The Preamble restates some of the provisions set out in the North Dakota Code. Paragraph [1] contains language similar to that found in North Dakota Canon 1A and the first paragraph of the North Dakota Preamble. Similarly, Paragraph [3] contains language similar to that found in the fourth and sixth paragraphs of the North Dakota Preamble. Portions of the Scope are found in the second, third, fifth, and sixth paragraphs of the North Dakota Preamble.
The goal of the Preamble is to provide a more concise description of the general overarching objectives of the Code, rather than address general issues of application. The Scope is intended to address overall application of Code provisions and, consequently, includes language in the current North Dakota Preamble that touch on application of Code provisions.
A notable feature of the Scope section is found in paragraph [2], which clarifies that Canons in the Code provide important guidance in the interpretation of the Rules, but a judge may only be disciplined for violating a Rule. This is a departure from the structure of the 1990 Model Code and the North Dakota Code.
The Preamble and Scope are the same as the Model Code provisions with the following exceptions. References to "highest standards" in paragraph [3] of the Preamble and paragraph [4] of the Scope have been changed to "high standards", which is consistent with the current Code. "High" standards was also considered a more useful comparative description. The reference to "civil or criminal liability" in paragraph [7] of the Scope was changed to "civil liability or criminal culpability" as a more accurate reflection of the difference between civil and criminal concepts.
The words and phrases defined in the Terminology section are comparable to those found in the corresponding section of the North Dakota Code with the exception of the following new defined terms and phrases: "contribution"; "domestic partner"; "impartial", "impartiality, and "impartially"; "impending matter"; "impropriety", "independence"; "integrity"; "pending matter"; and "personally solicit".
The North Dakota Code definition of "court personnel" is not included in the Terminology section.
A definition of "duties of judicial office" is added. Review of the ABA Model Code suggested inconsistent or vague uses of references to "judicial duties" or variations of the phrase. It was often unclear whether the reference pertained to adjudicative, administrative, or other duties. The Committee concluded that "duties of judicial office" was a better phrase where a reference to judicial duties seemed intended to relate to all duties that could be performed by a judge or for which a judge was responsible. If the Code reference seemed more narrowly directed, then the reference is to "adjudicative" or "administrative" duties, as applicable.
The definition of "judicial candidate",which is essentially comparable to the definition of "candidate" in the North Dakota Code, is modified to provide that a person becomes a candidate when, among other things, the person circulates a petition of candidacy.
The definition of "nonpublic information" is modified to include the reference from the current definition to "by law" as a descriptor of the kind of information that is not available to the public.
The current Code's definition of "political organization" is retained, as is the definition's accompanying Comment. During it's review of ABA Model Canon 4 governing political activity, the Committee concluded that Canon 5 of the current Code should be retained, with applicable revisions based on the Model Code. This conclusion was based on the substantial modifications made to Canon 5 in light of the U.S. Supreme Court's opinion in Republican Party v. White and the opinion of the 8th Circuit Court of Appeals on remand from the White decision. In light of this conclusion, the current definition of political organization was retained.
The definition of "public election" is modified to more clearly reflect the North Dakota election process.
Canon 1 generally reflects language found in Canons 1 and 2 of the North Dakota Code.
Canon 1 is the same as Model Canon 1.
Rule 1.1 is comparable to Canon 2A of the North Dakota Code.
Rule 1.1 is the same as Model Rule 1.1.
Rule 1.2 substantially combines Canon 2A and language from the Commentary (1st paragraph) to Canon 2A of the North Dakota Code.
Rule 1.2 is the same as Model Rule 1.2
Rule 1.3 is substantially similar to North Dakota Canon 2B.
Rule 1.3 is modified to retain the current reference in Canon 2B to "lending" the prestige of judicial office. The Committee reviewed assessments of the Model Rule's change to "abusing" the prestige of judicial office which concluded the Model Rule language may be problematic in establishing a less restrictive standard. The Committee agreed with the assessment and retained the current Code language, which arguably imposes a higher standard.
Canon 2 is identical, except for the inclusion of "competently" to Canon 3A of the North Dakota Code.
Canon 2 is the same as the ABA Model Canon.
Rule 2.1 is essentially similar to North Dakota Canon 3A.
Rule 2.1 is the same as Model Rule 2.1.
