subject to mandatory recall is prohibited from serving in any of the enumerated capacities when recalled to the bench, but may hold such a position when not recalled to active service. He or she may never serve as an employee* of a business entity, as that term is defined in the Code, regardless of whether or not the retired judge is recalled to active service, however. Retired judges subject to voluntary recall, by contrast, need not comply with any of the provisions of Rule 3.11(B) unless he or she has been recalled to active service.III. CONTINUING PART-TIME JUDGE A judge* who serves repeatedly on a part-time basis by election or under a continuing appointment ("continuing part-time judge"),*
(A) is not required to comply: (1) with Rules 2.10(A) and 2.10(B) (Judicial Statements on Pending and Impending Cases), except while serving as a judge; or(2) at any time with Rules 3.2 (Appearances before Governmental Bodies and Consultation with Government Officials), 3.4 (Appointments to Governmental Positions), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges), 3.15 (Reporting Requirements), 4.1 (Political Activities of Judges and Judicial Nominees in General), 4.2 (Activities of Judicial Nominees and Candidates for Appointive Judicial Office), and 4.3 (Activities of Judges Who Become Candidates for Non-judicial Office); and(B) shall not practice law* in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, shall not appear as a lawyer before any municipal body that either appointed or confirmed the judge in the jurisdiction in which he or she serves as a judge, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto. COMMENT
[1] A person who has been a continuing part-time judge and is no longer a continuing part-time judge and who seeks to act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto, must comply with Rule 1.12 of the Rhode Island Rules of Professional Conduct.IV. PRO TEMPORE PART-TIME JUDGE A pro tempore part-time judge* who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard is not required to comply:
(A) except while serving as a judge,* with Rules 1.2 (Promoting Confidence in the Judiciary), 2.4 (External Influences on Judicial Conduct), or 2.10 (Judicial Statements on Pending and Impending Cases); or(B) at any time with Rules 3.2 (Appearances before Governmental Bodies and Consultation with Government Officials), 3.4 (Appointments to Governmental Positions), 3.6 (Affiliation with Discriminatory Organizations), 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political Activities of Judges and Judicial Nominees in General), and 4.3 (Activities of Judges Who Become Candidates for Non-judicial Office). COMMENT
[1] An example of a pro tempore part-time judge is a lawyer who serves as an alternate or fills in for a probate judge when the probate judge is unavailable or is unable to serve.[2] In the event that in the future periodic part-time judges* are appointed in either the Rhode Island state judiciary or in the various municipalities, those judges shall abide by the same Canons as pro tempore part-time judges.V. TIME FOR COMPLIANCE A person to whom this Code becomes applicable shall comply immediately with its provisions, except that those judges* to whom Rules 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative Activities) apply shall comply with those Rules as soon as reasonably possible, but in no event later than the specific time period for compliance set forth in each Rule, respectively.
COMMENT
[1] If serving as a fiduciary* when selected as judge,* a new judge may, notwithstanding the prohibitions in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Rule 3.11, continue in that activity for a reasonable period but in no event longer than two years.