Clerk's Notes on Preamble

The new Preamble is patterned after the Preamble to the 2007 Model Code of Judicial Conduct ("2007 Model Code", "Model Code", or "Model Rules"). It serves the limited purpose of describing the general objectives of the Code, while the new Scope section includes how the Code operates and is enforced.

Clerk's Notes on Scope

The new Scope section is based entirely on the 2007 Model Code, with much of the content taken from the Preamble to the 1990 Model Code. The Scope section discusses the relationship between the Canons and the Rules, providing that the Rules alone now contain the enforceable standards for which judges may be disciplined.

Clerk's Notes on Terminology

The Terminology section is based on the 2007 Model Code with the exception of the term "aggregate" and the term "nepotism." The term "aggregate" is used in certain of the campaign finance provisions in Canon 4 of the Model Code that are not recommended for adoption, so it is not necessary to include it as a defined term. Nepotism is defined in Rule 2.13, but not included in the Terminology section of the Model Code, so it was added for completeness.

COMMENT  
[1] For the purposes of this Canon, as long as a retired judge is subject to recall, the judge is considered to "perform judicial functions." The determination of which category and, accordingly, which specific Code provisions apply to an individual judicial officer, depend upon the facts of the particular judicial service.

[2] The Code does not apply to an administrative law judge, hearing examiner, or similar officer within the executive branch of government, or to municipal judges.

COMMENT

[1] A part-time Mental Hygiene Commissioner shall not represent a person in any mental hygiene matters or serve as an attorney in any proceeding related to a case in which he or she has served as a Mental Hygiene Commissioner. A Juvenile Referee may not represent a person in any juvenile matter or serve as an attorney in any proceeding related to a case in which he or she has served as a Juvenile Referee.

[2] When a person who has been a continuing part-time judge is no longer a continuing part-time judge, including a retired judge no longer subject to recall, that person may not act as a lawyer in a proceeding in which he or she has served as a judge.

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 one year.

Clerk's Notes on Application

The Application section is a blend of the 2007 Model Code and provisions that are specific to West Virginia. Parts I, II, and III are based largely on provisions specific to West Virginia, while parts IV through VI are based largely on the 2007 Model Code, with some revisions.

Clerk's Notes on Rule 1.1

Rule 1.1 follows the 2007 Model Code. It replaces former Canon 1A, which contained a number of exhortative pronouncements about what judges "should" do. In keeping with the primary objective of the 2007 Model Code revisions, the new rules are designed to be black-letter statements about what judges "must" do, and such aspirational statements are better suited for the Preamble, where they are now contained.

COMMENT

[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 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.

Clerk's Notes on Rule 1.2

Rule 1.2 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business.

[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 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.

[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.

[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.

Clerk's Notes on Rule 1.3

Rule 1.3 and its comment are based entirely on the 2007 Model Code, with one exception. The phrase "if the judge indicates that the reference is personal and" was deleted from the last sentence of Comment [2].

Clerk's Notes on Canon 2

Canon 2 is based entirely on the 2007 Model Code.                                                             

COMMENT

[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.

Clerk's Note on Rule 2.1

Rule 2.1 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

[3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this Rule.

[4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.

Clerk's Notes on Rule 2.2

Rule 2.2 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.

[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.

[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.

[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

Clerk's Notes on Rule 2.3

Rule 2.3 and its comment are based entirely on the 2007 Model Rules, with one exception. The following sentence was deleted from Comment [2]: "Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice."

COMMENT

[1] 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.

Clerk's Notes on Rule 2.4

Rule 2.4 and its comment are based entirely on the 2007 Model Rules.

COMMENT

[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.

Clerk's Notes on Rule 2.5

Rule 2.5 and its comment are based entirely on the 2007 Model Rules.

COMMENT

[1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.

[2] The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party's right to be heard according to law. The judge should keep in mind the effect that the judge's participation in settlement discussions may have, not only on the judge's own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties participate with their counsel in settlement discussions, (5) whether any parties are unrepresented by counsel, (6) whether the matter is civil or criminal, and (7) whether the case is pending before a specialized tribunal, such as the Mass Litigation Panel or the Business Court Division.

Clerk's Notes on Rule 2.6

Rule 2.6 and its comment are based largely on the 2007 Model Rules, with the exception of factor (7) in Comment [2], which is specific to West Virginia. Comment [3] of the Model Rules was deleted.

