Course Pack(2) (1).pdf

Ilia State University

U.S. LAWS AND LEGAL SYSTEMS Prof. Jeffrey Renz COURSE PACK TABLE OF CONTENTS Renz, Class 1, Chart 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Renz, Class 1, Chart 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Renz, Organization of U.S. Courts (Appeal Relationships). . . . . . . . . . . . . . 3 Renz, Organization of U.S. Courts (Binding Precedents). . . . . . . . . . . . . . . 4 21 C.J.S. Courts § 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 21 C.J.S. Courts § 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 21 C.J.S. Courts § 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 21 C.J.S. Courts § 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 21 C.J.S. Courts § 193. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 21 C.J.S. Courts § 196. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 21 C.J.S. Courts § 199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 21 C.J.S. Courts § 203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 21 C.J.S. Courts § 225. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 21 C.J.S. Courts § 226. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Badr, G.M., Islamic Law and its Relation to Other Legal Systems,

26 Am. J. Comp. Law 187 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Renz, Courts and the Litigation Process (Powerpoint). . . . . . . . . . . . . . . . 34 Ware v. Hylton, 3 U.S. 199 (1796) (abridged version from The Founders’ Constitution, Document 21, U. of Chicago (2000).. . . . . . . . . . . . . . . 51 Renz, Rule of Law in Emerging Democracies (powerpoint). . . . . . . . . . . . 60 Marbury v. Madison, 5 U.S. 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). . . . . . . . . . . . . . . . . . . . . . . 98 M’Culloch v. Maryland, 17 U.S. 316 (1819).. . . . . . . . . . . . . . . . . . . . . . . . 124 United States v. Lopez, 514 U.S. 549 (1995). . . . . . . . . . . . . . . . . . . . . . . . 164 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). . . . . . . . . . . . . 173 Estate of Big Spring, 36o Mont. 370 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 177 Renz, Introduction to Inherit the Wind . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Tennessee v. Scopes, Jury Selection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Tennessee v. Scopes, Examination of Bryan, http://law2.umkc.edu/ faculty/projects/ftrials/scopes/day7.htm. . . . . . . . . . . . . . . . . . . . . . 191 Renz, Civil Procedure in State and Federal Courts (powerpoint).. . . . . . 201 Pennoyer v. Neff, 95 U.S. 714 (1877). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Federal Rules of Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 Federal Rules of Criminal Procedure.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 Model State Administrative Procedure Act. . . . . . . . . . . . . . . . . . . . . . . . . 474

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ABA Model Code of Professional Responsibility (1980). . . . . . . . . . . . . . 589 Montana Rules of Professional Conduct (2011). . . . . . . . . . . . . . . . . . . . . 682 Montana Rules for Lawyer Discipline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 698 ABA Model Code of Judicial Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709 Montana Code of Judicial Conduct (2009). . . . . . . . . . . . . . . . . . . . . . . . . 779

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FIVE MAJOR LEGAL SYSTEMS

Civil (Continental)

Common Law

Religious

Customary

Marxist-Leninist

EXAMPLE JURISDICTIONS AND SOURCES CEurope

CGreat Britain

CIndia

CTribal Societies

CP.R. China

CFormer European Colonies

CFormer British Colonies

CPredominately Muslim States

CCommercial Groups

CCuba

CHoly Quran and Sunnah of The Prophet (SAW)

CIndustry Groups

CFormer Soviet Republics CCode Napoleon CGermanic Code

CWritten Opinions of British Judges

CSruti & Smriti

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CCivil code + MarxistLeninist theory

SYSTEM

SOURCES OF LAW

POWER OF INSTITUTIONS

PRECEDENT OR EFFECT ON LATER CASES

EFFECT ON CONTRACTS

Civil

Code

Parliament

Persuasive

None

Common Law

Judicial Decisions

Judiciary

Binding*

Great

Religious

Source book (Holy Qur’an; Sruti); Authoritative Practices and Commentary (Sunnah; Smriti)

Religious Judiciary

Some

Some

Marxist-Leninist

Code

Party

None

None

Customary

Practice

Tribe/Groups

Some (social coercion)

Some (Social coercion)

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ORGANIZATION OF US COURTS – APPEAL RELATIONSHIPS STATE COURTS

TRIBAL COURTS

Court of Limited Jurisdiction

Tribal Court of General Jurisdiction

Court of Special Jurisdiction

United States District Court

Tribal Jurisdiction, only

"De Novo" Appeal

Court of General Jurisdiction

UNITED STATES (FEDERAL) COURTS

Tribal Appellate Court

United States Courts of Appeals

Intermediate Appellate Court

Federal Law Issues, only

Appellate Court of Last Resort

Supreme Court of the United States

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ORGANIZATION OF US COURTS – WHICH RULINGS ARE BINDING PRECEDENT? STATE COURTS

TRIBAL COURTS

Court of Limited Jurisdiction

Tribal Court of General Jurisdiction

Court of General Jurisdiction

Court of Special Jurisdiction

Tribal Appellate Court

UNITED STATES (FEDERAL) COURTS United States District Court

United States Courts of Appeals

Federal Law Issues, only

Intermediate Appellate Court

Appellate Court of Last Resort

Supreme Court of the United States

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Renz, Jeffrey 6/27/2016 For Educational Use Only

§ 5.Courts of general and courts of special jurisdiction, 21 C.J.S. Courts § 5

21 C.J.S. Courts § 5 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. I. In General b. Classification of Courts Topic Summary References Correlation Table § 5. Courts of general and courts of special jurisdiction West's Key Number Digest West's Key Number Digest, Courts 26(1) to 26(3), 33, 39, 118, 117.5, 159 Courts of general jurisdiction are those competent to decide their own jurisdiction and to take cognizance of all causes, civil and criminal, of a particular nature, while courts of limited or special jurisdiction are those which can take cognizance of a few specified matters.

Courts of general jurisdiction are courts which take cognizance of all causes, civil or criminal, of a particular nature, 1 or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide their own jurisdiction. 2 Courts of limited or special jurisdiction are those which can take cognizance of a few specified matters only. 3 When a court assumes jurisdiction for limited purpose, it ordinarily should confine itself to that purpose. 4 Courts of original and general jurisdiction are competent by their constitution to decide upon their own jurisdiction and to exercise it to a final judgment without setting forth in their proceedings the jurisdictional facts and evidence upon which it is rendered; their records import absolute verity, and cannot be impugned by averment or proof to the contrary, and there can be no judicial inspection behind the judgment save by appellate power. 5 On the other hand courts of special and limited jurisdiction are so constituted that their judgments may be looked through for the facts and evidence necessary to sustain them, their decisions do not furnish evidence of themselves to show jurisdiction and its lawful exercise, and every requisite for either must appear upon the face of their proceedings or they are nullities. 6 The distinction between courts of general and courts of limited jurisdiction is to be found largely in the laws which establish them, 7 and the line of demarcation is not always definite. 8 A court can be a court of general jurisdiction for some purposes and a court of limited jurisdiction for other purposes. 9 When a court of general jurisdiction proceeds under a special statute it becomes a court of limited jurisdiction for the purpose of such proceeding. 10

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§ 5.Courts of general and courts of special jurisdiction, 21 C.J.S. Courts § 5

The question whether a court is of general or inferior jurisdiction is to be determined by the nature of the jurisdiction conferred, and not by the territorial limits within which it is to be exercised, 11 or by an amount in controversy range within which that jurisdiction is to be exercised. 12 State courts are courts of general jurisdiction, 13 and federal courts are courts of limited jurisdiction. 14 Small claims actions are designed to be quick and less formally structured than plenary proceedings. 15

CUMULATIVE SUPPLEMENT Cases: Small claims court exists so people with meritorious claims for small amounts may have those claims adjudicated without spending more on attorney fees than the claims are worth. Dorsey v. Superior Court, 193 Cal. Rptr. 3d 834 (Cal. App. 4th Dist. 2015).

[END OF SUPPLEMENT] Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS COURTS § 5 Footnotes Miss.—Daniels v. Jordan, 161 Miss. 78, 134 So. 903 (1931). 1 2 3

4 5

6

7 8 9 10

Tenn.—Bomar v. State ex rel. Stewart, 201 Tenn. 480, 300 S.W.2d 885 (1957). Idaho—Short v. Thompson, 56 Idaho 361, 55 P.2d 163 (1936). Tenn.—Bomar v. State ex rel. Stewart, 201 Tenn. 480, 300 S.W.2d 885 (1957). Mo.—State v. Daniels, 66 Mo. 192, 1877 WL 8760 (1877). Municipal court Municipal court is one of limited jurisdiction. Wis.—Linschitz v. C.A. Neuberger Co., 230 Wis. 304, 283 N.W. 811 (1939). U.S.—Ellis v. U.S., 313 F.3d 636 (1st Cir. 2002). U.S.—Grignon's Lessee v. Astor, 43 U.S. 319, 2 How. 319, 11 L. Ed. 283, 1844 WL 5946 (1844). Md.—Austin v. Director, Patuxent Institution, 245 Md. 206, 225 A.2d 466 (1967). Wis.—Linschitz v. C.A. Neuberger Co., 230 Wis. 304, 283 N.W. 811 (1939). U.S.—Grignon's Lessee v. Astor, 43 U.S. 319, 2 How. 319, 11 L. Ed. 283, 1844 WL 5946 (1844). Md.—Austin v. Director, Patuxent Institution, 245 Md. 206, 225 A.2d 466 (1967). Wis.—Linschitz v. C.A. Neuberger Co., 230 Wis. 304, 283 N.W. 811 (1939). Alaska—Sylvester's Adm'r v. Willson's Adm'rs, 2 Alaska 325, 1905 WL 328 (D. Alaska 1905). Ga.—Tucker v. Harris, 13 Ga. 1, 1853 WL 1553 (1853). Tex.—Withers v. Patterson, 27 Tex. 491, 1864 WL 2700 (1864). Md.—In re Glenn S., 293 Md. 510, 445 A.2d 1029 (1982). Fla.—State ex rel. Landis v. Simmons, 104 Fla. 487, 140 So. 187 (1932). Md.—In re Glenn S., 293 Md. 510, 445 A.2d 1029 (1982). Ohio—State ex rel. Parsons v. Bushong, 92 Ohio App. 101, 49 Ohio Op. 245, 109 N.E.2d 692 (3d Dist. Allen County 1945). Okla.—Osage Oil & Refining Co. v. Interstate Pipe Co., 1926 OK 887, 124 Okla. 7, 253 P. 66 (1926).

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§ 6.Courts of record and courts not of record, 21 C.J.S. Courts § 6

21 C.J.S. Courts § 6 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. I. In General b. Classification of Courts Topic Summary References Correlation Table § 6. Courts of record and courts not of record West's Key Number Digest West's Key Number Digest, Courts 48, 49 A court of record is a court that is required to keep a record of its proceedings, and that may fine or imprison.

A court of record is a court that is required to keep a record of its proceedings, 1 and that may fine or imprison. 2 Courts may be designated by statute as courts of record. 3 A test entitled to considerable weight in determining whether or not a court is one of record is whether the legislature creating the court has or has not declared it to be a court of record. 4 The phrase "court of record," as employed in state statutes, is construed as restricted to state or federal courts within the state in question. 5 A state court of appeal 6 and a state circuit court 7 is a court of record. In addition, juvenile courts are courts of record. 8 Courts not of record include inferior local courts, 9 or inferior courts lacking the power to fine or imprison for contempt. 10 Constitutional or statutory provisions may exclude particular courts from the definition of courts of record. 11 Municipal courts are not courts of record. 12

CUMULATIVE SUPPLEMENT Cases: The elements of perjury are a willful statement, under oath, of any material matter which the witness knows to be false. People v. Garcia, 39 Cal. 4th 1070, 48 Cal. Rptr. 3d 75, 141 P.3d 197 (2006). Separate juvenile courts and county courts sitting as juvenile courts are courts of record. In re Interest of Tyler T., 279 Neb. 806, 781 N.W.2d 922 (2010).

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§ 7.Civil and criminal courts, 21 C.J.S. Courts § 7

21 C.J.S. Courts § 7 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. I. In General b. Classification of Courts Topic Summary References Correlation Table § 7. Civil and criminal courts West's Key Number Digest West's Key Number Digest, Courts 42(1), 42(6) Civil courts are those determining controversies between private persons, and criminal courts those adjudicating offenses alleged to have been committed against the state.

A civil court is a proper forum to resolve property disputes. 1 Such courts are authorized by the common law, or by the constitution or statute, to decide upon civil actions, and on disputes between persons in their private capacity, whether such matters relate to the persons of the parties, or to their personal or real property. 2 A criminal court is one where criminal cases are tried and determined. 3 Owing to the distribution of the jurisdiction into civil and criminal cases, the courts having jurisdiction of criminal cases are designated as "criminal courts" and those having jurisdiction of civil cases are known as "civil courts." 4 The word "criminal" is used in this connection to describe the court, rather than to designate it by its supposed name, the word having reference to the character of the business, that is, criminal business, to be transacted in the court. 5

Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS COURTS § 7 Footnotes U.S.—Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 1 2 3 4 5

21 L. Ed. 2d 658 (1969). N.C.—Carpenter, Baggott & Co. v. Hanes, 167 N.C. 551, 83 S.E. 577 (1914). N.J.—Hobart v. Court of First Criminal Judicial Dist. of County of Bergen, 10 N.J. Misc. 723, 160 A. 674 (Sup. Ct. 1932). Mo.—State ex rel. Board of Education of City of St. Louis v. Nast, 209 Mo. 708, 108 S.W. 563 (1908). Ill.—Petty v. People, 118 Ill. 148, 8 N.E. 304 (1886).

End of Document

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Renz, Jeffrey 6/27/2016 For Educational Use Only

§ 8.De facto courts, 21 C.J.S. Courts § 8

21 C.J.S. Courts § 8 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. I. In General b. Classification of Courts Topic Summary References Correlation Table § 8. De facto courts West's Key Number Digest West's Key Number Digest, Courts 59, 60 If authorized by law, a court defectively organized or irregularly called is a de facto court and its acts are valid.

When a court is organized under color of law, that is, when its creation is authorized by law, but the proceedings creating it are irregular or defective, it is a de facto court. 1 Its acts and judgments are as valid as they would be had the court been properly created under the law. 2 While it has been held that, where a court has been established by an act of the legislature apparently valid, and has gone into operation under such act, it is to be regarded as a court de facto, 3 it has also been held that orders and decrees made by a person purporting to act as judge of a court organized under an unconstitutional statute are void. 4 If there is no law authorizing a certain court to be held, and a judge assumes to create a court and preside over it, the tribunal so created and all its proceedings will be void. 5 Where a court exists de facto under color of law, its judgments and proceedings are not open to collateral attack. 6 Thus, the legality of the existence of a de facto court and its right to exercise its functions may not be inquired into collaterally, but only in a direct proceeding at the instance of the state. 7 In this regard, the question of the legal existence of a trial court may not be raised by appeal. 8

Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS COURTS § 8 Footnotes Ark.—Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). 1 Minn.—State v. Bailey, 106 Minn. 138, 118 N.W. 676 (1908). N.Y.—People ex rel. Horowitz v. Hanley, 106 Misc. 625, 176 N.Y.S. 392 (Sup 1919). Or.—Ex parte Worley, 60 Okla. Crim. 384, 66 P.2d 107 (1937).

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§ 193.Definition and nature of doctrine, 21 C.J.S. Courts § 193

21 C.J.S. Courts § 193 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. VI. Rules of Adjudication, Decisions, and Opinions B. Stare Decisis 1. General Considerations Topic Summary References Correlation Table § 193. Definition and nature of doctrine West's Key Number Digest West's Key Number Digest, Courts 89 Under the doctrine of stare decisis, a principle of law that has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases.

As a general rule, a principle of law that has become settled by a series of decisions is binding on the courts and should be followed, in similar cases, 1 or, as otherwise expressed, a settled principle forms a precedent for the guidance of the courts in similar cases. 2 Under this rule, referred to as the rule of stare decisis, courts are bound to follow the common law as it has been judicially declared in previously adjudicated cases. 3 "Stare decisis" means "stand by things decided," 4 and that like facts will receive like treatment in court. 5 The doctrine also dictates that courts should adopt the reasoning of earlier judicial decisions if the same points arise again. 6 The United States Supreme Court will not depart from the doctrine of stare decisis without some compelling justification. 7 Even in constitutional cases, the doctrine carries such persuasive force that the Supreme Court has always required departure from precedent to be supported by some special justification. 8 The civil law tradition, followed in Louisiana, does not recognize the doctrine of stare decisis, because judicial decisions are not intended to be an authoritative source of the law; instead, Louisiana recognizes "jurisprudence constante," under which a series of decisions that form a constant stream of uniform and homogenous rulings operates with considerable persuasive authority. 9

CUMULATIVE SUPPLEMENT Cases:

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§ 193.Definition and nature of doctrine, 21 C.J.S. Courts § 193

"Stare decisis"—in English, the idea that today's Court should stand by yesterday's decisions—is a foundation stone of the rule of law. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). An argument that the courts got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). Stare decisis carries enhanced force when a decision interprets a statute; then, unlike in a constitutional case, critics of a Supreme Court ruling can take their objections across the street, and Congress can correct any mistake it sees. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). Stare decisis carries enhanced force when a decision interprets a statute, regardless whether the decision focused only on statutory text or also relied on the policies and purposes animating the law. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). Courts apply statutory stare decisis even when a decision has announced a judicially created doctrine designed to implement a federal statute. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). By contrast with the Sherman Act, the patent laws do not turn over exceptional law-shaping authority to the courts; accordingly, statutory stare decisis—in which the Supreme Court interprets and Congress decides whether to amend— retains its usual strong force. Sherman Act, § 1 et seq., 15 U.S.C.A. § 1 et seq. Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). Force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections. Alleyne v. United States, 133 S. Ct. 2151 (2013). Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and whether the decision was well reasoned. Citizens United v. Federal Election Com'n, 130 S. Ct. 876 (2010). Stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision. Citizens United v. Federal Election Com'n, 130 S. Ct. 876 (2010). When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished. Citizens United v. Federal Election Com'n, 130 S. Ct. 876 (2010). Stare decisis incorporates two principles: (1) a court is bound by its own prior legal decisions unless there are substantial reasons to abandon a decision; and (2) a legal decision rendered by a court will be followed by all courts inferior to it in the legal system. Igartua v. U.S., 626 F.3d 592 (1st Cir. 2010). Concept of stare decisis is foreign to Civil Law jurisdictions, including Louisiana; therefore, in cases involving application of Louisiana law the court is guided, but is not strictly bound, by decisions rendered by Louisiana courts. Louisiana Stadium & Exposition Dist. v. Financial Guar. Ins. Co., 701 F.3d 39 (2d Cir. 2012). Jurisprudence, even when it rises to the level of jurisprudence constante, is a secondary law source in Louisiana. Bradley v. Allstate Ins. Co., 620 F.3d 509 (5th Cir. 2010).

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§ 196.What constitutes precedent, 21 C.J.S. Courts § 196

21 C.J.S. Courts § 196 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. VI. Rules of Adjudication, Decisions, and Opinions B. Stare Decisis 1. General Considerations Topic Summary References Correlation Table § 196. What constitutes precedent West's Key Number Digest West's Key Number Digest, Courts 89 A "precedent" is a decision considered as authority for a similar case arising on a similar question of law.

"Precedent" is a court decision, which furnishes an example or authority for an identical or similar case subsequently arising, or on a similar question of law. 1 The term may mean any case that stands for a particular principle, whether the case controls the outcome of a particular matter, or a decision that must be followed when similar circumstances arise, 2 but more precisely, a decision or determination on a point actually presented for review, and which, after consideration, is declared to be a rule to guide subsequent determinations when the facts and circumstances are the same or substantially the same. 3 While it has been said that there must be a series of decisions, for those decisions to be declaratory of the common law or general equitable principles, 4 a principle enunciated in only a single decision may be applied, 5 if it is definite in its terms and generally recognized as the accepted rule on a given question. 6 The latter rule particularly applies to a decision by a court of last resort construing a statute. 7 On the other hand, a single decision that has not been cited for many years is not necessarily followed as precedent. 8 An ineffective presentation in a prior case does not deprive a ruling in that case of precedential effect, 9 but a court may feel less constrained to follow precedent when a previous opinion was rendered without full briefing or argument. 10 Furthermore, vacating a decision because of supervening mootness does not destroy its precedential value. 11 A court that resolves a case on the merits without discussing its jurisdiction to act does not establish a precedent requiring similar treatment of other cases, once the jurisdictional problem has come to light. 12 A decision rendered by an unconstitutional tribunal has no value as a precedent. 13 A denial of an application for a writ is not a ruling on the merits of the case and has no precedential value. 14

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§ 196.What constitutes precedent, 21 C.J.S. Courts § 196

Standard jury instructions are not binding precedent, even though they are published under a state supreme court's authority and are presumed to be correct. 15 The choice of words in an opinion is not of precedential significance, if it was more a matter of art than based on a critical difference. 16

CUMULATIVE SUPPLEMENT Cases: When prior decisions of the Supreme Court have opined about a particular issue without full briefing or argument on that issue, the Court is less constrained to follow precedent. Johnson v. U.S., 135 S. Ct. 2551 (2015). Constitutional or statutory precedent is properly challenged, where its justification was badly reasoned or rule has proved to be unworkable. Pearson v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). Doctrine of precedent ensures that similarly situated individuals are treated alike rather than in accordance with the personal view of any particular judge. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007). Doctrine of precedent requires that, when the facts are the same, the law should be applied the same. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007). Whether a decision in an insurance policy interpretation case is binding on another is dependent upon there being similar facts and legal issues. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007). Where the policies and underlying facts are different, a decision in an insurance policy interpretation case should not be binding in a subsequent case. U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871 (Fla. 2007). Supreme Court will not apply stare decisis to strike down legislation enacted by the General Assembly merely because it is similar to previous enactments that Supreme Court has deemed unconstitutional; to be covered by the blanket of stare decisis, the legislation must be phrased in language that is substantially the same as that which Supreme Court has previously invalidated. Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192, 2008-Ohio-546, 883 N.E.2d 377 (2008). Supreme Court lacks original jurisdiction in prohibitory injunction. State ex rel. Esarco v. Youngstown City Council, 116 Ohio St. 3d 131, 2007-Ohio-5699, 876 N.E.2d 953 (2007).

[END OF SUPPLEMENT] Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS COURTS § 196 Footnotes Neb.—Metro Renovation, Inc. v. State Dept. of Labor, 249 Neb. 337, 543 N.W.2d 715 (1996). 1 Pa.—Schaaf v. Kaufman, 2004 PA Super 129, 850 A.2d 655 (2004), appeal denied, 582 Pa. 719, 872 A.2d 1200 (2005). 2 Okla.—Dean v. Multiple Injury Trust Fund, 2003 OK CIV APP 34, 67 P.3d 356 (Div. 2 2002). 3 As to the requirement that the point actually be decided, see § 220.

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§ 199.Effect of subsequent developments, 21 C.J.S. Courts § 199

21 C.J.S. Courts § 199 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. VI. Rules of Adjudication, Decisions, and Opinions B. Stare Decisis 1. General Considerations Topic Summary References Correlation Table § 199. Effect of subsequent developments West's Key Number Digest West's Key Number Digest, Courts 89 A decision's force as a precedent may be affected by a subsequent change in the law or a change in conditions.

The courts may properly refuse to follow precedents where the reasons on which they were based no longer exist, 1 since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent. 2 Stare decisis does not preclude recognition of developments in the law. 3 Thus, where the law on a particular subject is radically changed or superseded by statute, decisions under the old law have little value as precedent. 4 However, it has also been said that if the mere citation of new authority or even reliance on a different justification than was presented in a prior case were sufficient to strip a case of precedential value, the doctrine of stare decisis would virtually disappear. 5 While the application of old principles to new conditions or changed facts does not offend the rule of stare decisis, 6 prior decisions need not be followed, where this cannot be done consistently with the courts' traditional policy to adapt the law to the economic and social needs of the times. 7 Inherent in the common law is the principle that it may grow and tailor itself to meet changing needs within the doctrine of stare decisis, 8 and despite that doctrine, a court may not abdicate its responsibility to reevaluate common law rules to determine if they remain consistent with society's needs. 9 Therefore, a rule having its origin in court decisions may be changed by the courts in light of experience, and should be changed when changed conditions so require, 10 unless the rule has become fixed by a constitutional or statutory provision. 11 To change a rule, the court must be clearly convinced that it is no longer sound because of changing conditions. 12 It must also appear that the hardships resulting from persisting in the former approach are greater than those resulting from departing from precedent. 13

Lapse of time. A deliberate decision does not lose its authority as a precedent solely by lapse of time, and it is not necessary for a court to reiterate the doctrine to keep it in force. 14 However, lapse of time has been said to be a significant factor in determining © 2016 Thomson Reuters. No claim to original 14 U.S. Government Works.

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the weight of a decision. 15 Where difficulty of harmonizing judicial precedent with a modern doctrine has been apparent for a long time, so that skepticism about its continuing soundness as a constitutional, rather than a statutory, rule had been expressed, and where no strong reliance interests are shown to be threatened by rejection of a mechanical line drawn in the precedent, the party defending the ruling has the burden to show why it should be applied in the present case. 16

CUMULATIVE SUPPLEMENT Cases: Stare decisis does not compel adherence to a judicial decision whose underpinnings have been eroded by subsequent developments of constitutional law. Hurst v. Florida, 136 S. Ct. 616 (2016). Pursuant to the doctrine of stare decisis, even decisions rendered after full adversarial presentation may have to yield to the lessons of subsequent experience. Johnson v. U.S., 135 S. Ct. 2551 (2015). Special justification to overturn precedent might exist when the passage of time illuminates that a ruling was poorly reasoned, that reevaluation of precedent is necessary as conditions change and as past errors become apparent, when changed circumstances have eliminated the original rationale for a rule, when a rule creates unworkable distinctions, or when a standard defies consistent application by lower courts. Luchejko v. City of Hoboken, 23 A.3d 912 (N.J. 2011). Because of the importance of stability and predictability as values in the law, Supreme Court will not overrule prior decisions simply because personal policy preferences of members of Court may differ from those of its predecessors who decided earlier case. Purdy v. Deere and Co., 355 Or. 204, 324 P.3d 455 (2014). Stare decisis did not preclude consideration of whether county's airport overlay zone in comprehensive plan was noncompliant with Growth Management Act (GMA) in interested parties' challenge to county's comprehensive plan and development code, where parties and issues in previous case holding that zone did not violate GMA were different from those in present case. West's RCWA 36.70A.010 et seq. Kittitas County v. Eastern Washington Growth Management Hearings Bd., 256 P.3d 1193 (Wash. 2011).

[END OF SUPPLEMENT] Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS COURTS § 199 Footnotes Ky.—Wermeling v. Wermeling, 224 Ky. 107, 5 S.W.2d 893 (1928). 1

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Mo.—State v. Lee, 303 Mo. 246, 259 S.W. 798 (1924). N.J.—State v. Herbert, 92 N.J.L. 341, 105 A. 796 (N.J. Sup. Ct. 1918). Va.—Whitaker & Fowle v. Lane, 128 Va. 317, 104 S.E. 252, 11 A.L.R. 1157 (1920). Colo.—Friedland v. Travelers Indem. Co., 105 P.3d 639 (Colo. 2005). Circuit precedent An exception to the general rule that a panel may not overrule circuit precedent exists where intervening higher authority has issued an opinion that is clearly irreconcilable with prior circuit precedent, in which case, the panel is free to disregard that precedent.

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§ 203.Rules affecting property or contract rights, 21 C.J.S. Courts § 203

21 C.J.S. Courts § 203 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. VI. Rules of Adjudication, Decisions, and Opinions B. Stare Decisis 1. General Considerations Topic Summary References Correlation Table § 203. Rules affecting property or contract rights West's Key Number Digest West's Key Number Digest, Courts 93(1) to 93(4) Courts tend to adhere to decisions that have become established rules of property or contract law, because of reliance on them.

Considerations in favor of stare decisis are at their peak in cases involving property and contract rights, where reliance interests are involved. 1 Courts will adhere to decisions that have become established as rules of property, without regard to how they might be inclined to decide them if the question were new. 2 Stare decisis is also particularly controlling where a legal rule impacts contractual relationships and industry has been relied on it. 3 When rights have been created or modified in reliance on established rules of law, the arguments against their change have special force. 4 Thus, when determining whether to defer to a rule of property, a court assesses the extent to which the rule announced in prior cases has become settled and the extent to which it has induced persons to enter into transactions in actual or demonstrable reliance on it. 5 While courts will not ordinarily adhere to previous decisions that are plainly erroneous, 6 they are more reluctant to depart from the law as declared in a prior decision where the principles declared affect property rights and commercial transactions. 7 Any change in the law deemed necessary should be made by the legislature. 8

CUMULATIVE SUPPLEMENT Cases: Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; opposite is true in cases involving procedural and evidentiary rules that do not produce such reliance. Pearson v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

[END OF SUPPLEMENT] Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS COURTS § 203

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§ 225.Construction of statutes, 21 C.J.S. Courts § 225

21 C.J.S. Courts § 225 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. VI. Rules of Adjudication, Decisions, and Opinions B. Stare Decisis 3. Extent of Precedential Effect of Decision Topic Summary References Correlation Table § 225. Construction of statutes West's Key Number Digest West's Key Number Digest, Courts 89, 90(4), 91(1), 95(2) The doctrine of stare decisis applies to decisions construing statutes or ordinances, and decisions construing other statutes are authoritative if those statutes are nearly identical to the one under review, but otherwise merely instructive.

The doctrine of stare decisis applies to decisions construing statutes 1 or ordinances. 2 The judicial construction of a statute 3 by the highest court having jurisdiction to pass on it 4 is as much a part of the statute as if plainly written into it originally, unless it affects contract or property rights. 5 This rule especially applies where a unanimous interpretation of a statute has been accepted as settled law for several decades, 6 or the legislature has long acquiesced in that construction 7 by its continued use or failure to change the language of the statute, 8 as the legislature remains free to alter the courts' construction, 9 and some courts regard the power to change the law as interpreted as to be exercised solely by the legislature. 10 Thus, a court will afford greater deference to the doctrine of stare decisis when revisiting a statute than if the court were asked to revisit an interpretation of a constitutional provision. 11 However, stare decisis does not prevent a court from reconsidering an erroneous interpretation of a statute, 12 and a court that has adopted conflicting interpretations of the same statute has the duty to clarify and resolve its previous decisions. 13 It is the United States Supreme Court's responsibility to say what a federal statute means, and then it is the duty of other courts to respect that understanding. 14 Once the Supreme Court has determined a statute's meaning, it adheres to its ruling, and assesses an agency's later interpretation of the statute against that settled law. 15 However, the United States Supreme Court hesitates to set aside a uniform construction given to a statute by lower federal courts over a long period. 16 Similarly, a state supreme court acts as the final arbiter of the meaning of a state statute, 17 and is not bound by a lower court's interpretation of it. 18 Decisions construing other statutes are authoritative where those statutes are identical or nearly identical in language or in principle with the one under review, 19 particularly where it appears that the legislative body knew of the prior

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decisions. 20 However, cases arising under analogous, although not identical, statutes are merely instructive. 21 A case may remain a useful guide to interpreting a statute, despite subsequent amendments to that statute. 22 While opinions from other jurisdictions interpreting statutes similar to the one under review may be persuasive, 23 a state court first uses its own rules of statutory construction, 24 and is not bound by decisions construing the laws of other states, even though the law being construed may be identical to state law. 25

CUMULATIVE SUPPLEMENT Cases: Congress need not use magic words in order to speak clearly on whether it wants a rule to be jurisdictional; context, including the Supreme Court's interpretation of similar provisions in many years past, is relevant, and, when a long line of decisions left undisturbed by Congress has treated a similar requirement as jurisdictional, courts can presume that Congress intended to follow that course. Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011). Considerations of stare decisis weigh heavily in area of statutory construction, where Congress is free to change Supreme Court's interpretation of its legislation. Pearson v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). The doctrine of stare decisis requires that the Supreme Court not overturn its previous construction of a statute, which is part of the statute as though written therein, without a compelling reason to do so. In re Civil Commitment of Ince, 847 N.W.2d 13 (Minn. 2014). Stare decisis applies less forcefully to the Supreme Court's interpretation of remedial, rather than substantive, statutes. Bell v. State, 160 So. 3d 188 (Miss. 2015). In cases in which Supreme Court concludes a statute was incorrectly interpreted in a previous case, Court will nevertheless continue to apply the previous interpretation, pursuant to the doctrine of stare decisis, upon finding the legislature amended or reenacted the statute without correcting the prior interpretation. Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008). Doctrine of stare decisis required Supreme Court to adhere to its prior interpretations of Mississippi Tort Claims Act (MTCA) finding that discovery rule applies to limitations period for MTCA claims, despite absence of any discovery rule in MTCA provisions, where legislature had reenacted MTCA without addressing or countermanding the Court's prior interpretations. Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008). An even more extraordinary and compelling justification is needed to overturn precedents involving statutory interpretation, because unlike in constitutional cases, if the precedent or precedents have misinterpreted the legislative intention embodied in a statute, the Legislature's competency to correct the misinterpretation is readily at hand. State Farm Mut. Auto. Ins. Co. v. Fitzgerald, 25 N.Y.3d 799, 38 N.E.3d 325 (2015). Supreme Court will not apply stare decisis to strike down legislation enacted by the General Assembly merely because it is similar to previous enactments that Supreme Court has deemed unconstitutional; to be covered by the blanket of stare decisis, the legislation must be phrased in language that is substantially the same as that which Supreme Court has previously invalidated. Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192, 2008-Ohio-546, 883 N.E.2d 377 (2008).

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§ 226.Constitutional questions, 21 C.J.S. Courts § 226

21 C.J.S. Courts § 226 Corpus Juris Secundum June 2016 Update Courts by Thomas Muskus, J.D., Anne Knickerbocker, J.D., Jack K. Levin, J.D., Barbara Van Arsdale, J.D. VI. Rules of Adjudication, Decisions, and Opinions B. Stare Decisis 3. Extent of Precedential Effect of Decision Topic Summary References Correlation Table § 226. Constitutional questions West's Key Number Digest West's Key Number Digest, Courts 90(3) Ordinarily, courts will not inquire into constitutional questions previously decided, but have some freedom to reassess the interpretation of constitutional provisions.

As a rule, a court will not inquire into the construction of a constitutional provision or the constitutionality of a statute or ordinance, if this question has been decided in previous decisions 1 by a court of last resort, 2 even though a different result might be desirable, 3 unless the previous decisions are manifestly erroneous, 4 and there are cogent reasons for overruling them. 5 This rule particularly applies where the public has long relied on the decisions as authoritative. 6 However, it is a high court's duty to reexamine a precedent if its reasoning or understanding of a constitution is fairly called into question. 7 The doctrine of stare decisis is thus not entitled to the deference it otherwise receives, if a constitution was misinterpreted. 8 The United States Supreme Court has the freedom to change its decisions on the constitutionality of laws, 9 and may consider the constitutionality of a law in its current setting, where circumstances take much of the validity from the prior case, 10 or the precedent is inconsistent with a more recent line of Supreme Court decisions. 11 The doctrine of stare decisis does not apply with the same force to decisions on constitutional questions as to other decisions, 12 because the Supreme Court's interpretation can be altered only by a constitutional amendment or overruling the Court's prior decisions, 13 and correction through legislative action is practically impossible. 14 When later opinions of the United States Supreme Court show that a state court's constitutional interpretations are incorrect, the state supreme court must bring its decisions into conformity with Supreme Court precedent. 15

Questions not expressly considered. Prior decisions in which the construction of a constitutional provision or the constitutionality of a statute was assumed, but not expressly raised or considered, are not ordinarily controlling, 16 at least if that question was not necessarily involved in the case. 17 While it has been held that a previous decision upholding the constitutionality of a statute © 2016 Thomson Reuters. No claim to original 19 U.S. Government Works.