Rule 2.2 is comparable to North Dakota Canons 3B(2), 3B(5), and 3B(8). Canon 3B(2) specifies a judge's duty to be competent in the law and avoid being swayed by outside influences. The first sentence of Canon 3B(5) requires a judge to perform judicial duties without bias or prejudice and Canon 3B(8) requires a judge to dispose of judicial matters promptly, efficiently, and fairly. By contrast, Rule 2.2 addresses these duties in terms of a judge's responsibility to uphold and apply the law and perform all duties of judicial office fairly and impartially. Avoiding external influences and maintaining competence are addressed in Rules 2.4 and 2.5.
Rule 2.2 is the same as Model Rule 2.2. There is a slight modification to Comment [4] to replace "pro se" with "self-represented".
Rule 2.3 is substantially comparable to North Dakota Canon 3B(5) and 3B(6). Rule 2.3(B) and ( C) add "gender", "ethnicity", "marital status", and "political affiliation" to the categories of prohibited discrimination. North Dakota Canon 3B(5)(6) provides a "legitimate reference" exception regarding the excluded factors. Rule 2.3 extends that exception to judges as well.
Rule 2.3 is the same as Model Rule 2.3 except for replacing "judicial duties" with "duties of judicial office" in Rule 2.3(A).
Rule 2.4(A) is comparable to a sentence contained in North Dakota Canon 3B(2) and Rule 2.4(B) is comparable to a sentence in North Dakota Canon 2B. Rule 2.4(B) uses the phrase "interests or relationships", which is more precise and preferable to "relationships" used in current Canon 2B.
Rule 2.4( C) is comparable to a sentence in North Dakota Canon 2B. However, the rule clarifies that a judge must not allow others to convey the impression that any person is in a position to influence the judge.
The Comment explains the purpose of the rule and has no direct counterpart in the North Dakota Code.
Rule 2.4 is the same as Model Rule 2.4 except that the reference to "financial" interests in Rule 2.4(B) is replaced with "economic" interests as the latter is a defined phrase in the Terminology section.
Rule 2.5 addresses matters found in North Dakota Canon 3C(1). Rule 2.5(B) contains language from current Canon 3C(1) regarding cooperation with judges and court officials on administrative matters. "Should", as used in the current Canon, is changed to "shall" to reflect the mandatory obligation of the rule.
Rule 2.5 is the same as the Model Rule except that the reference to "judicial and administrative duties" in Rule 2.5(A) is replaced with "duties of judicial office".
Rule 2.6(A) is essentially similar to North Dakota Canon 3B(7) of the North Dakota Code. The counterpart to Rule 2.6(B) can be found in the last sentence of the Commentary to current Canon 3B(8).
Rule 2.6 is the same as Model Rule 2.6.
Rule 2.7 is comparable to North Dakota Canon 3B(1).
Rule 2.7 is the same as Model Rule 2.7.
Rule 2.8(A) is essentially the same as North Dakota Canon 3B(3).
Rule 2.8(B) is essentially the same as North Dakota Canon 3B(4).
Rule 2.8( C) is the same as North Dakota Canon 3B(11).
Rule 2.8 is the same as Model Rule 2.8 except for the addition in Rule 2.8( C) of language from current Canon 3B(11) regarding the expression of appreciation to jurors.
Rule 2.9(A) is substantially comparable to North Dakota Canon 3B(7).
Rule 2.9(A)(1) is comparable to North Dakota Canon 3B(7)(b).
Rule 2.9(A)(3) expands upon current North Dakota Canon 3B(7)( c) by describing conduct a judge should attempt to avoid when consulting with court staff and officials and with other judges.
Rule 2.9(A)(5), which addresses a judge's settlement authority, is the same as Canon 3B(7)(d).
Rule 2.9(A)(6) is essentially the same as North Dakota Canon 3B(7)(e).
Rule 2.9(B), which addresses the inadvertent receipt of an ex parte communication, has no comparable provision in the North Dakota Code.
Rule 2.9( C) is essentially similar to the 6th paragraph of the Commentary to current Canon 3B(7). Rule 2.9(D) is essentially similar to the 8th paragraph of the Commentary to current Canon 3B(8). As a consequence, both Rules 2.9( C) and Rule 2.9(D) have elevated to rule status language found in the Commentary of the former 1990 Model Code and the current Code.