COMMENT

[1] Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge's respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.

Clerk's Notes on Rule 2.7

Rule 2.7 and its comment are based entirely on the 2007 Model Rules.

COMMENT

[1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

[2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case. A court order or opinion specifically addressing a juror's conduct or the jury's findings is not prohibited by Rule 2.8(C).

[3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case.

Clerk's Notes on Rule 2.8

Rule 2.8(A) and (B) and the comment are based on the 2007 Model Rules, with some modification. Rule 2.8(C) is a modified version of the Model Rule that retains the language from Canon 3B(10) about expressing appreciation to jurors for their service. Language from the Model Rule that would permit a judge to commend or criticize jurors in an order was removed, and a new sentence was added to the end of Comment [2] that allows an order or opinion to address a juror's conduct or a jury's verdict.

COMMENT

[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.

[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.

[6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic. Importantly, this provision is not intended to refer to routine court records available from the bench, as long as the records are disclosed to and subject to review by both parties.

[7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge's compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2).

[8] A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

Clerk's Notes on Rule 2.9

Rule 2.9 is based entirely on the 2007 Model Rules. The comment is also based upon the 2007 Model Rules, with two additions. The last sentence in Comment [6] was added as a result of public comments. Comment [8] is not part of the Model Rules. Finally, a sentence that was included in Comment [4] as part of the version that was placed for public comment was deleted. That sentence read: "Treatment court judges should not thereafter preside over any subsequent proceeding which results from an involuntary termination from the treatment court, unless the participant signs a voluntary waiver of his or her right to have another judge assigned to any subsequent proceeding."

COMMENT

[1] This Rule's restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary.

[2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, or represents a client as permitted by these Rules. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly.

[3] Depending upon the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge's conduct in a matter.

Clerk's Notes on Rule 2.10

Rule 2.10 and its comment are based entirely on the 2007 Model Rules.

COMMENT

[1] In many jurisdictions, the term "recusal" is used interchangeably with the term "disqualification."

[2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

[3] The rule of necessity may override the rule of disqualification. For example, 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. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.

[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.

[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

[6] "Economic interest," as set forth in the Terminology section, means ownership of more than a de minimis legal or equitable interest. Except for situations in which a 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;

          (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)  an interest in the issuer of government securities held by the judge.

Clerk's Notes on Rule 2.11

Rule 2.11 and its comment are based entirely on the 2007 Model Rules, with two exceptions. Model Rule 2.11(A)(4), which relates to disqualification based upon contributions to the judge's campaign, has not been adopted by any other state since it was first added to the Model Code in 1999. Accordingly, this provision is not included. In addition, the first sentence of Comment [1] of the Model Rules was deleted as redundant. It is important to note that a judge's disqualification decision remains subject to review by the Chief Justice under Trial Court Rule 17.

COMMENT

[1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when those persons are acting at the judge's direction or control. A judge may not direct court personnel to engage in conduct on the judge's behalf or as the judge's representative when such conduct would violate the Code if undertaken by the judge.

[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.

Clerk's Notes on Rule 2.12

Rule 2.12 and its comment are derived from the 2007 Model Rules, with the exception of paragraph (C), which is not contained in the Model Rules. This language is unique to West Virginia and is a carry-over from Canon 3C(5), which was presumably added as a result of the case of In Re Neely, 178 W.Va. 722, 364 S.E.2d 250(1987)(Judge's use of secretary to babysit child violated the "appearance of impropriety" standard of former Canon 2A).

COMMENT

[1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, and guardians, and personnel such as clerks, secretaries, bailiffs, court reporters, and probation officers. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by paragraph (A).

[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge's spouse or domestic partner, or the spouse or domestic partner of such relative.

Clerk's Notes on Rule 2.13

Rule 2.13 and its comment are derived from the 2007 Model Rules, with modifications. Paragraph (B) of the 2007 Model Rules, and its accompanying Comment [3], have been omitted. These provisions relate to the appointment of lawyers who contributed to the judge's campaign. This provision is not necessary because any issue of contribution-influenced appointments can be addressed under the Rule requiring appointments to be made impartially and on the basis of merit. Moreover, these provisions are counterparts to Model Rule 7.6 of the Rules of Professional Conduct, which was not adopted in West Virginia. Court reporters and probation officers were added to the list of appointees in Comment [1].