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concludes all objections to its constitutionality, regardless of whether the objections were considered in the previous case, 18 it is more commonly held that a decision that a statute is constitutional does not preclude the court from subsequently declaring it unconstitutional in a case where it is attacked on other grounds. 19

Similar provisions of other constitutions. Decisions in other states bearing on the same or similar constitutional language may be considered or afforded persuasive effect when interpreting a state constitution. 20 However, a state supreme court may depart from the interpretation of a similar constitutional provision made by the United States Supreme Court or any other court, based on the text, history, and decisional law elaborating the state constitutional right. 21

Similar enactments and amended statutes. When two enactments are substantially identical, a decision as to the validity of one may be decisive of the validity of the other. 22 However, decisions as to the constitutionality of a statute are not controlling as to the validity of a later statute or ordinance that is essentially different, 23 even though the grounds of attack are the same. 24 A decision that a statute is valid on one ground of attack is conclusive on that question as to all purposes embodied in an amendatory act that merely broadened the purposes of the original act. 25

CUMULATIVE SUPPLEMENT Cases: Doctrine of stare decisis did not require Supreme Court to adhere to broad reading of its prior decision in New York v. Belton that had been adopted by many courts, under which a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that the vehicle's passenger compartment will not be within the arrestee's reach at the time of the search, rather than recognize that under Belton police may search a vehicle incident to a recent occupant's lawful arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search; blind adherence to broad reading of Belton would authorize myriad unconstitutional searches. Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Decisions construing the Constitution should be followed, in absence of cogent reasons to the contrary. Public Lands Access Ass'n v. Board of County Com'rs of Madison County, 2014 MT 10, 373 Mont. 277, 321 P.3d 38 (2014). Where a defendant relies on the New Mexico Constitution as providing broader protection, state Supreme Court's interstitial approach requires an interpretation of the New Mexico Constitution that is consistent with the state Supreme Court's interpretation of its federal counterpart unless a different interpretation of the overlapping rights is justified as a result of a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics. State v. Lopez, 2013-NMSC-047, 314 P.3d 236 (N.M. 2013). Supreme Court's holding in prior decision, that a defendant is entitled to a new sentencing hearing in cases in which his sentence does not include the proper period of postrelease control, had full force and would be followed in accordance with stare decisis, though Supreme Court was closely divided in prior decision. State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568 (2008), cert. denied, 129 S. Ct. 463, 172 L. Ed. 2d 332 (2008). © 2016 Thomson Reuters. No claim to original 20 U.S. Government Works.

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+(,121/,1( Citation: 26 Am. J. Comp. L. 187 1977-1978

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21

ISLAMIC LAW: ITS RELATION TO OTHER LEGAL SYSTEMS by Gamal Moursi Badr Islamic law has not been getting its fair share of attention from comparative law students in the West. The reasons are understandable, in particular the language barrier and the lack of interest, until relatively recently, in that part of the world where Islamic law prevails. There are a few available comparative studies covering parallel institutions of Islamic law and of the laws of some civil law countries, especially France. The purpose of this paper is not to add to the list of those specific studies, although extending the comparison to Anglo-American law is a worthy aim. This is rather an attempt at a more general comparison from a historical perspective, with special emphasis on the interaction, or lack of it, between Islamic law and the other major legal systems of the world. Major world legal systems will be defined, for the purpose of this discussion, as those legal systems whose application extended far beyond the confines of their original birth places and whose influence, through reception of their principles, techniques or specific provisions has been both widespread in space and enduring in time. Measured by this yardstick only three legal systems qualify as major world legal systems. These are Roman law, Islamic law and common law. Roman law evolved in Rome before the Christian era but soon became the law of the land in most of continental Europe and beyond. Its impact on the laws of the continent has been lasting and is clearly discernible in such modem codifications of the law as the Napoleonic Code, the German Civil Code of 1900 and the Italian Civil Code. These Codes in turn influenced the written law of many a country outside the continent of Europe. The influence of Roman law extended to the New World through the American offshoots of the Latin societies of Europe. Moreover, the expansion of the colonial empires of the European powers in the 19th century brought the civil law system based on Roman law to many countries in Asia and Africa. Judged by its geographical scope and its durable influence, Roman law indeed qualifies as the major world legal system par excellence. Islamic law evolved in the 7th century of the Christian era in the Arabian peninsula and in Lower Mesopotamia. With the expansion of GAMAL MOURSI BADR is at the United Nations Secretariat, New York; former Member of the Board, National Bar Association, Cairo; former Justice of the Supreme Court, Algeria.

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the empire of the Arabs it became, in a relatively short time, the law of the land in vast regions extending from Spain to Central Asia. As late as the 17th century, Islamic law experienced one of its latest flowerings in the Indian sub-continent under the Moghuls. Its influence extended to lands which had never been subject to the political dominion of the Arabs even at the greatest expansion of their empire, such as Indonesia and certain parts of Africa. Judged by the same criterion, Islamic law is indeed a major world legal system. The English common law began in the 11th century as the municipal law of Norman England. Historically, common law provides us with the latest example of this interesting phenomenon of expansion of the domain of certain legal systems beyond their original homes. Beginning from the 16th century, the influence and even the direct application of common law extended to North America and to Australia along with the offshoots of its parent society which took root on those continents. Later, British colonial rule extended the influence of common law to many parts of Asia and Africa where the present laws of the newly independent countries still reflect the strong impact of common law. According to the same yardstick, common law no doubt emerges as one of the major world legal systems. Religious Law? Since Islamic law is our main subject and because it is probably less well known than Roman law or common law, a look at some of its general characteristics would show how it compares in this regard with other legal systems. The first point which deserves to be emphasized is that Islamic law is not, as is frequently assumed, a religious law in the generally accepted sense of this adjective. It is certainly not a religious law the way Canon law, for example, is one. The confusion stems from the fact that Islamic law does cover religious duties and obligations, a subject with which the other two major world legal systems are not concerned. Islamic law comprises two main divisions. The first "Ibaddt, meaning ritual, deals with purely religious matters and the second Mu amalit, meaning transactions, deals with all those subjects which comprise the only content of other legal systems. Traditionally, the Muslim jurist was well versed in both "Ibaddtand Mu amaldt. This, however, did not make him a clergyman, since Islam has no clergy in the usual sense of the term. The Qur'an is far from being a legal code. In fact it contains very few legal provisions. Out of a total of 6237 verses only 190 verses or 3% of the total can be said to contain legal provisions. Most of these deal with family law and inheritance. In its Mu 'amalit branch, which is all that other legal systems deal with, Islamic law is indeed a man-made law and has no pretense to being a religious law except that it may be said to lay more emphasis on moral considerations than is usually the case with other legal systems.

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OTHER LEGAL SYSTEMS

The Shari "a indicates not only what the individual is entitled or bound to do in law, but also what he or she ought, in conscience, to do or refrain from doing. Accordingly, certain acts are classified as praiseworthy (mandub) which means that their performance carries religious merit and their omission religious demerit. Other acts are classified as blameworthy (makruh)which means that omission of them is meritorious and commission demeritorious. In neither case, however, is there any legal sanction of punishment or reward, of nullity or validity in law. Other legal systems do not concern themselves with such acts, which are considered beyond the purview of the law and belong to the realm of ethics. Hence, the scale of values attached by Islamic law to the acts of man comprises five values, whereas other legal systems know only three values: an act may be mandatory in law, prohibited or indifferent. In this last category are lumped together the three Islamic categories of praiseworthy, blameworthy and indifferent. The Role of Jurists Like common law, Islamic law is not a written law. But whereas the rule of precedent makes common law a judicial law, the provisions of Islamic law are to be sought first and foremost in the teachings of the authoritative jurists. It may therefore be called a lawyer's law if common law is a judge's law. In the writings of Muslim jurists, the rules of law are rarely set forth directly and in abstract terms the way they are in a code elaborated in the civil law tradition or in a statute enacted in a common law country. The rules are more often expounded in connection with specific cases and the deduction of a generally applicable rule expressed in abstract terms would call for a more or less full survey of the existing case-law. The preceding remark applies more to the earlier works of Islamic law than to some works written in later centuries and intended mainly as textbooks for students. In these later works legal provisions are sometimes set forth in general terms, but even these fall short of the products of modem drafting techniques which are, in any case, a relatively recent development in all legal systems. The case-law referred to earlier was not reflected in court decisions; the cases were rather situations, real or hypothetical, formulated for discussion and resolved according to the teachings of the particular school of law to which the jurist belonged. The schools of Islamic law were not formal educational institutions or officially-sanctioned law-making bodies. They were rather groups of jurists each following a certain doctrine that can be traced back to a prominent pioneer of the second century of the Muslim era whose name the school carries. This is a situation unprecedented in other legal systems. In Roman law the main source of legal provisions was legislation enacted by an official law-making body. In the common law, decisions of the King's courts were the main source of legal rules. How did that peculiar situation come to be in Islamic law? The explanation resides in the fact

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that Islamic society was a society based on the rule of law, long before this concept became a cornerstone of Western societies. Although everyone realized that the bulk of the rules of Islamic law was manmade, its pseudo-divine character was kept alive because it upheld and strengthened the supremacy of the law. Islamic law was rhetorically referred to as God's law and as such applied equally to the rulers and to their subjects. It was considered a norm higher than the will of the sovereign, contrary to what modern positivists would have us believe the law to be. It was therefore fitting that this higher norm be formulated and, as the need might arise, restated by an autonomous meritocracy, the body of jurists or fuqaha', which was open to anyone who had acquired the necessary learning, who possessed the required intellectual and moral qualifications and was recognized as such by his peers and by the public.' Supremacy of the law is, therefore, one more characteristic of the Islamic legal system. There are four schools of law in orthodox Islam. The teachings of each school are prevalent in a certain geographical area although there is a scattering of the followers of all four schools in most of the Muslim world. Another point which needs to be emphasized is that the said schools of law do not constitute distinct legal systems as some earlier Western students of Islamic law chose to treat them. This approach may have been dictated more by considerations of convenience in restricting the field of research than by valid methodological considerations. The four schools represent together one integral system and in fact one often finds within the same school opinions so divergent that some of them are more akin to the prevailing opinion of another school than to the prevailing opinion of the school in the context of which they were expressed. Relation to Roman Law What is the place of Islamic law among the major world legal systems? Has there been any significant interaction between it and the two others? Chronologically, of course, Islamic law evolved at a time when Roman law had already reached the peak of its development. Common law is a much later phenomenon and at the time it started to take shape after the Norman conquest of England, Islamic law was already a mature system. This is probably why some Western students 1. "The very nature of Islam ... presupposes the existence of a free community of religious scholars .... However, it was specific historical circumstances which made the class of Muslim fuqaha', or religious scholars in the widest sense of the word, so numerous and so independent.. . . [D]uring the first three centuries of Islam a large community of economically independent scholarly people developed, whose main concern was the correct interpretation and strict observance of Islam. As a rule, these people did not need the government. Therefore, they could easily keep aloof from it, whenever their conscience recommended to them such a course

of action," Goitein, Studies in IslamicHistory and Institutions 211-212 (1966). See also p. 219.

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of Islamic law, diffusionists at heart, have speculated about the influence of Roman law on the development of Islamic law and have tried to identify areas of direct borrowings or of indirect influence. These speculations are presented as scholarly opinion and are often made ex cathedra, in a matter-of-fact way which is all the more astonishing for the lack of evidence or the very scanty evidence adduced in support. Indeed, no good case has ever been made for any of the so-called borrowings from Roman law.* Some of the parallels considered by those writers as proof of direct borrowing are no more than coincidental similar treatment of identical or similar legal problems. Some of them again are so elementary in nature that they have to be considered primary products of the average human intellect, things which anyone can deduce from his own observations through his own reasoning and which nobody needs to borrow from anybody else. Against a few parallels here and there advanced as proof of a debt Islamic law owes to Roman law, one can cite a multitude of diametrically opposed solutions, concepts and methods having to do not with matters of detail but with basic and characteristic institutions of the two legal systems. These dissimilarities are a much more eloquent assertion of the independent development of Islamic law than the few real or apparent parallels on minor points invoked as proof of influence or direct borrowing. A few examples of the contrasting treatment of major areas by Roman and Islamic law should suffice to illustrate the point. a) In the law of persons the legally patriarchal society of Rome stands in sharp contrast to the legally individualistic society of Islam. There is nothing in Islamic law even remotely akin to the paterfamilias of Roman law, the sweeping powers he enjoyed over the members of his household or the considerable disabilities the latter suffered under his patriapotestas. b) In the law of inheritance we find the basic approach of Islamic law in direct contradiction to that of Roman law. Under the latter both the assets and the liabilities of the deceased devolved on his heir, hence the damnosa hereditas where the heir found himself saddled with liabilities greater in value than the assets he inherited. In sharp contrast to this approach, Islamic law has evolved the principle that there shall be no succession before the liabilities of the deceased are settled. Under this principle the estate is considered a separate entity and payment to the creditors is made out of. the available assets. Only what remains after such a settlement, if anything, is considered the transferable estate which devolves on the heirs free of any encumbrance. Another important difference in the field of inheritance law concerns the treatment of the agnates (relatives through the male line of ascent) and the cognates (relatives through the female line of ascent). Roman law since * See also Vesey-Fitzgerald, "The Alleged Debt of Islamic to Roman Law," 67 Law Q. Rev. 81 (1967). [Ed.]

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Justinian has treated these two groups of potential heirs equally while in Islamic law agnates have absolute priority over cognates. c) Finally, in the law of contracts a fundamentally different juridical construction prevails in each of the two legal systems and has inevitably influenced the rules of each in this area. In Islamic law a contract results from the perfect meeting of two declarations of intent, the first called Ijab, offer, and the second called Qabul, acceptance. This is a bilateral concept of the contract, seen as an entity resulting from the meeting of minds of the parties but distinct from each party's declaration of intent and binding in its own right. Roman law by contrast had a unilateral concept of contracts as resulting from the juxtaposition of two solemn commitments by the parties, each rendered in itself binding through the observance by the party of prescribed form and the utterance of the ceremonial formulae. Roman law does not even have established technical terms for offer and acceptance, similar to Ijdb and Qabiji. The consensual nature of contracts in Islamic law is in direct opposition to the formalism of Roman law. If the intrinsic evidence in support of the alleged borrowings of Islamic law from Roman law is so flimsy, the extrinsic arguments adduced by the proponents of that position are even more questionable. We are told that the conquests of the Arabs in the 7th century brought them into contact with Roman law as it was then applied in those provinces of the Byzantine Empire which were absorbed into the expanding Arab state. Had such contacts been necessarily conducive to borrowing by one legal system from another, then Islamic law should have owed much more to the Persian Sassanian law since the empire of the Arabs absorbed the whole of the Sassanid Empire, while their conquests from the Byzantine Empire were limited to some outlying provinces. Obviously, the position taken by the proponents of the alleged influence of Roman law on Islamic law was due to their familiarity with Roman law while they probably knew next to nothing about the law of the Sassanid Empire. Otherwise, chance similarities and surfacedeep parallels between some provisions of the latter and those of Islamic law would have resulted in a similar contention that Sassanid law has had a lasting influence on the development of Islamic law. Another extrinsic argument advanced in support of the same position concerns the famous school of law in Beirut. The argument goes that after the Arab conquest of Syria the teachings of the said school influenced the jurists of the emerging Islamic legal system. There can be no denying that Beirut was in fact one of the more important seats of Roman legal education. But the Beirut school of law flourished between the third and sixth centuries. In 551 A.D. a tidal wave accompanying one of a series of earthquakes destroyed the city, reducing the population to a few thousands. The bustling provincial center was no more. By the time the Arabs arrived in Beirut in 635 its once famous school of law

27

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was nothing more than a memory. This argument also ignores an important factor which tends to negate it, namely the language barrier. Instruction in Roman law was obviously carried out in Latin, a language with which the Arabs were utterly unfamiliar. Even had the Beirut school of law been active at the time when the city came under Arab rule, it is most improbable that Muslim jurists whose only language was Arabic could have benefited by it. The well-known translation movement which rendered into Arabic the most important works of Greek philosophy and science started much later and did not extend to other fields; moreover, the translations were mostly from Greek and Syrian. Latin figures very little, if at all, as a vehicle for the reception by the Arabs of Hellenism. Law in particular was not among the subjects which the Arabs were keen on translating into their language. Thus there was no bridge between Roman law and the emerging Islamic legal system. Also, the strong link between religion and law in Islam and the need to keep all the man-made rules of Mu amalatin line with the guiding principles of the Qur'an and the prophetic tradition, or more correctly to avoid all conflict between the two, would have been strong deterrents from borrowing the concepts or rules of an alien legal system even had it been accessible to the early Arab jurists. There was another important psychological barrier, since the Arabs believed they were ushering in a new world order, if we may anachronistically use the term, and as such, they could not have welcomed an alien influence on the normative framework of their new society, a matter quite distinct from borrowing in the fields of science and philosophy. Relation to Jewish Law The preceding discussion will have served, it is to be hoped, as a warning that when venturing into the field of historical comparison between legal systems we should avoid jumping to the conclusion that of the two systems under study the later in date has necessarily borrowed from the earlier. As all students of comparative law know, it is so much easier to identify real or apparent similarities than to perceive the deeper and more significant conceptual and institutional differences in the context of which minor similarities may occur. Moreover, when our interest is the interaction in time between legal systems, it is not enough that the researcher be a good lawyer. He must also be a good historian, otherwise his poor history would make a mockery of his knowledge of the law. This has happened, as we have seen, in connection with Roman law in its relation to Islamic law. It happened also in connection with another legal system which offers interesting comparisons with Islamic law, although it does not qualify as a major world legal system by our criteria. It is often maintained that Jewish law has influenced the early development of Islamic jurisprudence. As in the case of Roman law no solid evidence is adduced in support of this position other than priority

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in time and some apparent parallels even less numerous than those which purport to link Islamic law to Roman law. One example concerns the caliph 'Omar's famous message to his judge. It has been said that whoever wrote this message must have had a Jewish lawyer at his elbow. 2 'Omar's message is considered the first Arabic text on legal methodology, and parallels between it and methods followed by rabbinical jurists are pointed out. We shall soon see what the fault with that position is. The argument for a Jewish influence on the development of Islamic law is mainly based on the existence of a Jewish community in Medina at the time when Muhammed and his followers settled there after fleeing persecution in Mecca. Modern Jewish sources3 estimate the number of Jews in Medina in the first quarter of the 7th century A.D. at 8000-10,000. The same sources admit that these were Arabic in language, customs and behaviour. In fact most of the Jews in Medina were judaized Arabs rather than ethnic Jews. They were mostly farmers, artisans or petty traders. Whether such a community could have sustained an important center for the study of the Jewish law is an open question. Some writers,4 however, have referred to the existence of rabbinical schools in Medina. Whatever the case may be, a very important historic fact is overlooked which would rule out the possibility of any sustained contacts of the kind which may lead to the reception by one society of cultural elements from another society. From the time the Muslims arrived in Medina in 622, their relations with the Jewish community were not at all friendly. In fact open hostilities soon erupted and between the years 624 and 627 all the Jews of Medina were expelled from the city. These short-lived and very turbulent contacts between the two communities could not have been conducive to any borrowing, conscious or otherwise, by one from the other. In particular we now know that at the time when 'Omar wrote his message there was not a single Jew left in Medina, let alone a Jewish lawyer at 'Omar's elbow. If we consider the later periods of history, there is even less possibility of influence by Jewish on Islamic law. Since Jewish law could not claim territorial application anywhere in the world, what was left of it was confined to the rabbinical courts in the diaspora, whose jurisdiction was limited to the local Jewish communities in religious and family matters. Only in the Islamic world were rabbinical courts permitted regularly to settle disputes among Jews in civil matters; this was a further reflection of the greater tolerance enjoyed by the Jews in the Muslim world as compared to contemporary Europe. It is obvious in any case that such law as was applied by the rabbinical courts constituted a closed enclave and was completely outside the mainstream of the common legal system of the land. Furthermore, the devel2. Vesey-Fitzgerald in 'Law in the Middle East: Origin and Development of Islamic Law 89 (Khadduri & Liebesny, eds. 1955). 3. Encyclopedia Judaica, Vo. 11 "Medina."

4. Vesey-Fitzgerald, supra n. 2.

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&

OTHER LEGAL SYSTEMS

opment of Jewish law in the diaspora was considerably hindered by the principle known as "dina de-malkhuta dina" whereby Jewish lawyers admitted that the law of the land, that is the law of the territorial sovereign, was applicable to the Jews as part of their law except in religious and personal matters. Such a severely circumscribed legal system could have hardly influenced any other. It is interesting to note that the two principal codifiers of Jewish law, Alfasi (1013-1103) and Musa ibn Maimoun (1135-1204) were both arabized Jews. Alfasi was born in Algeria, studied in Qairawan, Tunisia, which was an important seat of Islamic learning, and as his name indicates, settled and spent most of his life in Fez, Morocco. Musa ibn Maimoun, better known in the West as Maimonides, was born in Muslim Spain and spent most of his life in Egypt. The bulk of the work of the two was originally written in Arabic. If there has been any interaction between Jewish and Islamic law or between Jewish and Islamic legal science, chances are that it was in the opposite direction; indeed, prominent Jewish authors have admitted as much. Goldziher recognized an Islamic influence in the conventional concluding formula of questions addressed to rabbis requesting legal opinions or responsa.5 This whole type of legal literature is so similar to the Islamic fatawa that the question of a possible derivation of the former from the latter bears further study. Other types of Jewish legal literature were also influenced by the impressive output of Islamic legal science accessible to Jewish lawyers. In Hirschberg's words, "[t]he influence of fiqh (Islamic jurisprudence) is clear in the systematic dealings of the geonim [heads of talmudic academies] with halakhic materials according to their contents, e.g., the laws of inheritance, gifts, deposits, oaths, usury, witness and writs, loans and obligations as they were arranged by Saadiah, Hai, Samuel B. Hophni, who wrote their works in Arabic. This is especially clear in Maimonides' code. . .. Maimonides' arrangement of these works indicates knowledge of the methods and principles of the fiqh literature and of the Hadith collections of al-Bukhar Muslims and others. Maimonides applied the ijmai'.(consensus), one of the four usil al-fiqh (roots of fiqh), in his code . .. But Islamic influence was not restricted to [legal] methodology .... The Islamic culture, which has absorbed the legacy of Greece and the Hellenistic world, made a tre' '6 mendous impact on some aspects of Jewish thought and science. Relation To Common Law Has there been any interaction between Islamic law and the Common law? Because Common law is the newer legal system there was, of course, no possibility of speculating about its influence on the older Islamic legal system or on borrowing by the older from the newer. The temptation was too great, however, for some writers to abstain 5. In 52 Zeitschrift der Deutschen Morgenldndischen Gesellschaft 645. 6. Hirschberg's article on Islam in the Encyclopedia Judaica, Vol. 9 at 104 (1972).

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from speculations on borrowings in the other direction, namely by Common law from Islamic law. Whenever a parallel between a newer legal system and an older one is observed, there is a strong tendency to explain it in terms of borrowing or of reception by the new system from the old. Just as proponents of the influence of the Roman law on Islamic law were not Muslim lawyers, those who have speculated about borrowings by Common law from Islamic law were not common lawyers. It is usually the representatives of the older system who tend to see an influence of their own system behind any similarity between it and the newer legal system. So it was that an eminent Arab lawyer 7 made a well presented case for the derivation of the English trust from the Islamic waqf. He invoked, of course, the priority in time of the Islamic institution and the obvious substantive similarities in the purpose served and the techniques followed by both. He identified points of contact, especially the Crusades, where knowledge of the Islamic institution may have passed on to Common law jurists. The case he made is no doubt more persuasive than any made for a borrowing by Islamic law from Roman law but all that it proves is the possibility of waqf having been the model for the common law trust. It does not prove that the common law institution was in fact derived from the earlier Islamic institution. As stated earlier regarding the alleged borrowings of Islamic law from Roman law, it is safer here also to ascribe the similarities between waqf and trust to an independent similar treatment of a very similar problem. It should not astonish us that men, as rational beings, would arrive at the same conclusions independently, and we should not assume any direct or indirect borrowing unless we have conclusive proof that it did in fact take place. A brief digression may not be out of order just to show that claims of Islamic influence on the laws of medieval Europe were not made exclusively by Arab jurists. In fact many French and Italian writers8 mention among other things the case of the transfer of debt which was not permissible under Roman law but became widely practiced in medieval Europe, especially in commercial transactions. The aval of medieval French law is said to be derived from the hawala of Islamic law. The case for the reception by medieval French law of the transferability of debts from Islamic law appears to be stronger than the case for the trust/waqf connection. In fact the word aval in French is admittedly a loan word from the Italian avallo, and we all know the extent of the trade conducted by the Italian cities with the Muslim world in the Middle Ages. The present writer's own research led him some years ago to the discovery of a very curious parallel between the Common law and 7. Cattan in Law in the Middle East: Originand Development of IslamicLaw

213-18 (Khadduri & Liebesny, eds. 1955). 8. Huvelin in Annales de droit commercial (1901).

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Islamic law. It is mentioned here for the benefit of those who are interested in parallels between disparate legal systems and, obviously, not to make a case for any interaction between the two. Agency was an institution unknown to Roman law. No individual could conclude a binding contract on behalf of another as his agent. The contractor himself was considered the party to the contract and it took a second contract between the person who acted on behalf of a principal and the latter in order to transfer the rights and the obligations deriving from the contract to him. Islamic law, like the Common law later, had no difficulty in accepting agency as one of its institutions in the field of contracts and of obligations in general. But this is not the extent of the similarity between the two legal systems. Unlike other modern laws which likewise admit the principle of agency, the Common law knows the particular institution of the undisclosed principal. A contract concluded by an agent on behalf of a principal of whom neither the existence nor the identity were known to the other contracting party will nevertheless create a direct link between the latter and the principal once his existence and identity become known. Such a result is anathema to jurists of civil law countries. Islamic law however knew the institution of undisclosed principal in all its ramifications long before it took form in the Common law. In this respect both Common law and Islamic law are a step ahead of other legal systems in giving effect to the principle of agency. What is more interesting is that the law of the United States on certain details of this institution comes closer to the detailed provisions of Islamic law than English common law does. Thus, to assert the liability of the agent does not preclude the third party from asserting the liability of the principal to him. Also, in many states including New York, recovery of a judgment against either the agent or the undisclosed principal will not preclude an action against the other. Such is not the case in the Common law where asserting the liability of either the agent or the undisclosed principal precludes asserting the liability of the other. On these points the provisions of Islamic law are identical to those of the law of the United States, a curious parallel which bridges centuries and brings two different worlds together. It appears that the vast trading activities across national borders and interstate lines in the Islamic world of the Middle Ages, in England and later in the United States, has provided the common background against which these curiously similar and uniformly liberal rules of agency were independently developed in response to the exigencies of commerce.' The discovery of such parallels where least expected is one of the pleasures afforded by the study of comparative law. These parallels are an intellectual curiosity and provide some insight into the workings of each legal system. They do not 9. Badr, "La tendance objective en mati~re de representation dans la common law et le droit islamique" in the Revue internationalede droit compar6 379-94 (1965).

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necessarily indicate the existence of borrowing or influence. In law as in many a social science, diffusionists and proponents of separate development rub shoulders all the time. The most valid position would be to avoid any doctrinaire commitment to either point of view. We should keep our minds open to satisfactory evidence of actual borrowing or influence while considering parallels not so substantiated as mere manifestations of what an early Western authority on Islamic law ° aptly called "l'identitg essentielle de l'dme humaine," the essential oneness of man's spirit. 10. David Santillana.

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COURTS AND THE LITIGATION PROCESS

34

35

SUPREME COURT (OF MONTANA)

WATER

___TH JUDICIAL DISTRICT COURT (General Trial Jurisdiction)

JUSTICE COURTS (County)

WORKERS COMPENSATION

CITY AND MUNICIPAL COURTS

36

37

SUPREME COURT (NEW YORK: COURT OF APPEALS) (MASSACHUSSETTS: SUPREME JUDICIAL COURT)

Appellate Court (One) or (Districts) or (Specialized)

COURTS OF GENERAL JURISDICTION

38

U.S. DISTRICT COURT

TRIBAL APPELLATE COURT

JURISDICTIONAL QUESTION ONLY

TRIBAL COURT (TRIAL)

39

40

1. The only question reviewed in federal court is whether the tribal court had jurisdiction over a person or entity. 2. The question of jurisdiction over a person or entity must be litigated first in the tribal court. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 852–853, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). 41

SUPREME COURT OF THE UNITED STATES

UNITED STATES COURTS OF APPEALS

ARTICLE I & IV COURTS (Court of Claims) (Territorial Courts) (Military Courts) (Tax Court) (Bankruptcy) (D.C., I.P., etc.)

UNITED STATES DISTRICT COURTS (General Jurisdiction)

42

43

44





Art III, § 1:  The judicial Power of the United States,  shall be vested in one supreme Court, and in such  inferior Courts as the Congress may from time to  time ordain and establish.  Art. III, § 2, cl. 1:  The judicial Power shall extend to  all Cases . . . arising under this Constitution, the  Laws of the United States, and Treaties . . .  Ambassadors, Ministers and Consuls . . . admiralty .  . . . United States (as party); . . . between two or  more States;‐‐between a State and Citizens of  another State . . . Citizens of different States . . .  foreign States, Citizens or Subjects 45





Art I, § 8, cl. 9:  To constitute Tribunals inferior to  the supreme Court. Art. IV, § 3, cl. 2:  The Congress shall have Power to  dispose of and make all needful Rules and  Regulations respecting the Territory or other  Property belonging to the United States. . . .

46

47



What? 

Issue (arising under federal law)  Thing (ships = admiralty and maritime)



Who?     

Citizens of different states Ambassadors Foreign citizens and countries State v. State 11th amendment. 48



NOT: 

Contract v. injury v. wills and estates v. family law, etc.

49

Concurrent Jurisdiction

Federal Court Subject Matter Jurisdiction

State Court Subject Matter Jurisdiction

Exclusive Federal Jurisdiction (narrow)

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Ware v. Hylton, 3 U.S. 199 (1796) (abridged version from The Founders’ Constitution, Document 21, U. of Chicago (2000). Chase, Justice. The defendants in error, on the 7th day of July 1774, passed their penal bond to Farrel & Jones, for the payment of 2976l. 11s. 6d. of good British money; but the condition of the bond, of the time of payment, does not appear on the record. On the 20th October 1777, the legislature of the commonwealth of Virginia passed a law to sequester British property. In the 3d section of the law, it was enacted, "that it should be lawful for any citizen of Virginia, owing money to a subject of Great Britain, to pay the same, or any part thereof, from time to time, as he should think fit, into the loan-office, taking thereout a certificate for the same, in the name of the creditor, with an indorsement, under the hand of the commissioner of the said office, expressing the name of the payer; and shall deliver such certificate to the governor and the council, whose receipt shall discharge him from so much of the debt. And the governor and the council shall, in like manner, lay before the general assembly, once in every year, an account of these certificates, specifying the names of the persons by, and for whom they were paid; and shall see to the safe-keeping of the same; subject to the future directions of the legislature: provided, that the governor and the council may make such allowance, as they shall think reasonable, out of the interest of the money so paid into the loan-office, to the wives and children, residing in the state, of such creditor." On the 26th of April 1780, the defendants in error paid into the loan-office of Virginia, part of their debt, to wit, $3,1111/9, equal to 933l. 14s. 0d. Virginia currency; and obtained a certificate from the commissioners of the loan-office, and a receipt from the governor and the council of Virginia, agreeable to the above in part recited law. The defendants in error being sued on the above bond, in the circuit court of Virginia, pleaded the above law, and the payment above stated, in bar of so much of the plaintiff's debt. The plaintiff, to avoid this bar, replied the fourth article of the definitive treaty of peace between Great Britain and the United States, of the 3d of September 1783. To this replication, there was a general demurrer and joinder. The circuit court allowed the demurrer, and the plaintiff brought the present writ of error. .....

