Effective Date of Rule: Thirty-one days after filing.

     Purpose: Terminology and Rule 11 - adds definition of "court personnel" and significantly reduces what could be construed as overly broad prohibitions on free speech upon those not involved with the court system while retaining the prohibitions on and protections of court employees, including lawyers, as officers.

     The existing comment following the rule will be expanded to add the following: "The reason lawyers are covered by this rule is that they are officers of the court and are especially charged with maintaining the integrity and independence of the judiciary."

     Citation of Existing Rules Affected by this Order: Amending CJCRP 11.

     Statutory Authority for Adoption: WA Const. Art. IV. Sec. 31.

     Other Authority: Chapter 2.64 RCW.

      Adopted under notice filed as WSR 07-10-040 on April 25, 2007.

     Changes Other than Editing from Proposed to Adopted Version: The comment explains the inclusion of lawyers within the temporary restrictions on disclosing the fact that a complaint investigation is pending with the commission. The people outside the commission who remain covered by confidentiality during the pendency of an investigation under this amended rule are those closely involved with the actual functioning of the court system, such as elected county clerks and their employees; regular court staff; and attorneys, as officers of the court. See WA. State Bar Assn. v. WA State, 125 Wn.2d 901, 907 (1995).

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

     Date Adopted: June 8, 2007.

Gregory R. Dallaire

Commission Chair

TERMINOLOGY                        

     "Court Personnel" means employees of the court, including judges, administrators, independently contracted court staff, regular court staff; county clerks and clerk employees; and attorneys.

RULE 11. CONFIDENTIALITY

     (a) Investigative and initial proceedings.

     (1) Before the commission files a statement of charges alleging misconduct by or incapacity of a judge, all proceedings, including commission deliberations, investigative files, records, papers and matters submitted to the commission, shall be held confidential by the commission, disciplinary counsel, investigative officers, and staff except as follows:

     (A) With the approval of the commission, the investigative officer may notify respondent that a complaint has been received and may disclose the name of the person making the complaint to respondent pursuant to Rule 17(e).

     (B) The commission may inform a complainant or potential witness of the date when respondent is first notified that a complaint alleging misconduct or incapacity has been filed with the commission. The name of the respondent, in the discretion of the commission, may not be used in written communications to the complainant.

     (C) The commission may disclose information upon a waiver in writing by respondent when:

     (i) Public statements that charges are pending before the commission are substantially unfair to respondent; or

     (ii) Respondent is publicly accused or alleged to have engaged in misconduct or with having a disability, and the commission, after a preliminary investigation, has determined that no basis exists to warrant further proceedings or a recommendation of discipline or retirement.

     (D) The commission has determined that there is a need to notify another person or agency in order to protect the public or the administration of justice.

     (2) The commission and court personnel shall keep the fact that a complaint has been made, or that a statement has been given to the commission, shall be confidential during the investigation and initial proceeding except as provided under Rule 11.

     (3) No person providing information to the commission shall disclose information they have obtained from the commission concerning the investigation, including the fact that an investigation is being conducted, until the commission files a statement of charges, dismisses the complaint, or otherwise concludes the investigation or initial proceeding.

     (b) Hearings on statement of charges.

     (1) After the filing of a statement of charges, all subsequent proceedings shall be public, except as may be provided by protective order.

     (2) The statement of charges alleging misconduct or incapacity shall be available for public inspection. Investigative files and records shall not be disclosed unless they formed the basis for probable cause. Those records of the initial proceeding that were the basis of a finding of probable cause shall become public as of the date of the fact-finding hearing.

     (3) Disciplinary counsel's work product shall be confidential.

     (c) Commission deliberations. All deliberations of the commission in reaching a decision on the statement of charges shall be confidential.

     (d) General Exceptions.

     (1) A complainant may inform any third party, or the public generally, of the factual basis of his or her complaint.

     (2) Any person, other than a complainant, who gives a statement to the commission, may inform any third party, or the public generally, of the factual basis of such statement.

     (e) (d) General Applicability.

     (1) No person shall disclose information obtained from commission proceedings or papers filed with the commission, except that information obtained from documents disclosed to the public by the commission pursuant to Rule 11 and all information disclosed at public hearings conducted by the commission are not deemed confidential under Rule 11.

     (2) Any person violating Rule 11 may be subject to a proceeding for contempt in superior court.

     (3) A judge shall not intimidate, coerce, or otherwise attempt to induce any person to disclose, conceal or alter records, papers, or information in violation of Rule 11. Violation of Rule 11 (e)(d)(3) may be charged as a separate violation of the Code of Judicial Conduct.

     (4) If the commission or its staff initiates a complaint under Rule 17 (b)(1), then Rule 11 (a)(1) as it applies to the commission, rather than those applicable to complainants, shall govern the commission and its staff.

     (5) These confidentiality rules also apply to former commission members, disciplinary counsel, investigative counsel and staff with regard to information they had access to while serving the commission.

     Comment on Rule 11:

     The integrity of investigations would be harmed, the privacy interests of individuals, and the independence of the judiciary would be adversely affected without providing for limited restrictions of information learned or provided to the Commission during the investigation. Confidentiality is critical for the integrity of the Commission investigations, and often influences whether a person who works directly with a judge is willing to file a complaint or disclose misconduct in an investigation. Prohibiting disclosure that a complaint has been filed, or that a person has been interviewed, protects those persons from questioning by their supervising judge, or by others. The confidentiality required during the investigation of a complaint also protects the independence of the judiciary by preventing unfounded complaints from being used to threaten or distract judges. After considering alternate ways of providing this necessary protection, the Commission has concluded that the temporary restrictions on public disclosure in this rule are the narrowest restrictions that will provide the confidentiality needed for persons who disclose misconduct or file complaints and for the judges under investigation. The reason lawyers are covered by this rule is that they are officers of the court and are especially charged with maintaining the integrity and independence of the judiciary.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the Commission on Judicial Conduct and appear in the Register pursuant to the requirements of RCW 34.08.040.

© Washington State Code Reviser's Office