COMMENT

[1] "Appropriate action" means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include but is not limited to speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program.

[2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge's responsibility under this Rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. The program for judges is the Judicial Committee on Assistance and Intervention. The program for lawyers is the Lawyer Assistance Program. Depending upon the gravity of the conduct that has come to the judge's attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule 2.15.

Clerk's Notes on Rule 2.14

Rule 2.14 and its comment are derived from the 2007 Model Rules, with two additions. Paragraph (B) is carried over from Canon 3D(4) of the existing West Virginia Code of Judicial Conduct. Additionally, the third and fourth sentences of Comment [2] were added in order to specify the assistance programs that are available in West Virginia.

COMMENT

[1] Taking action to address known misconduct is a judge's obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one's judicial colleagues or members of the legal profession undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent.

[2] A judge who has knowledge indicating a substantial likelihood of misconduct by another judge or lawyer is required to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but is not limited to, communicating directly with the judge who may have violated this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to information indicating that a lawyer has committed a violation of the Rules of Professional Conduct may include but are not limited to communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body.

Clerk's Notes on Rule 2.15

Rule 2.15 and its comment are derived entirely from the 2007 Model Rules, with the exception of subsection (C) and (D), which use the phrase "a judge having knowledge indicating a substantial likelihood" rather than the phrase in the Model Rules "a judge who receives information indicating a substantial likelihood." The language of Comment [2] was also modified for consistency.

COMMENT

[1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as required in paragraph (A), instills confidence in judges' commitment to the integrity of the judicial system and the protection of the public.

Clerk's Notes on Rule 2.16

Rule 2.16 and its comment are derived entirely from the 2007 Model Rules.

Clerk's Notes on Canon 3

The language of Canon 3 is drawn explicitly from the 2007 Model Code. The Rules under Canon 3 are taken from former Canon 4 of the 1990 Model Code, along with a few rules taken from former Canon 2. The revisions are intended to locate everything related to a judge’s personal life under a single Canon.

COMMENT

[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, 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. See Rule 3.7.

[2] Off-the-bench judicial leadership is essential to effective resolution of local systemic problems that impede the progress of child abuse and neglect, delinquency, and status offense cases involving at-risk children and their families. Unlike most other types of cases in the court system, these cases deal with ongoing and changing circumstances, with federal and state legal mandates assigning to the judge a series of time-specific and complex decisions that shape the course of state intervention and determine the future of the child and family. For these reasons, judges are encouraged to regularly convene meetings of local professionals routinely involved in these cases for the purpose of addressing issues in the circuit relating to effective procedures and necessary services. These collaborative meetings may address systemic problems but shall not include discussion of individual cases.

[3] 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.

[4] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. This Rule should be read in conjunction with Rules 3.6 and 3.7.

[5] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge’s solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.

[6] The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.

Clerk's Notes on Rule 3.1

Rule 3.1 is based entirely on the 2007 Model Code, but the comment has three additions that provide helpful guidance . Comment [2] is not in the Model Code. It relates to collaborative meetings that judges participate in or convene in cases involving child abuse and neglect, delinquency, and status offense cases involving at-risk children and their families. Comment [6] is not in the Model Code. It clarifies the applicability of conduct rules in the context of the Internet and social networking. Finally, the cross-reference at the end of Comment [4] was expanded to include a reference to Rule 3.7.

COMMENT

[1] 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 or legislative branch officials.

[2] In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3, prohibiting judges from using the prestige of office to advance their own or others’ interests, Rule 2.10, governing public comment on pending and impending matters, and Rule 3.1(C), prohibiting judges from engaging in extrajudicial activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

[3] In general, it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid using the prestige of judicial office.

Clerk's Notes on Rule 3.2

Rule 3.2 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] A judge who, without being subpoenaed, testifies as a character witness abuses the prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

[2] Whether or not the demands of justice indicate the judge should testify depends on the nature and depth of the judge's actual awareness of the character of the party for whom the judge would testify. It also depends upon the actual necessity that it be the judge, as opposed to another possible witness who is called to testify. Only if the judge is in a unique position to offer meaningful testimony about the individual should the judge testify.