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From these observations, and the authority of Bynkershoek, Lee, Burlamaque and Rutherforth, I conclude, that Virginia had a right, as a sovereign and independent nation, to confiscate any British property within its territory, unless she had before delegated that power to congress, which Mr. Lewis contended she had done. The proof of the allegation that Virginia had transferred this authority to congress, lies on those who make it; because if she had parted with such power, it must be conceded, that she once rightfully possessed it. It has been inquired, what powers congress possessed from the first meeting in September 1774, until the ratification of the articles of confederation, on the 1st of March 1781? It appears to me, that the powers of congress, during that whole period, were derived from the people they represented, expressly given, through the medium of their state conventions, or state legislatures; or that after they were exercised, they were impliedly ratified by the acquiescence and obedience of the people. After the confederacy was completed, the powers of congress rested on the authority of the state legislatures, and the implied ratifications of the people; and was a government over governments. The powers of congress originated from necessity, and arose out of, and were only limited by events; or, in other words, they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs. It was absolutely and indispensably necessary that congress should possess the power of conducting the war against Great Britain, and therefore, if not expressly given by all (as it was by some of the states), I do not hesitate to say, that congress did rightfully possess such power. The authority to make war, of necessity, implies the power to make peace; or the war must be perpetual. I entertain this general idea, that the several states retained all internal sovereignty; and that congress properly possessed the great rights of external sovereignty: among other, the right to make treaties of commerce and alliance; as with France, on the 6th of February 1778. In deciding on the powers of congress, and of the several states, before the confederation, I see but one safe rule, namely, that all the powers actually exercised by congress, before that period, were rightfully exercised, on the presumption not to be controverted, that they were so authorized by the people they represented, by an express or implied grant; and that all the powers exercised by the state conventions or state legislatures were also rightfully exercised, on the same presumption of authority from the people. That congress did not possess all the powers of war is self-evident, from this consideration alone, that she never attempted to lay any kind of tax on

52

the people of the United States, but relied altogether on the state legislatures to impose taxes, to raise money to carry on the war, and to sink the emissions of all the paper money issued by congress. It was expressly provided, in the 8th article of the confederation, that "all charges of war (and all other expenses for the common defence and general welfare), and allowed by congress, shall be defrayed out of a common treasury, to be supplied by the several states in proportion to the value of the land in each state; and the taxes for paying the said proportion, shall be levied by the legislatures of the several states." In every free country, the power of laying taxes is considered a legislative power over the property and persons of the citizens; and this power the people of the United States granted to their state legislatures, and they neither could, nor did, transfer it to congress; but on the contrary, they expressly stipulated that it should remain with them. It is an incontrovertible fact, that congress never attempted to confiscate any kind of British property, within the United States (except what their army or vessels of war captured), and thence I conclude that congress did not conceive the power was vested in them. Some of the states did exercise this power, and thence, I infer, they possessed it. On the 23d of March, 3d of April, and 24th of July 1776, congress confiscated British property taken on the high seas. The second point made by the counsel for the plaintiff in error was, "if the legislature of Virginia had a right to confiscate British debts, yet she did not exercise that right by the act of the 20th October 1777." If this objection is well founded, the plaintiff in error must have judgment for the money covered by the plea of that law, and the payment under it. The preamble recites, that the public faith, and the law and the usage of nations require, that debts incurred, during the connection with Great Britain, should not be confiscated. No language can possibly be stronger to express the opinion of the legislature of Virginia, that British debts ought not to be confiscated, and if the words, or effect and operation, of the enacting clause are ambiguous or doubtful, such construction should be made as not to extend the provisions in the enacting clause, beyond the intention of the legislature, so clearly expressed in the preamble; but if the words in the enacting clause, in their nature, import and common understanding, are not ambiguous, but plain and clear, and their operation and effect certain, there is no room for construction. It is not an uncommon case, for a legislature, in a preamble, to declare their intention to provide for certain cases, or to punish certain offences, and in enacting clauses to include other cases, and other offences. But I believe very few instances can be found, in

53

which the legislature declared, that a thing ought not to be done, and afterwards did the very thing they reprobated. There can be no doubt, that strong words in the enacting part of a law may extend beyond the preamble. If the preamble is contradicted by the enacting clause, as to the intention of the legislature, it must prevail, on the principle, that the legislature changed their intention. I am of opinion, that the law of the 20th of October 1777, and the payment in virtue thereof, amounts either to a confiscation or extinguishment of so much of the debt as was paid into the loan-office of Virginia. 1st. The law makes it lawful for a citizen of Virginia, indebted to a subject of Great Britain, to pay the whole, or any part of his debt, into the loan-office of that commonwealth. 2d. It directs the debtor to take a certificate of his payment, and to deliver it to the governor and the council; and it declares that the receipt of the governor and the council for the certificate shall discharge him (the debtor) from so much of the debt as he paid into the loan-office. 3d. It enacts that the certificate shall be subject to the future direction of the legislature. And 4th, it provides, that the governor and council may make such allowance, as they shall think reasonable, out of the interest of the money paid, to the wives and children, residing within the state, of such creditor. The payment by the debtor into the loan-office is made a lawful act. The public receive the money, and they discharge the debtor, and they make the certificate (which is the evidence of the payment) subject to their direction; and they benevolently appropriate part of the money paid, to wit, the interest of the debt, to such of the family of the creditor as may live within the state. All these acts are plainly a legislative interposition between the creditor and debtor; which annilates the right of the creditor; and is an exercise of the right of ownership over the money; for the giving part to the family of the creditor, under the restriction of being residents of the state, or to a stranger, can make no difference. The government of Virginia had precisely the same right to dispose of the whole as of part of the debt. Whether all these acts amount to a confiscation of the debt, or not, may be disputed, according to the different ideas entertained of the proper meaning of the word confiscation. I am inclined to think, that all these acts, collectively considered, are substantially a confiscation of the debt. The verb confiscate is derived from the Latin con, with, and fiscus, a basket, or hamper, in which the emperor's treasure was formerly kept. The meaning of the word to confiscate is, to transfer property from private to public use; or to forfeit property to the prince or state. In the language of Mr. Lee (page 118), the debt was taken

54

hold of; and this he considers as confiscation. But if, strictly speaking, the debt was not confiscated, yet it certainly was extinguished, as between the creditor and debtor; the debt was legally paid, and of consequence extinguished. The state interfered and received the debt, and discharged the debtor from his creditor; and not from the state, as suggested. The debtor owed nothing to the state of Virginia, but she had a right to take the debt, or not, at her pleasure. To say, that the discharge was from the state, and not from the debtor, implies that the debtor was under some obligation or duty to pay the state what he owed his British creditor. If the debtor was to remain charged to his creditor, notwithstanding his payment; not one farthing would have been paid into the loan-office. Such a construction, therefore, is too violent, and not to be admitted. If Virginia had confiscated British debts, and received the debt in question, and said nothing more, the debtor would have been discharged by the operation of the law. In the present case, there is an express discharge, on payment, certificate and receipt. It appears to me, that the plea, by the defendant, of the act of assembly, and the payment agreeable to its provisions, which is admitted, is a bar to the plaintiff's action, for so much of his debt as he paid into the loan-office; unless the plea is avoided or destroyed, by the plaintiff's replication of the fourth article of the definitive treaty of peace between Great Britain and the United States, on the 3d of September 1783. The question then may be stated thus: whether the 4th article of the said treaty nullifies the law of Virginia, passed on the 20th of October 1777; destroys the payment made under it; and revives the debt, and gives a right of recovery thereof, against the original debtor? It was doubted by one of the counsel for the defendants in error (Mr. Marshall), whether congress had a power to make a treaty, that could operate to annul a legislative act of any of the states, and to destroy rights acquired by, or vested in individuals, in virtue of such acts. Another of the defendant's counsel (Mr. Campbell) expressly, and with great zeal, denied that congress possessed such power. But a few remarks will be necessary to show the inadmissibility of this objection to the power of congress. 1st. The legislatures of all the states have often exercised the power of taking the property of its citizens for the use of the public, but they uniformly compensated the proprietors. The principle to maintain this

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right is for the public good, and to that the interest of individuals must yield. The instances are many; and among them are lands taken for forts, magazines or arsenals; or for public roads or canals; or to erect towns. 2d. The legislatures of all the states have often exercised the power of divesting rights vested; and even of impairing, and in some instances, of almost annihilating the obligation of contracts, as by tender laws, which made an offer to pay, and a refusal to receive, paper money, for a specie debt, an extinguishment, to the amount tendered. 3d. If the legislature of Virginia could, by a law, annul any former law; I apprehend, that the effect would be to destroy all rights acquired under the law so nullified. 4th. If the legislature of Virginia could not, by ordinary acts of legislation, do these things, yet, possessing the supreme sovereign power of the state, she certainly could do them, by a treaty of peace; if she had not parted with the power of making such treaty. If Virginia had such power, before she delegated it to congress, it follows, that afterwards, that body possessed it. Whether Virginia parted with the power of making treaties of peace, will be seen by a perusal of the 9th article of the confederation (ratified by all the states, on the first of March 1781), in which it was declared, "that the United States in congress assembled, shall have the sole and exclusive right and power of determining on peace or war, except in the two cases mentioned in the 6th article; and of entering into treaties and alliances, with a proviso, when made, respecting commerce." This grant has no restriction, nor is there any limitation on the power in any part of the confederation. A right to make peace, necessarily includes the power of determining on what terms peace shall be made. A power to make treaties must, of necessity, imply a power to decide the terms on which they shall be made: a war between two nations can only be concluded by treaty. Surely, the sacrificing public or private property, to obtain peace, cannot be the cases in which a treaty would be void. Vatt. lib. 2, c. 12, § 160, 161, p. 173; lib. 6, c. 2, § 2. It seems to me, that treaties made by congress, according to the confederation, were superior to the laws of the states; because the confederation made them obligatory on all the states. They were so declared by congress on the 13th of April 1787; were so admitted by the legislatures and executives of most of the states; and were so decided by the judiciary of the general government, and by the judiciaries of some of

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the state governments. If doubts could exist, before the establishment of the present national government, they must be entirely removed by the 6th article of the constitution, which provides "That all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." There can be no limitation on the power of the people of the United States. By their authority, the state constitutions were made, and by their authority the constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a state legislature can stand in its way. If the constitution of a state (which is the fundamental law of the state, and paramount to its legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States, that every treaty made by the authority of the United States, shall be superior to the constitution and laws of any individual state; and their will alone is to decide. If a law of a state, contrary to a treaty, is not void, but voidable only, by a repeal, or nullification by a state legislature, this certain consequence follows, that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the national constitution, or laws of any of the states, contrary to a treaty, shall be disregarded. Four things are apparent, on a view of this 6th article of the national constitution. 1st. That it is retrospective, and is to be considered in the same light as if the constitution had been established before the making of the treaty of 1783. 2d. That the constitution or laws of any of the states, so far as either of them shall be found contrary to that treaty, are, by force of the said article, prostrated before the treaty. 3d. That, consequently, the treaty of 1783 has superior power to the legislature of any state, because no legislature of any state has any kind of power over the constitution, which was its creator. 4th. That it is the declared duty of the state judges to determine any constitution or laws of any state, contrary to that treaty (or any other), made under the authority of the United States, null and void.

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National or federal judges are bound by duty and oath to the same conduct. The argument, that congress had not power to make the 4th article of the treaty of peace, if its intent and operation was to annul the laws of any of the states, and to destroy vested rights (which the plaintiff's counsel contended to be the object and effect of the 4th article), was unnecessary, but on the supposition that this court possess a power to decide whether this article of the treaty is within the authority delegated to that body, by the articles of confederation. Whether this court constitutionally possess such a power, is not necessary now to determine, because I am fully satisfied, that congress were invested with the authority to make the stipulation in the 4th article. If the court possess a power to declare treaties void, I shall never exercise it, but in a very clear case indeed. One further remark will show how very circumspect the court ought to be, before they would decide against the right of congress to make the stipulation objected to. If congress had no power (under the confederation) to make the 4th article of the treaty, and for want of power, that article is void, would it not be in the option of the crown of Great Britain to say, whether the other articles in the same treaty shall be obligatory on the British nation? ..... II. The article in the constitution concerning treaties I have always considered, and do now consider, was in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question. It was found, in this instance, as in many others, that when thirteen different legislatures were necessary to act in unison on many occasions, it was in vain to expect that they would always agree to act as congress might think it their duty to require. Requisitions formerly were made binding in point of moral obligation (so far as the amount of money was concerned, of which congress was the constitutional judge), but the right and the power being separated, it was found often impracticable to make them act in conjunction. To obviate this difficulty, which every one knows had been the means of greatly distressing the Union, and injuring its public credit, a power was given to the representatives of the whole Union to raise taxes, by their own authority, for the good of the whole. Similar embarrassments had been found about the treaty: this was binding in moral obligation, but could not be constitutionally carried into effect (at least in the opinion of many), so far as acts of legislation then in being constituted an impediment, but by a repeal. The extreme inconveniencies felt from such a system dictated the

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remedy which the constitution has now provided, "that all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and that the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense. The provision extends to subsisting as well as to future treaties. I consider, therefore, that when this constitution was ratified, the case as to the treaty in question stood upon the same footing, as if every act constituting an impediment to a creditor's recovery had been expressly repealed, and any further act passed, which the public obligation had before required, if a repeal alone would not have been sufficient.

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RULE OF LAW IN EMERGING DEMOCRACIES: LESSONS FROM AMERICAN HISTORY (1789- 1804) Jeffrey T. Renz School of Law, The University of Montana

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The Cast FEDERALISTS

John Adams President 1797-1801

John Marshall Chief Justice 1800-1835

DEMOCRATIC-REPUBLICANS

Thomas Jefferson Vice President 1797-1801 President 1801-1809

??????? William Marbury Secretary of State 1797-1801

James Madison Secretary of State 1801-1809

Aaron Burr Vice President 1801-1805

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Election of 1798 ●Federalist Party Controls: ✓Presidency ✓Both Houses of Congress ✓Courts

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“The tongue is an unruly member! There is no difference between the tongue and the press except every press ought to be considered as a million of tongues, and ought to be guarded with a million of guards.” Rep. George Thatcher (Federalist) “ენა ადამიანის ორგანიზმის უმართავი ნაწილია! ენასა და პრესას შორის სხვაობა არ არის, გარდა იმისა, რომ პრესა მილიონობით ენას წარმოადგენს და მილიონობით მცველი სჭირდება” გიორგი თეჩერი პარლამენტის წევრი (ფედერალისტი) 63

SEDITION ACT of 1798 “. . . if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States. . . to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States . . . .” 64

SEDITION ACT of 1798 “. . . shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”

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“Crime” and Punishment

Congressman Matthew Lyon: “every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”

4 months in jail. $1,000 fine.

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“Crime” and Punishment

Drunken Luther Baldwin, upon hearing cannon salute the visit of President Adams: Baldwin’s friend: “ ‘There goes the President . . . and they are firing at his ass.’ ” Baldwin [drunk]: “I do not care if they fire thro’ his ass.”

Convicted of Sedition and fined.

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Election of 1800 ●Democratic Republican Party wins: ✓Presidency ✓Vice Presidency ✓Both Houses of Congress

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Court Packing ●Act Concerning the District of Columbia ●1801 Judiciary Act ●Adams appointed and the Federalist Congress confirmed hundreds of Federalist judges. ●Adams appointed Federalist John Marshall to be Chief Justice of the United States. 69

Daniel Marbury A Federalist. Appointed Justice of the Peace for the District of Columbia in the last hours of the Adams Administration. The new Secretary of State, James Madison, refused to give Marbury his commission. Marbury sued Madison in the Supreme Court of the United States under a theory called mandamus. 70

Marbury v. Madison Marbury’s Claims

●I was properly nominated. ●I was properly confirmed by the Senate. ●My commission was delivered to the Secretary of State. ●The old Secretary of State put his seal on my commission, therefore, ●I am entitled to take office. ●The new Secretary of State’s duty is routine, and therefor this Court should order it done. 71

The Court’s Decision Written by Chief Justice John Marshall

●Marbury was properly nominated. ●Marbury was properly confirmed. ●Marbury’s commission was properly delivered to the former Secretary of State ●The former Secretary of State properly affixed his seal to Marbury’s commission. ●The new Secretary of State’s duty, to deliver the commission to Marbury, is routine. ●Marbury is entitled to take office . . . 72

. . .BUT!! The Constitution of the United States limits the power of the Supreme Court of the United States. Congress cannot expand those powers. The Judiciary Act of 1801 tried to give us the power to issue the requested order of mandamus. It conflicts with the Constitution and therefor it is void. We have no power to grant Marbury the remedy that he seeks. Marbury loses his case. 73

The Cast FEDERALISTS

John Adams President 1797-1801

John Marshall Chief Justice 1800-1835

DEMOCRATIC-REPUBLICANS

Thomas Jefferson Vice President 1797-1801 President 1801-1809

??????? William Marbury Secretary of State 1797-1801

James Madison Secretary of State 1801-1809

Aaron Burr Vice President 1801-1805

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Who was Secretary of State? FEDERALISTS

John Adams President 1797-1801

John Marshall Chief Justice 1800-1835

DEMOCRATIC-REPUBLICANS

Thomas Jefferson Vice President 1797-1801 President 1801-1809

John Marshall William Marbury Secretary of State 1797-1801

James Madison Secretary of State 1801-1809

Aaron Burr Vice President 1801-1805 75

THREE LESSONS 1. JUDICIAL INDEPENDENCE & 2. RULE OF LAW PREVAILED: A. Over loyalty to the President. B. Over loyalty to the Party. C. Over loyalty to Marshall’s earlier action. 3. THE NATION IS AT RISK WHEN ONE FACTION CONTROLS ALL OF ITS GOVERNMENTAL BRANCHES. 76

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KeyCite Yellow Flag - Negative Treatment Not Followed as Dicta COMPTROLLER GENERAL MCCARL TO  THE SECRETARY OF STATE, Comp.Gen., August 6, 1927

1 Cranch 137 Supreme Court of the United States William MARBURY v. James MADISON, Secretary of State of the United States. Feb. 1803. Opinion MARSHALL. **1 *138 The supreme court of the U. States has not power to issue a mandamus to a secretary of state of the U. States, it being an exercise of original jurisdiction not warranted by the constitution. Congress have not power to give original jurisdiction to the supreme court in other cases than those described in the constitution. An act of congress repugnant to the constitution cannot become a law. The courts of the U. States are bound to take notice of the constitution. A commission is not necessary to the appointment of an officer by the executive—Semb. A commission is only evidence of an appointment. Delivery is not necessary to the validity of letters patent. The President cannot authorize a secretary of state to omit the performance *139 of those duties which are enjoined by law. A justice of peace in the district of Columbia is not removable at the will of the President. When a commission for an officer not holding his office at the will of the President, is by him signed and transmitted to the secretary of state to be sealed and recorded, it is irrevocable; the appointment is complete. A mandamus is the proper remedy to compel a secretary of state to deliver a commission to which the party is entitled. *137 At the last term, viz. December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and

William Harper, by their counsel, Charles Lee, esq. late attorney general of the United States, severally moved the court for a rule to James Madison, secretary of state of the United States, to shew cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts; that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said president appointing them justices, &c. and that the seal of the United States was in due form affixed to the said commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison as secretary of state of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the secretary of state or any officer in the department of state; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate; whereupon a rule was laid to shew cause on the 4th day of this term. This rule having been duly served, Mr. Lee, in support of the rule, observed that it was important to know on what ground a justice of peace in the district of Columbia holds his office, and what proceedings are necessary to constitute an appointment to an office not held at the will of the president. However notorious the facts are, upon the suggestion of which this rule has been laid, yet the applicants have been much embarrassed in obtaining evidence of them. Reasonable information has been denied at the office of the department of state. Although a respectful memorial has been made to the senate praying them to suffer their secretary to give extracts from their executive journals respecting the nomination of the applicants to the senate, and of their advice and consent to the appointments, yet

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their request has been denied, and their petition rejected. They have therefore been compelled to summon witnesses to attend in court, whose voluntary affidavits they could not obtain. Mr. Lee here read the affidavit of Dennis Ramsay, and the printed journals of the senate of 31 January, 1803, respecting the refusal of the senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the department of state and not bound to disclose any facts relating to the business or transactions in the office. **2 Mr. Lee observed, that to shew the propriety of examining these witnesses, he would make a few remarks on the nature of the office of secretary of state. His duties are of two kinds, and he exercises his functions in two distinct capacities; as a public ministerial officer of the United States, and as agent of the President. In the first his duty is to the United States or its citizens; in the other his duty is to the President; in the one he is an independent, and an accountable officer; in the other he is dependent upon the President, is his agent, and accountable to him alone. In the former capacity he is compellable by mandamus to do his duty; in the latter he is not. This distinction is clearly pointed out by the two acts of congress upon this subject. The first was passed 27th July, 1789, vol. 1. p. 359, entitled “an act for establishing an executive department, to be denominated the department of foreign affairs.” The first section ascertains the duties of the secretary so far as he is considered as a mere executive agent. It is in these words, “Be it enacted, &c. that there shall be an executive department, to be denominated the department of foreign affairs, and that there shall be a principal officer therein, to be called the secretary of the department of foreign affairs, who shall perform and execute such duties as shall from time to time be enjoined on, or intrusted to him by the President of the United States, agreeable to the constitution, relative to correspondencies, commissions *140 or instructions to or with public ministers or consuls from the United States; or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the said department; and

furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct.” The second section provides for the appointment of a chief clerk; the third section prescribes the oath to be taken which is simply, “well and faithfully to execute the trust committed to him;” and the fourth and last section gives him the custody of the books and papers of the department of foreign affairs under the old congress. Respecting the powers given and the duties imposed by this act, no mandamus will lie. The secretary is responsible only to the President. The other act of congress respecting this department was passed at the same session on the 15th September 1789, vol. 1, p. 41, c. 14, and is entitled “An act to provide for the safe keeping of the acts, records, and seal of the United States, and for other purposes.” The first section changes the name of the department and of the secretary, calling the one the department and the other the secretary of state. The second section assigns new duties to the secretary, in the performance of which it is evident, from their nature, he cannot be lawfully controlled by the president, and for the non-performance of which he is not more responsible to the president than to any other citizen of the United States. It provides that he shall receive from the president all bills, orders, resolutions and votes of the senate and house of representatives, which shall have been approved and signed by him; and shall cause them to be published, and printed copies to be delivered to the senators and representatives and to the executives of the several states; and makes it his duty carefully to preserve the originals; and to cause them to be recorded in books to be provided for that purpose. The third section provides a seal of the United States. The fourth makes it his duty to keep the said seal, and to make out and record, and to affix the seal of the United States to all civil commissions, after they *141 shall have been signed by the President. The fifth section provides for a seal of office, and that all copies of records and papers in his office, authenticated under that seal, shall be as good evidence as the originals. The sixth section establishes fees for copies, &c. The seventh and last section gives him the custody of the papers of the office of the secretary of the old congress. Most of the duties assigned by this act are of a public nature, and the secretary is bound to perform them, without the control of any person. The President has

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no right to prevent him from receiving the bills, orders, resolutions and votes of the legislature, or from publishing and distributing them, or from preserving or recording them. While the secretary remains in office the President cannot take from his custody the seal of the United States, nor prevent him from recording, and affixing the seal to civil commissions of such officers as hold not their offices at the will of the President, after he has signed them and delivered them to the secretary for that purpose. By other laws he is to make out and record in his office patents for useful discoveries, and patents of lands granted under the authority of the United States. In the performance of all these duties he is a public ministerial officer of the United States. And the duties being enjoined upon him by law, he is, in executing them, uncontrollable by the President; and if he neglects or refuses to perform them, he may be compelled by mandamus, in the same manner as other persons holding offices under the authority of the United States. The President is no party to this case. The secretary is called upon to perform a duty over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible. The secretary alone is the person to whom they are entrusted, and he alone is answerable for their due performance. The secretary of state, therefore, being in the same situation, as to these duties, as every other ministerial officer of the United States, and equally liable to be compelled to perform them, is also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his clerks can have no exclusive privileges. There are undoubtedly facts, which may come to their knowledge by means of their connection with the secretary of state, respecting which *142 they cannot be bound to answer. Such are the facts concerning foreign correspondencies, and confidential communications between the head of the department and the President. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question. Suppose I claim title to land under a patent from the United States. I demand a copy of it from the secretary of state. He refuses. Surely he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must shew that the patent is recorded in his office. My case would be hard indeed if I could not call upon the clerks in the office to give evidence of that fact. Again, suppose a private act of congress had passed for my benefit. It becomes necessary for me to have

the use of that act in a court of law. I apply for a copy. I am refused. Shall I not be permitted, on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of the office, or that it is duly recorded? Surely it cannot be contended that although the laws are to be recorded, yet no access is to be had to the records, and no benefit to result therefrom. **3 The court ordered the witnesses to be sworn and their answers taken in writing, but informed them that when the questions were asked they might state their objections to answering each particular question, if they had any. **4 Mr. Wagner being examined upon interrogatories, testified, that at this distance of time he could not recollect whether he had seen any commission in the office, constituting the applicants, or either of them justices of the peace. That Mr. Marbury and Mr. Ramsay called on the secretary of state respecting their commissions. That the secretary referred them to him; he took them into another room and mentioned to them, that two of the commissions had been signed, but the other had not. That he did not know that fact of his own knowledge, but by the information of others. Mr. Wagner declined answering the question “who gave him that information;” and the court decided that he was not bound to answer it, because it was not pertinent to this cause. He further testified that some of the commissions of the justices, but he believed not all, were recorded. He did not know whether the commissions of the applicants were *143 recorded, as he had not had recourse to the book for more than twelve months past. Mr. Daniel Brent testified, that he did not remember certainly the names of any of the persons in the commissions of justices of the peace signed by Mr. Adams; but believed, and was almost certain, that Mr. Marbury's and col. Hooe's commissions were made out, and that Mr. Ramsay's was not; that he made out the list of names by which the clerk who filled up the commissions was guided; he believed that the name of Mr. Ramsay was pretermitted by mistake, but to the best of his knowledge it contained the names of the other two; he believed none of the commissions for justices of the peace signed by Mr. Adams, were recorded. After the commissions for justices of the peace were made out, he carried them to Mr. Adams for his signature. After being signed he carried them back to the secretary's office, where the seal of the United States

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was affixed to them. That commissions are not usually delivered out of the office before they are recorded; but sometimes they are, and a note of them only is taken, and they are recorded afterwards. He believed none of those commissions of justices were ever sent out, or delivered to the persons for whom they were intended; he did not know what became of them, nor did he know that they are now in the office of the secretary of state. Mr. Lincoln, attorney general, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. The questions being written were then read and handed to him. He repeated the ideas he had before suggested, and said his objections were of two kinds.

him for his conduct. And that as to any facts which came officially to his knowledge in the discharge of this part of his duties, he was not bound to answer. He agreed that Mr. Lincoln was not bound to disclose any thing which might tend to criminate himself. Mr. Lincoln thought it was going a great way to say that every secretary of state should at all times be liable to be called upon to appear as a witness in a court of justice, and testify to facts which came to his knowledge officially. He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department; and hoped the court would give him time to consider of the subject. The court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; nor was he obliged to state any thing which would criminate himself; but that the fact whether such commissions had been in the office or not, could not be a confidential fact; it *145 is a fact which all the world have a right to know. If he thought any of the questions improper, he might state his objections.

**5 *144 1st. He did not think himself bound to disclose his official transactions while acting as secretary of state; and

Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court.

2d. He ought not to be compelled to answer any thing which might tend to criminate himself.

The court granted it and postponed further consideration of the cause till the next day.

Mr. Lee, in reply, repeated the substance of the observations he had before made in answer to the objection of Mr. Wagner and Mr. Brent. He stated that the duties of a secretary of state were two-fold. In discharging one part of those duties he acted as a public ministerial officer of the United States, totally independent of the President, and that as to any facts which came officially to his knowledge, while acting in this capacity, he was as much bound to answer as a marshal, a collector, or any other ministerial officer. But that in the discharge of the other part of his duties, he did not act as a public ministerial officer, but in the capacity of an agent of the President, bound to obey his orders, and accountable to

At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions proposed, excepting the last which he did not think himself obliged to answer fully. The question was, what had been done with the commissions. He had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disclose what had been done with the commissions.

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The court were of opinion that he was not bound to say what had become of them; if they never came to the possession of Mr. Madison, it was immaterial to the present cause, what had been done with them by others. **6 To the other questions he answered that he had seen commissions of justices of the peace of the district of Columbia, signed by Mr. Adams, and sealed with the seal of the United States. He did not recollect whether any of them constituted Mr. Marbury, col. Hooe, or col. Ramsay, justices of the peace; there were when he went into the office several commissions for justices of peace of the district made out; but he was furnished with a list of names to be put into a general commission, which was done, and was considered as superseding the particular commissions; and the individuals whose names were contained in this general commission were informed of their being thus appointed. He did not know that any one of the commissions was ever sent to the person for whom it was made out, and did not believe that any one had been sent. *146 Mr. Lee then read the affidavit of James Marshall, who had been also summoned as a witness. It stated that on the 4th of March 1801, having been informed by some person from Alexandria that there was reason to apprehend riotous proceedings in that town on that night, he was induced to return immediately home, and to call at the office of the secretary of state, for the commissions of the justices of the peace; that as many as 12, as he believed, commissions of justices for that county were delivered to him for which he gave a receipt, which he left in the office. That finding he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of those, in the receipt, which he returned. Among the commissions so returned, according to the best of his knowledge and belief, was one for colonel Hooe, and one for William Harper. Mr. Lee then observed, that having proved the existence of the commissions, he should confine such further remarks as he had to make in support of the rule to three questions; 1st. Whether the supreme court can award the writ of mandamus in any case.

2d. Whether it will lie to a secretary of state in any case whatever. 3d. Whether in the present case the court may award a mandamus to James Madison, secretary of state. The argument upon the 1st question is derived not only from the principles and practice of that country, from whence we derive many of the principles of our political institutions, but from the constitution and laws of the United States. This is the supreme court, and by reason of its supremacy must have the superintendance of the inferior tribunals and officers, whether judicial or ministerial. In this respect there is no difference between a judicial and a ministerial officer. From this principle alone the court of king's bench in England derives the power of issuing the writs of mandamus and prohibition. 3. Inst. 70, 71. *147 Shall it be said that the court of king's bench has this power in consequence of its being the supreme court of judicature, and shall we deny it to this court which the constitution makes the supreme court? It is a beneficial, and a necessary power; and it can never be applied where there is another adequate, specific, legal remedy. The second section of the third article of the constitution gives this court appellate jurisdiction in all cases in law and equity arising under the constitution and laws of the United States (except the cases in which it has original jurisdiction) with such exceptions, and under such regulations as congress shall make. The term “appellate jurisdiction” is to be taken in its largest sense, and implies in its nature the right of superintending the inferior tribunals. **7 Proceedings in nature of appeals are of various kinds, according to the subject matter. 3 Bl. com. 402. It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress. 3 Bl. com. 109. There are some injuries which can only be redressed by a writ of mandamus, and others by a writ of prohibition. There must then be a jurisdiction some where competent to issue that kind of process. Where are we to look for it but in that court which the constitution and laws have made supreme, and to which they have given appellate jurisdiction? Blackstone, vol. 3, p. 110,

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says that a writ of mandamus is “a command issuing in the king's name from the court of king's bench, and directed to any person, corporation or inferior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice. It is a writ of a most extensively remedial nature, and issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling its performance.” In the Federalist, vol. 2, p. 239, it is said, that the word “appellate” is not to be taken in its technical sense, as used in reference to appeals in the course of the civil law, but in its broadest sense, in which it denotes nothing more than the power of one tribunal to review the proceedings *148 of another, either as to law or fact, or both. The writ of mandamus is in the nature of an appeal as to fact as well as law. It is competent for congress to prescribe the forms of process by which the supreme court shall exercise its appellate jurisdiction, and they may well declare a mandamus to be one. But the power does not depend upon implication alone. It has been recognized by legislative provision as well as in judicial decisions in this court. Congress, by a law passed at the very first session after the adoption of the constitution, vol. 1, p. 58, sec. 13, have expressly given the supreme court the power of issuing writs of mandamus. The words are, “The supreme court shall also have appellate jurisdiction from the circuit courts, and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” Congress is not restrained from conferring original jurisdiction in other cases than those mentioned in the constitution. 2 Dal. Rep. 298. **8 This court has entertained jurisdiction on a mandamus in one case, and on a prohibition in another. In the case of the United States v. judge Lawrence, 3. Dal. Rep. 42, a mandamus was moved for by the attorney general at the instance of the French minister, to

compel judge Lawrence to issue a warrant against captain Barre, commander of the French ship of war Le Perdrix, grounded on an article of the consular convention with France. In this case the power of the court to issue writs of mandamus, was taken for granted in the arguments of counsel on both sides, and seems to have been so considered by the court. The mandamus was refused, because the case in which it was required, was not a proper one to support the motion. In the case of the United States v. judge Peters a writ of prohibition was granted, 3. Dal. Rep. 121, 129. This was the celebrated case of the French *149 corvette the Cassius, which afterwards became a subject of diplomatic controversy between the two nations. On the 5th Feb. 1794, a motion was made to the supreme court in behalf of one John Chandler, a citizen of Connecticut, for a mandamus to the secretary at war, commanding him to place Chandler on the invalid pension list. After argument, the court refused the mandamus, because the two acts of congress respecting invalids, did not support the case on which the applicant grounded his motion. The case of the United States v. Hopkins, at February term, 1794, was a motion for a mandamus to Hopkins, loan officer for the district of Virginia, to command him to admit a person to subscribe to the United States loan. Upon argument the mandamus was refused because the applicant had not sufficiently established his title. In none of these cases, nor in any other, was the power of this court to issue a mandamus ever denied. Hence it appears there has been a legislative construction of the constitution upon this point, and a judicial practice under it, for the whole time since the formation of the government. 2d. The second point is, can a mandamus go to a secretary of state in any case? It certainly cannot in all cases; nor to the President in any case. It may not be proper to mention this position; but I am compelled to do it. An idea has gone forth, that a mandamus to a secretary of state is equivalent to a mandamus to the President of the United States. I declare it to be my opinion, grounded on a comprehensive view of the subject, that the President is not amenable to any court of judicature for the exercise of his high functions, but is responsible only in the mode pointed out in the constitution. The secretary of state acts, as before observed, in two capacities. As the agent of the President, he is not liable to a mandamus; but as a recorder of the laws of the United States; as keeper of the great

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seal, as recorder of deeds of land, of letters patent, and of commissions, &c. he is a ministerial officer of the people of the United States. As such he has duties assigned him by law, in the execution of which he is independent of all control, but that of the laws. It is true he is a high officer, but he is not above law. It is not consistent with the policy of our political institutions, or the manners of the citizens of the United States, that any ministerial officer having public duties to perform, *150 should be above the compulsion of law in the exercise of those duties. As a ministerial officer he is compellable to do his duty, and if he refuses, is liable to indictment. A prosecution of this kind might be the means of punishing the officer, but a specific civil remedy to the injured party can only be obtained by a writ of mandamus. If a mandamus can be awarded by this court in any case, it may issue to a secretary of state; for the act of congress expressly gives the power to award it, “in cases warranted by the principles and usages of law, to any person holding offices under the authority of the United States.” Many cases may be supposed, in which a secretary of state ought to be compelled to perform his duty specifically. By the 5th and 6th sections of the act of congress, vol. 1, p. 43, copies under seal of the office of the department of state are made evidence in courts of law, and fees are given for making them out. The intention of the law must have been, that every person needing a copy should be entitled to it. Suppose the secretary refuses to give a copy, ought he not to be compelled? Suppose I am entitled to a patent for lands purchased of the United States; it is made out and signed by the President who gives a warrant to the secretary to affix the great seal to the patent; he refuses to do it; shall I not have a mandamus to compel him? Suppose the seal is affixed, but the secretary refuses to record it; shall he not be compelled? Suppose it recorded, and he refuses to deliver it; shall I have no remedy? **9 In this respect there is no difference between a patent for lands, and the commission of a judicial officer. The duty of the secretary is precisely the same. Judge Patterson inquired of Mr. Lee whether he understood it to be the duty of the secretary to deliver a commission, unless ordered so to do by the President.

Mr. Lee replied, that after the President has signed a commission for an office not held at his will, and it comes to the secretary to be sealed, the President has done with it, and nothing remains, but that the secretary perform those ministerial acts which the law imposes upon him. It immediately becomes his duty to seal, record, and deliver *151 it on demand. In such a case the appointment becomes complete by the signing and sealing; and the secretary does wrong if he withholds the commission. 3d. The third point is, whether in the present case a writ of mandamus ought to be awarded to James Madison, secretary of state. The justices of the peace in the district of Columbia are judicial officers, and hold their office for five years. The office is established by the act of Congress passed the 27th of Feb. 1801, entitled “An act concerning the district of Columbia,” ch. 86, sec. 11 and 14; page 271, 273. They are authorized to hold courts and have cognizance of personal demands of the value of 20 dollars. The act of May 3d, 1802, ch. 52, sec. 4, considers them as judicial officers, and provides the mode in which execution shall issue upon their judgments. They hold their offices independent of the will of the President. The appointment of such an officer is complete when the President has nominated him to the senate, and the senate have advised and consented, and the President has signed the commission and delivered it to the secretary to be sealed. The President has then done with it; it becomes irrevocable. An appointment of a judge once completed, is made forever. He holds under the constitution. The requisites to be performed by the secretary are ministerial, ascertained by law, and he has no discretion, but must perform them; there is no dispensing power. In contemplation of law they are as if done. These justices exercise part of the judicial power of the United States. They ought therefore to be independent. Mr. Lee begged leave again to refer to the Federalist, vol. 2, Nos. 78 and 79, as containing a correct view of this subject. They contained observations and ideas which he wished might be generally read and understood. They contained the principles upon which this branch of our constitution was constructed. It is important to the citizens of this district that the justices should be independent; almost all the authority immediately exercised over them is that of the justices. They wish to know whether the

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justices of this district are to hold their commissions at the will of a secretary of state. *152 This cause may seem trivial at first view, but it is important in principle. It is for this reason that this court is now troubled with it. The emoluments or the dignity of the office, are no objects with the applicants. They conceive themselves to be duly appointed justices of the peace, and they believe it to be their duty to maintain the rights of their office, and not to suffer them to be violated by the hand of power. The citizens of this district have their fears excited by every stretch of power by a person so high in office as the secretary of state. **10 It only remains now to consider whether a mandamus to compel the delivery of a commission by a public ministerial officer, is one of “the cases warranted by the principles and usages of law.” It is the general principle of law that a mandamus lies, if there be no other adequate, specific, legal remedy; 3 Burrow, 1067, King v. Barker, and al. This seems to be the result of a view of all the cases on the subject. The case of Rex.v. Borough of Midhurst, 1. Wils. 283, was a mandamus to compel the presentment of certain conveyances to purchasers of burgage tenements, whereby they would be entitled to vote for members of parliament. In the case of Rex v. Dr. Hay, 1. W.Bl.Rep. 640, a mandamus issued to admit one to administer an estate. A mandamus gives no right, but only puts the party in a way to try his right. Sid. 286. It lies to compel a ministerial act which concerns the public. 1. Wilson, 283, 1. Bl.Rep. 640—although there be a more tedious remedy, Str. 1082, 4 Bur. 2188, 2 Bur. 1045; So if there be a legal right, and a remedy in equity, 3. Term Rep. 652. A mandamus lies to obtain admission into a trading company. Rex v. Turkey Company, 2 Bur. 1000. Carthew 448. 5 Mod. 402; So it lies to put the corporate seal to an instrument. 4. Term.Rep. 699; to commissioners of the excise to grant a permit, 2 Term.Rep. 381; to admit to an office, 3 Term.Rep. 575; to deliver papers which concern the public, 2 Sid. 31. A mandamus will sometimes lie in a *153 doubtful case, 1 Levinz 123, to be further considered on the return, 2 Levinz, 14. 1 Sidersin, 169.

It lies to be admitted a member of a church, 3. Bur. 1265, 1043. **11 The process is as ancient as the time of Ed.2d. 1 Levinz 23. The first writ of mandamus is not peremptory, it only commands the officer to do the thing or shew cause why he should not do it. If the cause returned be sufficient, there is an end of the proceeding, if not, a peremptory mandamus is then awarded. It is said to be a writ of discretion. But the discretion of a court always means a found, legal discretion, not an arbitrary will. If the applicant makes out a proper case, the court are bound to grant it. They can refuse justice to no man. On a subsequent day, and before the court had given an opinion, Mr. Lee read the affidavit of Hazen Kimball, who had been a clerk in the office of the Secretary of State, and had been to a distant part of the United States, but whose return was not known to the applicant till after the argument of the case. It stated that on the third of March, 1801, he was a clerk in the department of state. That there were in the office, on that day, commissions made out and signed by the president, appointing William Marbury a justice of peace for the county of Washington; and Robert T. Hooe a justice of the peace for the county of Alexandria, in the district of Columbia. Afterwards, on the 24th of February the following opinion of the court was delivered by the chief justice. Opinion of the court. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to shew cause why a mandamus *154 should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia. No cause has been shewn, and the present motion is for a mandamus. The peculiar delicacy of this case, the

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novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles, on which the opinion to be given by the court, is founded.

he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument.

The 2d section of the 2d article of the constitution, declares, that, “the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.”

In the order in which the court has viewed this subject, the following questions have been considered and decided. 1st. Has the applicant a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of inquiry is, 1st. Has the applicant a right to the commission he demands? His right originates in an act of congress passed in February 1801, concerning the district of Columbia. After dividing the district into two counties, the 11th section of this law, enacts, “that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years. *155 It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out. **12 In order to determine whether he is entitled to this commission, it becomes necessary to enquire whether

The third section declares, that “he shall commission all the officers of the United States.” An act of congress directs the secretary of state to keep the seal of the United States, “to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.” These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the President, and is completely voluntary. 2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. *156 3d. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution. “He shall,” says that instrument, “commission all the officers of the United States.” The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission

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will be rendered more apparent, by adverting to that provision in the second section of the second article of the constitution, which authorizes congress “to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments;” thus contemplating cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. Although that clause of the constitution which requires the President to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer, who has been appointed, remains the same as if in practice the President had commissioned officers appointed by an authority other than his own. **13 It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. *157 This is an appointment made by the President, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to shew an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment; though conclusive evidence of it. But at what stage does it amount to this conclusive evidence?

