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§ 5-203. Canon 3. A judge shall perform the duties of judicial office impartially and diligently.

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This rule only applies to cases filed prior to December 31, 2010.

   (A) Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law.* In the performance of these duties, the following standards apply: 

   (B) Adjudicative Responsibilities. 

   (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required. 

   (2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism. 

   (3) A judge shall require* order and decorum in proceedings before the judge. 

   (4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers and of staff, court officials, and others subject to the judge's direction and control.

COMMENT

 

   The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate. 

 

   (5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and shall not permit staff, court officials, and others subject to the judge's direction and control to do so.

COMMENT

 

   A judge must refrain from speech, gestures or other conduct that reasonably could be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge's direction and control.

 

   A judge must perform judicial duties impartially and fairly. A judge who manifests bias or prejudice on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media, and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

 

   (6) A judge shall require* lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice against parties, witnesses, counsel, or others based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. This section does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status or other similar factors are issues in the proceeding.

   (7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.* A judge shall not initiate, permit, or consider ex parte communications or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: 

   (a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits are authorized; 

   (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and 

   (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. 

   (b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. 

   (c) A judge may consult with court personnel* whose function is to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges. 

   (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. 

   (e) A judge may initiate or consider any ex parte communications when authorized by law to do so.

COMMENT

 

  The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.

 

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

 

   Whenever presence of a party or notice to a party is required by section 3B(7), 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.

 

   An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to furnish a brief amicus curiae. Certain ex parte communication is approved by section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge.

 

   A judge must not independently investigate facts in a case and must consider only the evidence presented.

 

   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.

 

   A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that section 3B(7) is not violated through law clerks or other personnel on the judge's staff.

 

   If communications between the trial judge and the appellate court with respect to a proceeding appealed from that trial judge is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties. 

 

   (8) A judge shall dispose of all judicial matters promptly, efficiently, and fairly.

COMMENT

 

    In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices and avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.

 

   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 insist that court officials, litigants, and their lawyers cooperate with the judge to that end.

 

   NOTE: THE NEBRASKA SUPREME COURT HAS ADOPTED CASE PROCESSING GUIDELINES AND HAS ADOPTED A RULE CONCERNING THE REPORTING OF CASES UNDER SUBMISSION. 

 

   (9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to interfere substantially with a fair trial or hearing. The judge shall require* similar abstention on the part of court personnel* subject to the judge's direction and control. This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This section does not apply to proceedings in which the judge is a litigant in a personal capacity.

COMMENT

 

  The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. This section does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by § 3-503.6 of the Nebraska Rules of Professional Conduct and other law.*

 

Amended July 13, 2005, effective September 1, 2005. 

 

   (10) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.

COMMENT

 

  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. 

 

   (11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information* acquired in a judicial capacity.

   (C) Administrative Responsibilities. 

   (1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business. 

   (2) A judge shall require* staff, court officials, and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties. 

   (3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities. 

   (4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

COMMENT

 

   Appointees of a judge include assigned counsel; officials such as referees, commissioners, special masters, receivers, special administrators; and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by section C(4). 

 

   (D) Disciplinary Responsibilities. 

   (1) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action. A judge having knowledge* that another judge has committed a violation of this Code that raises substantial question as to the other judge's fitness for office shall inform the appropriate authority. 

   (2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Nebraska Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Nebraska Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.*

Amended July 13, 2005, effective September 1, 2005. 

   (3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be absolutely privileged. 

   (4) Members of the Nebraska Judicial Ethics Committee are excepted from section 3(D)(1) concerning information obtained from judges seeking an advisory opinion.

COMMENT

 

  Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body. 

 

   (E) Disqualification. 

   (1) A judge shall not participate in any proceeding in which the judge's impartiality reasonably might be questioned, including but not limited to instances where:

COMMENT

 

  Under this rule, a judge is disqualified whenever the judge's impartiality reasonably might be questioned, regardless whether any of the specific rules in section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.

 

   By decisional law, 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 the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

 

   (a) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge* of disputed evidentiary facts concerning the proceeding. 

   (b) The judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it.

COMMENT

 

  A lawyer in a government agency ordinarily does not have an association with other lawyers employed by that agency within the meaning of section 3E(1)(b). A judge formerly employed by a government agency, however, should not participate in any proceeding if the judge's impartiality reasonably might be questioned because of such association. 

 

   (c) The judge knows* that the judge, individually or as a fiduciary, or the judge's spouse, parent, or child, wherever residing, or any other member of the judge's family residing in the judge's household* has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis* interest that could be affected substantially by the proceeding. 

   (d) The judge or the judge's spouse, or a person within the fourth degree of relationship* to either of them, or the spouse of such a person:  

   (i) is a party to the proceeding, or an officer, director, or trustee of a party; 

   (ii) is acting as a lawyer in the proceeding;

   (iii) is known* by the judge to have a more than de minimis* interest that could be affected substantially by the proceeding; 

   (iv) is to the judge's knowledge* likely to be a material witness in the proceeding. 

   (e) Any other instance where law* requires disqualification.

COMMENT

 

   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 of itself disqualify the judge. Under appropriate circumstances, the fact that "the judge's impartiality reasonably might be questioned" under section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "affected substantially by the outcome of the proceeding" under section 3E(1)(d)(iii) may require the judge's disqualification. 

 

   (2) A judge shall keep informed about the judge's personal and fiduciary* economic interests,* and should make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household. 

   (3) A judge shall disclose on the record information that the judge believes the parties or their lawyers reasonably might consider relevant to the question of the judge's disqualification, even if the judge believes there is no real basis for disqualification. 

   (F) Remittal of Disqualification.

   A judge disqualified by the terms of section 3E may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement must be in writing and filed in the court file of the proceeding.

COMMENT

 

   A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek, or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge should have all parties and their lawyers sign the remittal agreement.

 

This page was last modified on Wednesday, May 8, 2013