Clerk's Notes on Rule 3.3

Rule 3.3 is based entirely on the 2007 Model Rules, with the exception of the final phrase: “subpoenaed to testify” is used instead of the Model Rule language “duly summoned.” Comment [1] is based entirely on the 2007 Model Rules. Comment [2] is not contained in the Model Rules, but was added in order to provide specific guidance in accord with applicable case law.

COMMENT

[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

[2] A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position.

[3] A judge's appointment to a government board or commission relating to the law, the legal system, or the administration of justice is generally not the kind of incompatible or time-consuming position prohibited under the dual office-holding provision of West Virginia Constitution, Article VIII, § 7.

Clerk's Notes on Rule 3.4

Rule 3.4 and Comments [1] and [2] are based entirely on the 2007 Model Code. Comment [3] is not in the Model Rules, and is intended to clarify that the “other office or appointment” language of West Virginia Constitution, Article VIII, § 7 has no application to a judge’s incidental service on a government board or committee that is not a separate office or employment in conflict with judicial duties and obligations.

COMMENT

[1] In the course of performing judicial duties, a judge 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.

[2] This rule is not intended, however, 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 a judge’s family, court personnel, or other judicial officers if consistent with other provisions of this Code.

Clerk's Notes on Rule 3.5

Rule 3.5 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.

[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.

[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.

[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.

[5] This Rule does not apply to national or state military service.

Clerk's Notes on Rule 3.6

Rule 3.6 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations.

[2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.

[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph (A)(4). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

[4] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Clerk's Notes on Rule 3.7

Rule 3.7 is based on the 2007 Model Code with one modification. Language in Rule 3.7(A)(1) that permits a judge to assist in “planning related to fund raising” was deleted. The Comment is based largely on the Model Code, but Comment [4] of the Model Code was deleted. The deleted language read as follows: “Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge’s title or judicial office if comparable designations are used for other persons.” Comment [5] of the Model Code was therefore renumbered as Comment [4].

COMMENT

[1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge’s obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.

Clerk's Notes on Rule 3.8

Rule 3.8 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] This Rule does not prohibit a judge from participating in arbitration, mediation, or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited.

Clerk's Notes on Rule 3.9

Rule 3.9 and its comment are a slightly modified version of the 2007 Model Code, which contains the phrase “unless expressly authorized by law” in both the Rule and the Comment. Since there is no such authorization in West Virginia, that language was deleted.

COMMENT

[1]  A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. A judge must not use the prestige of office to advance the judge’s personal or family interests. See Rule 1.3.

Clerk's Notes on Rule 3.10

Rule 3.10 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extrajudicial activities, is subject to the requirements of this Code. For example, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties. See Rule 2.1. Similarly, it would be improper for a judge to use his or her official title or appear in judicial robes in business advertising, or to conduct his or her business or financial affairs in such a way that disqualification is frequently required. See Rules 1.3 and 2.11.

[2] As soon as practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule.

Clerk's Notes on Rule 3.11

Rule 3.11 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1.

[2] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule 3.15.

Clerk's Notes on Rule 3.12

Rule 3.12 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as intended to influence the judge’s decision in a case. Rule 3.13 imposes restrictions upon the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge’s independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported. As the value of the benefit or the likelihood that the source of the benefit will appear before the judge increases, the judge is either prohibited under paragraph (A) from accepting the gift, or required under paragraph (C) to publicly report it.

[2] Gift-giving between friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause reasonable persons to believe that the judge’s independence, integrity, or impartiality has been compromised. In addition, when the appearance of friends or relatives in a case would require the judge’s disqualification under Rule 2.11, there would be no opportunity for a gift to influence the judge’s decision making. Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things of value from friends or relatives under these circumstances, and does not require public reporting.

[3] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. A judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at below-market interest rates unless the same rate was being made available to the general public for a certain period of time or only to borrowers with specified qualifications that the judge also possesses.

[4] Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge’s spouse, domestic partner, or member of the judge’s family residing in the judge’s household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely an incidental beneficiary, this concern is reduced. A judge should, however, remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits.

[5] Rule 3.13 does not apply to contributions to a judge’s campaign for judicial office. Such contributions are governed by other Rules of this Code, including Rules 4.3 and 4.4.