The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shewn that he has done everything to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President, is the signature of the commission. He has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed, converting the department *158 of foreign affairs into the department of state. By that act it is enacted, that the secretary of state shall keep the seal of the United States, “and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President:” “Provided that the said seal shall not be affixed to any commission, before the same shall have been signed by the President of the United States; nor to any other instrument or act, without the special warrant of the President therefore.” The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete. It attests, by an

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act supposed to be of public notoriety, the verity of the Presidential signature. **14 It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and *159 the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office, is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed.

In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which, delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded, that the principle, claimed for its support, is established. The appointment being, under the constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery should be made personally to the grantee of the office: It never is so made. The law would seem to contemplate that it should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences *160 of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign manual of the President, and the seal of the United States, are those solemnities. This objection therefore does not touch the case. **15 It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission, is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the executive required that every person appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole

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act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point, to enquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but, not that the original had been transmitted. If indeed it should appear that *161 the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed. In the case of commissions, the law orders the secretary of state to record them. When therefore they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded. A copy of this record is declared equal to the original, and the fees, to be paid by a person requiring a copy, are ascertained by law. Can a keeper of a public record, erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law?

**16 Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment; still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither the one, nor the other, is capable of rendering the appointment a non-entity. That this is the understanding of the government, is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission. When a person, appointed to any office, refuses to accept that office, the successor is nominated in the place of the person who *162 has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy. It is therefore decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power of accepting or rejecting it.

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Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of this country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry; which is, 2dly. If he has a right, and that right has been violated, do the laws of this country afford him a remedy? **17 *163 The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the 3d vol. of his commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. “In all other cases,” he says, “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” And afterwards, p. 109, of the same vol. he says, “I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behoves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself, is, whether this can be arranged *164 with that class of cases which come under the description of damnum absque injuria —a loss without an injury. This description of cases never has been considered, and it is believed never can be considered, as comprehending offices of trust, of honor or of profit. The office of justice of peace in the district of Columbia is such an office; it is therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy. Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy. That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be admitted. **18 By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he

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should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. *165 No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, vol. 3. p. 255, says, “ but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.” By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river (vol.3d. p. 299) the purchaser, on paying his purchase money, becomes completely entitled to the property purchased; and on producing to the secretary of state, the receipt of the treasurer upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or the patent being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition. It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.

If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule. By the constitution of the United States, the President is invested with certain important political powers, in the *166 exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. **19 But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the

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performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy. If this be the rule, let us enquire how it applies to the case under the consideration of the court. *167 The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and consequently if the officer is by law not removable at the will of the President; the rights he has acquired are protected by the law, and are not resumable by the President. They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source.

It is then the opinion of the court, 1st. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice *168 of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years. 2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be inquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on, 1st. The nature of the writ applied for, and, 2dly. The power of this court.

The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority. So, if he conceives that, by virtue of his appointment, he has a legal right, either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment. **20 That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission.

1st. The nature of the writ. Blackstone, in the 3d volume of his commentaries, page 110, defines a mandamus to be, “a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice.” Lord Mansfield, in 3d Burrows 1266, in the case of the King v. Baker, et al. states with much precision and explicitness the cases in which this writ may be used. “Whenever,” says that very able judge, “there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern, or attended with profit) and a person is kept out of possession, or dispossessed of such right, and *169 has

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no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.” In the same case he says, “this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, “to do a particular thing therein specified, which appertains to his office and duty and which the court has previously determined, or at least supposes, to be consonant to right and justice.” Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.

It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law?

**21 These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. 1st. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice; to which claims it is the duty of that court to attend; should at first view be considered *170 by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.

If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is *171 again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. **22 But where he is the head of a good department is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and

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the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. This opinion seems not now, for the first time, to be taken up in this country. It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character. This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department. That this question might be properly settled, congress passed an act in February, 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures, as might be necessary to obtain an adjudication of the supreme court of the United *172 States on the validity of any such rights, claimed under the act aforesaid. After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list, a person stating himself to be on the report of the judges. There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of

the United States, the most proper which could be selected for the purpose. When the subject was brought before the court the decision was, not that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case—the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. **23 The judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list. The doctrine, therefore, now advanced, is by no means a novel one. It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute. It is to deliver a commission; on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable, at the will of the executive; and being so *173 appointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person. It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold, is incapable of being ascertained; and the

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applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record.

specified in the article which has been recited; provided those cases belong to the judicial power of the United States.

This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.

Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court “to issue writs ofmandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present *174 case; because the right claimed is given by a law of the United States. **24 In the distribution of this power it is declared that “the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.” It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those

Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. *175 If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be,

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that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.

been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

To enable this court then to issue a mandamus, it must be shewn to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

**25 It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to *176 appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has

The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited *177 and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. **26 If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by

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this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution—would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

**27 The judicial power of the United States is extended to all cases arising under the constitution.

*178 So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the

*179 Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law. The constitution declares that “no bill of attainder or ex post facto law shall be passed.” If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

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“No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent, that the framers of the constitution *180 contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support? The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities

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and understanding, agreeably to the constitution, and laws of the United States.” Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? **28 If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged.

All Citations 1 Cranch 137, 5 U.S. 137, 1803 WL 893, 2 L.Ed. 60 © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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Martin v. Hunter's Lessee, 14 U.S. 304 (1816) 4 L.Ed. 97, 1 Wheat. 304

KeyCite Yellow Flag - Negative Treatment Declined to Extend by In re Briarpatch Film Corp., Bankr.S.D.N.Y., August 14, 2002

 

14 U.S. 304 (CONSTITUTIONAL LAW.) Supreme Court of the United States MARTIN, Heir at law and devisee of FAIRFAX, v. HUNTER'S Lessee. March 20, 1816 Opinion **1 THIS was a writ of error to the court of appeals of the state of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this same cause, at February term, 1813, to be carried into due execution. The following is the judgment of the court of appeals, rendered on the mandate: ‘The court is unanimously of opinion that the appellate power of the supreme court of the United States does not *306 extend to this court under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States. That the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were coram non judice in relation to this court, and that obedience to its mandate be declined by the court.’ The original suit was an action of ejectment, brought by the defendant in error, in one of the district courts of Virginia, holden at Winchester, for the recovery of a parcel of land, situate within that tract, called the northern neck of Virginia, and part and parcel thereof. A declaration in ejectment was served (April, 1791) on the tenants in possession; whereupon Denny Fairfax, (late Denny Martin,) a British subject, holding the land in question, under the devise of the late Thomas Lord Fairfax, was

admitted to defend the suit, and plead the general issue, upon the usual terms of confessing lease, entry, and ouster, &c., and agreeing to insist, at the trial, on the title only, &c. The facts being settled in the form of a case agreed to be taken and considered as a special verdict, the court, on consideration thereof, gave judgment (24th of April, 1794) in favour of the defendant in ejectment. From that judgment the plaintiff in ejectment (now defendant in error) appealed to the court of appeals, *307 being the highest court of law of Virginia. At April term, 1810, the court of appeals reversed the judgment of the district court, and gave judgment for the then appellant, now defendant in error, and thereupon the case was removed into this court. State of the facts as settled by the case agreed. 1st. The title of the late Lord Fairfax to all that entire territory and tract of land, called the Northern Neck of Virginia, the nature of his estate in the same, as he inherited it, and the purport of the several charters and grants from the kings Charles II. and James II., under which his ancestor held, are agreed to be truly recited in an act of the assembly of Virginia, passed in the year 1736, [Vide Rev. Code, v. 1. ch. 3. p. 5.] ‘For the confirming and better securing the titles to lands in the Northern Neck, held under the Rt. Hon. Thomas Lord Fairfax,’ &c. **2 From the recitals of the act, it appears that the first letters patent (1 Car. II.) granting the land in question to Ralph Lord Hopton and others, being surrendered, in order to have the grant renewed, with alterations, the Earl of St. Albans and others (partly survivors of, and partly purchasers under, the first patentees) obtained new letters patent (2 Car. II.) for the same land and appurtenances, and by the same description, but with additional privileges and reservatinos, &c. The estate granted is described to be, ‘All that entire tract, territory, or parcel of land, situate, &c., and bounded by, and within the heads of, the rivers Tappahannock, &c., together with the rivers themselves, and all the islands, &c., and all woods, underwoods, timber, &c., *308 mines of gold and silver, lead, tin, &c., and quarries of stone and coal, &c., to have, hold, and enjoy the said tract of land, &c. to the said [patentees,] their heirs and assigns for ever, to their only use and behoof, and to no other use, intent, or purpose whatsoever.’

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There is reserved to the crown the annual rent of 6l.i 13is.i 4id. “in lieu of all services and demands whatsoever;' also one-fifth part of all gold, and one-tenth part of all silver mines. To the absolute title and seisin in fee of the land and its appurtenance, and the beneficial use and enjoyment of the same, assured to the patentees, as tenants in capite, by the most direct and abundant terms of conveyancing, there are superadded certain collateral powers of baronial dominion; reserving, however, to the governor, council and assembly of Virginia, the exclusive authority in all the military concerns of the granted territory, and the power to impose taxes on the persons and property of its inhabitants for the public and common defence of the colony, as well as a general jurisdiction over the patentees, their heirs and assigns, and all other inhabitants of the said territory. In the enumeration of privileges specifically granted to the patentees, their heirs and assigns, is that ‘freely and without molestation of the king, to give, grant, or by any ways or means, sell or alien all and singular the granted premises, and every part and parcel thereof, to any person or persons being willing to contract for, or buy, the same.’ There is also a condition to avoid the grant, as to so much of the granted premises as should not be *309 possessed, inhabited, or planted, by the means or procurement of the patentees, their heirs or assigns, in the space of 21 years. The third and last of the letters patent referred to, (4 Jac. II.,) after reciting a sale and conveyance of the granted premises by the former patentees, to Thomas Lord Culpepper, ‘who was thereby become sole owner and proprietor thereof, in fee simple,’ proceeds to confirm the same to Lord Culpepper, in fee simple, and to release him from the said condition, for having the lands inhabited or planted as aforesaid. **3 The said act of assembly then recites, that Thomas Lord Fairfax, heir at law of Lord Culpepper, had become ‘sole proprietor of the said territory, with the appurtenances, and the above-recited letters patent.’ By another act of assembly, passed in the year 1748, (Rev. Code, v. 1. ch. 4. p. 10.,) certain grants from the crown, made while the exact boundaries of the Northern Neck

were doubtful, for lands which proved to be within those boundaries, as then recently settled and determined, were, with the express consent of Lord Fairfax, confirmed to the grantees; to be held, nevertheless, of him, and all the rents, services, profits, and emoluments, (reserved by such grants,) to be paid and performed to him. In another act of assembly, passed May, 1779, for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands, there is the following clause, viz. (vide Chy. Rev. of 1783, ch. 13. s. 6. p. 98.) ‘And that the *310 proprietors of land within this commonwealth may no longer be subject to any servile, feudal, or precarious tenure, and to prevent the danger to a free state from perpetual revenue, be it enacted, that the royal mines, quit-rents, and all other reservations and conditions in the patents or grants of land from the crown of England, under the former government, shall be, and are hereby declared null and void; and that all lands thereby respectively granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever, in the same manner with the lands hereafter granted by the commonwealth, by virtue of this act.’ 2d. As respects the actual exercise of his proprietary rights by Lord Fairfax. It is agreed that he did, in the year 1748, open and conduct, at his own expense, an office within the Northern Neck, for granting and conveying what he described and called, the waste and ungranted lands therein, upon certain terms, and according to certain rules by him established and published; that he did, from time to time, grant parcels of such lands in fee; (the deeds being registered at his said office, in books kept for that purpose, by his own clerks and agents;) that, according to the uniform tenor of such grants, he did, styling himself proprietor of the Northern Neck, &c., in consideration of a certain composition to him paid, and of certain annual rents therein reserved, grant, &c.; with a clause of reentry for non-payment of the rent, & c.; that he also demised, for lives and terms of years, parcels of the same description of lands, also reserving annual *311 rents; that he kept his said office open for the purposes aforesaid, from the year 1748 till his death, in December, 1781; during the whole of which period, and before, he exercised the right of granting in fee, and demising for lives and terms of years, as aforesaid, and

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received and enjoyed the rents annually, as they accrued, as well under the grants in fee, as under the leases for lives and years. It is also agreed that Lord Fairfax died seised of lands in the Northern Neck, equal to about 300,000 acres, which had been granted by him in fee, to one T. B. Martin, upon the same terms and conditions, and in the same form, as the other grants in fee before described; which lands were, soon after being so granted, reconveyed to Lord Fairfax in fee. **4 3d. Lord Fairfax, being a citizen and inhabitant of Virginia, died in the month of December, 1781, and, by his last will and testament, duly made and published, devised the whole of his lands, &c., called, or known by the name of the Northern Neck of Virginia, in fee, to Denny Fairfax, (the original defendant in ejectment,) by the name and description of the Reverend Denny Martin, &c., upon condition of his taking the name and arms of Fairfax, &c.; and it is admitted that he fully complied with the conditions of the devise. 4th. It is agreed that Denny Fairfax, the devisee, was a native-born British subject, and never became a citizen of the United States, nor any one of them, but always resided in England, as well during the revolutionary war as from his birth, about the year 1750, to his death, which happened some time between *312 the years 1796 and 1803, as appears from the record of the proceedings in the court of appeals. It is also admitted that Lord Fairfax left, at his death, a nephew named Thomas Bryan Martin, who was always a citizen of Virginia, being the younger brother of the said devisee, and the second son of a sister of the said Lord Fairfax; which sister was still living, and had always been a British subject. 5th. The land demanded by this ejectment being agreed to be part and parcel of the said territory and tract of land, called the Northern Neck, and to be a part of that description of lands, within the Northern Neck, called and described by Lord Fairfax as ‘waste and ungranted,’ and being also agreed never to have been escheated and seised into the hands of the commonwealth of Virginia, pursuant to certain acts of assembly concerning escheators, and never to have been the subject of any inquest of office, was contained and included in a certain patent, bearing date the 30th of April, 1789, under the hand of the then

governor, and the seal of the commonwealth of Virginia, purporting that the land in question is granted by the said commonwealth unto David Hunter (the lessor of the plaintiff in ejectment) and his heirs forever, by virtue and in consideration of a land office treasury warrant, issued the 23d of January, 1788. The said lessor of the plaintiff in ejectment is, and always has been, a citizen of Virginia; and in pursuance of his said patent, entered into the land in question, and was thereof possessed, prior to the institution of the said action of ejectment. *313 6th. The definitive treaty of peace concluded in the year 1783, and the treaty of amity, commerce, and navigation, of 1794, between the United States of America and Great Britain, and also the several acts of the assembly of Virginia, concerning the premises, are referred to, as making a part of the case agreed. Upon this state of facts, the judgment of the court of appeals of Virginia was reversed by this court, at February term, 1813, and thereupon the mandate above mentioned was issued to the court of appeals, which being disobeyed, the cause was again brought before this court. **5 Jones, for the plaintiffs in error. There are two questions in the cause, 1st. Whether this court has jurisdiction? 2d. Whether it has been rightly exercised in the present case?—1. Cotemporaneous construction, and the uniform practice since the constitution was adopted, confirms the jurisdiction of the court. The authority of all the popular writers who were friendly to it, is to the same effect; and the letters of Publius show that it was agreed, both by its friends and foes, that the judiciary power extends to this class of cases. In the conventions, by which the constitution was adopted, it was never denied by its friends that its powers extended as far as its enemies alleged. It was admitted, and justified as expedient and necessary. Ascending from these popular and parliamentary authorities, to the more judicial evidence of what is the supreme law of the land, we find a concurrence of opinion. This government *314 is not a mere confederacy, like the Grecian leagues, or the Germanic constitution, or the old continental confederation. In its legislative, executive, and judicial authorities, it is a national government, to every purpose, within the scope of the objects enumerated in the constitution. Its judicial authority is analagous to its

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legislative: it alone has the power of making treaties; those treaties are declared to be the law of the land; and the judiciary of the United States is exclusively vested with the power of construing them. The second section, article third, of the constitution provides, that the judicial power ‘shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority,’ &c. The word shall, is a sign of the future tense, and implies an imperative mandate, obligatory upon those to whom it is addressed. The verb extend, is said to mean nothing more than may extend; but the neuter verb, and not the verb active, is used, and imports that the power shall extend —it shall reach to, or over. ‘All cases,’ is an emphatic expression, and shows that it cannot extend to a limited number of cases. The state legislatures cannot make treaties. Why should the state judicatures be offended at being excluded from the authority of expounding them? 2. Has congress exercised the power vested in it according to the constitution? If the jurisdiction be exclusive and paramount, it must be exercised according to the discretion of congress, the constitution having prescribed no specific mode; it must operate upon the people of the United States *315 in their personal and aggregate capacities, upon them and all their magistrates and tribunals. Congress must establish a supreme court. They may establish inferior courts. The supreme court must have the appellate jurisdiction vested in them by the constitution, and congress cannot denude them of it, by failing to establish inferior tribunals. Those tribunals may not exist; and, therefore, the appellate jurisdiction must extend beyond appeals from the courts of the United States only. The state courts are to adjudicate under the supreme law of the land, as a rule binding upon them. They do not act upon it as judges determining by a foreign law, in a case of lex loci, for example; they act upon it as a municipal law of the state where they sit, but derived from the government of the United States. 3. As to the remedy of the plaintiffs in error. This court is not limited to a mandate as the only remedy. The judiciary act provides, (section 24.,) that when a cause has been once remanded, this court may award a writ of execution upon its own judgment. The cause is now before the court, so as to enable it to do this; the record is well certified, according to the law and practice of Virginia, and of every other state, under the seal of the court and signature of the clerk. Even supposing it necessary to take a retrospective view, and

look at the former record, it originated, and still remains, in this forum, and it is unnecessary to send to the court of appeals for it. **6 Tucker, contra. 1. At common law the writ of error must be returned by the court itself. It is imperfect *316 in this case, and, therefore we have a right to a certiorari, or writ of diminution. But there is no error; the court of appeals have done nothing; and, therefore, there is no error in their proceedings. It is a mere omission to do what they ought to have done, and no judgment can be rendered here to reverse what they have not done. This court cannot award execution upon the judgment in the original cause. That judgment is final; it is functus officio, and nothing more can be done with it. The original cause is not brought here again completely, and, therefore, the provision in the 24th section of the judiciary act does not apply. 2. Is the judiciary act constitutional? This court, undoubtedly, has all the incidental powers necessary to carry into effect the powers expressly given by the constitution. But this cannot extend to the exercise of any power inconsistent with the whole genius, spirit, and tenor of the constitution. Neither the practice and acquiescence under it, nor cotemporaneous expositions can apply, because they are contradictory. State courts have refused to execute the penal laws of the United States, and the court of appeals ground themselves on the resolutions of the Virginia legislature in 1798; but this court will disregard these controversial political party works. The chief defect of the former confederation was, that it acted on political, and not on natural, persons. The whole scheme of the constitution aims at acting on the citizens of the United States at large, and not on the state authorities. The philological criticism upon the third article is unsound. Shall is merely a sign of the *317 future tense, and not imperative; the laws of the United States having, in some instances, given conjoint jurisdiction to the state courts, and upon that argument must be unconstitutional. ‘Extend,’ or ‘shall extend,’ merely imports that it may extend. Congress are bound to establish tribunals inferior to the supreme court. How else are crimes against the United States to be punished, since the supreme court have not original jurisdiction of these cases? The state courts are bound by treaties as a part of the supreme law of the land, and they must construe them in order to obey them. The only constitutional method of giving and greater effect to the supremacy of treaties,

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would have been by enabling the parties claiming under them to sue in the national courts. 3. There are three classes of cases enumerated at of appellate jurisdiction: that of treaties only applies to this case; but in this case the British treaty was not principally, only incidentally, in question. It does not appear upon the face of the record that the judgment was upon the treaty: It was not upon the treaty; the court of appeals, in their judgment, have expressly declared that it was not upon the treaty, by affirming that part of the judgment of the district court at Winchester which determined in favour of the treaty. **7 Dexter, on the same side. Every advocate is a citizen, and, on great constitutional questions, his duty to his client does not require him to conceal any opinion he may have formed. This cause may be safely carried through, without falsifying the true exposition *318 of the constitution. Believing that it is essential to the national welfare that congress should have the right of arming the courts of the United States with every authority necessary to give complete effect to the judicial powers granted by the constitution, I dissent from the court of appeals of Virginia, when they deny that the appellate jurisdiction of the national tribunals extends to cases involving the construction and validity of treaties. But the question is, has congress provided an adequate method of exercising it? 1. Before a writ of error goes from this court to a state court, it must appear on the face of the record, 1st. That the construction or validity of a treaty is drawn in question. 2d. That the title or claim supposed to be infringed was specially set up or demanded by the party. 3d. That the state court did decide respecting the title or claim under the treaty. In the present instance, suppose that there had been no case made, and that all the facts stated had been given in evidence, and a general verdict rendered thereon: the case is precisely in that predicament. The determination of the court was not limited, in any degree, to the construction of a treaty, which was only one of the numerous facts stated on which the title of the parties depended. How can this court ascertain on which of these facts the state court determined, or that it determined upon the treaty? The alienage of Lord Fairfax's devisee, and the question whether the lands did not escheat without office found, might have been the point of decision, avoiding to consider *319 the construction or validity of the treaty, which applies only to things confiscable. Congress have not said that this

court shall determine conjecturally, but that the party shall specially set up his claim on the record, in order to see whether a treaty has been infringed. He may plead the matter specially, or except to the opinion of the court; but if he chose to make an agreed case in the most general way, is this court to amend the defects of his proceeding? 2. As to the constitutionality of the judiciary act. It is agreed that the judicial powers granted by the constitution are exclusive, or exclusive in the election of congress; but that any appellate jurisdiction is given by the constitution is what I deny. It is neither expressed nor implied; nor is there any necessity for it: for these suits might be removed from the state courts, as are suits commenced by foreigners and citizens of different states, in the first instance, or in the moment any question touching a treaty arose, instead of being brought up by the offensive mode of a writ of error, directed to a court which is as supreme in its appropriate sphere as this court. Whether the court where the suit is commenced will, or will not, consent; the national court may take jurisdiction. If the state court pertinaciously proceeds, notwithstanding; its proceedings would be coram non judice. The original and the appellate jurisdiction are opposed to each other by the constitution. The first cannot regard the state courts; nor the latter: for it is only the residuum of the mass of power before given, which does not expressly include appeals from the state courts. Why is it to be supposed that the state *320 courts will exercise any part of that mass of power? There is no necessity for it, since the laws might provide a constitutional mode of excluding them. If they have not provided such a mode, it is not for this court to supply the defect. By attempting it, they will begin a conflict between the national and state authorities that may ultimately involve both in one common ruin. The taper of judicial discord may become the torch of civil war, and though the breath of a judge can extinguish the first, the wisdom of the statesman may not quench the latter. I lament that the courts of so patriotic a state as Virginia have denied the complete and exclusive dominion of the national government over the whole surface of the judicial power granted by the people to that government. ‘JOIN OR DIE,’ was the word when we were represented as a disjointed serpent, of which Virginia was the head. From that head sprung our ‘immortal chief,’ armed with the aegis of wisdom. But that great man, and those who advised him, improvidently assented to a law, (the judiciary act,) which is neither constitutionally nor

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politically adapted to enforce the powers of the national courts in an amicable and pacific manner. I have never feared that this government was too strong: I have always feared it was not strong enough. I have long inclined to the belief, that the centrifugal force was greater than the centripetal. The danger is, not that we shall fall into the sun, but that we may fly off in eccentric orbits, and never return to our perihelion. But though I will struggle to preserve all the constitutional powers of the national government, *321 I will not strain and break the constitution itself, in order to assert them; there is danger too on that side. The poet describes the temple of Fame as situated on a mountain covered with ice. The palaces of power are on the same frail foundation; the foot of adventurous ambition often slips in the ascent, and sometimes the volcano bursts, and inundates with its lava the surrounding country. But I fear not that this court will be wanting in the firmness which becomes its station; and if it believes that it may, constitutionally, and legally, exert its powers upon the state courts, in this form, (which is what I deny,) it will not regard consequences in the exercise of its duty: it will say, with another august tribunal, ‘Fiat justitia, ruat caelum!’ **8 Jones, in reply. The states are deprived, by the constitution, of the character of perfect states, as defined by jurists; they are still sovereign, sub modo; but the national government pervades all their territory, and acts upon all their citizens. The state judicatures are essentially incompetent to pronounce what is the law; not in the limited sphere of their territorial jurisdiction, but throughout the union and the world. The constitution, art. 3., sec. 2., has distinguished between the causes properly national, and ‘controversies' which it was thought expedient vest in the courts of the United States. The judiciary act covers the first completely, the last only partially. It is said the doctrine contended for involves the old anomaly of the national government, acting, not on individuals, but on state authorities; *322 but this government must act in this manner by appeal from the state courts, or it cannot act at all. If you have an appellate jurisdiction, their judgment is your judgment. You may execute this your judgment; you need not remand the cause to the state court. These are mere arbitrary forms, which the court may discard, or adopt, at pleasure. Neither is it necessary to send a writ of error to the state court; you may cite the parties themselves to appear in

your forum, as soon as a question touching a treaty arises. There is no necessary connection between an appellate tribunal and the court appealed from; it is sufficient that the parties have originally litigated before the court of first instance. The house of lords, an English common law court, holds appeals from the court of sessions, in Scotland, a civil law tribunal. The union between that country and England is similar to our federative constitution. In whatever mode the appellate jurisdiction may be exercised, it is still liable to the difficulties suggested. The process by which a cause is to be removed from the state court, before judgment, must be addressed to that court; and if it still proceeds, the remedy must be as offensive as at present. But it would, also, be ineffectual and dilatory. Suppose, in a case of original jurisdiction, an ambassador prosecuted for a supposed crime in a state court, he might be imprisoned, or put to death, before the national authority could be interposed, unless it act directly on the state judicature. In this case, the court may act directly on the cause and the parties, in order to carry into complete effect the appellate powars with which it is invested by the constitution and *323 laws. There is nothing in the record importing that the court of appeals determined on the ground of the party's title merely. Nor is it necessary that the treaty, under which that title is set up, should be specified in a bill of exceptions, or propounded in argument. It is sufficient that the claim is stated upon the record, and that the title depends upon the treaty. This court is not to pronounce a mere abstract opinion upon the validity, or construction, of the treaty; it may, therefore, decide on other incidental matters; and, if the party has a good title under the treaty, it is to enforce and protect that title. As to the sufficiency of the return, the law merely requires a transcript of the record to be removed, and, by the rules of this court, a return by the clerk is sufficient. The appellate jurisdiction of the supreme court of the United States extends to a final judgment or decree in any suit in the highest court of law or equity of a state; where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United *305 States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such

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their validity; or the construction of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed, by either party, under such clause of the constitution, treaty, statute or commission. Such judgment or decree may be reexamined by writ of error in the same manner as if rendered in a circuit court. If the cause has been once remanded before, and the state court decline or refuse to carry into effect the mandate of the supreme court thereon, this court will proceed to a final decision of the same, and award execution thereon. If the validity or construction of a treaty of the United States is drawn in question, and the decision is against its validity, or the title specially set up by either party, under the treaty, this court has jurisdiction to ascertain that title and determine its legal validity, and is not confined to the abstract construction of the treaty itself. The return of a copy of the record, under the seal of the court, certified by the clerk, and annexed to the writ of error, is a sufficient return in such a case. It need not appear that the judge who granted the writ of error did, upon issuing the citation, take a bond, as required by the 22d section of the judiciary act. That provision is merely directory to the judge, and the presumption of law is, until the contrary appears, that every judge who signs a citation has obeyed the injunctions of the act. March 20th. STORY, J., delivered the opinion of the court. This is a writ of error from the court of appeals of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this very cause, at February term, 1813, to be carried into due execution. The following is the judgment of the court of appeals rendered on the mandate: ‘The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress to establish the judicial courts of the

United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the *324 United States; that the writ of error, in this cause, was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were, coram non judice, in relation to this court, and that obedience to its mandate be declined by the court.’ The questions involved in this judgment are of great importance and delicacy. Perhaps it is not too much to affirm, that, upon their right decision, rest some of the most solid principles which have hitherto been supposed to sustain and protect the constitution itself. The great respectability, too, of the court whose decisions we are called upon to review, and the entire deference which we entertain for the learning and ability of that court, add much to the difficulty of the task which has so unwelcomely fallen upon us. It is, however, a source of consolation, that we have had the assistance of most able and learned arguments to aid our inquiries; and that the opinion which is now to be pronounced has been weighed with every solicitude to come to a correct result, and matured after solemn deliberation. Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar. The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ‘the people of the United States.’ There can be no doubt that it was competent to the people to invest the general government *325 with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender

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of powers already existing in state institutions, for the powers of the states depend upon their own constitutions; and the people of every state had the right to modify and restrain them, according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.

time to *327 time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom, and the public interests, should require.

These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the constitution, which declares, that ‘the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ *326 The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.

The third article of the constitution is that which must principally attract our attention. The 1st. section declares, ‘the judicial power of the United States shall be vested in one supreme court, and in such other inferior courts as the congress may, from time to time, ordain and establish.’ The 2d section declares, that ‘the judicial power shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under the grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects.’ It then proceeds to declare, that ‘in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. *328 In all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make.’

The constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in genetal terms, leaving to the legislature, from

With these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the constitution, so far as regards the great points in controversy.

Such is the language of the article creating and defining the judicial power of the United States. It is the voice of the whole American people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme. It is a part of the very same instrument which was to act not merely upon individuals, but upon states; and to deprive them altogether of the exercise of some powers of sovereignty, and to restrain and regulate them in the exercise of others. Let this article be carefully weighed and considered. The language of the article throughout is manifestly designed

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to be mandatory upon the legislature. Its obligatory force is so imperative, that congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one supreme court, and in such inferior courts as congress may, from time to time, ordain and establish. Could congress have lawfully refused to create a supreme court, or to vest in it the constitutional jurisdiction? ‘The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive, for their services, a compensation which shall not be diminished during their continuance in office.’ Could congress create or limit any other tenure of *329 the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions: it must be in the negative. The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two states be heard and determined? The judicial power must, therefore, be vested in some court, by congress; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omited or declined, is to suppose that, under the sanction of the constitution, they might defeat the constitution itself; a construction which would lead to such a result cannot be sound. The same expression, ‘shall be vested,’ occurs in other parts of the constitution, in defining the powers of the other co-ordinate branches of the government. The first article declares that ‘all legislative powers herein granted shall be vested in a congress of the United States.’ Will it be contended that the legislative power is not absolutely vested? that the words merely refer to some future act, and mean only that the legislative power may bereafter be vested? The second article declares that ‘the *330 executive power shall be vested in a president of the United States of America.’ Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent that such a construction, in

either case, would be utterly inadmissible. Why, then, is it entitled to a better support in reference to the judicial department? If, then, it is a duty of congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction as to all; for the constitution has not singled out any class on which congress are bound to act in preference to others. The next consideration is as to the courts in which the judicial power shall be vested. It is manifest that a supreme court must be established; but whether it be equally obligatory to establish inferior courts, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that in some of the enumerated cases the judicial power could nowhere exist. The supreme court can have original jurisdiction in two classes of cases only, viz. in cases affecting ambassadors, other public ministers and consuls, and in cases in which a state is a party. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by *331 itself; and if in any of the cases enumerated in the constitution, the state courts did not then possess jurisdiction, the appellate jurisdiction of the supreme court (admitting that it could act on state courts) could not reach those cases, and, consequently, the injunction of the constitution, that the judicial power ‘shall be vested,’ would be disobeyed. It would seem, therefore, to follow, that congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the constitution, is exclusively vested in the United States, and of which the supreme court cannot take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority. This construction will be fortified by an attentive examination of the second section of the third article. The words are ‘the judicial power shall extend,’ &c. Much

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minute and elaborate criticism has been employed upon these words. It has been argued that they are equivalent to the words ‘may extend,’ and that ‘extend’ means to widen to new cases not before within the scope of the power. For the reason which have been already stated, we are of opinion that the words are used in an imperative sense. They import an absolute grant of judicial power. They cannot have a relative signification applicable to powers already granted; for the American people *332 had not made any previous grant. The constitution was for a new government, organized with new substantive powers, and not a mere supplementary charter to a government already existing. The confederation was a compact between states; and its structure and powers were wholly unlike those of the national government. The constitution was an act of the people of the United States to supercede the confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment. If, indeed, the relative signification could be fixed upon the term ‘extend,’ it could not (as we shall hereafter see) subserve the purposes of the argument in support of which it has been adduced. This imperative sense of the words ‘shall extend,’ is strengthened by the context. It is declared that ‘in all cases affecting ambassadors, &c., that the supreme court shall have original jurisdiction.’ Could congress withhold original jurisdiction in these cases from the supreme court? The clause proceeds—‘in all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make.’ The very exception here shows that the framers of the constitution used the words in an imperative sense. What necessity could there exist for this exception if the preceding words were not used in that sense? Without such exception, congress would, by the preceding words, have possessed a complete power to regulate the appellate jurisdiction, if the language were *333 only equivalent to the words ‘may have’ appellate jurisdiction. It is apparent, then, that the exception was intended as a limitation upon the preceding words, to enable congress to regulate and restrain the appellate power, as the public interests might, from time to time, require. Other clauses in the constitution might be brought in aid of this construction; but a minute examination of them

cannot be necessary, and would occupy too much time. It will be found that whenever a particular object is to be effected, the language of the constitution is always imperative, and cannot be disregarded without violating the first principles of public duty. On the other hand, the legislative powers are given in language which implies discretion, as from the nature of legislative power such a discretion must ever be exercised. It being, then, established that the language of this clause is imperative, the next question is as to the cases to which it shall apply. The answer is found in the constitution itself. The judicial power shall extend to all the cases enumerated in the constitution. As the mode is not limited, it may extend to all such cases, in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original or appellate jurisdiction, or both; for there is nothing in the nature of the ases which binds to the exercise of the one in preference to the other. In what cases (if any) is this judicial power exclusive, or exclusive at the election of congress? It will be observed that there are two classes of cases enumerated *334 in the constitution, between which a distinction seems to be drawn. The first class includes cases arising under the constitution, laws, and treaties of the United States; cases affecting ambassadors, other public ministers and consuls, and cases of admiralty and maritime jurisdiction. In this class the expression is, and that the judicial power shall extend to all cases; but in the subsequent part of the clause which embraces all the other cases of national cognizance, and forms the second class, the word ‘all’ is dropped seemingly ex industria. Here the judicial authority is to extend to controversies (not to all controversies) to which the United States shall be a party, &c. From this difference of phraseology, perhaps, a difference of constitutional intention may, with propriety, be inferred. It is hardly to be presumed that the variation in the language could have been accidental. It must have been the result of some determinate reason; and it is not very difficult to find a reason sufficient to support the apparent change of intention. In respect to the first class, it may well have been the intention of the framers of the constitution imperatively to extend the judicial power either in an original or appellate form to all cases; and in the latter class to leave it to congress to qualify the jurisdiction,