Rule 2.9(A)(4) is added following Committee consideration of recommended language submitted by the Conference of Chief Justices as part of the Model Code review.
Rule 2.9(B) is modified to replace "substance" with "subject matter" as the latter is considered a clearer, more precise reference.
Rule 2.9( C) is modified to incorporate the qualifier "Except as otherwise authorized by law" with respect to the general prohibition against a judge's independent investigation of the facts. Related comment language is added to Comment [6], which reflects language from the Commentary to current Canon 3B(7) regarding the statutory basis for a court "mak[ing] its own inquiry" in small claims cases.
Rule 2.10(A) corresponds to North Dakota Canon 3B(9).
Rule 2.10 corresponds to North Dakota Canon 3B(10).
Rule 2.10( C) corresponds to the 2nd sentence of North Dakota Canon 3B(9), but replaces "court personnel" with "court staff, court officials, and others", which is more descriptive of the persons subject to the judge's direction and control.
Rule 2.10(D) corresponds to the last sentence in North Dakota Canon 3B(9).
Rule 2.10(E) corresponds, in part, to the 3rd sentence in North Dakota Canon 3B(9) and also adds language that allows a judge, subject to certain limitations, to respond to allegations in the media or elsewhere regarding the judge's conduct in a particular matter.
Rule 2.10 is the same as Model Rule 2.10 except for the rearrangement of language in Rule 2.10(D) and (E) for purposes of clarity.
Rule 2.11 is comparable to North Dakota Canons 3E and 3F. Rule 2.11(A)(4), which would be deleted, has no comparable provision in the North Dakota Code.
With one exception, Rule 2.11 is comparable to Model Rule 2.11. Rule 2.11(A)(4) regarding disqualification of a judge who receives a campaign contribution in excess of a specific amount is not included. Such a provision was not considered necessary in North Dakota.
A minor modification for purposes of consistency is made in Rule 2.11(A)(5) to replace "proceeding" with "matter" in subparagraph (b).
Rule 2.12(A) is comparable to North Dakota Canon 3C(3). Rule 2.12(B) is comparable to North Dakota Canon 3C(4).
Rule 2.12 is the same as Model Rule 2.12 except for the inclusion in Rule 2.12(B) of the more specific reference to "adjudicative duties". The Model Rule reference to "judicial responsibilities" was considered too broad and vague.
Rule 2.13 is essentially comparable to North Dakota Canon 3C(5).
Rule 2.13 is the same as Model Rule 2.13 except for one major deletion. Rule 2.13(B) and corresponding Comment [3] regarding what has been termed "pay to play" would be deleted. The provision prohibits a judge from appointing a lawyer to a position when the lawyer has contributed to the judge's election campaign. The Committee concluded the provisions was unnecessary in North Dakota.
There is no North Dakota Canon comparable to Rule 2.14.
Rule 2.14 is identical to Model Rule 2.14.
Rule 2.15 corresponds to North Dakota Canon 3D(1) and (2). Rule 2.15 ( C) and (D) differ from the North Dakota Canon counterparts in requiring a judge to take appropriate action upon learning of "credible" information indicating a substantial likelihood that a judge or lawyer has committed a rule violation. Rule 2.15 adheres to the standard created in Rule 8.3 of the North Dakota Rules of Professional Conduct for reporting lawyer misconduct - reporting is required when the conduct raises a question about the honesty, trustworthiness, or fitness of a lawyer or judge.
Current Canon 3D(3), which provides immunity from suit for actions by a judge in discharging disciplinary responsibilities, would no be retained.
Rule 2.15 is essentially the same as Model Rule 2.15 except for the inclusion of "credible" in Rule 2.15( C) and (D), and Comment [2], as a descriptor of the kind of information to which a judge must respond.
There is no North Dakota Canon comparable to Rule 2.16.
Rule 2.16 is the same as Model Rule 2.16.
Canon 3 is generally comparable to North Dakota Canon 4.
Canon 3 is the same as Model Canon 3 except for the substitution of "Duties" for "Obligations" as a more consistent reference.
The opening paragraph of Rule 3.1 is generally reflective of North Dakota Canon 4A. Some language found in Rule 3.1(A) is also comparable to language in current Canon 4A(3). The focus of the rue, however, is expanded to address the preservation not only of a judge's impartiality, but also of the judge's "independence" and "integrity".