Clerk's Notes on Rule 3.13

With one exception, Rule 3.13 and its comment are based entirely on the 2007 Model Rule. The phrase “or knowingly* permit staff, court officials, and others subject to the judge’s direction and control to accept” in Paragraph (A) is not in the Model Rule. Although imposed generally in Rule 2.12, it is appropriate to restate this clear guidance in the Rule relating specifically to gifts and other things of value.

COMMENT

[1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code.

[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge’s decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.

[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include:

          (a)  whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity;

          (b)  whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;

          (c)  whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge;

          (d)  whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups;

          (e)  whether information concerning the activity and its funding sources is available upon inquiry;

          (f)  whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge’s court, thus possibly requiring disqualification of the judge under Rule 2.11;

          (g)  whether differing viewpoints are presented; and

          (h)  whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges.

Clerk's Notes on Rule 3.14

Rule 3.14 and its comment are based entirely on the 2007 Model Code.

COMMENT

[1] Reporting of expense reimbursement and waiver of fees under Rule 3.15(A)(3) does not apply to events that are paid for by the Supreme Court Administrative Office or through grant funding. Examples include attendance at the West Virginia Judicial Conference, the West Virginia Family Court Judge’s Conference, the West Virginia Magistrate’s Conference, the Conference of Chief Justices, or attendance at a drug court conference paid by scholarship or grant funding. Reporting of expense reimbursement and waiver of fees under Rule 3.15(A)(3) does not apply to judicial seminars and judicial meetings. Reporting of expense reimbursement and waiver of fees under Rule 3.15(A)(3) applies only to events by nongovernmental entities other than a state or local bar association, a law school, a subject-matter bar association, a judicial association, the Judicial Division of the American Bar Association, the Appellate Judges Education Institute, or the National Judicial College.

Clerk's Notes on Rule 3.15

Rule 3.15 is based largely on the 2007 Model Code. The threshold amounts in Paragraphs (A)(2) and (3) are set at $150 and $500 respectively. The reporting requirements of the Model Rule were modified to require annual reporting. The Comment is new, and is intended to provide specific guidance to West Virginia judges in reporting expense reimbursement and waiver of fees.

COMMENT

General Conditions   
[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account the various methods of selecting judges.

[2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.

Participation In Political Activities   
[3] Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations.

[4] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning on their own behalf. See Rule 4.2(B)(2).

[5] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity.

[6] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited by paragraphs (A)(2) or (A)(3).

Statements and Comments Made During a Campaign for Judicial Office   
[7] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(9) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a while not materially misleading.

[8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate’s integrity or fitness for judicial office. As long as the candidate does not violate paragraphs (A)(9), (A)(10), or (A)(11), the candidate may make a factually accurate public response. In addition, when an independent third party has made unwarranted attacks on a candidate’s opponent, the candidate may disavow the attacks, and request the third party to cease and desist.

[9] Subject to paragraph (A)(10), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign, although it is preferable for someone else to respond if the allegations relate to a pending case.

[10] Paragraph (A)(10) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.

Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office   
[11] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices.

[12] Paragraph (A)(11) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

[13] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.

[14] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.

[15] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph (A)(11) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(11), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11.

Clerk's Notes on Rule 4.1

Rule 4.1 and its comment are based largely on the 2007 Model Code. The restrictions on partisan activities that are contained in Paragraphs (A)(5) through (7) of Model Rule 4.1 are not included, because they are subject to invalidation under First Amendment principles. The general principle set out in Model Rule 4.1(A)(4) was modified and divided, with the prohibition on making a contribution to a candidate for political office being moved to a new (A)(5), and the subsequent provisions of the Model Rules were renumbered. This modification makes it easier to reconcile with the exceptions for active candidates that are contained in Rule 4.2. A cross reference in Comment [4] is also eliminated, because the referenced exception in Model Rule 4.2(B)(3) was not adopted. Rule 4.1(A)(8) is a modified version of Model Rule 4.1(A)(7), and prohibits requiring court staff to participate in a campaign instead of the blanket prohibition that is in the Model Rule. This modification is consistent with the language of Rule 2.12(C).