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original or appellate, in such manner as public policy might dictate. The vital importance of all the cases enumerated in the first class to the national sovereignty, might warrant such a distinction. In the first place, as to cases arriving under the constitution, laws, and treaties of the United States. Here the state courts *335 could not ordinarily possess a direct jurisdiction. The jurisdiction over such cases could not exist in the state courts previous to the adoption of the constitution, and it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts ordained and established by the United States. This class of cases would embrace civil as well as criminal jurisdiction, and affect not only our internal policy, but our foreign relations. It would, therefore, be perilous to restrain it in any manner whatsoever, inasmuch as it might hazard the national safety. The same remarks may be urged as to cases affecting ambassadors, other public ministers, and consuls, who are emphatically placed under the guardianship of the law of nations; and as to cases of admiralty and maritime jurisdiction, the admiralty jurisdiction embraces all questions of prize and salvage, in the correct adjudication of which foreign nations are deeply interested; it embraces also maritime torts, contracts, and offences, in which the principles of the law and comity of nations often form an essential inquiry. All these cases, then, enter into the national policy, affect the national rights, and may compromit the national sovereignty. The original or appellate jurisdiction ought not, therefore, to be restrained, but should be commensurate with the mischiefs intended to be remedied, and, of course, should extend to all cases whatsoever. A different policy might well be adopted in reference to the second class of cases; for although it might be fit that the judicial power should extend *336 to all controversies to which the United States should be a party, yet this power night not have been imperatively given, least it should imply a right to take cognizance of original suits brought against the United States as defendants in their own courts. It might not have been deemed proper to submit the sovereignty of the United States, against their own will to judicial cognizance, either to enforce rights or to prevent wrongs; and as to the other cases of the second class, they might well be left to

be exercised under the exceptions and regulations which congress might, in their wisdom, choose to apply. It is also worthy of remark, that congress seem, in a good degree, in the establishment of the present judicial system, to have adopted this distinction. In the first class of cases, the jurisdiction is not limited except by the subject matter; in the second, it is made materially to depend upon the value in controversy. We do not, however, profess to place any implicit reliance upon the distinction which has here been stated and endeavoured to be illustrated. It has the rather been brought into view in deference to the legislative opinion, which has so long acted upon, and enforced, this distinction. But there is, certainly, vast weight in the argument which has been urged, that the constitution is imperative upon congress to vest all the judicial power of the United States, in the shape of original jurisdiction, in the supreme and inferior courts created under its own authority. At all events, whether the one construction or the other prevail, it is manifest that the judicial power of the *337 United States is unavoidably, in some cases, exclusive of all state authority, and in all others, may be made so at the election of congress. No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance; and it can only be in those cases where, previous to the constitution, state tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction. Congress, throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts. But, even admitting that the language of the constitution is not mandatory, and that congress may constitutionally omit to vest the judicial power in courts of the United States, it cannot be demed that when it is vested, it may be exercised to the utmost constitutional extent. This leads us to the consideration of the great question as to the nature and extent of the appellate jurisdiction of the United States. We have already seen that appellate

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jurisdiction is given by the constitution to the supreme court in all cases where it has not original jurisdiction; subject, however, to such exceptions and regulations as congress may prescribe. It is, therefore, capable of embracing every case enumerated in the constitution, which is not exclusively to be decided by way of original *338 jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the constitution to the supreme court. There can be no doubt that congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by congress under every variety of form, of appellate or original jurisdiction. And as there is nothing in the constitution which restrains or limits this power, it must, therefore, in all other cases, subsist in the utmost latitude of which, in its own nature, it is susceptible. As, then, by the terms of the constitution, the appellate jurisdiction is not limited as to the supreme court, and as to this court it may be exercised in all other cases than those of which it has original cognizance, what is there to restrain its exercise over state tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, ‘the judicial power (which includes appellate power) shall extend to all cases,’ &c., and ‘in all other cases before mentioned the supreme court shall have appellate jurisdiction.’ It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the *339 text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible. If the constitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow that the jurisdiction of these courts would, in all the cases enumerated in the constitution, be exclusive of state tribunals. How otherwise could the jurisdiction extend to all cases arising under the constitution, laws, and treaties of the United States, or to all cases of admiralty and maritime

jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive; and this not only when the casus foederis should arise directly, but when it should arise, incidentally, in cases pending in state courts. This construction would abridge the jurisdiction of such court far more than has been ever contemplated in any act of congress. **9 On the other hand, if, as has been contended, a discretion be vested in congress to establish, or not to establish, inferior courts at their own pleasure, and *340 congress should not establish such courts, the appellate jurisdiction of the supreme Court would have nothing to act upon, unless it could act upon cases pending in the state courts. Under such circumstances it must be held that the appellate power would extend to state courts; for the constitution is peremptory that it shall extend to certain enumerated cases, which cases could exist in no other courts. Any other construction, upon this supposition, would involve this strange contradiction, that a discretionary power vested in congress, and which they might rightfully omit to exercise, would defeat the absolute injunctions of the constitution in relation to the whole appellate power. But it is plain that the framers of the constitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the state courts, in the exercise of their ordinary jurisdiction. With this view the sixth article declares, that ‘this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.’ It is obvious that this obligation is imperative upon the state judges in their official, and not merely in their private, capacities. From the very

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nature of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely *341 according to the laws or constitution of the state, but according to the constitution, laws and treaties of the United States—‘the supreme law of the land.’ A moment's consideration will show us the necessity and propriety of this provision in cases where the jurisdiction of the state courts is unquestionable. Suppose a contract for the payment of money is made between citizens of the same state, and performance thereof is sought in the courts of that state; no person can doubt that the jurisdiction completely and exclusively attaches, in the first instance, to such courts. Suppose at the trial the defendant sets up in his defence a tender under a state law, making paper money a good tender, or a state law, impairing the obligation of such contract, which law, if binding, would defeat the suit. The constitution of the United States has declared that no state shall make any thing but gold or silver coin a tender in payment of debts, or pass a law impairing the obligation of contracts. If congress shall not have passed a law providing for the removal of such a suit to the courts of the United States, must not the state court proceed te hear and determine it? Can a mere plea in defence be of itself a bar to further proceedings, so as to prohibit an inquiry into its truth or legal propriety, when no other tribunal exists to whom judicial cognizance of such cases is confided? Suppose an indictment for a crime in a state court, and the defendant should allege in his defence that the crime was created by an ex post facto act of the state, must not the state court, in the exercise of a jurisdiction which has already rightfully attached, have a *342 right to pronounce on the validity and sufficiency of the defence? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumerable instances of the same sort might be stated, in illustration of the position; and unless the state courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect, and public mischiefs, of a most enormous magnitude, would inevitably ensue. **10 It must, therefore, be conceded that the constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals. It was

foreseen that in the exercise of their ordinary jurisdiction, state courts would incidentally take cognizance of cases arising under the constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the state courts, which (as has been already shown) may occur; it must, therefore, extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to state tribunals; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the constitution. It has been argued that such an appellate jurisdiction over state courts is inconsistent with the genius *343 of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that if the power exists, it will materially impair the sovereignty of the states, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent. It is a mistake that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the constitution does not act upon the states. The language of the constitution is also imperative upon the states as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of president and vicepresident. And in these, as well as some other cases, congress have a right to revise, amend, or supercede the laws which may be passed by state legislatures. When, therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in

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some *344 respects, under the control of congress, and in every case are, under the constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argument that the appellate power over the decisions of state courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power. **11 Nor can such a right be deemed to impair the independence of state judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty. The argument urged from the possibility of the abuse of the revising power, is equally unsatisfactory. It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. It is still more difficult, by such an argument, to ingraft upon a general power a restriction *345 which is not to be found in the terms in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere—wherever it may be vested it is susceptible of abuse. In all questions of jurisdiction the inferior, or appellate court, must pronounce the final judgment; and common sense, as well as legal reasoning, has conferred it upon the latter. It has been further argued against the existence of this appellate power, that it would form a novelty in our judicial institutions. This is certainly a mistake. In the articles of confederation, an instrument framed with infinitely more deference to state rights and state jealousies, a power was given to congress to establish ‘courts for revising and determining, finally, appeals in

all cases of captures.’ It is remarkable, that no power was given to entertain original jurisdiction in such cases; and, consequently, the appellate power (although not so expressed in terms) was altogether to be exercised in revising the decisions of state tribunals. This was, undoubtedly, so far a surrender of state sovereignty; but it never was supposed to be a power fraught with public danger, or destructive of the independence of state judges. On the contrary, it was supposed to be a power indispensable to the public safety, inasmuch as our national rights might otherwise be compromitted, and our national peace been dangered. Under the present constitution the prize jurisdiction is confined to the courts of the United States; and a power to revise the decisions of state courts, if they should assert jurisdiction over prize causes, cannot be less *346 important, or less useful, than it was under the confederation. In this connexion we are led again to the construction of the words of the constitution, ‘the judicial power shall extend,’ &c. If, as has been contended at the bar, the term ‘extend’ have a relative signification, and mean to widen an existing power, it will then follow, that, as the confederation gave an appellate power over state tribunals, the constitution enlarged or widened that appellate power to all the other cases in which jurisdiction is given to the courts of the United States. It is not presumed that the learned counsel would choose to adopt such a conclusion. **12 It is further argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own courts: first, because state judges are bound by an oath to support the constitution of the United States, and must be presumed to be men of learning and integrity; and, secondly, because congress must have an unquestionable right to remove all cases within the scope of the judicial power from the state courts to the courts of the United States, at any time before final judgment, thought not after final judgment. As to the first reason—admitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States, (which we very cheerfully admit,) it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own, and given or withheld *347 powers according to the judgment

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of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The constitution has presumed (whether rightly or wrongly we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might some times obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, why some, at Ieast, of those cases should not have been left to the cognizance of the state courts. In respect to the other enumerated cases—the cases arising under the constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction—reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction. This is not all. A motive of another kind, perfectly compatible with the most sincere respect for state tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity of uniformity of decisions *348 throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution. What, indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.

**13 There is an additional consideration, which is entitled to great weight. The constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their priviliges, before the same forum. Yet, if the construction contended for be correct, it will follow, that as the plaintiff may always elect the state court, the defendant *349 may be deprived of all the security which the constitution intended in aid of his rights. Such a state of things can, in no respect, be considered as giving equal rights. To obviate this difficulty, we are referred to the power which it is admitted congress possess to remove suits from state courts to the national courts; and this forms the second ground upon which the argument we are considering has been attempted to be sustained. This power of removal is not to be found in express terms in any part of the constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed in both cases an exercise of appellate, and not of original jurisdiction. If, then, the fight of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and as congress is not limited by the constitution to any particular mode, or time of exercising it, it may authorize a removal either before or after judgment. The time, the process, and the manner, must be subject to its absolute legislative control. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, *350 and enables the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case may warrant. There is nothing in the nature of the process which forbids it from being applied by the legislature to interlocutory as well as final judgments.

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And if the right of removal from state courts exist before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment. And if the appellate power by the constitution does not include cases pending in state courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the rignt of removal before judgment, as after, and both must stand or fall together. Nor, indeed, would the force of the arguments on either side materially vary, if the right of removal were an exercise of original jurisdiction. It would equally trench upon the jurisdiction and independence of state tribunals. **14 The remedy, too, of removal of suits would be utterly inadequate to the purposes of the constitution, if it could act only on the parties, and not upon the state courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable; and in respect to civil suits, there would, in many cases, be rights without corresponding remedies. If state courts should deny the constitutionality of the authority to remove suits from their cognizance, in what manner could they be compelled to relinquish the jurisdiction? In respect to criminal cases, there would at once be an end of all control, and the *351 state decisions would be paramount to the constitution; and though in civil suits the courts of the United States might act upon the parties, yet the state courts might act in the same way; and this conflict of jurisdictions would not only jeopardise private rights, but bring into imminent peril the public interests. On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one. Strong as this conclusion stands upon the general language of the constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the constitution, extending its appellate power to state courts, was, previous to its adoption,

uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the state conventions. It is an historical fact, that at the time when the judiciary act was submitted to the deliberations of the first congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that constitution, the same exposition was explicitly declared and admitted by the friends and by the opponents of that system. It *352 is an historical fact, that the supreme court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important states in the union, and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the supreme court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened state courts, and these judicial decisions of the supreme court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken, without delivering over the subject to perpetual and irremediable doubts. **15 The next question which has been argued, is, whether the case at bar be within the purview of the 25th section of the judiciary act, so that this court may rightfully sustain the present writ of error. This section, stripped of passages unimportant in this inquiry, enacts, in substance, that a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty or statute of, or an authority excised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties, or laws, of the United States, and the decision is in favour of such their validity; or of the constitution, or of a treaty or statute of, or commission held under, the United *353 States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party under such clause of the said constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the supreme court of the United States, upon a writ of error, in the same manner, and under the same regulations,

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and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears upon the face of the record, and immediately respects the before-mentioned question of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute. That the present writ of error is founded upon a judgment of the court below, which drew in question and denied the validity of a statute of the United States, is incontrovertible, for it is apparent upon the face of the record. That this judgment is final upon the rights of the parties is equally true; for if well founded, the former judgment of that court was of conclusive authority, and the former judgment of this court utterly void. The decision was, therefore, equivalent to a perpetual stay of proceedings upon *354 the mandate, and a perpetual denial of all the rights acquired under it. The case, then, falls directly within the terms of the act. It is a final judgment in a suit in a state court, denying the validity of a statute of the United States; and unless a distinction can be made between proceedings under a mandate, and proceedings in an original suit, a writ of error is the proper remedy to revise that judgment. In our opinion no legal distinction exists between the cases. **16 In causes remanded to the circuit courts, if the mandate be not correctly executed, a writ of error or appeal has always been supposed to be a proper remedy, and has been recognized as such in the former decisions of this court. The statute gives the same effect to writs of error from the judgments of state courts as of the circuit courts; and in its terms provides for proceedings where the same cause may be a second time brought up on writ of error before the supreme court. There is no limitation or description of the cases to which the second writ of error may be applied; and it ought, therefore, to be coextensive with the cases which fall within the mischiefs of the statute. It will hardly be denied that this cause stands in that

predicament; and if so, then the appellate jurisdiction of this court has rightfully attached. But it is contended, that the former judgment of this court was rendered upon a case not within the purview of this section of the judicial act, and that as it was pronounced by an incompetent jurisdiction, it was utterly void, and cannot be a sufficient foundation *355 to sustain any subsequent proceedings. To this argument several answers may be given. In the first place, it is not admitted that, upon this writ of error, the former record is before us. The error now assigned is not in the former proceedings, but in the judgment rendered upon the mandate issued after the former judgment. The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United States, which is clearly within our jurisdiction. In the next place, in ordinary cases a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained upon principle. A final judgment of this court is supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its own judgments. In several cases which have been formerly adjudged in this court, the same point was argued by counsel, and expressly overruled. It was solemnly held that a final judgment of this court was conclusive upon the parties, and could not be re-examined. In this case, however, from motives of a public nature, we are entirely willing to wave all objections, and to go back and re-examine the question of jurisdiction as it stood upon the record formerly in judgment. We have great confidence that our jurisdiction will, on a careful examination, stand confirmed as well upon principle as authority. It will be recollected that the action was an ejectment for a parcel of land in the Northern Neck, formerly belonging to *356 Lord Fairfax. The original plaintiff claimed the land under a patent granted to him by the state of Virginia, in 1789, under a title supposed to be vested in that state by escheat or forfeiture. The original defendant claimed the land as devisee under the will of Lord Fairfax. The parties agreed to a special statement of facts in the nature of a special verdict, upon which the district court of Winchester, in 1793, gave a general judgment for the defendant, which judgment was afterwards reversed in 1810, by the court of appeals, and

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a general judgment was rendered for the plaintiff; and from this last judgment a writ of error was brought to the supreme court. The statement of facts contained a regular deduction of the title of Lord Fairfax until his death, in 1781, and also the title of his devisee. It also contained a regular deduction of the title of the plaintiff, under the state of Virginia, and further referred to the treaty of peace of 1783, and to the acts of Virginia respecting the lands of Lord Fairfax, and the supposed escheat or forfeiture thereof, as component parts of the case. No facts disconnected with the titles thus set up by the parties were alleged on either side. It is apparent, from this summary explanation, that the title thus set up by the plaintiff might be open to other objections; but the title of the defendant was perfect and complete, if it was protected by the treaty of 1783. If, therefore, this court had authority to examine into the whole record, and to decide upon the legal validity of the title of the defendant, as well as its application to the treaty of peace, it would be a case within the express purview *357 of the 25th section of the act; for there was nothing in the record upon which the court below could have decided but upon the title as connected with the treaty; and if the title was otherwise good, its sufficiency must have depended altogether upon its protection under the treaty. Under such circumstances it was strictly a suit where was drawn in question the construction of a treaty, and the decision was against the title specially set up or claimed by the defendant. It would fall, then, within the very terms of the act. **17 The objection urged at the bar is, that this court cannot inquire into the title, but simply into the correctness of the construction put upon the treaty by the court of appeals; and that their judgment is not reexaminable here, unless it appear on the face of the record that some construction was put upon the treaty. If, therefore, that court might have decided the case upon the invalidity of the title, (and, non constat, that they did not,) independent of the treaty, there is an end of the appellate jurisdiction of this court. In support of this objection much stress is laid upon the last clause of the section, which declares, that no other cause shall be regarded as a ground of reversal than such as appears on the face of the record and immediately respects the construction of the treaty, &c., in dispute.

If this be the true construction of the section, it will be wholly inadequate for the purposes which it professes to have in view, and may be evaded at pleasure. But we see no reason for adopting this narrow construction; and there are the strongest *358 reasons against it, founded upon the words as well as the intent of the legislature. What is the case for which the body of the section provides a remedy by writ of error? The answer must be in the words of the section, a suit where is drawn in question the construction of a treaty, and the decision is against the title set up by the party. It is, therefore, the decision against the title set up with reference to the treaty, and not the mere abstract construction of the treaty itself, upon which the statute intends to found the appellate jurisdiction. How, indeed, can it be possible to decide whether a title be within the protection of a treaty, until it is ascertained what that title is, and whether it have a legal validity? From the very necessity of the case, there must be a preliminary inquiry into the existence and structure of the title, before the court can construe the treaty in reference to that title. If the court below should decide, that the title was bad, and, therefore, not protected by the treaty, must not this court have a power to decide the title to be good, and, therefore, protected by the treaty? Is not the treaty, in both instances, equally construed, and the title of the party, in reference to the treaty, equally ascertained and decided? Nor does the clause relied on in the objection, impugn this construction. It requires, that the error upon which the appellate court is to decide, shall appear on the face of the record, and immediately respect the questions before mentioned in the section. One of the questions is as to the construction of a treaty upon a title specially set up by a party, and every error that immediately respects *359 that question must, of course, be within the cognizance, of the court. The title set up in this case is apparent upon the face of the record, and immediately respects the decision of that question; any error, therefore, in respect to that title must be reexaminable, or the case could never be presented to the court. **18 The restraining clause was manifestly intended for a very different purpose. It was foreseen that the parties might claim under various titles, and might assert various defences, altogether independent of each other. The court might admit or reject evidence applicable to one particular title, and not to all, and in such cases it was the

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intention of congress to limit what would otherwise have unquestionably attached to the court, the right of revising all the points involved in the cause. It therefore restrains this right to such errors as respect the questions specified in the section; and in this view, it has an appropriate sense, consistent with the preceding clauses. We are, therefore, satisfied, that, upon principle, the case was rightfully before us, and if the point were perfectly new, we should not hesitate to assert the jurisdiction. But the point has been already decided by this court upon solemn argument. In Smith v. The State of Maryland, (6 Cranch, 286.,) precisely the same objection was taken by counsel, and overruled by the unanimous opinion of the court. That case was, in some respects, stronger than the present; for the court below decided, expressly, that the party had no title, and, therefore, the treaty could not operate *360 upon it. This court entered into an examination of that question, and being of the same opinion, affirmed the judgment. There cannot, then, be an authority which could more completely govern the present question. It has been asserted at the bar that, in point of fact, the court of appeals did not decide either upon the treaty or the title apparent upon the record, but upon a compromise made under an act of the legislature of Virginia. If it be true (as we are informed) that this was a private act, to take effect only upon a certain condition, viz. the execution of a deed of release of certain lands, which was matter in pais, it is somewhat difficult to understand how the court could take judicial cognizance of the act, or of the performance of the condition, unless spread upon the record. At all events, we are bound to consider that the court did decide upon the facts actually before them. The treaty of peace was not necessary to have been stated, for it was the supreme law of the land, of which all courts must take notice. And at the time of the decision in the court of appeals and in this court, another treaty had intervened, which attached itself to the title in controversy, and, of course, must have been the supreme law to govern the decision, if it should be found applicable to the case. It was in this view that this court did not deem it necessary to rest its former decision upon the treaty of peace, believing that the title of the defendant was, at all events, perfect under the treaty of 1794.

*361 The remaining questions respect more the practice than the principles of this court. The forms of process, and the modes of proceeding in the exercise of jurisdiction are, with few exceptions, left by the legislature to be regulated and changed as this court may, in its discretion, deem expendient. By a rule of this court, the return of a copy of a record of the proper court, under the seal of that court, annexed to the writ of error, is declared to be ‘a sufficient compliance with the mandate of the writ.’ The record, in this case, is duly certified by the clerk of the court of appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the return, cannot prevail. **19 Another objection is, that it does not appear that the judge who granted the writ of error did, upon issuing the citation, take the bond required by the 22d section of the judiciary act. We consider that provision as merely directory to the judge; and that an omission does not avoid the writ of error. If any party be prejudiced by the omission, this court can grant him summary relief, by imposing such terms on the other party as, under all the circumstances, may be legal and proper. But there is nothing in the record by which we can judicially know whether a bond has been taken or not; for the statute does not require the bond to be returned to this court, and it might, with equal propriety, be lodged in the court below, who would ordinarily execute the judgment to be rendered on the writ. And the presumption of law is, until the contrary *362 appears, that every judge who signs a citation has obeyed the injunctions of the act. We have thus gone over all the principal questions in the cause, and we deliver our judgment with entire confidence, that it is consistent with the constitution and laws of the land. We have not thought it incumbent on us to give any opinion upon the question, whether this court have authority to issue a writ of mandamus to the court of appeals to enforce the former judgments, as we do not think it necessarily involved in the decision of this cause. It is the opinion of the whole court, that the judgment of the court of appeals of Virginia, rendered on the mandate

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in this cause, be reversed, and the judgment of the district court, held at Winchester, be, and the same is hereby affirmed. JOHNSON, J. It will be observed in this case, that the court disavows all intention to decide on the right to issue compulsory process to the state courts; thus leaving us, in my opinion, where the constitution and laws place us—supreme over persons and cases as far as our judicial powers extend, but not asserting any compulsory control over the state tribunals. In this view I acquiesce in their opinion, but not altogether in the reasoning, or opinion, of my brother who delivered it. Few minds are accustomed to the same habit of thinking, and our conclusions are most satisfactory to ourselves when arrived at in our own way. *363 I have another reason for expressing my opinion on this occasion. I view this question as one of the most momentous importance; as one which may affect, in its consequences, the permanence of the American union. It presents an instance of collision between the judicial powers of the union, and one of the greatest states in the union, on a point the most delicate and difficult to be adjusted. On the one hand, the general government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers. Force, which acts upon the physical powers of man, or judicial process, which addresses itself to his moral principles or his fears, are the only means to which governments can resort in the exercise of their authority. The former is happily unknown to the genius of our constitution, except as far as it shall be sanctioned by the latter; but let the latter be obstructed in its progress by an opposition which it cannot overcome or put by, and the resort must be to the former, or government is no more. **20 On the other hand, so firmly am I persuaded that the American people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government, nor the proud consciousness of equality and security, any longer than the independence of judicial power shall be maintained consecrated and intangible, that I could

borrow the language of a celebrated orator, and exclaim, ‘I rejoice that Virginia has resisted.’ Yet here I must claim the privilege of expressing *364 my regret, that the opposition of the high and truly respected tribunal of that state had not been marked with a little more moderation. The only point necessary to be decided in the case then before them was, ‘whether they were bound to obey the mandate emanating from this court?’ But in the judgment entered on their minutes, they have affirmed that the case was, in this court, coram non judice, or, in other words, that this court had not jurisdiction over it. This is assuming a truly alarming latitude of judicial power. Where is it to end? It is an acknowledged principle of, I believe, every court in the world, that not only the decisions, but every thing done under the judicial process of courts, not having jurisdiction, are, ipso facto, void. Are, then, the judgments of this court to be reviewed in every court of the union? and is every recovery of money, every change of property, that has taken place under our process, to be considered as null, void, and tortious? We pretend not to more infallibility than other courts composed of the same frail materials which compose this. It would be the height of affectation to close our minds upon the recollection that we have been extracted from the same seminaries in which originated the learned men who preside over the state tribunals. But there is one claim which we can with confidence assert in our own name upon those tribunals—the profound, uniform, and unaffected respect which this court has always exhibited for state decisions, give us strong pretensions to judicial comity. And another claim I may assert, in the name of the American people; in this court, every state in *365 the union is represented; we are constituted by the voice of the union, and when decisions take place, which nothing but a spirit to give ground and harmonize can reconcile, ours is the superor claim upon the comity of the state tribunals. It is the nature of the human mind to press a favourite hypothesis too far, but magnanimity will always be ready to sacrifice the pride of opinion to public welfare. In the case before us, the collision has been, on our part, wholly unsolicited. The exercise of this appellate jurisdiction over the state decisions has long been acquiesced in, and when the writ of error, in this case, was allowed by the president of the court of appeals of Virginia,

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we were sanctioned in supposing that we were to meet with the same acquiescence there. Had that court refused to grant the writ in the first instance, or had the question of jurisdiction, or on the mode of exercising jurisdiction, been made here originally, we should have been put on our guard, and might have so modelled the process of the court as to strip it of the offensive form of a mandate. In this case it might have been brought down to what probably the 25th section of the judiciary act meant it should be, to wit, an alternative judgment, either that the state court may finally proceed, at its option, to carry into effect the judgment of this court, or, if it declined doing so, that then this court would proceed itself to execute it. The language, sense, and operation of the 25th section on this subject, merit particular attention. In the preceding section, which has relation to causes brought up by writ of error from the circuit courts *366 of the United States, this court is instructed not to issue executions, but to send a special mandate to the circuit court to award execution thereupon. In case of the circuit court's refusal to obey such mandate, there could be no doubt as to the ulterior measures; compulsory process might, unquestionably, be resorted to. Nor, indeed, was there any reason to suppose that they ever would refuse; and, therefore, there is no provision made for authorizing this court to execute its own judgment in cases of that description. But not so, in cases brought up from the state courts; the framers of that law plainly foresaw that the state courts might refuse; and not being willing to leave ground for the implication, that compulsory process must be resorted to, because no specific provision was made, they have provided the means, by authorizing this court, in case of reversal of the state decision, to execute its own judgment. In case of reversal only was this necessary; for, in case of affirmance, this collision could not arise. It is true, that the words of this section are, that this court may, in their discretion, proceed to execute its own judgment. But these words were very properly put in, that it might not be made imperative upon this court to proceed indiscriminately in this way; as it could only be necessary in case of the refusal of the state courts; and this idea is fully confirmed by the words of the 13th section, which restrict this court in issuing the writ of mandamus, so as to confine it expressly to those courts which are constituted by the United States. **21 *367 In this point of view the legislature is completely vindicated from all intention to violate the

independence of the state judiciaries. Nor can this court, with any more correctness, have imputed to it similar intentions. The form of the mandate issued in this case is that known to appellate tribunals, and used in the ordinary cases of writs of error from the courts of the United States. It will, perhaps, not be too much, in such cases, to expect of those who are conversant in the forms, fictions, and technicality of the law, not to give the process of courts too literal a construction. They should be considered with a view to the ends they are intended to answer, and the law and practice in which they originate. In this view, the mandate was no more than a mode of submitting to that court the option which the 25th section holds out to them. Had the decision of the court of Virginia been confined to the point of their legal obligation to carry the judgment of this court into effect, I should have thought it unnecessary to make any further observations in this cause. But we are called upon to vindicate our general revising power, and its due exercise in this particular case. Here, that I may not be charged with arguing upon a hypothetical case, it is necessary to ascertain what the real question is which this court is now called to decide on. In doing this, it is necessary to do what, although, in the abstract, of very questionable propriety, appears to be generally acquiesced in, to wit, to review the case as it originally came up to this court *368 on the former writ of error. The cause, then, came up upon a case stated between the parties, and under the practice of that state, having the effect of a special verdict. The case stated brings into view the treaty of peace with Great Britain, and then proceeds to present the various laws of Virginia, and the facts upon which the parties found their respective titles. It then presents no particular question, but refers generally to the law arising out of the case. The original decision was obtained prior to the treaty of 1794, but before the case was adjudicated in this court, the treaty of 1794 had been concluded. The difficulties of the case arise under the construction of the 25th section above alluded to, which, as far as it relates to this case, is in these words: ‘A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had,’ ‘where is drawn in question the construction of any clause of the

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constitution or of a treaty,’ ‘and the decision is against the title set up or claimed by either party under such clause, may be re-examined and reversed, or affirmed.’ ‘But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said treaties,’ &c. **22 The first point decided under this state of the case was, that the judgment being a part of the record, if that judgment was not such as, upon that case, it ought to have been, it was an error apparent on the *369 face of the record. But it was contended that the case there stated presented a number of points upon which the decision below may have been founded, and that it did not, therefore, necessarily appear to have been an error immediately respecting a question on the construction of a treaty. But the court held, that as the reference was general to the law arising out of the case, if one question arose, which called for the construction of a treaty, and the decision negatived the right set up under it, this court will reverse that decision, and that it is the duty of the party who would avoid the inconvenience of this principle, so to mould the case as to obviate the ambiguity. And under this point arises the question whether this court can inquire into the title of the party, or whether they are so restricted in their judicial powers as to be confined to decide on the operation of a treaty upon a title previously ascertained to exist. If there is any one point in the case on which an opinion may be given with confidence, it is this, whether we consider the letter of the statute, or the spirit, intent, or meaning, of the constitution and of the legislature, as expressed in the 27th section, it is equally clear that the title is the primary object to which the attention of the court is called in every such case. The words are, ‘and the decision be against the title,’ so set up, not against the construction of the treaty contended for by the party setting up the title. And how could it be otherwise? The title may exist, notwithstanding the decision of the state courts to the contrary; and in that case the *370 party is entitled to the benefits intended to be secured by the treaty. The decision to his prejudice may have been the result of those very errors, partialities, or defects, in state jurisprudence against which the constitution intended to

protect the individual. And if the contrary doctrine be assumed, what is the consequence? This court may then be called upon to decide on a mere hypothetical case—to give a construction to a treaty without first deciding whether there was any interest on which that treaty, whatever be its proper construction, would operate. This difficulty was felt, and weighed in the case of Smith and the State of Maryland, and that decision was founded upon the idea that this court was not thus restricted. But another difficulty presented itself: the treaty of 1794 had become the supreme law of the land since the judgment rendered in the court below. The defendant, who was at that time an alien, had now become confirmed in his rights under that treaty. This would have been no objection to the correctness of the original judgment. Were we, then, at liberty to notice that treaty in rendering the judgment of this court? **23 Having dissented from the opinion of this court in the original case, on the question of title, this difficulty did not present itself in my way in the view I then took of the case. But the majority of this court determined that, as a public law, the treaty was a part of the law of every case depending in this court; that, as such, it was not necessary that it should be spread upon the record, and that it was obligatory *371 upon this court, in rendering judgment upon this writ of error, notwithstanding the original judgment may have been otherwise unimpeachable. And to this opinion I yielded my hearty consent; for it cannot be maintained that this court is bound to give a judgment unlawful at the time of rendering it, in consideration that the same judgment would have been lawful at any prior time. What judgment can now be lawfully rendered between the parties is the question to which the attention of the court is called. And if the law which sanctioned the original judgment expire, pending an appeal, this court has repeatedly reversed the judgment below, although rendered whilst the law existed. So, too, if the plaintiff in error die, pending suit, and his land descend on an alien, it cannot be contended that this court will maintain the suit in right of the judgment, in favour of his ancestor, notwithstanding his present disability. It must here be recollected, that this is an action of ejectment. If the term formally declared upon expires pending the action, the court will permit the plaintiff to

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amend, by extending the term—why? Because, although the right may have been in him at the commencement of the suit, it has ceased before judgment, and without this amendment he could not have judgment. But suppose the suit were really instituted to obtain possession of a leasehold, and the lease expire before judgment, would the court permit the party to amend in opposition to the right of the case? On the contrary, if the term formally declared on were more extensive than the *372 lease in which the legal title was founded, could they give judgment for more than costs? It must be recollected that, under this judgment, a writ of restitution is the fruit of the law. This, in its very nature, has relation to, and must be founded upon, a present existing right at the time of judgment. And whatever be the cause which takes this right away, the remedy must, in the reason and nature of things, fall with it. When all these incidental points are disposed of, we find the question finally reduced to this—does the judicial power of the United States extend to the revision of decisions of state courts, in cases arising under treaties? But, in order to generalize the question, and present it in the true form in which it presents itself in this case, we will inquire whether the constitution sanctions the exercise of a revising power over the decisions of state tribunals in those cases to which the judicial power of the United States extends? **24 And here it appears to me that the great difficulty is on the other side. That the real doubt is, whether the state tribunals can constitutionally exercise jurisdiction in any of the cases to which the judicial power of the United States extends. Some cession of judicial power is contemplated by the third article of the constitution: that which is ceded can no longer be retained. In one of the circuit courts of the United States, it has been decided (with what correctness I will not say) that the cession of a power to pass an uniform act of bankruptey, although not acted on by the United States, deprives *373 the states of the power of passing laws to that effect. With regard to the admiralty and maritime jurisdiction, it would be difficult to prove that the states could resume it, if the United States should abolish the courts vested with that jurisdiction; yet, it is blended with the other cases of jurisdiction, in the second

section of the third article, and ceded in the same words. But it is contended that the second section of the third article contains no express cession of jurisdiction; that it only vests a power in congress to assume jurisdiction to the extent therein expressed. And under this head arose the discussion on the construction proper to be given to that article. On this part of the case I shall not pause long. The rules of construction, where the nature of the instrument is ascertained, are familiar to every one. To me the constitution appears, in every line of it, to be a contract, which, in legal language, may be denominated tripartite. The parties are the people, the states, and the United States. It is returning in a circle to contend, that it professes to be the exclusive act of the people, for what have the people done but to form this compact? That the states are recognised as parties to it is evident from various passages, and particularly that in which the United States guaranty to each state a republican form of government. The security and happiness of the whole was the object, and, to prevent dissention and collision, each surrendered those powers which might make them dangerous to each other. Well aware of the sensitive *374 irritability of sovereign states, where their wills or interests clash, they placed themselves, with regard to each other, on the footing of sovereigns upon the ocean; where power is mutually conceded to act upon the individual, but the national vessel must remain unviolated. And to remove all ground for jealousy and complaint, they relinquish the privilege of being any longer the exclusive arbiters of their own justice, where the rights of others come in question, or the great interests of the whole may be affected by those feelings, partialities, or prejudices, which they meant to put down for ever. Nor shall I enter into a minute discussion on the meaning of the language of this section. I have seldom found much good result from hypercritical severity, in examining the distinct force of words. Language is essentially defective in precision; more so than those are aware of who are not in the habit of subjecting it to philological analysis. In the case before us, for instance, a rigid construction might be made, which would annihilate the powers intended to be ceded. The words are, ‘shall extend to;’ now that which extends to, does not necessarily include in, so that the circle

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may enlarge until it reaches the objects that limit it, and yet not take them in. But the plain and obvious sense and meaning of the word shall, in this sentence, is in the future sense, and has nothing imperative in it. The language of the framers of the constitution is, ‘We are about forming a general government—when that government is formed, its powers shall extend,’ &c. I therefore see nothing imperative in this clause, and certainly *375 it would have been very unnecessary to use the word in that sense; for, as there was no controlling power constituted, it would only, if used in an imperative sense, have imposed a moral obligation to act. But the same result arises from using it in a future sense, and the constitution everywhere assumes, as a postulate, that wherever power is given it will be used or at least used, as far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least from a sense of duty, and the obligation of an oath. **25 Nor can I see any difference in the effect of the words used in this section, as to the scope of the jurisdiction of the United States' courts over the cases of the first and second description, comprised in that section. ‘Shall extend to controversies,’ appears to me as comprehensive in effect, as ‘shall extend to all cases.’ For, if the judicial power extend ‘to controversies between citizen and alien,’ &c., to what controversies of that description does it not extend? If no case can be pointed out which is excepted, it then extends to all controversies. But I will assume the construction as a sound one, that the cession of power to the general government, means no more than that they may assume the exercise of it whenever they think it advisable. It is clear that congress have hitherto acted under that impression, and my own opinion is in favour of its correctness. But does it not then follow that the jurisdiction of the state court, within the range ceded to the general government, is permitted, and *376 may be withdrawn whenever congress think proper to do so? As it is a principle that every one may renounce a right introduced for his benefit, we will admit that as congress have not assumed such jurisdiction, the state courts may, constitutionally, exercise jurisdiction in such cases. Yet, surely, the general power to withdraw the exercise of it, includes in it the right to modify, limit, and restrain that exercise. ‘This is my domain, put not your foot upon it, if you do, you are subject to my laws, I have

a right to exclude you altogether; I have, then, a right to prescribe the terms of your admission to a participation. As long as you conform to my laws, participate in peace, but I reserve to myself the right of judging how far your acts are conformable to my laws.’ Analogy, then, to the ordinary exercise of sovereign authority, would sustain the exercise of this controlling or revising power. But it is argued that a power to assume jurisdiction to the constitutional extent, does not necessarily carry with it a right to exercise appellate power over the state tribunals. This is a momentous questions, and one on which I shall reserve myself uncommitted for each particular case as it shall occur. It is enough, at present, to have shown that congress has not asserted, and this court has not attempted, to exercise that kind of authority in personam over the state courts which would place them in the relation of an inferior responsible body without their own acquiescence. And I have too much confidence in the state tribunals to believe that a case ever will occur in which it will be necessary *377 for the general government to assume a controlling power over these tribunals. But is it difficult to suppose a case which will call loudly for some remedy or restraint? Suppose a foreign minister, or an officer, acting regularly under authority from the United States, seized to-day, tried to-morrow, and hurried the next day to execution. Such cases may occur, and have occurred, in other countries. The angry vindictive passions of men have too often made their way into judicial tribunals, and we cannot hope for ever to escape their baleful influence. In the case supposed, there ought to be a power somewhere to restrain or punish, or the union must be dissolved. At present the uncontrollable exercise of criminal jurisdiction is most securely confided to the state tribunals. The courts of the United States are vested with no power to scrutinize into the proceedings of the state courts in criminal cases; on the contrary, the general government has, in more than one instance, exhibited their confidence, by a wish to vest them with the execution of their own penal law. And extreme, indeed, I flatter myself, must be the case in which the general government could ever be induced to assert this right. If ever such a case should occur, it will be time enough to decide upon their constitutional power to do so.