There are no direct counterparts in the North Dakota Code to Rule 3.1(B) - (E). Rule 3.1( C) incorporates a "reasonable person" standard in addressing conduct that may be seen as undermining a judge's independence, integrity, or impartiality. The standard is used as it is a familiar one in the law generally. Rule 3.1(D) is added to guard against overt or subtle efforts by a judge to coerce others to participate in extrajudicial activities favored by the judge. Rule 3.1(E) disallows the use of court facilities and other resources for a judge's extrajudicial activities, with an exception for incidental use in connection with a law-related event or as otherwise permitted by law.
Rule 3.1 is the same as Model Rule 3.1 except for the use in Rule 3.1(A) of the phrase "duties of judicial office rather than "judge's judicial duties".
The opening paragraph of Rule 3.2 is essentially similar to North Dakota Canon 4C(1) except for the inclusion of "voluntarily". The reference to "voluntarily" appearing is to make clear that judges who are summoned to appear before at a public hearing may not refuse on the grounds that it would be "unethical" to appear.
Rule 3.2(A) is the same as language in current Canon 4C(1).
Ruler 3.2(B) has no comparable counterpart in the current Code. The new provision is intended to reflect recognition that, in carrying out their judicial duties, judges often gain insights into legal and social problems and matters of public policy. Rule 3.1(B) establishes that judges are permitted to share this information voluntarily with other governmental bodies and officials. Comment [2] emphasizes that judges participating as the rule would permit must be mindful of other restrictions in the Code.
Rule 3.2( C) is generally comparable to the last clause in current Canon 4C(1). However, the current Canon 4C(1) is broader in permitting pro se appearances before or consultations with legislative and executive branch officials in matters involving "the judge's interests". The broad reference to "judge's interests" is replaced with the more limiting reference to "judge's legal or economic interests". Rule 3.2( C) would, however, permit a judge to appear before a legislative or executive branch entity when acting as a fiduciary.
Rule 3.2 is the same as Model Rule 3.2 except for replacing the phrase "judge's judicial duties" in Rule 3.2(B) with "performing the duties of judicial office".
The opening language of Rule 3.3 is comparable to the last sentence in North Dakota Canon 2B. The current Canon provides that a judge may not testify "voluntarily", while the Model Rule provides that the judge may not testify unless "duly summoned". The Model Rule also describes in more detail the situations to which the rule applies. The rule has a somewhat broader reach than current Canon 2B in applying to "vouch[ing] for the character of a person in a legal proceeding."
Rule 3.3 is the same as Model Rule 3.3 except for a minor change in placement of the phrase "except when duly summoned". There is also a revision to the Comment to reflect retention of language regarding lending the prestige of judicial office.
Rule 3.4 is essentially the same as North Dakota Canon 4C(2). Comment [2] is substantially the same as the last sentence of current Canon 4C(2), which addressed judges serving in an essentially ceremonial capacity. These activities were regarded as occurring so infrequently that the subject did not warrant treatment in the black letter rule.
Rule 3.4 is the same as Model Rule 3.4 except for the addition in the rule of the qualifier "or is authorized by law. In explanation, Comment [3] is added to reflect current North Dakota law regarding selection of a district judge to participate in the appointment of a person to fill a vacancy on a board of county commissioners.
Rule 3.5 is essentially similar to North Dakota Canon 3B(12), except that the current canon does not include a state of mind requirement.
Rule 3.5 is modified to incorporate the standard "knowingly" as it is a defined term, instead of the "intentionally" standard in the Model Rule, which is not defined.
Rule 3.5 is also modified to refer to "duties of judicial office" rather than to "judge's judicial duties".
Rule 3.6(A) is substantially the same as North Dakota Canon 2C. Rule 3.6(A) adds to the list of organizations to which a judge may not belong any organizations that discriminate on the basis of "gender", "ethnicity", or "sexual orientation".
Rule 3.6 is the same as Model Rule 3.6 except for the deletion of Comment [4], which explains that the rule does not prohibit membership in a religious organization as a lawful exercise of the freedom of religion. The explanatory comment was considered unnecessary.