COMMENT

[1] Paragraph (B) permits judicial candidates in public elections to engage in some political and campaign activities otherwise prohibited by Rule 4.1.

[2] Despite paragraph (B), judicial candidates for public election remain subject to many of the provisions of Rule 4.1. For example, a candidate continues to be prohibited from soliciting funds for a political organization, knowingly making false or misleading statements during a campaign, or making certain promises, pledges, or commitments related to future adjudicative duties. See Rule 4.1(A), paragraphs (4), (9), and (11).

[3] A judge or candidate may be a member of a political party, and that affiliation is and has been a matter of public record in West Virginia. A judge or candidate may be endorsed by or otherwise publicly identified or associated with a political party by a person or entity not affiliated with the judicial campaign. Therefore, a judge or candidate may maintain his or her party affiliation through a judicial election, and he or she may include political party affiliation or similar designation in campaign communications and literature.

Clerk's Notes on Rule 4.2

Rule 4.2 and its comment are based on the 2007 Model Code with a number of revisions. The tiered approach in Paragraph (A) of the Model Rule was simplified in light of the fact that all West Virginia judicial elections are nonpartisan as a result of the passage of House Bill 2010. Paragraphs (A)(1) through (4) are based entirely on the Model Rule. Paragraph (A)(5) is not contained in the Model Rules, and provides useful guidance about the need to take corrective action upon discovering misrepresentation in a judicial candidate’s campaign statements or materials. The opening clause of Paragraph (B) omits the time window set forth in the Model Rule. The time window in the Model Rule is unnecessary because all judicial elections are now to be conducted in single-seat divisions, and state election law already sets windows for pre-candidacy activities and formal declarations of candidacy. Paragraphs (B)(1) and (2) are based entirely on the Model Rule. However, Model Rule Paragraph (B)(3), which allows a judicial candidate to endorse another candidate running for the same office, is not included. This exception to the general prohibition in Rule 4.1(A)(3) has never been adopted in West Virginia. Paragraph (B)(3) is based entirely on Model Rule Paragraph (B)(4). Paragraph (B)(4) is a modified version of Model Rule Paragraph (B)(5), and does not include the Model Rule’s limitation on seeking support from partisan political organizations. Paragraph (B)(5) is new and was added after the public comment period. Along with the new Comment [3], Paragraph (B)(5) is intended to provide guidance to candidates regarding the fact that membership in a political party may be articulated in the context of a nonpartisan election. Paragraph (B)(6) is a modified version of the Model Rule. Comments [1] and [2] are modified versions of the Model Rule, adjusted to take into account the changes described in this note. Model Rule Comments [3] through [7] are omitted as unnecessary, because they address distinctions between partisan and nonpartisan elections.

COMMENT

[1] When seeking support or endorsement, or when communicating directly with an appointing or confirming authority, a candidate for appointive judicial office must not make any pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. See Rule 4.1(A)(10).

Clerk's Notes on Rule 4.3

Rule 4.3 and its comment are based almost entirely on the 2007 Model Code, with the exception of a correction to the cross-reference in the Comment. In addition, Rule 4.3(B) does not include the Model Rule’s limitation on seeking support from partisan political organizations.

COMMENT

[1] Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. See Rule 4.1(A)(5). This Rule recognizes that in many jurisdictions, judicial candidates must raise campaign funds to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.

[2] Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees.

[3] At the start of a campaign, the candidate must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law.

Clerk's Notes on Rule 4.4

Rule 4.4 is based entirely on Paragraph (A) of the 2007 Model Code. Paragraphs (B)(1) through (3) of the Model Code are not included, because they echo provisions that were previously not adopted and are covered by campaign conduct and reporting requirements that are already part of West Virginia law. The Comment is based upon the Model Rule, with the exception of Comment [3]. Language from the Model Rule relating to contributions from lawyers is too simplistic, because the relatively modest contribution limits on West Virginia apply to everyone, including lawyers.

COMMENT

[1] In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

[2] The "resign to run" rule set forth in paragraph (A) ensures that a judge cannot use the judicial office to promote his or her candidacy. When a judge is seeking appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the "resign to run" rule.

Clerk's Notes on Rule 4.5

Rule 4.5 is based entirely on the 2007 Model Code. A clause in Comment [2] of the Model Rule relating to post-election retaliation was omitted as unnecessary.