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**26 But we know that by the 3d article of the constitution, judicial power, to a certain extent, is vested in the general government, and that by the same instrument, power is given to pass all laws necessary to carry into effect the provisions of the constitution. At present it is only necessary to vindicate the *378 laws which they have passed affecting civil cases pending in state tribunals. In legislating on this subject, congress, in the true spirit of the constitution, have proposed to secure to every one the full benefit of the constitution, without forcing any one necessarily into the courts of the United States. With this view, in one class of cases, they have not taken away absolutely from the state courts all the cases to which their judicial power extends, but left it to the plaintiff to bring his action there, originally, if he choose, or to the defendant to force the plaintiff into the courts of the United States where they have jurisdiction, and the former has instituted his suit in the state courts. In this case they have not made it legal for the defendant to plead to the jurisdiction; the effect of which would be to put an end to the plaintiff's suit, and oblige him, probably at great risk or expense, to institute a new action; but the act has given him a right to obtain an order for a removal, on a petition to the state court, upon which the cause, with all its existing advantages, is transferred to the circuit court of the United States. This, I presume, can be subject to no objection; as the legislature has an unquestionable right to make the ground of removal a ground of plea to the jurisdiction, and the court must then do no more than it is now called upon to do, to wit, give an order or a judgment, or call it what we will, in favour of that defendant. And so far from asserting the inferiority of the state tribunal, this act is rather that of a superior, inasmuch as the circuit court of the United States becomes bound, *379 by that order, to take jurisdiction of the case. This method, so much more unlikely to affect official delicacy than that which is resorted to in the other class of cases, might, perhaps, have been more happily applied to all the cases which the legislature thought it advisable to remove from the state courts. But the other class of cases, in which the present is included, was proposed to be provided for in a different manner. And here, again, the legislature of the union evince their confidence in the state tribunals; for they do not attempt to give original cognizance to their own circuit courts of such cases, or to remove them by

petition and order; but still believing that their decisions will be generally satisfactory, a writ of error is not given immediately as a question within the jurisdiction of the United States shall occur, but only in case the decision shall finally, in the court of the last resort, be against the title set up under the constitution, treaty, &c. In this act I can see nothing which amounts to an assertion of the inferiority or dependence of the state tribunals. The presiding judge of the state court is himself authorized to issue the writ of error, if he will, and thus give jurisdiction to the supreme court: and if he thinks proper to decline it, no compulsory process is provided by law to oblige him. The party who imagines himself aggrieved is then at liberty to apply to a judge of the United States, who issues the writ of error, which (whatever the form) is, in substance, no more than a mode of compelling the opposite party to appear before this court, and maintain the legality of his judgment obtained before the *380 state tribunal. An exemplification of a record is the common property of every one who chooses to apply and pay for it, and thus the case and the parties are brought before us; and so far is the court itself from being brought under the revising power of this court, that nothing but the case, as presented by the record and pleadings of the parties, is considered, and the opinions of the court are never resorted to unless for the purpose of assisting this court in forming their own opinions. **27 The absolute necessity that there was for congress to exercise something of a revising power over cases and parties in the state courts, will appear from this consideration. Suppose the whole extent of the judicial power of the United States vested in their own courts, yet such a provision would not answer all the ends of the constitution, for two reasons: 1st. Although the plaintiff may, in such case, have the full benefit of the constitution extended to him, yet the defendant would not; as the plaintiff might force him into the court of the state at his election. 2dly. Supposing it possible so to legislate as to give the courts of the United States original jurisdiction in all cases arising under the constitution, laws, &c., in the words of the 2d section of the 3d article, (a point on which

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I have some doubt, and which in time might, perhaps, under some quo minus fiction, or a willing construction, greatly accumulate the jurisdiction of those courts,) yet a very large class of cases would remain unprovided for. Incidental questions would often arise, and as a court of competent *381 jurisdiction in the principal case must decide all such questions, whatever laws they arise under, endless might be the diversity of decisions throughout the union upon the constitution, treaties, and laws, of the United States; a subject on which the tranquillity of the union, internally and externally, may materially depend. I should feel the more hesitation in adopting the opinions which I express in this case, were I not firmly convinced that they are practical, and may be acted upon without compromitting the harmony of the union, or bringing humility upon the state tribunals. God forbid that the judicial power in these states should ever, for a moment, even in its humblest departments, feel a doubt of its own independence. Whilst adjudicating on a subject which the laws of the country assign finally to the revising power of another tribunal, it can feel no such doubt. An anxiety to do justice is ever relieved by the knowledge that what we do is not final between the parties. And no sense End of Document

of dependence can be felt from the knowledge that the parties, not the court, may be summoned before another tribunal. With this view, by means of laws, avoiding judgments obtained in the state courts in cases over which congress has constitutionally assumed jurisdiction, and inflicting penalties on parties who shall contumaciously persist in infringing the constitutional rights of others— under a liberal extension of the writ of injunction and the habeas corpus ad subjiciendum, I flatter myself that the full extent of the constitutional revising power may be secured to the United States, and the *382 benefits of it to the individual, without ever resorting to compulsory or restrictive process upon the state tribunals; a right which, I repeat again, congress has not asserted, nor has this court asserted, nor does there appear any necessity for asserting. **28 The remaining points in the case being mere questions of practice, I shall make no remarks upon them. Judgment affirmed. All Citations 14 U.S. 304, 1816 WL 1721, 4 L.Ed. 97, 1 Wheat. 304

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M'Culloch v. State, 17 U.S. 316 (1819) 4 L.Ed. 579, 4 Wheat. 316, 4 A.F.T.R. 4491, 42 Cont.Cas.Fed. (CCH) P 77,296

KeyCite Yellow Flag - Negative Treatment Superseded by Constitutional Amendment as Stated in Bar v. Behm, Fla., July 1, 2010

The Florida  

17 U.S. 316 Supreme Court of the United States M'CULLOCH v. STATE OF MARYLAND et al. February Term, 1819 Opinion **1 United States Bank.—Implied power.—Taxing power.

If a certain means to carry into effect any of the powers, expressly given by the constitution to the government of the Union, be an appropriate measure, not prohibited by the consitution, the degree of its necessity is a question of legislative discretion, not of judicial cognisance. The act of the 10th April 1816, c. 44, to ‘incorporate the subseribers to the Bank of the United States,’ is a law made in pursuance of the constitution. The bank of the United States has, constitutionally, a right to establish its branches or offices of discount and deposit within any state. The state, within which such branch may be established, cannot, without violating the constitution, tax that branch.

Congress has power to incorporate a bank.

The state governments have no right to tax any of the constitutional means employed by the government of the

The government of the Union is a government of the people; it emanates from them; its powers are granted by them; and are to be exercised directly on them, and for their benefit.

Union to execute its constitutional powers. 2

The government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the constitution, form the supreme law of the land. There is nothing in the constitution of the United States, similar to the articles of confederation, which excludes incidental or implied powers. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted that end, and which are not prohibited, may constitutionally be employed to carry it into effect. 1 The power of establishing a corporation is not a distinct sovereign power or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the government of the Union, it may be exercised by that government.

ERROR to the Court of Appeals of the State of Maryland. This was an action of debt, brought by the defendant in error, John James, who sued as well for himself as for the state of Maryland, in the county court of Baltimore county, in the said state, against the plaintiff in error, McCulloch, to recover certain penalties, under the act of the legislature of Maryland, hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement of facts, agreed and submitted to the court by the parties, was affirmed by the court of appeals of the state of Maryland, the highest court of law of said state, and the cause was brought, by writ of error, to this court. It is admitted by the parties in this cause, by their counsel, that there was passed, on the 10th day of April 1816, by the congress of the United States, an act, entitled, ‘an act to incorporate the subscribers to the Bank of the United States;’ and that there was passed on the 11th day of February 1818, by the general assembly of Maryland, an act, entitled, ‘an act to impose a tax on all banks, or branches thereof, in the state of Maryland, not chartered by the legislature,’ *318 which said acts are made part of this statement, and it is agreed, may be read from the statute books in which they are respectively printed.

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It is further admitted, that the president, directors and company of the Bank of the United States, incorporated by the act of congress aforesaid, did organize themselves, and go into full operation, in the city of Philadelphia, in the state of Pennsylvania, in pursuance of the said act, and that they did on the ___ day of _____ 1817, establish a branch of the said bank, or an office of discount and deposit, in the city of Baltimore, in the state of Maryland, which has, from that time, until the first day of May 1818, ever since transacted and carried on business as a bank, or office of discount and deposit, and as a branch of the said Bank of the United States, by issuing banknotes and discounting promissory notes, and performing other operations usual and customary for banks to do and perform, under the authority and by the direction of the said president, directors and company of the Bank of the United States, established at Philadelphia as aforesaid. It is further admitted, that the said president, directors and company of the said bank, had no authority to establish the said branch, or office of discount and deposit, at the city of Baltimore, from the state of Maryland, otherwise than the said state having adopted the constitution of the United States and composing one of the states of the Union. It is further admitted, that James William McCulloch, the defendant below, being the cashier of the said branch, or office of discount and *319 deposit, did, on the several days set forth in the declaration in this cause, issue the said respective bank-notes therein described, from the said branch or office, to a certain George Williams, in the city of Baltimore, in part payment of a promissory note of the said Williams, discounted by the said branch or office, which said respective bank-notes were not, nor was either of them, so issued, on stamped paper, in the manner prescribed by the act of assembly aforesaid. It is further admitted, that the said president, directors and company of the Bank of the United States, and the said branch, or office of discount and deposit, have not, nor has either of them, paid in advance, or otherwise, the sum of $15,000, to the treasurer of the Western Shore, for the use of the state of Maryland, before the issuing of the said notes, or any of them, nor since those periods. And it is further admitted, that the treasurer of the Western Shore of Mayland, under the direction of the governor and council of the said state, was ready, and offered to deliver to the said president, directors and company of the said bank, and to the said branch, or office of discount and deposit, stamped paper of the kind and

denomination required and described in the said act of assembly. **2 The question submitted to the court for their decision in this case, is, as to the validity of the said act of the general assembly of Maryland, on the ground of its being repugnant to the constitution of the United States, and the act of congress aforesaid, or to one of them. Upon the foregoing statement of facts, and the pleadings in this cause (all errors in *320 which are hereby agreed to be mutually released), if the court should be of opinion, that the plaintifis are entitled to recover, then judgment, it is agreed, shall be entered for the plaintiffs for $2500, and costs of suit. But if the court should be of opinion, that the plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment of non pros shall be entered, with costs to the defendant. It is agreed, that either party may appeal from the decision of the county court, to the court of appeals, and from the decision of the court of appeals to the supreme court of the United States, according to the modes and usages of law, and have the same benefit of this statement of facts, in the same manner as could be had, if a jury had been sworn and impannelled in this cause, and a special verdict had been found, or these facts had appeared and been stated in an exception taken to the opinion of the court, and the court's direction to the jury thereon. Copy of the act of the Legislature of the State of Maryland, referred to in the preceding statement. An act to impose a tax on all banks or branches thereof, in the state of Maryland, not chartered by the legislature. Be it enacted by the general assembly of Maryland, that if any bank has established, or shall, without authority from the state first had and obtained, establish any branch, office of discount and *321 deposit, or office of pay and receipt in any part of this state, it shall not be lawful for the said branch, office of discount and deposit, or office of pay and receipt, to issue notes, in any manner, of any other denomination than five, ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and no note shall be issued, except upon stamped paper of the following denominations; that is to say, every five dollar note shall be upon a stamp of ten cents; every ten dollar note, upon a stamp of twenty cents; every twenty dollar

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note, upon a stamp of thirty cents; every fifty dollar note, upon a stamp of fifty cents; every one hundred dollar note, upon a stamp of one dollar; every five hundred dollar note, upon a stamp of ten dollars; and every thousand dollar note, upon a stamp of twenty dollars; which paper shall be furnished by the treasurer of the Western Shore, under the direction of the governor and council, to be paid for upon delivery; provided always, that any institution of the above description may relieve itself from the operation of the provisions aforesaid, by paying annually, in advance, to the treasurer of the Western Shore, for the use of state, the sum of $15,000. **3 And be it enacted, that the president, cashier, each of the directors and officers of every institution established, or to be established as aforesaid, offending against the provisions aforesaid, shall forfeit a sum of $500 for each and every offence, and every person having any agency in circulating any note aforesaid, not stamped as aforesaid directed, shall forfeit a sum not exceeding $100 *322 every penalty aforesaid, to be recovered by indictment, or action of debt, in the county court of the county where the offence shall be committed, one-half to the informer, and the other half to the use of the state. And be it enacted, that this act shall be in full force and effect from and after the first day of May next. *317 The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into effect the powers vested in the national government. This principle does not extend to a tax paid by the real property of the Bank of the United States, in common with the other real property in a particular state, nor to a tax imposed on the proprietary interest which the citizens of that state may hold in this institution, in common with other property of the same description throughout the state. February 22d–27th, and March 1st–3d. Webster, for the plaintiff in error, 3 stated: 1. That the question whether congress constitutionally possesses the power to incorporate a bank, might be raised upon this

record; and it was in the discretion of the defendant's counsel to agitate it. But it might have been hoped, that it was not now to be considered as an open question. It is a question of the utmost magnitude, deeply interesting to the government itself, as well as to individuals. The mere discussion of such a question may most essentially affect the value of a vast amount of private property. We are bound to suppose, that the defendant in error is well aware of these consequences, and would not have intimated an intention to agitate such a question, but with a real design to make it a topic of serious discussion, and with a view of demanding upon it the solemn judgment of this court. This *323 question arose early after the adoption of the constitution, and was discussed and settled, so far as legislative decision could settle it, in the first congress. The arguments drawn from the constitution, in favor of this power, were stated and exhausted in that discussion. They were exhibited, with characteristic perspicuity and force, by the first secretary of the treasury, in his report to the president of the United States. The first congress created and incorporated a bank. Act of 5th February 1791, ch. 84. Nearly each succeeding congress, if not every one, has acted and legislated on the presumption of the legal existence of such a power in the government. Individuals, it is true, have doubted, or thought otherwise; but it cannot be shown, that either branch of the legislature has, at any time, expressed an opinion against the existence of the power. The executive government has acted upon it; and the courts of law have acted upon it. Many of those who doubted or denied the existence of the powers, when first attempted to be exercised, have yielded to the first decision, and acquiesced in it, as a settled question. When all branches of the government have thus been acting on the existence of this power, nearly thirty years, it would seem almost too late to call it in question, unless its repugnancy with the constitution were plain and manifest. Congress, by the constitution, is invested with certain powers; and as to the objects, and within the scope of these powers, it is sovereign. Even without the aid of the general clause in the constitution, *324 empowering congress to pass all necessary and proper laws for carrying its powers into execution, the grant of powers itself necessarily implies the grant of all usual and suitable means for the execution of the powers granted. Congress may declare war; it may consequently carry on war, by armies and navies, and other suitable means and methods of warfare. So, it has power to raise a revenue, and to apply it in the

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support of the government, and defence of the country; it may, of course, use all proper and suitable means, not specially prohibited, in the raising and disbursement of the revenue. And if, in the progress of society and the arts, new means arise, either of carrying on war, or of raising revenue, these new means doubtless would be properly considered as within the grant. Steam-frigates, for example, were not in the minds of those who framed the constitution, as among the means of naval warfare; but no one doubts the power of congress to use them, as means to an authorized end. It is not enough to say, that it does not appear that a bank was not in the contemplation of the framers of the constitution. It was not their intention, in these cases, to enumerate particulars. The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited. Congress is authorized to pass all laws ‘necessary and proper’ to carry into execution the powers conferred on it. These words, ‘necessary and proper,’ in such an instrument, are probably to be considered as synonymous. Necessarily, powers must here intend such powers as are suitable and *325 fitted to the object; such as are best and most useful in relation to the end proposed. If this be not so, and if congress could use no means but such as were absolutely indispensable to the existence of a granted power, the government would hardly exist; at least, it would be wholly inadequate to the purposes of its formation. A bank is a proper and suitable instrument to assist the operations of the government, in the collection and disbursement of the revenue; in the occasional anticipations of taxes and imposts; and in the regulation of the actual currency, as being a part of the trade and exchange between the states. It is not for this court to decide, whether a bank, or such a bank as this, be the best possible means to aid these purposes of government. Such topics must be left to that discussion which belongs to them, in the two houses of congress. Here, the only question is, whether a bank, in its known and ordinary operations, is capable of being so connected with the finances and revenues of the government, as to be fairly within the discretion of congress, when selecting means and instruments to execute its powers and perform its duties. A bank is not less the proper subject for the choice of congress, nor the less constitutional, because it requires to be executed by granting a charter of incorporation. It is not, of itself, unconstitutional in congress to create a corporation. Corporations are but means. They are

not ends and objects of government. No government exists for the purpose of creating corporations as one of the ends of its being. They are institutions established to effect certain beneficial purposes; *326 and, as means, take their character generally from their end and object. They are civil or eleemosynary, public or private, according to the object intended by their creation. They are common means, such as all governments use. The state governments create corporations to execute powers confided to their trust, without any specific authority in the state constitutions for that purpose. There is the same reason that congress should exercise its discretion as to the means by which it must execute the powers conferred upon it. Congress has duties to perform and powers to execute. It has a right to the means by which these duties can be properly and most usefully performed, and these powers executed. Among other means, it has established a bank; and before the act establishing it can be pronounced unconstitutional and void, it must be shown, that a bank has no fair connection with the execution of any power or duty of the national government, and that its creation is consequently a manifest usurpation. **4 2. The second question is, whether, if the bank be constitutionally created, the state governments have power to tax it? The people of the United States have seen fit to divide sovereignty, and to establish a complex system. They have conferred certain powers on the state governments, and certain other powers on the national government. As it was easy to foresee that question must arise between these governments thus constituted, it became of great moment to determine, upon what principle these questions should be decided, and who should decide them. The constitution, therefore, declares, that the *327 constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall control all state legislation and state constitutions, which may be incompatible therewith; and it confides to this court the ultimate power of deciding all questions arising under the constitution and laws of the United States. The laws of the United States, then, made in pursuance of the constitution, are to be the supreme law of the land, anything in the laws of any state to the contrary notwithstanding. The only inquiry, therefore, in this case is, whether the law of the state of Maryland imposing this tax be consistent with the free operation of the law establishing the bank, and the full enjoyment of

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the privileges conferred by it? If it be not, then it is void; if it be, then it may be valid. Upon the supposition, that the bank is constitutionally created, this is the only question; and this question seems answered, as soon as it is stated. If the states may tax the bank, to what extent shall they tax it, and where shall they stop? An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation. A question of constitutional power can hardly be made to depend on a question of more or less. If the states may tax, they have no limit but their discretion; and the bank, therefore, must depend on the discretion of the state governments for its existence. This consequence is inevitable. The object in laying this tax, may have been revenue to the state. In the next case, the object may be to expel the bank from the state; but *328 how is this object to be ascertained, or who is to judge of the motives of legislative acts? The government of the United States has itself a great pecuniary interest in this corporation. Can the states tax this property? Under the confederation, when the national government, not having the power of direct legislation, could not protect its own property by its own laws, it was expressly stipulated, that ‘no impositions, duties or restrictions should be laid by any state on the property of the United States.’ Is it supposed, that property of the United States is now subject to the power of the state governments, in a greater degree than under the confederation? If this power of taxation be admitted, what is to be its limit? The United States have, and must have, property locally existing in all the states; and may the states impose on this property, whether real or personal, such taxes as they please? Can they tax proceedings in the federal courts? If so, they can expel those judicatures from the states. As Maryland has undertaken to impose a stamp-tax on the notes of this bank, what hinders her from imposing a stamp-tax also on permits, clearances, registers and all other documents connected with imposts and navigation? If, by one, she can suspend the operations of the bank, by the other, she can equally well shut up the custom-house. The law of Maryland, in question, makes a requisition. The sum called for is not assessed on property, nor deducted from profits or income. It is a direct imposition on the power, privilege or franchise of the corporation. The act purports, also, to restrain *329 the circulation of the paper of the bank to bills of certain descriptions. It narrows and abridges the powers of the bank in a manner which, it would seem, even congress

could not do. This law of Maryland cannot be sustained, but upon principles and reasoning which would subject every important measure of the national government to the revision and control of the state legislatures. By the charter. the bank is authorized to issue bills of any demonination above five dollars. The act of Maryland purports to restrain and limit their powers in this respect. The charter, as well as the laws of the United States, makes it the duty of all collectors and receivers to receive the notes of the bank in payment of all debts due the government. The act of Maryland makes it penal, both on the person paying and the person receiving such bills, until stamped by the authority of Maryland. This is a direct interference with the revenue. The legislature of Maryland might, with as much propriety, tax treasurynotes. This is either an attempt to expel the bank from the state; or it is an attempt to raise a revenue for state purposes, by an imposition on property and franchises holden under the national government, and created by that government, for purposes connected with its own administration. In either view, there cannot be a clearer case of interference. The bank cannot exist, nor can any bank established by congress exist, if this right to tax it exists in the state governments. One or the other must be surrendered; and a surrender on the part of the government of the United States would be a giving *330 up of those fundamental and essential powers without which the government cannot be maintained. A bank may not be, and is not, absolutely essential to the existence and preservation of the government. But it is essential to the existence and preservation of the government, that congress should be able to exercise its constitutional powers, at its own discretion, without being subject to the control of state legislation. The question is not, whether a bank be necessary or useful, but whether congress may not constitutionally judge of that necessity or utility; and whether, having so judged and decided, and having adopted measures to carry its decision into effect, the state governments may interfere with that decision, and defeat the operation of its measures. Nothing can be plainer than that, if the law of congress, establishing the bank, be a constitutional act, it must have its full and complete effects. Its operation cannot be either defeated or impeded by acts of state legislation. To hold otherwise, would be to declare, that congress can only exercise its constitutional powers, subject to the controlling discretion, and under the sufferance, of the state governments.

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**5 Hopkinson, for the defendants in error, proposed three questions for the consideration of the court. 1. Had congress a constitutional power to incorporate the bank of the United States? 2. Granting this power to congress, has the bank, of its own authority, a right to establish its branches in the several states? 3. Can the bank, and its branches thus established, claim to be exempt from the ordinary *331 and equal taxation of property, as assessed in the states in which they are placed? 1. The first question has, for many years, divided the opinions of the first men of our country. He did not mean to controvert the arguments by which the bank was maintained, on its original establishment. The power may now be denied, in perfect consistency with those arguments. It is agreed, that no such power is expressly granted by the constitution. It has been obtained by implication; by reasoning from the 8th section of the 1st article of the constitution; and asserted to exist, not of and by itself, but as an appendage to other granted powers, as necessary to carry them into execution. If the bank be not ‘necessary and proper’ for this purpose, it has no foundation in our constitution, and can have no support in this court. But it strikes us, at once, that a power, growing out of a necessity which may not be permanent, may also not be permanent. It has relation to circumstances which change; in a state of things which may exist at one period, and not at another. The argument might have been perfectly good, to show the necessity of a bank, for the operations of the revenue, in 1791, and entirely fail now, when so many facilities for money transactions abound, which were wanting then. That some of the powers of the constitution are of this fluctuating character, existing, or not, according to extraneous circumstances, has been fully recognised by this court at the present term, in the case of Sturges v. Crowninshield (ante, p. 122). Necessity was the plea and justification *332 of the first Bank of the United States. If the same necessity existed, when the second was established, it will afford the same justification; otherwise, it will stand without justification, as no other is pretended. We cannot, in making this inquiry, take a more fair and liberal test, than the report of General Hamilton, the father and defender of this power. The uses and advantages he states, as making up the necessity required by the constitution, are three. 1st. The augmentation of the active and productive capital of the country, by

making gold and silver the basis of a paper circulation. 2d. Affording greater facility to the government, in procuring pecuniary aids; especially, in sudden emergencies; this, he says, is an indisputable advantage of public banks. 3d. The facility of the payment of taxes, in two ways; by loaning to the citizen, and enabling him to be punctual; and by increasing the quantity of circulating medium, and quickening circulation by bank-bills, easily transmitted from place to place. If we admit, that these advantages or conveniences amount to the necessity required by the constitution, for the creation and exercise of powers not expressly given; yet it is obvious, they may be derived from any public banks, and do not call for a Bank of the United States, unless there should be no other public banks, or not a sufficiency of them for these operations. In 1791, when this argument was held to be valid and effectual, there were but three banks in the United States, with limited capitals, and contracted spheres of operation. Very different is the case now, when we have a banking capital to a vast amount, vested in *333 banks of good credit, and so spread over the country, as to be convenient and competent for all the purposes enumerated in the argument. General Hamilton, conscious that his reasoning must fail, if the state banks were adequate for his objects, proceeds to show they were not. Mr. Hopkinson particularly examined all the objections urged by General Hamilton, to the agency of the state banks, then in existence, in the operations required for the revenue; and endeavored to show, that they had no application to the present number, extent and situation of the state banks; relying only on those of a sound and unquestioned credit and permanency. He also contended, that the experience of five years, since the expiration of the old charter of the Bank of the United States, has fully shown the competency of the state banks, to all the purposes and uses alleged as reasons for erecting that bank, in 1791. The loans to the government by the state banks, in the emergencies spoken of; the accommodation to individuals, to enable them to pay their duties and taxes; the creation of a circulating currency; and the facility of transmitting money from place to place, have all been effected, as largely and beneficially, by the state banks, as they could have been done by a bank incorporated by congress. The change in the country, in relation to banks, and an experience that was depended upon, concur in proving, that whatever might have been

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the truth and force of the bank argument in 1791, they were wholly wanting in 1816. **6 *334 2. If this Bank of the United States has been lawfully created and incorporated, we next inquire, whether it may, of its own authority, establish its branches in the several states, without the direction of congress, or the assent of the states? It is true, that the charter contains this power, but this avails nothing, if not warranted by the constitution. This power to establish branches, by the directors of the bank, must be maintained and justified, by the same necessity which supports the bank itself, or it cannot exist. The power derived from a given necessity, must be coextensive with it, and no more. We will inquire, 1st. Does this necessity exist in favor of the branches? 2d. Who should be the judge of the necessity, and direct the manner and extent of the remedy to be applied? Branches are not necessary for any of the enumerated advantages. Not for pecuniary aids to the government; since the ability to afford them must be regulated by the strength of the capital of the parent bank, and cannot be increased by scattering and spreading that capital in the branches. Nor are they necessary to create a circulating medium; for they create nothing; but issue paper on the faith and responsibility of the parent bank, who could issue the same quantity, on the same foundation; the distribution of the notes of the parent bank can as well be done, and in fact, is done, by the state banks. Where, then, is that necessity to be found for the branches, whatever may be allowed to the bank itself? It is undoubtedly true, that these branches are established with a single view to trading, and the profit of the stockholders, and not for the convenience *335 or use of the government; and therefore, they are located at the will of the directors, who represent and regard the interests of the stockholders, and are such themselves. If this is the case, can it be contended, that the state rights of territory and taxation are to yield for the gains of a money-trading corporation; to be prostrated at the will of a set of men who have no concern, and no duty but to increase their profits? Is this the necessity required by the constitution for the creation of undefined powers? It is true, that, by the charter, the government may require a branch in any place it may designate, but if this power is given only for the uses or necessities of the government, then the government only should have the power to order it. In truth, the directors have exercised the power, and they hold it, without any

control from the government of the United States; and, as is now contended, without any control of the state governments. A most extravagant power to be vested in a body of men, chosen annually by a very small portion of our citizens, for the purpose of loaning and trading with their money to the best advantage! A state will not suffer its own citizens to erect a bank, without its authority, but the citizens of another state may do so; for it may happen that the state thus used by the bank for one of its branches, does not hold a single share of the stock. 2d. But if these branches are to be supported, on the ground of the constitutional necessity, and they can have no other foundation, the question occurs, who should be the judge of the existence of the necessity, in any proposed case; of the when and the where the power *336 shall be exercised, which the necessity requires? Assuredly, the same tribunal which judges of the original necessity on which the bank is created, should also judge of any subsequent necessity requiring the extension of the remedy. Congress is that tribunal; the only one in which it may be safely trusted; the only one in which the states to be affected by the measure, are all fairly represented. If this power belongs to congress, it cannot be delegated to the directors of a bank, any more than any other legislative power may be transferred to any other body of citizens: if this doctrine of necessity is without any known limits, but such as those who defend themselves by it, may choose, for the time, to give it; and if the powers derived from it, are assignable by the congress to the directors of a bank; and by the directors of the bank to anybody else; we have really spent a great deal of labor and learning to very little purpose, in our attempt to establish a form of government in which the powers of those who govern shall be strictly defined and controlled; and the rights of the government secured from the usurpations of unlimited or unknown powers. The establishment of a bank in a state, without its assent; without regard to its interests, its policy or institutions, is a higher exercise of authority, than the creation of the parent bank; which, if confined to the seat of the government, and to the purposes of the government, will interfere less with the rights and policy of the states, than those wide-spreading branches, planted everywhere, and influencing all the business of the community. Such an exercise of *337 sovereign power, should, at least, have the sanction of the sovereign legislature, to vouch that the good of the whole requires it, that the necessity exists which justifies it. But will it be

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tolerated, that twenty directors of a trading corporation, having no object but profit, shall, in the pursuit of it, tread upon the sovereignity of the state; enter it, without condescending to ask its leave; disregard, perhaps, the whole system of its policy; overthrow its institutions, and sacrifice its interests? **7 3. If, however, the states of this Union have surrendered themselves in this manner, by implication, to the congress of the United States, and to such corporations as the congress, from time to time, may find it ‘necessary and proper’ to create; if a state may no longer decide, whether a trading association, with independent powers and immunities, shall plant itself in its territory, carry on its business, make a currency and trade on its credit, raising capitals for individuals as fictitious as its own; if all this must be granted, the third and great question in this cause presents itself for consideration; that is, shall this association come there with rights of sovereignty, paramount to the sovereignty of the state, and with privileges possessed by no other persons, corporations or property in the state? in other words, can the bank and its branches, thus established, claim to be exempt from the ordinary and equal taxation of property, as assessed in the states in which they are placed? As this overwhelming invasion of state sovereignty is not warranted by any express clause or grant in the constitution, and never was *338 imagined by any state that adopted and ratified that constitution, it will be conceded, that it must be found to be necessarily and indissolubly connected with the power to establish the bank, or it must be repelled. The court has always shown a just anxiety to prevent any conflict between the federal and state powers; to construe both so as to avoid an interference, if possible, and to preserve that harmony of action in both, on which the prosperity and happiness of all depend. If, therefore, the right to incorporate a national bank may exist, and be exercised consistently with the right of the state, to tax the property of such bank within its territory, the court will maintain both rights; although some inconvenience or diminution of advantage may be the consequence. It is not for the directors of the bank to say, you will lessen our profits by permitting us to be taxed; if such taxation will not deprive the government of the uses it derives from the agency and operations of the bank. The necessity of the government is the foundation of the charter; and

beyond that necessity, it can claim nothing in derogation of state authority. If the power to erect this corporation were expressly given in the constitution, still, it would not be construed to be an exclusion of any state right, not absolutely incompatible and repugnant. The states need no reservation or acknowledgment of their right; all remain that are not expressly prohibited, or necessarily excluded; and this gives our opponents the broadest ground they can ask. The right now assailed by the bank, is the right of taxing property within the territory of *339 This is the highest attribute of sovereignty, the right to raise revenue; in fact, the right to exist; without which no other right can be held or enjoyed. The general power to tax is not denied to the states, but the bank claims to be exempted from the operation of this power. If this claim is valid, and to be supported by the court, it must be, either, 1. From the nature of the property: 2. Because it is a bank of the United States: 3. From some express provision of the constitution: or 4. Because the exemption is indispensably necessary to the exercise of some power granted by the constitution. **8 1st. There is nothing in the nature of the property of bank-stock that exonerates it from taxation. It has been taxed, in some form, by every state in which a bank has been incorporated; either annually and directly, or by a gross sum paid for the charter. The United States have not only taxed the capital or stock of the state banks, but their business also, by imposing a duty on all notes discounted by them. The bank paid a tax for its capital; and exery man who deals with the bank, by borrowing, paid another tax for the portion of the same capital he borrowed. This species of property, then, so far from having enjoyed any exemption from the calls of the revenue, has been particularly burdened; and been thought a fair subject of taxation both by the federal and state governments. 2d. Is it then exempt, as being a bank of the United States? How is it such? In name only. Just as the Bank of Pennsylvania, or the Bank of Maryland, *340 are banks of those states. The property of the bank, real or personal, does not belong to the United States only, as a stockholder, and as any other stockholders. The United States might have the same interest in any other bank, turnpike or canal company. So far as they hold stock, they have a property in the institution, and no further; so long, and no longer. Nor is the direction and management

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of the bank under the control of the United States. They are represented in the board by the directors appointed by them, as the other stockholders are represented by the directors they elect. A director of the government has no more power or right than any other director. As to the control the government may have over the conduct of the bank, by its patronage and deposits, it is precisely the same it might have over any other bank, to which that patronage would be equally important. Strip it of its name, and we find it to be a mere association of individuals, putting their money into a common stock, to be loaned for profit, and to divide the gains. The government is a partner in the firm, for gain also; for, except a participation of the profits of the business, the government could have every other use of the bank, without owning a dollar in it. It is not, then, a bank of the United States, if by that we mean, an institution belonging to the government, directed by it, or in which it has a permanent, indissoluble interest. The convenience it affords in the collection and distribution of the revenue, is collateral, secondary, and may be transferred at pleasure to any other bank. It forms no part of the construction *341 or character of this bank; which, as to all its rights and powers, would be exactly what it now is, if the government was to seek and obtain all this convenience from some other source; if the government were to withdraw its patronage, and sell out its stock. How, then, can such an institution claim the immunities of sovereignty; nay, that sovereignty does not possess? for a sovereign who places his property in the territory of another sovereign, submits it to the demands of the revenue, which are but justly paid, in return for the protection afforded to the property. General Hamilton, in his report on this subject, so far from considering the bank a public institution, connected with, or controlled by, the government, holds it to be indispensable that it should not be so. It must be, says he, under private, not public, direction; under the guidance of individual interest, not public policy. Still, he adds, the state may be holder of part of its stock; and consequently (what? it becomes a public property? no!), a sharer of the profits. He traces no other consequenee to that circumstance. No rights are founded on it; no part of its utility or necessity arises from it. Can an institution, then, purely private, and which disclaims any public character, be clothed with the power and rights of the government, and demand subordination from the state government, in virtue of the federal authority, which it undertakes to wield at its own will and pleasure? Shall it

be private, in its direction and interests; public, in its rights and privileges: a trading money-lender, in its business; an uncontrolled sovereign, in its powers? If the whole bank, with all its property and business, *342 belonged to the United States, it would not, therefore, be exempted from the taxation of the states. To this purpose, the United States and the several states must be considered as sovereign and independent; and the principle is clear, that a sovereign putting his property within the territory and jurisdiction of another sovereign, and of course, under his protection, submits it to the ordinary taxation of the state, and must contribute fairly to the wants of the revenue. In other words, the jurisdiction of the state extends over all its territory, and everything within or upon it, with a few known exceptions. With a view to this principle, the constitution has provided for those cases in which it was deemed necessary and proper to give the United States jurisdiction within a state, in exclusion of the state authority; and even in these cases, it will be seen, it cannot be done, without the assent of the state. For a seat of government, for forts, arsenals, dock-yards, &c., the assent of the state to surrender its jurisdiction is required; but the bank asks no consent, and is paramount to all state authority, to all the rights of territory, and demands of the public revenue. We have not been told, whether the banking-houses of this corporation, and any other real estate it may acquire, for the accommodation of its affairs, are also of this privileged order of property. In principle, it must be the same; for the privilege, if it exists, belongs to the corporation, and must cover equally all its property. It is understood, that a case was lately decided by the supreme court of Pennsylvania, and from which no appeal has been taken, on the part of the United *343 States, to this court, to show that United States property, as such, has no exemption from state taxation. A fort, belonging to the federal government, near Pittsburgh, was sold by public auction; the usual auction duty was claimed, and the payment resisted, on the ground, that none could be exacted from the United States. The court decided otherwise. In admitting Louisiana into the Union, and so, it is believed, with all the new states, it is expressly stipulated, ‘that no taxes shall be imposed on lands, the property of the United States.’ There can, then, be no pretence, that bank property, even belonging to the United States, is, on that account, exonerated from state taxation. 4