There is no direct counterpart in the North Dakota Code to Rul 3.7 as the Model Rule's predecessor was not adopted in North Dakota. A significant qualifier to activities permitted under the rule is the opening clause of Rule 3.7(A) - "Subject to the requirements of Rule 3.1...". This provision refers back to the potential harms identified in Rule 3.1: coercion, lending the prestige of the judicial office, and interference with a judge's independence, integrity, or impartiality. As a result, Rule 3.7(A) requires a judge to consider whether engaging in particular activities may violate Rule 3.1.
Rule 3.7 is the same as Model Rule 3.7 except for three general modifications.
Rule 3.7(A)(4) is modified to alter the test for determining whether a judge may participate in an event sponsored by an educational, religious, charitable, fraternal, or civic organization. The Model Rule permits judicial participation where such an event serves a fundraising purpose only if the event concerns the law, the legal system, or the administration of justice. Proposed Rule 3.7(A)(4) allows a judge to participate in events sponsored by the various entities, without regard to whether there is a fundraising purpose, as long as participation does not reflect adversely on the judge's independence, integrity, or impartiality. This is consistent with the test used throughout the Code.
Rule 3.7(A)(5) is modified to allow a judge to make recommendations regarding fund granting programs of an entity addressed in the rule without the restriction, similar to Rule 3.7(A)(4), that the entity must be concerned with the law, the legal system, or the administration of justice. The restriction was deleted to track a similar change made during review of the Model Code by the Minnesota study group. The Committee also questioned the need for the limitation since only recommendations were at issue.
Comments [3] and [5] are also revised to reflect retention of the concept of lending the prestige of judicial office.
Rule 3.8 (A), (B), and ( C) are substantially the same as North Dakota Canons 4E(1), (2), and (3). There is no North Dakota Canon counterpart to Rul 3.8(D). Rule 3.8(D) is based on the first paragraph of the Commentary to Canon 4E, which refers to the Effective Date of the Compliance Section. Paragraph (D) is added to the Rule to set out a more explicit provision regarding when a judge serving in a fiduciary capacity must comply with the Rule.
Rule 3.8 is essentially the same as Model Rule 3.8 except "conservator" is added in Rule 3.7(A) to the list of fiduciary relationships, and in Rule 3.8(A), (B), and ( C) "fiduciary position" is changed to "fiduciary capacity" as the latter is considered a more descriptive reference.
Rule 3.9 is substantially the same as North Dakota Canon 4F.
Rule 3.9 is generally the same as Model Rule 3.9 except for the following modifications. "Duties of judicial office" is substituted for :"judge's official duties" in the Rule. A similar change is made in Comment [1].
Comment [2] is added to reflect current language in the Commentary to Canon 4F regarding a state judge's service as a tribal judge.
Rule 3.10 is substantially the same as North Dakota Canon 4G. The Rule adds the proviso that a judge is prohibited from serving as a family member's lawyer in any forum.
Rule 3.10 is the same as Model Rule 3.10. However, Comment [2] is added and is the same language as the last paragraph of the Commentary to current Canon 4G. The Comment alerts judges that service in a judge advocate position may constitute the practice of law and, therefore, may be subject to rule and constitutional prohibitions.
Rule 3.11 is comparable to North Dakota Canon 4D(1) through (4).
Rule 3.11 and its Comments are the same as the Model Rule except for the substitution in Rule 3.11( C)(1) and Comment [1] of the reference to "duties of judicial office".
Rule 3.12 corresponds generally to North Dakota Canon 4H(1), except that the receipt of compensation for extrajudicial activities is permitted only where such receipt would not "appear to a reasonable person to undermine the judge's independence, integrity or impartiality." Receipt of compensation under current Canon 4H(1) is prohibited where "the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety". The new standard in Rule 3.12 is consistent with the standard used elsewhere by the Model Code and included in the proposed rules.
Rule 3.12 is identical to Model Rule 3.12.
Rule 3.13 generally corresponds to North Dakota Canon 4D(5). The proposed rule is essentially the same as the existing provisions, with the exception that Rules 3.13(A)(1), (A)(5), and (A)(11)(b) are new and have no counterparts in the North Dakota Code. Specifically:
Rule 3.13(A)(2) corresponds to North Dakota Canon 4D(5)(e).
Rule 3.13(A)(3) corresponds to current Canon 4D(5)( c).
Rule 3.13(A)(4) corresponds to current Canon 4D(5)(f).
Rule 3.13(A)(6) corresponds to current Canon 4D(5)(g).
