                                                                                           March 25 2014


                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       No. AF 08-0203
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IN THE MATTER OF THE CODE OF                              )      ORDER
JUDICIAL CONDUCT                                          )
                                       _____________


       In 2008, this Court adopted a version of the American Bar Association Model Code of
Judicial Conduct that had been adapted and refined to reflect the realities of the operation of
the judicial system and judicial elections in Montana. The Court now wishes to add to the
2008 Montana Code of Judicial Conduct a rule requiring members of and candidates for the
Court to comply with the same statutory financial disclosure requirements that apply to other
state officials. With that purpose, we have drafted and solicited public comment on a
proposed new Rule 3.15 of the Rules of Judicial Conduct. No public comments were filed
within the time allowed.
       In addition, the Court has concluded that additions to the comments to Rules 2.2, 2.5,
and 2.6 of the Code of Judicial Conduct will aid Montana judges in determining what they
may do to assist self-represented litigants.
       IT IS ORDERED that the following new Rule 3.15 is hereby adopted for inclusion in
Montana’s Code of Judicial Conduct, as are the highlighted portions of subsection [5] of the
comment to Rule 2.2, subsection [4] of the comments to Rule 2.5, and subsection [1] of the
comments to Rule 2.6 of the Code of Judicial Conduct, as set forth below.
   Rule 3.15. Financial disclosure
   Justices of the Montana Supreme Court and candidates for justice of the Montana
   Supreme Court shall comply with the financial disclosure requirements set forth in
   Section 2-2-106 of the Montana Code Annotated.

   COMMENT

   Claims of violation of this Rule shall be filed with and considered by the Judicial
   Standards Commission.

   RULE 2.2

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Impartiality and Fairness

A judge shall uphold and apply the law,* and shall perform all duties of judicial
office fairly and impartially.*

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] A judge should manage the courtroom in a manner that provides all litigants the
opportunity to have their matters fairly adjudicated in accordance with the law.

[5] A judge may make reasonable accommodations to ensure self-represented
litigants the opportunity to have their matters fairly heard. Steps that are permissible
in ensuring a self-represented litigant’s right to be heard according to law include but
are not limited to: liberally construing pleadings; providing brief information about
the proceeding and evidentiary and foundational requirements; modifying the
traditional order of taking evidence; attempting to make legal concepts
understandable; explaining the basis for a ruling; and making referrals to any
resources available to assist the litigant in preparation of the case. Self-represented
litigants are still required to comply with the same substantive law and procedural
requirements as represented litigants.


RULE 2.5
Competence, Diligence, and Cooperation

(A) A judge shall perform judicial and administrative duties competently and
diligently.

(B) A judge shall cooperate with other judges and court officials in the
administration of court business.

COMMENT


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[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. In
accomplishing these critical goals in the increasing number of cases involving self-
represented litigants, a judge may take appropriate steps to facilitate a self-
represented litigant’s ability to be heard. See Rule 2.6, Comment 1.


RULE 2.6
Ensuring the Right to Be Heard

(A) 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.*

(B) A judge may encourage parties to a proceeding and their lawyers to settle
matters in dispute but shall not act in a manner that coerces any party into
settlement.

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. Steps judges may consider in facilitating the right
to be heard include, but are not limited to: (1) providing brief information about the
proceeding and evidentiary and foundational requirements; (2) asking neutral
questions to elicit or clarify information; (3) modifying the traditional order of taking
evidence; (4) refraining from using legal jargon; (5) explaining the basis for a ruling;
and (6) making referrals to any resources available to assist the litigant in the
preparation of the case.


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   [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, and (6) whether the matter is civil or criminal.

   [3] Judges must be mindful of the effect settlement discussions can have, not only on
   their objectivity and impartiality, but also on the appearance of their objectivity and
   impartiality. Despite a judge’s best efforts, there may be instances when information
   obtained during settlement discussions could influence a judge’s decision making
   during trial, and, in such instances, the judge should consider whether disqualification
   may be appropriate. See Rule 2.12(A)(1).

      This Order shall be posted on this Court’s website. In addition, the Clerk is directed
to provide copies of this Order to the State Bar of Montana, Todd Everts and Kevin Hayes at
the Legislative Services Division, Helene Haapala and Louise Ricci at Thompson Reuters,
Robert Roy at LexisNexis, and the Commissioner of Political Practices for the State of
Montana.
      DATED this _____ day of March, 2014.

                                                   ___________________________________
                                                              Chief Justice


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