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**9 3d. If, then, neither the nature of the property, nor the interest the United States may have have in the bank, will warrant the exemption claimed, is there anything expressed in the constitution, to limit and control the state right of taxation, as now contended for? We find but one limitation to this essential right, of which the states were naturally and justly most jealous. In the 10th section of the 1st article, it is declared, that ‘no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;’ and there is a like prohibition to laying any duty of tonnage. Here, then, is the whole restriction or limitation, attempted to be imposed by the constitution, on the power of the states to raise revenue, precisely in the same manner, from the same subjects, and to the same extent, that any sovereign and independent *344 state may do; and it never was understood by those who made, or those who received, the constitution, that any further restriction ever would, or could, be imposed. This subject did not escape either the assailants or the defenders of our form of government; and their arguments and commentaries upon the instrument ought not to be disregarded, in fixing its construction. It was foreseen, and objected by its opponents, that under the general sweeping power given to congress, ‘to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers,’ &c., the states might be exposed to great dangers, and the most humiliating and oppressive encroachments, particularly in this very matter of taxation. By referring to the Federalist, the great champion of the constitution, the objections will be found stated, together with the answers to them. It is again and again replied, and most solemnly asserted, to the people of these United States, that the right of taxation in the states is sacred and inviolable, with ‘the sole exception of duties on imports and exports;’ that ‘they retain the authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution.’ With the exception mentioned, the federal and state powers of taxation are declared to be concurrent; and if the United States are justified in taxing state banks, the same equal and concurrent authority will justify the state in taxing the Bank of the United States, or any *345 other bank. 5

The author begins No. 34, by saying, ‘I flatter myself it has been clearly shown, in my last number, that the particular states, under the proposed constitution, would have co-equal authority with the Union, in the article of revenue, except as to duties on imports.’ Under such assurances from those who made, who recommended, and carried, the constitution, and who were supposed best to understand it, was it received and adopted by the people of these United States; and now, after a lapse of nearly thirty years, they are to be informed, that all this is a mistake, all these assurances are unwarranted, and that the federal government does possess most productive and important powers of taxation, neither on imports, exports or tonnage, but strictly internal, which are prohibited to the states. The question then was, whether the United States should have any command of the internal revenue; the pretension now is, that they shall enjoy exclusively the best portion of it. The question was then quieted, by the acknowledgment of a co-equal right; it is now to be put at rest, by the prostration of the state power. The federal government is to hold a power by implication, and ingenious inference from general words in the constitution, which it can hardly be believed would have been suffered in an express grant. If, then, the people were not deceived, when they were told that, with the exceptions mentioned, the state right of taxation is sacred and inviolable; and it be also true, *346 that the Bank of the United States cannot exist under the evercise of that right, the consequence ought to be, that the bank must not exist; for if it can live only by the destruction of such a right—if it can live only by the exercise of a power, which this court solemnly declared to be a ‘violent assumption of power, unwarranted by any clause in the constitution’— we cannot hesitate to say, let it not live. **10 But, in truth, this is not the state of the controversy. No such extremes are presented for our choice. We only require, that the bank shall not violate state rights, in establishing itself, or its branches; that it shall be submitted to the jurisdiction and laws of the state, in the same manner with other corporations and other property; and all this may be done, without ruining the institution, or destroying its national uses. Its profits will be diminished, by contributing to the revenue of the state; and this is the whole effect that ought, in a fair and liberal spirit of reasoning, to be anticipated. But, at all events, we show, on the part of the state, a

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clear, general, absolute and unqualified right of taxation (with the exception stated); and protest against such a right being made to yield to implications and obscure constructions of indefinite clauses in the constitution. Such a right must not be defeated, by doubtful pretensions of power, or arguments of convenience or policy to the government; much less to a private corporation. It is not a little alarming, to trace the progress of this argument. 1. The power to raise the bank is founded on no provision of the constitution that has the most distant allusion to such an *347 institution; there is not a word in that instrument that would suggest the idea of a bank, to the most fertile imagination; but the bank is created by implication and construction, made out by a very subtle course of reasoning; then, by another implication, raised on the former, the bank, this creature of construction, claims the right to enter the territory of a state, without its assent; to carry on its business, when it pleases, and where it pleases, against the will, and perhaps, in contravention of the policy, of the sovereign owner of the soil. Having such great success in the acquirement of implied rights, the experiment is now pushed further; and not contented with having obtained two rights in this extraordinary way, the fortunate adventurer assails the sovereignty of the state, and would strip from it its most vital and essential power. It is thus with the famous fig tree of India, whose branches shoot from the trunk to a considerable distance; then drop upon the earth, where they take root and become trees, from which also other branches shoot, and plant and propagate and extend themselves in the same way, until gradually a vast surface is covered, and everything perishes in the spreading shade. What have we opposed to these doctrines, so just and reasonable? Distressing inconveniences, ingeniously contrived; supposed dangers; fearful distrusts; anticipated violence and injustice from the states, and consequent ruin to the bank. A right to tax, is a right to destroy, is the whole amount of the argument, however varied by ingenuity, or embellished by eloquence. It is said, the states will abuse the power; and its exercise will *348 produce infinite inconvenience and embarrassment to the bank. Now, if this were true, it cannot help our opponents; because, if the states have the power contended for, this court cannot take it from them, under the fear that they may abuse it; nor, indeed, for its actual abuse; and if they have it not, they may not use it, however moderately and

discreetly. Nor is there any more force in the argument, that the bank property will be subjected to double or treble taxation. Each state will tax only the capital really employed in it; and it is always in the power of the bank, to show how its capital is distributed. But it is feared, the capital in a state may be taxed in gross; and the individual stockholders also taxed for the same stock. Is this common case of a double taxation of the same article, to be a cause of alarm now? Our revenue laws abound with similar cases; they arise out of the very nature of our double government. So says the Federalist; and it is the first time it has been the ground of complaint. Poll taxes are paid to the federal and state governments; licenses to retail spirits; land taxes; and the whole round of internal duties, over which both governments have a concurrent, and, until now, it was supposed, a co-equal right. Were not the state banks taxed by the federal, and also by the state governments; in some, by a bonus for the charter; in others, directly and annually? The circumstance, that the taxes go to different governments, in these cases, is wholly immaterial to those who pay; unless it is, that it increases the danger of excess and oppression. It is justly remarked, on this subject, by *349 the Federalist, that our security from excessive burdens on any source of revenue, must be found in mutual forbearance and discretion in the use of the power; this is the only security, and the authority of this court can add nothing to it. When that fails, there is an end to the confederation, which is founded on a reasonable and honorable confidence in each other. **11 It has been most impressively advanced, that the states, under pretence of taxing, may prohibit and expel the banks; ships, about to sail, and armies on power, they may tax munitions of war; to; who, in their 31st number, treat it very properly. Surely, their march; nay, the spirit of the court is to be aroused by the fear that judicial proceedings will also come under this alldestroying power. Loans may be delayed for stamps, and the country ruined for the want of the money. But whenever the states shall be in a disposition to uproot the general government, they will take more direct and speedy means; and until they have this disposition, they will not use these. What power may not be abused; and whom or what shall we trust, if we guard, ourselves with this extreme caution? The common and daily intercourse between man and man; all our relations in society, depend upon a reasonable confidence in each other. It is peculiarly

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the basis of our confederation, which lives not a moment, after we shall coase to trust each other. If the two governments are to regard each other as enemies, seeking opportunities of injury and distress, they will not long continue friends. This sort of timid reasoning about the powers of the government, has not escaped the authors so often alluded *350 to; who, in their 31st number, treat it very properly. Surely, the argument is as strong against giving to the United States the power to incorporate a bank with branches. What may be more easily, or more extensively abused; and what more powerful engine can we imagine to be brought into operation against the revenues and rights of the states? If the federal government must have a bank for the purposes of its revenue, all collision will be avoided, by establishing the parent bank in its own district, where it holds an exclusive jurisdiction; and planting its branches in such states as shall assent to it; and using state banks, where such assent cannot be obtained. Speaking practically, and by our experience, it may be safely asserted, that all the uses of the bank to the government might be thus obtained. Nothing would be wanting but profits and large dividends to the stockholders, which are the real object in this contest. Whatever may be the right of the United States to establish a bank, it cannot be better than that of the states. Their lawful power to incorporate such institutions has never yet been questioned; whatever may be in reserve for them, when it may be found ‘necessary and proper’ for the interests of the national bank to crush the state institutions, and curtail the state authority. Granting, that these rights are equal in the two governments; and that the sovereignty of the state, within its territory, over this subject, is but equal to that of the United States; and that all sovereign power remains undiminished in the states, except in those cases in which it has, by the constitution, been *351 expressly and exclusively transferred to the United States: the sovereign power of taxation (except on foreign commerce) being, in the language of the Federalist, co-equal to the two governments; it follows, as a direct and necessary consequence, that having equal powers to erect banks, and equal powers of taxation on property of that description, being neither imports, exports or tonnage, whatever jurisdiction the federal government may exercise in this respect, over a bank created by a state, any state may exercise over a bank created by the United States. Now, the federal government has assumed the right of taxing the state banks, precisely in the manner in which

the state of Maryland has proceeded against the Bank of the United States; and as this right has never been resisted or questioned, it may be taken to be admitted by both parties; and must be equal and common to both parties, or the fundamental principles of our confederation have been strangely mistaken, or are to be violently overthrown. It has also been suggested, that the bank may claim a protection from this tax, under that clause of the constitution, which prohibits the states from passing laws, which shall impair the obligation of contracts. The charter is said to be the contract between the government and the stockholders; and the interests of the latter will be injured by the tax which reduces their profits. Many answers offer themselves to this agreement. In the first place, the United States cannot, either by a direct law, or by a contract with a third party, take away any right from the states, not granted by the constitution; they *352 cannot do, collaterally and by implication, what cannot be done directly. Their contracts must conform to the constitution, and not the constitution to their contracts. If, therefore, the states have, in some other way, parted with this right of taxation, they cannot be deprived of it, by a contract between other parties. Under this doctrine, the United States might contract away every right of every state; and any attempt to resist it, would be called a violation of the obligations of a contract. Again, the United States have no more right to violate contracts than the states, and surely, they never imagined they were doing so, when they taxed so liberally the stock of the state banks. Again, it might as well be said, that a tax on real estate, imposed after a sale of it, and not then perhaps contemplated, or new duties imposed on merchandise, after it is ordered, violate the contract between the vendor and the purchaser, and diminishes the value of the property. In fact, all contracts in relation to property, subject to taxation, are presumed to have in view the probability or possibility that they will be taxed; and the happening of the event never was imagined to interfere with the contract, or its lawful obligations. **12 The Attorney-General, for the plaintiff in error, argued: 1. That the power of congress to create a bank ought not now to be questioned, after its exercise ever since the establishment of the constitution, sanctioned by every department of the government: by the legislature, in the charter of the bank, and other laws connected with the incorporation; by the *353 executive, in its

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assent to those laws; and by the judiciary, in carrying them into effect. After a lapse of time, and so many concurrent acts of the public authorities, this exercise of power must be considered as ratified by the voice of the people, and sanctioned by precedent. In the exercise of criminal judicature, the question of constitutionality could not have been overlooked by the courts, who have so often inflicted punishment for acts which would be no crimes, if these laws were repugnant to the fundamental law. 2. The power to establish such a corporation is implied, and involved in the grant of specific powers in the constitution; because the end involves the means necessary to carry it into effect. A power without the means to use it, is a nullity. But we are not driven to seek for this power in implication: because the constitution, after enumerating certain specific powers, expressly gives to congress the power ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or or in any department or officer thereof.’ If, therefore, the act of congress establishing the bank was necessary and proper to carry into execution any one or more of the enumerated powers, the authority to pass it is expressly delegated to congress by the constitution. We contend, that it was necessary and proper to carry into execution several of the enumerated powers, such as the powers of levying and collecting taxes throughout this widely-extended empire; of paying *354 the public debts, both in the United States and in foreign countries; of borrowing money, at home and abroad; of regulating commerce with foreign nations, and among the several states; of raising and supporting armies and a navy; and of carrying on war. That banks, dispersed throughout the country, are appropriate means of carrying into execution all these powers, cannot be denied. Our history furnishes abundant experience of the utility of a national bank as an instrument of finance. It will be found in the aid derived to the public cause from the Bank of North America, established by congress, during the war of the revolution; in the great utility of the former Bank of the United States; and in the necessity of resorting to the instrumentality of the banks incorporated by the states, during the interval between the expiration of the former charter of the United States Bank, in 1811, and the establishment of the present bank in 1816; a period of war, the calamities of which were greatly

aggravated by the want of this convenient instrument of finance. Nor is it required, that the power of establishing such a moneyed corporation should be indispensably necessary to the execution of any of the specified powers of the government. An interpretation of this clause of the constitution, so strict and literal, would render every law which could be passed by congress unconstitutional; for of no particular law can it be predicated, that it is absolutely and indispensably necessary to carry into effect any of the specified powers; since a different law might be imagined, which could be enacted, tending to the same object, though *355 not equally well adapted to attain it. As the inevitable consequence of giving this very restricted sense to the word ‘necessary,’ would be to annihilate the very powers it professes to create; and as so gross an absurdity cannot be imputed to the framers of the constitution, this interpretation must be rejected. **13 Another not less inadmissible consequence of this construction is, that it is fatal to the permanency of the constitutional powers; it makes them dependent for their being, on extrinsic circumstances, which, as these are perpetually shifting and changing, must produce correspondent changes in the essence of the powers on which they depend. But surely, the constitutionality of any act of congress cannot depend upon such circumstances. They are the subject of legislative discretion, not of judicial cognisance. Nor does this position conflict with the doctrine of the court in Sturges v. Crown-inshield (ante, p. 122). The court has not said, in that case, that the powers of congress are shifting powers, which may or may not be constitutionally exercised, according to extrinsic or temporary circumstances; but it has merely determined, that the power of the state legislatures over the subject of bankruptcies is subordinate to that of congress on the same subject, and cannot be exercised so as to conflict with the uniform laws of bankruptcy throughout the Union which congress may establish. The power, in this instance, resides permanently in congress, whether it chooses to exercise it or not; but its exercise on the part of the states *356 is precarious, and dependent, in certain respects, upon its actual exercise by congress. The convention well knew that it was utterly vain and nugatory, to give to congress certain specific powers, without the means of enforcing those powers. The auxiliary means, which are necessary for this purpose, are those which are useful and appropriate to produce the particular end.

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‘Necessary and proper’ are, then, equivalent to needful and adapted; such is the popular sense in which the word necessary is sometimes used. That use of it is confirmed by the best authorities among lexicographers; among other definitions of the word ‘necessary,’ Johnson gives ‘needful;’ and he defines ‘need,’ the root of the latter, by the words, ‘want, occasion.’ Is a law, then, wanted, is there occasion for it, in order to carry into execution any of the enumerated powers of the national government; congress has the power of passing it. To make a law constitutional, nothing more is necessary than that it should be fairly adapted to carry into effect some specific power given to congress. This is the only interpretation which can give effect to this vital clause of the constitution; and being consistent with the rules of the language, is not to be rejected, because there is another interpretation, equally consistent with the same rules, but wholly inadequate to convey what must have been the intention of the convention. Among the multitude of means to carry into execution the powers expressly given to the national government, congress is to select, from time to time, such as are most fit for the purpose. It would have been impossible *357 to enumerate them all in the constitution; and a specification of some, omitting others, would have been wholly useless. The court, in inquiring whether congress had made a selection of constitutional means, is to compare the law in question with the powers it is intended to carry into execution; not in order to ascertain whether other or better means might have been selected, for that is the legislative province, but to see whether those which have been chosen have a natural connection with any specific power; whether they are adapted to give it effect; whether they are appropriate means to an end. It cannot be denied, that this is the character of the Bank of the United States. But it is said, that the government might use private bankers, or the banks incorporated by the states, to carry on their fiscal operations. This, however, presents a mere question of political expediency, which, it is repeated, is exclusively for legislative consideration; which has been determined by the legislative wisdom; and cannot be reviewed by the court. **14 It is objected, that this act creates a corporation; which, being an exercise of a fundamental power of sovereignty, can only be claimed by congress, under their grant of specific powers. But to have enumerated the

power of establishing corporations, among the specific powers of congress, would have been to change the whole plan of the constitution; to destroy its simplicity, and load it with all the complex details of a code of private jurisprudence. The power of establishing corporations is not one of the ends of government; it is only a class of means for accomplishing its ends. An enumeration *358 of this particular class of means, omitting all others, would have been a useless anomaly in the constitution. It is admitted, that this is an act to sovereignty, and so is any other law; if the authority of establishing corporations be a sovereign power, the United States are sovereign, as to all the powers specifically given to their government, and as to all others necessary and proper to carry into effect those specified. If the power of chartering a corporation be necessary and proper for this purpose, congress has it to an extent as ample as any other sovereign legislature. Any government of limited sovereignty can create corporations only with reference to the limited powers that government possesses. The inquiry then reverts, whether the power of incorporating a banking company, be a necessary and proper means of executing the specific powers of the national government. The immense powers incontestably given, show that there was a disposition, on the part of the people, to give ample means to carry those powers into effect. A state can create a corporation, in virtue of its sovereignty, without any specific authority for that purpose, conferred in the state constitutions. The United States are sovereign as to certain specific objects, and may, therefore, erect a corporation for the purpose of effecting those objects. If the incorporating power had been expressly granted as an end, it would have conferred a power not intended; if granted as a means, it would have conferred nothing more than was before given by necessary implication. Nor does the rule of interpretation we contend for, sanction any usurpation, on the part of the national government; since, if the argument be, that the *359 implied powers of the constitution may be assumed and exercised, for purposes not really connected with the powers specifically granted, under color of some imaginary relation between them, the answer is, that this is nothing more than arguing from the abuse of constitutional powers, which would equally apply against the use of those that are confessedly granted to the national government; that the danger of the abuse will be

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checked by the judicial department, which, by comparing the means with the proposed end, will decide, whether the connection is real, or assumed as the pretext for the usurpation of powers not belonging to the government; and that, whatever may be the magnitude of the danger from this quarter, it is not equal to that of annihilating the powers of the government, to which the opposite doctrine would inevitably tend. **15 3. If, then, the establishment of the parent bank itself be constitutional, the right to establish the branches of that bank in the different states of the Union follows, as an incident of the principal power. The expediency of this ramification, congress is alone to determine. To confine the operation of the bank to the district of Columbia, where congress has the exclusive power of legislation, would be as absurd as to confine the courts of the United States to this district. Both institutions are wanted, wherever the administration of justice, or of the revenue, is wanted. The right, then, to establish these branches, is a necessary part of the means. This right is not delegated by congress to the parent bank. The act of congress for the establishment of offices of discount *360 and deposit, leaves the time and place of their establishment to the directors, as a matter of detail. When established, they rest, not on the authority of the parent bank, but on the authority of congress. 4. The only remaining question is, whether the act of the state of Maryland, for taxing the bank thus incorporated, be repugnant to the constitution of the United States? We insist, that any such tax, by authority of a state, would be unconstitutional, and that this act is so, from its peculiar provisions. But it is objected, that, by the 10th amendment of the constitution, all powers not expressly delegated to the United States, nor prohibited to the states, are reserved to the latter. It is said, that this being neither delegated to the one, nor prohibited to the other, must be reserved: and it is is also said, that the only prohibition on the power of state taxation, which does exist, excludes this case, and thereby leaves it to the original power of the states. The only prohibition is, as to laying any imposts, or duties on imports and exports, or tonnage duty, and this, not being a tax of that character, is said not to be within the terms of the prohibition; and consequently, it remains under the authority of the states. But we answer, that this does not contain the whole sum of constitutional restrictions on

the authority of the states. There is another clause in the constitution, which has the effect of a prohibition on the exercise of their authority, in numerous cases. The 6th article of the constitution of the United States declares, that the laws made in pursuance of it, ‘shall be the supreme law of the land, anything in the constitution, or laws of *361 any state to the contrary notwithstanding.’ By this declaration, the states are prohibited from passing any acts which shall be repugnant to a law of the United States. The court has already instructed us in the doctrine, that there are certain powers, which, from their nature, are exclusively vested in congress. 6 So, we contend here, that the only ground on which the constitutionality of the bank is maintainable, excludes all interference with the exercise of the power by the states. This ground is, that the bank, as ordained by congress, is an instrument to carry into execution its specified powers; and in order to enable this instrument to operate effectually, it must be under the direction of a single head. It cannot be interfered with, or controlled in any manner, by the states, without putting at hazard the accomplishment of the end, of which it is but a means. But the asserted power to tax any of the institutions of the United States, presents directly the question of the supremacy of their laws over the state laws. If this power really exists in the states, its natural and direct tendency is to annihilate any power which belongs to congress, whether express or implied. All the powers of the national government are to be executed in the states, and throughout the states; and if the state legislatures can tax the instruments by which those powers are executed, they may entirely defeat the execution of the powers. If they may tax an institution of finance, they may tax the proceedings in the courts of the United States. If they may *362 tax to one degree, they may tax to any degree; and nothing but their own discretion can impose a limit upon this exercise of their authority. They may tax both the bank and the courts, so as to expel them from the states. But, surely, the framers of the constitution did not intend, that the exercise of all the powers of the national government should depend upon the discretion of the state governments. This was the vice of the former confederation, which it was the object of the new constitution to eradicate. It is a direct collision of powers between the two governments. Congress says, there shall be a branch of the bank in the state of Maryland; that state says, there shall not. Which

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power is supreme? Besides, the charter, which is a contract between the United States and the corporation, is violated by this act of Maryland. A new condition is annexed by a sovereignty which was no party to the contract. The franchise, or corporate capacity, is taxed by a legislature, between whom and the object of taxation there is no political connection. **16 Jones, for the defendants in error, contended: 1. That this was to be considered as an open question, inasmuch as it had never before been submitted to judicial determination. The practice of the government, however inveterate, could never be considered as sanctioning a manifest usurpation; still less, could the practice, under a constitution of a date so recent, be put in competition with the contemporaneous exposition of its illustrious authors, as recorded for our instruction, in the ‘Letters of Publius,’ *363 or the Federalist. The interpretation of the constitution, which was contended for by the state of Maryland, would be justified from that text-book, containing a commentary, such as no other age or nation furnishes, upon its public law. It is insisted, that the constitution was formed and adopted, not by the people of the United States at large, but by the people of the respective states. To suppose, that the mere proposition of this fundamental law threw the American people into one aggregate mass, would be to assume what the instrument itself does not profess to establish. It is, therefore, a compact between the states, and all the powers which are not expressly relinquished by it, are reserved to the states. We admit, that the 10th amendment to the constitution is merely declaratory; that it was adopted ex abundanti cautela; and that with it, nothing more is reserved, than would have been reserved without it. But it is contended, on the other side, that not only the direct powers, but all incidental powers, partake of the supreme power, which is sovereign. This is an inherent sophism in the opposite argument, which depends on the conversion and ambiguity of terms. What is meant by sovereign power? It is modified by the terms of the grant under which it was given. They do not import sovereign power, generally, but sovereign power, limited to particular cases; and the question again recurs, whether sovereign power was given in this particular case. Is it true, that by conferring sovereign powers on a limited, delegated government, sovereign means are also

granted? Is there no restriction *364 as to the means of exercising a general power? Sovereignty was vested in the former confederation, as fully as in the present national government. There was nothing which forbade the old confederation from taxing the people, except that three modes of raising revenue were pointed out, and they could resort to no other. All the powers given to congress, under that system, except taxation, operated as directly on the people, as the powers given to the present government. The constitution does not profess to prescribe the ends merely for which the government was instituted, but also to detail the most important means by which they were to be accomplished. ‘To levy and collect taxes,’ ‘to borrow money,’ ‘to pay the public debts,’ ‘to raise and support armies,’ ‘to provide and maintain a navy,’ are not the ends for which this or any other just government is established. If a banking corporation can be said to be involved in either of these means, it must be as an instrument to collect taxes, to borrow money, and to pay the public debts. Is it such an instrument? It may, indeed, facilitate the operation of other financial institutions; but in its proper and natural character, it is a commercial institution, a partnership, incorporated for the purpose of carrying on the trade of banking. But we contend, that the government of the United States must confine themselves, in the collection and expenditure of revenue, to the means which are specifically enumerated in the constitution, or such auxiliary means as are naturally connected with the specific means. But what natural connection is there between *365 the collection of taxes, and the incorporation of a company of bankers? Can it possibly be said, that because congress is invested with the power of raising and supporting armies, that it may give a charter of monopoly to a trading corporation, as a bounty for enlisting men? Or that, under its more analogous power of regulating commerce, it may establish an East or a West India company, with the exclusive privilege of trading with those parts of the world? Can it establish a corporation of farmers of the revenue, or burden the internal industry of the states with vexatious monopolies of their staple productions? There is an obvious distinction between those means which are incidental to the particular power, which follow as a corollary from it, and those which may be arbitrarily assumed as convenient to the execution of the power, or usurped under the pretext of necessity.

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**17 For example, the power of coining money implies the power of establishing a mint. The power of laying and collecting taxes implies the power of regulating the mode of assessment and collection, and of appointing revenue officers; but it does not imply the power of establishing a great banking corporation, branching out into every district of the country, and inundating it with a flood of paper-money. To derive such a tremendous authority from implication, would be to change the subordinate into fundamental powers; to make the implied powers greater than those which are expressly granted; and to change the whole scheme and theory of the government. It is well known, that many of the powers which are expressly *366 granted to the national government in the constitution, were most reluctantly conceded by the people, who were lulled into confidence, by the assurances of its advocates, that it contained no latent ambiguity, but was to be limited to the literal terms of the grant: and in order to quiet all alarm, the 10th article of amendments was added, declaring ‘that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ It would seem, that human language could not furnish words less liable to misconstruction! But it is contended, that the powers expressly granted to the national government in the constitution, are enlarged to an indefinite extent, by the sweeping clause, authorizing congress to make all laws which shall be necessary and proper for carrying into execution the powers expressly delegated to the national government, or any of its departments or officers. Now, we insist, that this clause shows that the intention of the convention was, to define the powers of the government with the utmost precision and accuracy. The creation of a sovereign legislature, implies an authority to pass laws to execute its given powers. This clause is nothing more than a declaration of the authority of congress to make laws, to execute the powers expressly granted to it, and the other departments of the government. But the laws which they are authorized to make, are to be such as are necessary and proper for this purpose. No terms could be found in the language, more absolutely excluding a general and unlimited discretion than *367 these. It is not ‘necessary or proper,’ but ‘necessary and proper.’ The means used must have both these qualities. It must be, not merely convenient—fit— adapted—proper, to the accomplishment of the end in

view; it must likewise be necessary for the accomplishment of that end. Many means may be proper, which are not necessary; because the end may be attained without them. The word ‘necessary,’ is said to be a synonyme of ‘needful.’ But both these words are defined ‘indispensably requisite;’ and, most certainly, this is the sense in which the word ‘necessary’ is used in the constitution. To give it a more lax sense, would be to alter the whole character of the government as a sovereignty of limited powers. This is not a purpose for which violence should be done to the obvious and natural sense of any terms, used in an instrument drawn up with great simplicity, and with extraordinary precision. The only question, then, on this branch of the argument, will be, whether the establishment of a banking corporation be indispensably requisite to execute any of the express powers of the government? So far as the interest of the United States is concerned, as partners of this company of bankers, or so far as the corporation may be regarded as an executive officer of the government, acquiring real and personal property in trust for the use of the government, it may be asked, what right the United States have to acquire property of any kind, except that purchased by the consent of the legislature of the state in which such property may be, for the erection of forts, magazines, &c.; and ships or munitions *368 of war, constructed or purchased by the United States, and the public treasure? Their right of acquiring property is absolutely limited to the subjects specified, which were the only means, of the nature of wealth or property, with which the people thought it necessary to invest them. The people never intended they should become bankers or traders of any description. They meant to leave to the states the power of regulating the trade of banking, and every other species of internal industry; subject merely to the power of congress to regulate foreign commerce, and the commerce between the different states, with which it is not pretended, that this asserted power is connected. The trade of banking, within the particular states, would then either be left to regulate itself, and carried on as a branch of private trade, as it is in many countries; or banking companies would be incorporated by the state legislatures to carry it on, as has been the usage of this country. But in either case, congress would have nothing to do with the subject. The power of creating corporations is a distinct sovereign power, applicable to a great variety of objects, and not being expressly granted to congress for this, or any other object, cannot be assumed by implication.

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If it might be assumed for this purpose, it might also be exercised to create corporations for the purpose of constructing roads and canals; a power to construct which has been also lately discovered among other secrets of the constitution, developed by this dangerous doctrine of implied powers. Or it might be exercised to establish great trading monopolies, *369 or to lock up the property of the country in mortmain, by some strained connection between the exercise of such powers, and those expressly given to the government. **18 3. Supposing the establishment of such a banking corporation, to be implied as one of the means necessary and proper to execute the powers expressly granted to the national government, it is contended by the counsel opposed to us, that its property is exempted from taxation by the state governments, because they cannot interfere with the exercise of any of the powers, express or implied, with which congress is invested. But the radical vice of this argument is, that the taxing power of the states, as it would exist, independent of the constitution, is in no respect limited or controlled by that supreme law, except in the single case of imposts and tonnage duties, which the states cannot lay, unless for the purpose of executing their inspection laws. But their power of taxation is absolutely unlimited in every other respect. Their power to tax the property of this corporation cannot be denied, without at the same time denying their right to tax any property of the United States. The property of the bank cannot be more highly privileged than that of the government. But they are not forbidden from taxing the property of the government, and therefore, cannot be constructively prohibited from taxing that of the bank. Being prohibited from taxing exports and imports, and tonnage, and left free from any other prohibition, in this respect; they may tax everything else but exports, imports and tonnage. The authority of *370 ‘the Federalist’ is express, that the taxing power of congress does not exclude that of the states over any other objects except these. If, then, the exercise of the taxing power of congress does not exclude that of the states, why should the exercise of any other power by congress, exclude the power of taxation by the states? If an express power will not exclude it, shall an inplied power have that effect? If a power of the same kind will not exclude it, shall a power of a different kind? The unlimited power of taxation results from state sovereignty. It is expressly taken away only in the particular instances

mentioned. Shall others be added by implication? Will it be pretended, that there are two species of sovereignty in our government? Sovereign power is absolute, as to the objects to which it may be applied. But the sovereign power of taxation in the states may be applied to all other objects, except imposts and tonnage: its exercise cannot, therefore, be limited and controlled by the exercise of another sovereign power in congress. The right of both sovereignties are co-equal and co-extensive. The trade of banking may be taxed by the state of Maryland; the United States may incorporate a company to carry on the trade of banking, which may establish a branch in Maryland; the exercise of the one sovereign power, cannot be controlled by the exercise of the other. It can no more be controlled in this case, than if it were the power of taxation in congress, which was interfered with by the power of taxation in the state, both being exerted concurrently on the same object. In both *371 cases, mutual confidence, discretion and forbearance can alone qualify the exercise of the conflicting powers, and prevent the destruction of either. This is an anomaly, and perhaps an imperfection, in our system of government. But neither congress, nor this court, can correct it. That system was established by reciprocal concessions and compromises between the state and federal governments; its harmony can only be maintained in the same spirit. Even admitting that the property of the United States (such as they have a right to hold), their forts and dock-yeards, their ships and military stores, their archives and treasures, public institutions of war, or revenue or justice, are exempt, by necessary implication, from state taxation; does it, therefore, follow, that this corporation, which is a partnership of bankers, is also exempt? They are not collectors of the revenue, any more than any state bank or foreign bankers, whose agency the government may find it convenient to employ as depositaries of its funds. They may be employed to remit those funds from one place to another, or to procure loans, or to buy and sell stock; but it is in a commercial, and not an administrative character, that they are thus employed. The corporate character with which these persons are clothed, does not emempt them from state taxation. It is the nature of their employment, as agents or officers of the government, if anything, which must create the exemption. But the same employment of the state bank or private bankers, would equally entitle them to the same exemption. Nor can the exemption of the stock of this *372 corporation from state taxation,

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be claimed on the ground of the proprietary interest which the United States have in it as stockholders. Their interest is undistinguishably blended with the general capital stock; if they will mix their funds with those of bankers, or engage as partners in any other branch of commerce, their sovereign character and dignity are lost in the mercantile character which they have assumed; and their property thus employed becomes subject to local taxation, like other capital employed in trade. **19 Martin, Attorney-General of Maryland.—1. Read several extracts from the Federalist, and the debates of the Virginia and New York conventions, to show that the contemporary exposition of the constitution, by its authors, and by those who supported its adoption, was wholly repugnant to that now contended for by the counsel for the plaintiff in error. That it was then maintained, by the enemies of the constitution, that it contained a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, unless controlled by some declaratory amendment, which should negative their existence. This apprehension was treated as a dream of distempered jealousy. The danger was denied to exist; but to provide an assurance against the possibility of its occurrence, the 10th amendment was added to the constitution. This, however, could be considered as nothing more than declaratory of the sense of the people as to the extent of the powers *373 conferred on the new government. We are now called upon to apply that theory of interpretation, which was then rejected by the friends of the new constitution, and we are asked to engraft upon it powers of vast extent, which were disclaimed by them, and which if they had been fairly avowed at the time, would have prevented its adoption. Before we do this, they must, at least, be proved to exist, upon a candid examination of this instrument, as if it were now, for the first time, submitted to interpretation. Although we cannot, perhaps, be allowed to say, that the states have been ‘deceived in their grant;’ yet we may justly claim something like a rigorous demonstration of this power, which nowhere appears upon the face of the constitution, but which is supposed to be tacitly inculcated in its general object and spirit. That the scheme of the framers of the constitution, intended to leave nothing to implication, will be evident, from the consideration, that many of the powers expressly given are only

means to accomplish other powers expressly given. For example, the power to declare war involves, by necessary implication, if anything was to be implied, the powers of raising and supporting armies, and providing and maintaining a navy, to prosecute the war then declared. So also, as money is the sinew of war, the powers of laying and collecting taxes, and of borrowing money, are involved in that of declaring war. Yet all these powers are specifically enumerated. If, then, the convention has specified some powers, which being only means to accomplish the ends of government, might have been *374 taken by implication; by what just rule of construction, are other sovereign powers, equally vast and important, to be assumed by implication? We insist, that the only safe rule is, the plain letter of the constitution; the rule which the constitutional legislators themselves have prescribed in the 10th amendment, which is merely declaratory; that the powers not delegated to the United States, nor prohibited to the states, are reserved to the states respectively, or to the people. The power of establishing corporations is not delegated to the United States, nor prohibited to the individual states. It is, therefore, reserved to the states, or to the people. It is not expressly delegated, either as an end, or a means, of national government. It is not to be taken by implication, as a means of executing any or all of the powers expressly granted; because other means, not more important or more sovereign in their character, are expressly enumerated. We still insist, that the authority of establishing corporations is one of the great sovereign powers of government. It may well exist in the state governments, without being expressly conferred in the state constitutions; because those governments have all the usual powers which belong to every political society, unless expressly forbidden, by the letter of the state constitutions, from exercising them. The power of establishing corporations has been constantly exercised by the state governments, and no portion of it has been ceded by them to the government of the United States. **20 2. But admitting that congress has a right to incorporate a banking company, as one of the means *375 necessary and proper to execute the specific powers of the national government; we insist, that the respective states have the right to tax the property of that corporation, within their territory; that the United States cannot, by such an act of incorporation, withdraw any part of the property within the state from the grasp