Rule 3.13(A)(7) corresponds to a portion of current Canon 4D(5)(a).
Rule 3.13(A)(8) corresponds to current Canon 4D(5)(b) but adds "domestic partner" and incorporates the "independence, integrity, or impartiality" standards used throughout the Model Code.
Rule 3.13(A)(9) and (A)(10)(a) correspond to portions of current Canon 4D(5)(a).
Rule 3.13(A)(12) corresponds to current Canon 4D(5)(h).
Comment [3] provides guidance to judges in situations where special pricing, discounts, and other benefits are made available by businesses and financial institutions.
Requirements for the reporting of gifts and other things of value are addressed in Rule 3.15.
Rule 3.13 is substantially reorganized based on an approach taken by the Ohio study group reviewing the Model Code. The approach appeared to be a more realistic and manageable one with respect to receipt of gifts and other things of value by judges. The Model Rule divides gifts and other things of value into three categories: those that a judge may not accept under any circumstances [Rule 3.13(A)]; those that a judge may accept without having to report acceptance of the item [Rule 3.13(B)]; and those that a judge may accept but must publicly report [Rule 3.13( C)]. In contrast, proposed Rule 3.13 simply prohibits acceptance of any gift or item of value except those expressly listed. Comment [1] notifies judges of the applicable reporting requirements under Rule 3.15. The comments are further revised to correspond to the proposed rule.
Rule 3.14 is generally comparable to North Dakota Canon 4H.
The current Canon refers generally to reimbursement of expenses for "extrajudicial activities", while Rule 3.14(A) provides more specific detail regarding the kinds of expenses that may be reimbursed. The current Canon also links receipt of reimbursement to whether the source of payments would give the appearance of influencing the judge's performance or otherwise give the appearance of impropriety. Rule 3.14(A) achieves the same objective in subjecting reimbursements to the prohibitions established in Rule 3.1, which describes limits on the extrajudicial activities in which a judge may engage.
Rule 3.14(B) is generally similar to current Canon 4H(1)(b).
Rule 3.14 is generally comparable to Model Rule 3.14 with the following exceptions. The reference to Rule 3.13(A) in Rule 3.14(A) is deleted in light of the reorganization of Rule 3.13. Language from current Canon 4H(1)(b) regarding reimbursement in excess of actual cost being considered compensation is added to Rule 3.14(B), with a related reporting requirement. Rule 3.14 ( C) is deleted in light of the general reporting requirements established under Rule 3.15.
Rule 3.15 continues the general requirement of North Dakota Canon 4H(2) that a judge file an annual report of the compensation received by the judge.
Rule 3.15(A)(1), however, links the required reporting to receipt of compensation of $500 or more received alone or in the aggregate from the same source in the same calendar year.
Rule 3.15(A)(2) requires reporting of certain gifts and other things of value received in accordance with Rule 3.13 (A). Reporting is not required if the value of the items does not exceed $250 from the same source in the same calendar year.
Rule 3.15(B) - ( C) are comparable to current Canon 4H(2)
Rule 3.15(A)(1) is modified to require reporting of compensation for extrajudicial activities only if the amount is $500 or more and received from the same source in the same calendar year.
Rule 3.15(A)(2) is modified to identify the kinds of gifts and other things of value permissible under Rule 3.13 and selects $250 as the threshold beyond which reporting is required.
Rule 3.15(A)(3) would be deleted. The provision's requirement to report reimbursements of expenses and waivers of fees or charges is not reflected in current Canon 4H(2). The Committee concluded a new reporting requirement was unnecessary.
Rules 3.15( C) and (D) are modified to reflect annual reporting requirement and the filing of documents with the clerk of the supreme court as required under current Canon 4H(2).
Current North Dakota Canon 5 is the approximate equivalent of Model Canon 4 in addressing political activity by candidates for judicial office. Canon 5 has been substantially amended in recent years in response to the U.S. Supreme Court's opinion in Republican Party of Minnesota v. White and the subsequent opinions of the 8th Circuit Court of Appeals on remand from White. In light of these changes and the Model Code's arguable expansion of permissible political activity by judicial candidates, at least within an identified time period around an election, the Committee concluded that current Canon 5 would serve as the basic framework for considering amendments based on Model Canon 4. Canon 5 would be renumbered as Canon 4 and the canon would be revised to adhere to the basic structure of the Model Canon, with Rules 4.1 through 4.6. Rule numbering in proposed Canon 4 differs slightly from the Model Rules as the current Applicability Section is relocated to the beginning of the canon and numbered as Rule 4.1. Appropriate revisions based on the Model Rules are also included.
Canon 4 is modified to follow the language of Model Canon 4.
Current Canon 5E, the Applicability Section, is relocated without revision and numbered is Rule 4.1.
Current Canon 5A(1), which establishes general prohibitions governing the activities of a judge or judicial candidate, is renumbered as Rule 4.2 with revisions based on Model Rule 4.1.
Rule 4.2(A)(1)(d) is modified to include the Model Rule's prohibition against using an endorsement or letter of support from a political organization.
Rule 4.2(A)(1)(g), which prohibits the public identification of the judge or candidate as a member of a political organization, is the same as Model Rule 4.1(A)(6).
Rule 4.2(A)(1)(h), which prohibits pledges, promises, or commitments with respect to cases or controversies that may come before the court, is the same as Model Rule 4.1(A)(13) and is also relocated from current Canon 5A(3)(d)(I).
Rule 4.2(A)(1)(I), which prohibits making statements that could reasonably be expected to affect the outcome or impair the fairness of a pending or impending matter, is the same as Model Rule 4.1(A)(12)
Rule 4.2(A)(1)(j), which prohibits the use of campaign contributions for the private benefit of the judge, the candidate, or others, is the same as Model Rule 4.1(A)(9) and is relocated from the last sentence of current Canon 5C(2).
Extensive Commentary language following current Canon 5A(1) and Canon 5A(3)(d) was previously added to buttress the canons' prohibitions concerning pledges, promises, and commitments with respect to cases or controversies that may come before the court. This language is revised slightly and relocated to reflect that the prohibition is now located in Rule 4.2(A)(1). The revisions are intended only to reflect the new rule structure and internal references and no substantive change in meaning is intended.
Rule 4.3 corresponds approximately to current Canon 5A(3)(a) - ( c) and Canon 5C(1). The rule includes revisions based on Model Rule 4.2.
Rule 4.3(A)(1) is comparable to current Canon 5(A)(3)(a).
Rule 4.3(A)(2) incorporates language from Model Rule 4.2(A)(4).
Rule 4.3(A)(3) reflects language in current Canon 5A(3)(d).
Rule 4.3(B)(1) is similar to current Canon 5C(1)(a) but incorporates language from Model Rule 4.2(B)(2) regarding use by a candidate of advertisements, websites or other campaign literature.
Rule 4.3(B)(2) is similar to Rule 4.3(B)(1) but addresses speaking on behalf of measures to improve the law, the legal system, or the administration of justice. These topics are currently included in Canon 5C(1)(a).
Rule 4.3(B)(3) is generally similar to current Canon 5C(1)(b)(iii).
Rule 4.4 is generally comparable to current Canon 5B except that it follows Model Rule 4.3 in focusing only on candidates for appointive judicial office.
Rule 4.5(A) is the same as current Canon 5A(2) and is generally comparable to Model Rule 4.5(A).
Rule 4.5(B) has no counterpart in current Canon 5. It is the same as Model Rule 4.5(B) and provides that a judge is not required to resign from office upon becoming a candidate for non-judicial appointive office, but the judge must comply with other provisions of the Code.
Rule 4.6 is the essentially the same as current Canon 5C(2), with only minor revisions.
The current Compliance Section to the North Dakota Code of Judicial Conduct is retained with essentially technical revisions. Internal rule references are modified to reflect the current canon counterparts in the revised Code. Commentary regarding "the court on which the part-time judge serves" is relocated to follow more directly the category of judge to which it most directly applies.
The Committee reviewed the Application Section to the Model Code of Judicial Conduct and initially considered whether to recommend its inclusion in the Code revisions. However, following considerable misgivings about the scope and impact of the Model Application Section, revisions were considered and adopted in August 2010 by the ABA House of Delegates. The Committee reviewed the revised Application Section. The new Section appeared considerably broader in its compliance exclusions than the previous Application Section and the current North Dakota Compliance Section. Additionally, the Model Application Section addresses categories of judicial officers that are not applicable in North Dakota. Following review of the revised Model Application Section, the Committee concluded the current Compliance Section, with minor revisions, should be retained.