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of taxation. It is not necessary for us to contend, that any part of the public property of the United States, its munitions of war, its ships and treasure, are subject to state taxation. But if the United States hold shares in the stock of a private banking company, or any other trading company, their property is not exempt from taxation, in common with the other capital stock of the company; still less, can it communicate to the shares belonging to private stockholders, an immunity from local taxation. The right of taxation by the state, is co-extensive with all private property within the state. The interest of the United States in this bank is private property, though belonging to public persons. It is held by the government, as an undivided interest with private stockholders. It is employed in the same trade, subject to the same fluctuations of value, and liable to the same contingencies of profit and loss. The shares belonging to the United States, or of any other stockholders, are not subjected to direct taxation by the law of Maryland. The tax imposed, is a stamp tax upon the notes issued by a banking-house within the state of Maryland. Because the United States happen to be partially interested, either as dormant or active partners, in that house, is no reason why the state should refrain from laying a tax which they have, otherwise, *376 a constitutional right to impose, any more than if they were to become interested in any other house of trade, which should issue its notes, or bills of exchange, liable to a stamp duty, by a law of the state. But it is said, that a right to tax, in this case, implies a right to destroy; that it is impossible to draw the line of discrimination between a tax fairly laid for the purposes of revenue, and one imposed for the purpose of prohibition. We answer, that the same objection would equally apply to the right of congress to tax the state banks; since the same difficulty of discriminating occurs in the exercise of that right. The whole of this subject of taxation is full of difficulties, which the convention found it impossible to solve, in a manner entirely satisfactory. The first attempt was to divide the subjects of taxation between the state and the national government. This being found impracticable or inconvenient, the state governments surrendered altogether their right to tax imports and exports, and tonnage; giving the authority to tax all other subjects to congress, but reserving to the states a concurrent right to tax the same subjects to an unlimited extent. This was one of the anomalies of the government, the evils of which must be endured,

or mitigated by discretion and mutual forbearance. The debates in the state conventions show that the power of state taxation was understood to be absolutely unlimited, except as to imports and tonnage duties. The states would not have adopted the constitution, upon any other understanding. As to the judicial proceedings, and the custom-house papers of the United States, they are *377 not property, by their very nature; they are not the subjects of taxation; they are the proper instruments of national sovereignty, essential to the exercise of its powers, and in legal contemplation altogether extra-territorial as to state authority. **21 Pinkney, for the plaintiff in error, in reply, stated: 1. That the cause must first be cleared of a question which ought not to have been forced into the argument —whether the act of congress establishing the bank was consistent with the constitution? This question depended both on authority and on principle. No topics to illustrate it could be drawn from the confederation, since the present constitution was as different from that, as light from darkness. The former was a mere federative league; an alliance offensive and defensive between the states, such as there had been many examples of in the history of the world. It had no power of coercion but by arms. Its radical vice, and that which the new constitution was intended to reform, was legislation upon sovereign states in their corporate capacity. But the constitution acts directly on the people, by means of powers communicated directly from the people. No state, in its corporate capacity, ratified it; but it was proposed for adoption to popular conventions. It springs from the people, precisely as the state constitution springs from the people, and acts on them in a similar manner. It was adopted by them in the geographical sections into which the country is divided. The federal powers are just as sovereign as those of the states. The state sovereignties are not the authors *378 of the constitution of the United States. They are preceding in point of time, to the national sovereignty, but they are postponed to it, in point of supremacy, by the will of the people. The means of giving efficacy to the sovereign authorities vested by the people in the national government, are those adapted to the end; fitted to promote, and having a natural relation and connection with, the objects of that government. The constitution, by which these authorities, and the means of executing them, are given, and the laws made in pursuance of it,

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are declared to be the supreme law of the land; and they would have been such, without the insertion of this declaratory clause; they must be supreme, or they would be nothing. The constitutionality of the establishment of the bank, as one of the means necessary to carry into effect the authorities vested in the national government, is no longer an open question. It has been long since settled by decisions of the most revered authority, legislative, executive and judicial. A legislative construction, in a doubtful case, persevered in for a course of years, ought to be binding upon the court. This, however, is not a question of construction merely, but of political necessity, on which congress must decide. It is conceded, that a manifest usurpation cannot be maintained in this mode; but, we contend, that this is such a doubtful case, that congress may expound the nature and extent of the authority under which it acts, and that this practical interpretation had become incorporated into the constitution. There are two distinguishing points which entitle it to great respect. The first is, that it was a *379 contemporaneous construction; the second is, that it was made by the authors of the constitution themselves. The members of the convention who framed the constitution, passed into the first congress, by which the new government was organized; they must have understood their own work. They determined that the constitution gave to congress the power of incorporating a banking company. It was not required, that this power should be expressed in the text of the constitution; it might safely be left to implication. An express authority to erect corporations generally, would have been perilous; since it might have been constructively extended to the creation of corporations entirely unnecessary to carry into effect the other powers granted; we do not claim an authority in this respect, beyond the sphere of the specific powers. The grant of an authority to erect certain corporations, might have been equally dangerous, by omitting to provide for others, which time and experience might show to be equally, and even more necessary. It is a historical fact, of great importance in this discussion, that amendments to the constitution were actually proposed, in order to guard against the establishment of commercial monopolies. But if the general power of incorporating did not exist, why seek to qualify it, or to guard against its abuse? The legislative precedent, established in 1791, has been followed up by a series of acts of congress, all confirming the authority. Political considerations alone might have

produced the refusal to renew the charter in 1811; at any rate, we know that they mingled themselves in the debate, and the determination. **22 *380 In 1815, a bill was passed by the two houses of congress, incorporating a national bank; to which the president refused his assent, upon political considerations only, waiving the question of constitutionality, as being settled by contemporaneous exposition, and repeated subsequent recognitions. In 1816, all branches of the legislature concurred in establishing the corporation, whose chartered rights are now in judgment before the court. None of these measures ever passed sub silentio; the proposed incorporation was always discussed, and opposed, and supported, on constitutional grounds, as well as on considerations of political expediency. Congress is primâ facie a competent judge of its own constitutional powers. It is not, as in questions of privilege, the exclusive judge; but it must first decide, and that in a proper judicial character, whether a law is constitutional, before it is passed. It had an opportunity of exercising its judgment in this respect, upon the present subject, not only in the principal acts incorporating the former, and the present bank, but in the various incidental statutes subsequently enacted on the same subject; in all of which, the question of constitutionality was equally open to debate, but in none of which was it agitated. There are, then, in the present case, the repeated determinations of the three branches of the national legislature, confirmed by the constant acquiescence of the state sovereignties, and of the people, for a considerable length of time. Their strength is fortified by judicial authority. The decisions in the courts, affirming the constitutionality of these *381 laws, passed, indeed, sub silentio; but it was the duty of the judges, especially in criminal cases, to have raised the question; and we are to conclude, from this circumstance, that no doubt was entertained respecting it. And if the question be examined on principle, it will be found not to admit of doubt. Has congress, abstractedly, the authority to erect corporations? This authority is not more a sovereign power, than many other powers which are acknowledged to exist, and which are but means to an end. All the objects of the government are national objects, and the means are, and must be, fitted to accomplish them. These objects are enumerated in the constitution, and have no limits but the

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constitution itself. A more perfect union is to be formed; justice to be established; domestic tranquillity insured; the common defence provided for; the general welfare promoted; the blessings of liberty secured to the present generation, and to posterity. For the attainment of these vast objects, the government is armed with powers and faculties corresponding in magnitude. Congress has power to lay and collect taxes and duties, imposts and excises; to pay the debts, and provide for the common defence and general welfare of the United States; to borrow money on the credit of the nation; to regulate commerce; to establish uniform naturalization and bankrupt laws; to coin money, and regulate the circulating medium, and the standard of weights and measures; to establish postoffices and post-roads; to promote the progress of science and the useful arts, by granting patents and copyrights; to constitute tribunals inferior to the supreme court, and to define *382 and punish offences against the law of nations; to declare and carry on war; to raise and support armies, and to provide and maintain a navy; to discipline and govern the land and naval forces; to call forth the militia to execute the laws, suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia; to exercise exclusive legislation, in all cases, over the district where the seat of government is established, and over such other portions of territory as may be ceded to the Union for the erection of forts, magazines, & c.; to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States; and to make all laws which shall be necessary and proper for carrying into execution these powers, and all other powers vested in the national government, or any of its departments or officers. The laws thus made are declared to be the supreme law of the land; and the judges in every state are bound thereby, anything in the constitution or laws of any state to the contrary nothwithstanding. Yet it is doubted, whether a government invested with such immense powers has authority to erect a corporation within the sphere of its general objects, and in order to accomplish some of those objects! The state powers are much less in point of magnitude, though greater in number; yet it is supposed, the states possess the authority of establishing corporations, whilst it is denied to the geveral government. It is conceded to the state legislatures, though not specifically granted, because it is said to be an incident of state sovereignty; but it *383 is

refused to congress, because it is not specifically granted, though it may be necessary and proper to execute the powers which are specifically granted. But the authority of legislation in the state government is not unlimited; there are several limitations to their legislative authority. First, from the nature of all government, especially, of republican government, in which the residuary powers of sovereignty, not granted specifically, by inevitable implication, are reserved to the people. Secondly, from the express limitations contained in the state constitutions. And thirdly, from the express prohibitions to the states contained in the United States constitution. The power of erecting corporations is nowhere expressly granted to the legislatures of the states in their constitutions; it is taken by necessary implication: but it cannot be exercised to accomplish any of the ends which are beyond the sphere of their constitutional authority. The power of erecting corporations is not an end of any government; it is a necessary means of accomplishing the ends of all governments. It is an authority inherent in, and incident to, all sovereignty. **23 The history of corporations will illustrate this position. They were transplanted from the Roman law into the common law of England, and all the municipal codes of modern Europe. From England, they were derived to this country. But in the civil law, a corporation could be created by a mere voluntary association of individuals. 1 Bl. Com. 471. And in England, the authority of parliament *384 is not necessary to create a corporate body. The king may do it, and may communicate his power to a subject (1 Bl. Com. 474), so little is this regarded as a transcendent power of sovereignty, in the British constitution. So also, in our constitution, it ought to be regarded as but a subordinate power to carry into effect the great objects of government. The state governments cannot establish corporations to carry into effect the national powers given to congress, nor can congress create corporations to execute the peculiar duties of the state governments. But so much of the power or faculty of incorporation as concerns national objects has passed away from the state legislatures, and is vested in the national government. An act of incorporation is but a law, and laws are but means to promote the legitimate end of all government—the felicity of the people. All powers are given to the national government, as the people will. The reservation in the 10th amendment to

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the constitution, of ‘powers not delegated to the United States,’ is not confined to powers not expressly delegated. Such an amendment was indeed proposed; but it was perceived, that it would strip the government of some of its most essential powers, and it was rejected. Unless a specific means be expressly prohibited to the general government, it has it, within the sphere of its specified powers. Many particular means are, of course, involved in the general means necessary to carry into effect the powers expressly granted, and in that case, the general means become *385 the end, and the smaller objects the means. It was impossible for the framers of the constitution to specify, prospectively, all these means, both because it would have involved an immense variety of details, and because it would have been impossible for them to foresee the infinite variety of circumstances, in such an unexampled state of political society as ours, for ever changing and for ever improving. How unwise would it have been, to legislate immutably for exigencies which had not then occurred, and which must have been foreseen but dimly and imperfectly! The security against abuse is to be found in the constitution and nature of the government, in its popular character and structure. The statute book of the United States is filled with powers derived from implication. The power to lay and collect taxes will not execute itself. Congress must designate in detail all the means of collection. So also, the power of establishing post-offices and post-roads, involves that of punishing the offence of robbing the mail. But there is no more necessary connection between the punishment of mail-robbers, and the power to establish post-roads, than there is between the institution of a bank, and the collection of the revenue and payment of the public debts and expenses. So, light-houses, beacons, buoys and public piers, have all been established, under the general power to regulate commerce. But they are not indispensably necessary to commerce. It might linger on, without these aids, though exposed to more perils and losses. So, congress has authority to coin money, and to guard the purity of the circulating medium, by providing for the punishment *386 of counterfeiting the current coin; but laws are also made for punishing the offence of uttering and passing the coin thus counterfeited. It is the duty of the court to construe the constitutional powers of the national government liberally, and to mould them so as to

effectuate its great objects. Whence is derived the power to punish smuggling? It does not collect the impost, but it is a means more effectually to prevent the collection from being diminished in amount, by frauds upon the revenue laws. Powers, as means, may then be implied in many cases. And if so, why not in this case as well as any other? **24 The power of making all needful rules and regulations respecting the territory of the United States, is one of the specified powers of congress. Under this power, it has never been doubted, that congress had authority te establish corporations in the territorial governments. But this power is derived entirely from implication. It is assumed, as an incident to the principal power. If it may be assumed, in that case, upon the ground, that it is a necessary means of carrying into effect the power expressly granted, why may it not be assumed, in the present case, upon a similar ground? It is readily admitted, there must be a relation, in the nature and fitness of things between the means used and the end to be accomplished. But the question is, whether the necessity which will justify a resort to a certain means, must be an absolute, indispensable, inevitable necessity? The power of passing all laws necessary and proper to carry into effect the other powers specifically granted, is a political power; it *387 is a matter of legislative discretion, and those who exercise it, have a wide range of choice in selecting means. In its exercise, the mind must compare means with each other. But absolute necessity excludes all choice; and therefore, it cannot be this species of necessity which is required. Congress alone has the fit means of inquiry and decision. The more or less of necessity never can enter as an ingredient into judicial decision. Even absolute necessity cannot be judged of here; still less, can practical necessity be determined in a judicial forum. The judiciary may, indeed, and must, see that what has been done is not a mere evasive pretext, under which the national legislature travels out of the prescribed bounds of its authority, and encroaches upon state sovereignty, or the rights of the people. For this purpose, it must inquire, whether the means assumed have a connection, in the nature and fitness of things, with the end to be accomplished. The vast variety of possible means, excludes the practicability of judicial determination as to the fitness of a particular means. It is sufficient, that it does not appear to be violently and unnaturally forced into the service, or fraudulently assumed, in order to usurp

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a new substantive power of sovereignty. A philological analysis of the terms ‘necessary and proper’ will illustrate the argument. Compare these terms as they are used in that part of the constitution now in question, with the qualified manner in which they are used in the 10th section of the same article. In the latter, it is provided that ‘no state shall, without the consent of congress, lay any imposts or duties on imports *388 or exports, except what may be absolutely necessary for executing its inspection laws.’ In the clause in question, congress is invested with the power ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,’ &c. There is here then, no qualification of the necessity; it need not be absolute; it may be taken in its ordinary grammatical sense. The word necessary, standing by itself, has no inflexible meaning; it is used in a sense more or less strict, according to the subject. This, like many other words, has a primitive sense, and another figurative and more relaxed; it may be qualified by the addition of adverbs of diminution or enlargement, such as very, indispensably, more, less, or absolutely necessary; which last is the sense in which it is used in the 10th section of this article of the constitution. But that it is not always used in this strict and rigorous sense, may be proved, by tracing its definition, and etymology in every human language. **25 If, then, all the powers of the national government are sovereign and supreme; if the power of incorporation is incidental, and involved in the others; if the degree of political necessity which will justify a resort to a particular means, to carry into execution the other powers of the government, can never be a criterion of judicial determination, but must be left to legislative discretion, it only remains to inquire, whether a bank has a natural and obvious connection with other express or implied powers, so as to become a necessary and proper means of carrying them into execution. A bank *389 might be established as a branch of the public administration, without incorporation. The government might issue paper, upon the credit of the public faith, pledged for its redemption, or upon the credit of its property and funds. Let the office where this paper is issued be made a place of deposit for the money of individuals, and authorize its officers to discount, and a bank is created. It only wants the forms of incorporation. But, surely, it will not be pretended, that clothing it with these forms would make such an establishment unconstitutional. In

the bank which is actually established and incorporated, the United States are joint stockholders, and appoint joint directors; the secretary of the secretary of the treasury has a supervising authority over its affairs; it is bound, upon his requisition, to transfer the funds of the government wherever they may be wanted; it performs all the duties of commissioners of the loan-office; it is bound to loan the government a certain amount of money, on demand; its notes are receivable in payment for public debts and duties; it is intimately connected, according to the usage of the whole world, with the power of borrowing money, and with all the financial operations of the government. It has, also, a close connection with the power of regulating foreign commerce, and that between the different states. It provides a circulating medium, by which that commerce can be more conveniently carried on, and exchanges may be facilitated. It is true, there are state banks by which a circulating medium to a certain extent is provided. But that only diminishes the quantum of necessity, *390 which is no criterion by which to test the constitutionality of a measure. It is also connected with the power of making all needful regulations for the government of the territory, ‘and other property of the United States.’ If they may establish a corporation to regulate their territory, they may establish one to regulate their property. Their treasure is their property, and may be invested in this mode. It is put in partnership; but not for the purpose of carrying on the trade of banking as one of the ends for which the government was established; but only as an instrument or means for executing its sovereign powers. This instrument could not be rendered effectual for this purpose, but by mixing the property of individuals with that of the public. The bank could not otherwise acquire a credit for its notes. Universal experience shows, that, if, altogether a government bank, it could not acquire, or would soon lose, the confidence of the community. **26 2. As to the branches, they are identical with the parent bank. The power to establish them is that species of subordinate power, wrapped up in the principal power, which congress may place at its discretion. 3. The last and greatest, and only difficult question in the cause, is that which respects the assumed right of the states to tax this bank, and its branches, thus established by congress? This is a question, comparatively of no importance to the individual states, but of vital

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importance to the Union. Deny this exemption to the bank as an instrument of government, and what is the consequence? There is no express provision *391 in the constitution, which exempts any of the national institutions or property erty from state taxation. It is only by implication that the army and navy, and treasure, and judicature of the Union are exempt from state taxation. Yet they are practically exempt; and they must be, or it would be in the power of any one state to destroy their use. Whatever the United States have a right to do, the individual states have no right to undo. The power of congress to establish a bank, like its other sovereign powers, is supreme, or it would be nothing. Rising out of an exertion of paramount authority, it cannot be subject to any other power. Such a power in the states, as that contended for on the other side, is manifestly repugnant to the power of congress; since a power to establish, implies a power to continue and preserve. There is a manifest repugnancy between the power of Maryland to tax, and the power of congress to preserve, this institution. A power to build up, what another may pull down at pleasure, is a power which may provoke a smile, but can do nothing else. This law of Maryland acts directly on the operations of the bank, and may destroy it. There is no limit or check in this respect, but in the discretion of the state legislature. That discretion cannot be controlled by the national councils. Whenever the local councils of Maryland will it, the bank must be expelled from that state. A right to tax, without limit or control, is essentially a power to destroy. If one national institution may be destroyed in this manner, all may be destroyed in the same manner. If this power to tax the national property and institutions *392 exists in the state of Maryland, it is unbounded in extent. There can be no check upon it, either by congress, or the people of the other states. Is there then any intelligible, fixed, defined bonndary of this taxing power? If any, it must be found in this court. If it does not exist here, it is a nonentity. But the court cannot say what is an abuse, and what is a legitimate use of the power. The legislative intention may be so masked, as to defy the scrutinizing eye of the court. How will the court ascertain, à priori, that the given amount of tax will crush the bank? It is essentially a question of political economy, and there are always a vast variety of facts bearing upon it. The facts may be mistaken. Some important considerations belonging to the subject may

be kept out of sight; they must all vary with times and circumstances. The result, then, must determine, whether the tax is destructive. But the bank may linger on for some time, and that result cannot be known, until the work of destruction is consummated. A criterion which has been proposed, is to see whether the tax has been laid, impartially, upon the state banks, as well as the Bank of the United States. Even this is an unsafe test; for the state governments may wish, and intend, to destroy their own banks. The existence of any national institution ought not to depend upon so frail a security. But this tax is levelled exclusively at the branch of the United States Bank established in Maryland. There is, in point of fact, a branch of no other bank within that state, and there can legally be no other. It is a fundamental article of the state *393 constitution of Maryland, that taxes shall operate on all the citizens impartially and uniformly, in proportion to their property, with the exception, however, of taxes laid for political purposes. This is a tax laid for a political purpose; for the purpose of destroying a great institution of the national government; and if it were not imposed for that purpose, it would be repugnant to the state constitution, as not being laid uniformly on all the citizens, in proportion to their property. So that the legislature cannot disavow this to be its object, without, at the same time, confessing a manifest violation of the state constitution. Compare this act of Maryland with that of Kentucky, which is yet to come before the court, and the absolute necessity of repressing such attempts in their infancy, will be evident. Admit the constitutionality of the Maryland tax, and that of Kentucky follows inevitably. How can it be said, that the office of discount and deposit in Kentucky cannot bear a tax of $60,000 per annum, payable monthly? Probably, it could not; but judicial certainty is essential; and the court has no means of arriving at that certainty. There is, then, here, an absolute repugnancy of power to power; we are not bound to show, that the particular exercise of the power in the present case is absolutely repugnant. It is sufficient, that the same power may be thus exercised. **27 There certainly may be some exceptions out of the taxing power of the states, other than those created by the taxing power of congress; because, if there were no implied exceptions, then, the navy, and other *394 exclusive property of the United States, would be liable to state taxation. If some of the powers of congress, other than

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its taxing power, necessarily involve incompatibility with the taxing power of the states, this may be incompatible. This is incompatible; for a power to impose a tax ad libitum upon the notes of the bank, is a power to repeal the law, by which the bank was created. The bank cannot be useful, it cannot act at all, unless it issues notes. If the present tax does not disable the bank from issuing its notes, another may; and it is the authority itself which is questioned, as being entirely repugnant to the power which established and preserves the bank. Two powers thus hostile and incompatible cannot co-exist. There must be, in this case, an implied exception to the general taxing power of the states, because it is a tax upon the legislative faculty of congress, upon the national property, upon the national institutions. Because the taxing powers of the two governments are concurrent in some respects, it does not follow, that there may not be limitations on the taxing power of the states, other than those which are imposed by the taxing power of congress. Judicial proceedings are practically a subject of taxation in many countries, and in some of the states of this Union. The states are not expressly prohibited in the constitution, from taxing the judicial proceedings of the United States. Yet such a prohibition must be implied, or the administration of justice in the national courts might be obstructed by a prohibitory tax. But such a tax is no more a tax on the legislative faculty of congress than this. The branch *395 bank in Maryland is as much an institution of the sovereign power of the Union, as the circuit court of Maryland. One is established in virtue of an express power; the other by an implied authority; but both are equal, and equally supreme. All the property and all the institutions of the United States are, constructively, without the local, territorial jurisdiction of the individual states, in every respect, and for every purpose, including that of taxation. This immunity must extend to this case, because the power of taxation imports the power of taxation for the purpose of prohibition and destruction. The immunity of foreign public vessels from the local jurisdiction, whether state or national, was established in the case of The Exchange, 7 Cranch 116, not upon positive municipal law, nor upon conventional law; but it was implied, from the usage of nations, and the necessity of the case. If, in favor of foreign governments, such an edifice of exemption has been built up, independent of the letter of the constitution, or of any other written law, shall not a similar edifice be raised on the same foundations, for

the security of our own national government? So also, the jurisdiction of a foreign power, holding a temporary possession of a portion of national territory, is nowhere provided for in the constitution; but is derived from inevitable implication. United States v. Rice (ante, p. 246). These analogies show, that there may be exemptions from state jurisdiction, not detailed in the constitution, but arising out of general considerations. If congress has power to do a particular act, *396 no state can impede, retard or burden it. Can there be a stronger ground, to infer a cessation of state jurisdiction? **28 The Bank of the United States is as much an instrument of the government for fiscal purposes, as the courts are its instruments for judicial purposes. They both proceed from the supreme power, and equally claim its protection. Though every state in the Union may impose a stamp tax, yet no state can lay a stamp tax upon the judicial proceedings or custom-house papers of the United States. But there is no such express exception to the general taxing power of the states contained in the constitution. It arises from the general nature of the government, and from the principle of the supremacy of the national powers, and the laws made to execute them, over the state authorities and state laws. It is objected, however, that the act of congress, incorporating the bank, withdraws property from taxation by the state, which would be otherwise liable to state taxation. We answer, that it is immaterial, if it does thus withdraw certain property from the grasp of state taxation, if congress had authority to establish the bank, since the power of congress is supreme. But, in fact, it withdraws nothing from the mass of taxable property in Maryland, which that state could tax. The whole capital of the bank, belonging to private stockholders, is drawn from every state in the Union, and the stock belonging to the United States, previously constituted a part of the public treasure. Neither the stock belonging to citizens of other states, nor the privileged treasure *397 of the United States, mixed up with this private property, were previously liable to taxation in Maryland; and as to the stock belonging to its own citizens, it still continues liable to state taxation, as a portion of their individual property, in common with all the other private property in the state. The establishment of the bank, so far from withdrawing anything from taxation by the state, brings something into

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Maryland which that state may tax. It produces revenue to the citizens of Maryland, which may be taxed equally and uniformly, with all their other private property. The materials of which the ships of war, belonging to the United States, are constructed, were previously liable to state taxation. But the instant they are eonverted into public property, for the public defence, they cease to be subject to state taxation. So, here, the treasure of the United States, and that of individuals, citizens of Maryland, and of other states, are undistinguishably confounded in the capital stock of this great national institution, which, it has been before shown, could be made useful as an instrument of finance, in no other mode than by thus blending together the property of the government and of private merchants. This partnership is, therefore, one of necessity, on the part of the United States. Either this tax operates upon the franchise of the bank, or upon its property. If upon the former, then it comes directly in conflict with the exercise of a great sovereign authority of congress; if upon the latter, then it is a tax upon the property of the United States; since the law does not, and *398 cannot, in imposing a stamp tax, distinguish their interest from that of private stockholders. **29 But it is said, that congress possesses and exercises the unlimited authority of taking the state banks; and therefore, the states ought to have an equal right to tax the Bank of the United States. The answer to this objection is, that, in taxing the state banks, the states in congress exercise their power of taxation. Congress exercises the power of the people; the whole acts on the whole. But the state tax is a part acting on the whole. Even if the two cases were the same, it would rather exempt the state banks from federal taxation, than subject the Bank of the United States to taxation by a particular state. But the state banks are not machines essential to execute the powers of the state sovereignties, and therefore, this is out of the question. The people of the United States, and the sovereignties of the several states, have no control over the taxing power of a particular state. But they have a control over the taxing power of the United States, in the responsibility of the members of the house of representatives to the people of the state which sends them, and of the senators, to the legislature by whom they are chosen. But there is no correspondent responsibility of the local legislature of Maryland, for example, to the people of the other states of the Union.

The people of other states are not represented in the legislature of Maryland, and can have no control, directly or indirectly, over its proceedings. The legislature of Maryland is responsible only to the people of that state. The national *399 government can withdraw nothing from the taxing power of the states, which is not for the purpose of national benefit and the common welfare, and within its defined powers. But the local interests of the states are in perpetual conflict with the interests of the Union; which shows the danger of adding power to the partial views and local prejudices of the states. If the tax imposed by this law be not a tax on the property of the United States, it is not a tax on any property; and it must, consequently, be a tax on the faculty or franchise. It is, then, a tax on the legislative faculty of the Union, on the charter of the bank. It imposes a stamp duty upon the notes of the bank, and thus stops the very source of its circulation and life. It is as much a direct interference with the legislative faculty of congress, as would be a tax on patents, or copyrights, or custom-house papers or judicial proceedings. Since, then, the constitutional government of this republican empire cannot be practically enforced, so as to secure the permanent glory, safety and felicity of this great country, but by a fair and liberal interpretation of its powers; since those powers could not all be expressed in the constitution, but many of them must be taken by implication; since the sovereign powers of the Union are supreme, and, wherever they come in direct conflict and repugnancy with those of the state governments, the latter must give way; since it has been proved, that this is the case as to the institution of the bank, and the general power of taxation by the states; since this power unlimited and unchecked, as it necessarily must be, by the *400 very nature of the subject, is absolutely inconsistent with, and repugnant to, the right of the United States to establish a national bank; if the power of taxation be applied to the corporate property, or franchise, or property of the bank, and might be applied in the same manner, to destroy any other of the great institutions and establishments of the Union, and the whole machine of the national government might be arrested in its motions, by the exertion, in other cases, of the same power which is here attempted to be exerted upon the bank: no other alternative remains, but for this court to interpose its authority, and save the nation from the consequences of this dangerous attempt.

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March 7th, 1819. MARSHALL, Ch. J., delivered the opinion of the court. **30 In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that state. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of *401 hostile legislation, perhaps, of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty. The first question made in the cause is—has congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of

which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first congress elected under the present constitution. *402 The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first, in the fair and open field of debate, and afterwards, in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity, to assert that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression, that, were the question entirely new, the law would be found irreconcilable with the constitution. **31 In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion. *403 It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might ‘be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.’ This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted

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to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions, the constitution derives its whole authority. The government proceeds directly from the people; is ‘ordained and established,’ in the name of the people; and is declared to be ordained, ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure *404 the blessings of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign capacity, is implied, in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, ‘in order to form a more perfect union,’ it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), is, *405

emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. **32 This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist. In discussing these questions, the conflicting powers of the general and state governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, *406 ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘anything in the constitution or laws of any state to the contrary notwithstanding.’ Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied

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powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;’ thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles *407 of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding. **33 Although, among the enumerated powers of government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended, *408 that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government,

intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the north should be transported to the south, that raised in the east, conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred, which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, *409 if the existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed. It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied, that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation. On what foundation does this argument rest? On this alone: the power of creating a corporation, is one appertaining to sovereignty, and is not expressly conferred on congress. This is true. But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever, is a sovereign power; and if the government of the Union is restrained from creating a corporation, as a means for performing

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its functions, on the single reason that the creation of a corporation is an act of sovereignty; if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority of congress to pass other laws for the accomplishment of the same objects. The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed *410 to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. **34 The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other. We cannot comprehend that train of reasoning, which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some state constitutions were formed before, some since that of the United States. We cannot believe, that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same, as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the power contained in the constitution, and on the states the whole residuum of power, would it have been asserted, that the government of the Union was not sovereign, with respect to those objects which were intrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning *411 which maintains, that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means

of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity, for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted, in order to be incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built, with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. But the constitution of the United States has not left the right of congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added, that of making ‘all *412 laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.’ The counsel for the state of Maryland have urged various arguments, to prove that this clause, though, in terms, a grant of power, is not so, in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers. In support of this proposition, they have found it necessary to contend, that this clause was inserted for the purpose of conferring on congress the power of making laws. That, without it, doubts might be entertained, whether congress could exercise its powers in the form of legislation. **35 But could this be the object for which it was inserted? A government is created by the people, having legislative, executive and judicial powers. Its legislative powers are vested in a congress, which is to consist of a senate and house of representatives. Each house may determine the rule of its proceedings; and it is declared, that every bill which shall have passed both houses, shall, before it becomes a law, be presented to the president of the United States. The 7th section describes the course of proceedings, by which a bill shall become a law; and, then, the 8th section enumerates the powers of congress.

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Could it be necessary to say, that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe *413 its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the convention, that an express power to make laws was necessary, to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a proposition too selfevident to have been questioned. But the argument on which most reliance is placed, is drawn from that peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers confered on the government, but such only as may be ‘necessary and proper’ for carrying them into execution. The word ‘necessary’ is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to congress, in each case, that only which is most direct and simple. Is it true, that this is the sense in which the word ‘necessary’ is always used? Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to *414 produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in a their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense—in that sense which common usage justifies. The word ‘necessary’ is of this description. It has not a fixed character, peculiar to itself. It admits of

all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. The comment on the word is well illustrated by the passage cited at the bar, from the 10th section of the 1st article of the constitution. It is, we think, impossible to compare the sentence which prohibits a state from laying ‘imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,’ with that which authorizes congress ‘to make all laws which shall be necessary and proper for carrying into execution’ the powers of the general government, without feeling a conviction, that the convention understood itself to change materially *415 the meaning of the word ‘necessary,’ by prefixing the word ‘absolutely.’ This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view. **36 Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution. This could not be done, by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

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*416 If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in congress may certainly be carried into execution, without prescribing an oath of office. The power to exact this security for the faithful performance of duty, is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the convention was not unmindful of this subject. The oath which might be exacted—that of fidelity to the constitution—is prescribed, and no other can be required. Yet, he would be charged with insanity, who should contend, that the legislature might not superadd, to the oath directed by the constitution, such other oath of office as its wisdom might suggest. So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infraction, might be denied, with the more plausibility, because it is expressly given in some cases. Congress is empowered ‘to provide for the punishment *417 of counterfeiting the securities and current coin of the United States,’ and ‘to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.’ The several powers of congress may exist, in a very imperfect state, to be sure, but they may exist and be carried into execution, although no punishment should be inflicted, in cases where the right to punish is not expressly given. **37 Take, for example, the power ‘to establish postoffices and post-roads.’ This power is executed, by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or

rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offences, is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the operations of the government, and the absolute *418 impracticability of maintaining it, without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word ‘necessary’ must be abandoned, in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution, by means not vindictive in their nature? If the word ‘necessary’ means ‘needful,’ ‘requisite,’ ‘essential,’ ‘conducive to,’ in order to let in the power of punishment for the infraction of law; why is it not equally comprehensive, when required to authorize the use of means which facilitate the execution of the powers of government, without the infliction of punishment? In ascertaining the sense in which the word ‘necessary’ is used in this clause of the constitution, we may derive some aid from that with which it it is associated. Congress shall have power ‘to make all laws which shall be necessary and proper to carry into execution’ the powers of the government. If the word ‘necessary’ was used in that strict and rigorous sense for which the counsel for the state of *419 Maryland contend, it would be an extraordinary

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departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible offect of which is, to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation, not strained and compressed within the narrow limits for which gentlemen contend. **38 But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the state of Maryland, is founded on the intention of the convention, as manifested in the whole clause. To waste time and argument in proving that, without it, congress might carry its powers into execution, would be not much less idle, than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the state of Maryland, would abridge, and almost annihilate, this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already controverted, too apparent for controversy. We think so for the following reasons: 1st. The clause is placed among the powers of congress, not among the limitations on those powers. *420 2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress on the mind, another, they would rather have disguised the grant of power, than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these.

‘In carrying into execution the foregoing powers, and all others,’ &c., ‘no laws shall be passed but such as are necessary and proper.’ Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect. The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting *421 the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble. **39 We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. 7 That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means, has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose, that a constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in government, ought to have specified this. Had it been intended to grant this power, as one which should be distinct and independent, to be exercised in any case whatever, it *422 would have found a place among the enumerated powers of the

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government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it. The propriety of this remark would seem to be generally acknowledged, by the universal acquiescence in the construction which has been uniformly put on the 3d section of the 4th article of the constitution. The power to ‘make all needful rules and regulations respecting the territory or other property belonging to the United States,’ is not more comprehensive, than the power ‘to make all laws which shall be necessary and proper for carrying into execution’ the powers of the government. Yet all admit the constitutionality of a territorial government, which is a corporate body. If a corporation may be employed, indiscriminately with other means, to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions *423 against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, congress, justifying the measure by its necessity, transcended, perhaps, its powers, to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this measure. The time has passed away, when it can be necessary to enter into any discussion, in order to prove the importance of this instrument, as a means to effect the legitimate objects of the government. **40 But were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should congress, in the execution of its powers, adopt measures which

are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power. *424 After this declaration, it can scarcely be necessary to say, that the existence of state banks can have no possible influence on the question. No trace is to be found in the constitution, of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution. But were it otherwise, the choice of means implies a right to choose a national bank in preference to state banks, and congress alone can make the election. After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land. The branches, proceeding from the same stock, and being conducive to the complete accomplishment of the object, are equally constitutional. It would have been unwise, to locate them in the charter, and it would be unnecessarily inconvenient, to employ the legislative power in making those subordinate arrangements. The great duties of the bank are prescribed; those duties require branches; and the bank itself *425 may, we think, be safely trusted with the selection of places where those branches shall be fixed;

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reserving always to the government the right to require that a branch shall be located where it may be deemed necessary. It being the opinion of the court, that the act incorporating the bank is constitutional; and that the power of establishing a branch in the state of Maryland might be properly exercised by the bank itself, we proceed to inquire —— **41 2. Whether the state of Maryland may, without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the states; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments— are truths which have never been denied. But such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted. The states are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded— if it may restrain a state from the exercise of its taxing power on imports and exports—the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely *426 repeals that other as if express terms of repeal were used. On this ground, the counsel for the bank place its claim to be exempted from the power of a state to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds. This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to

depend. These are, 1st. That a power to create implies a power to preserve: 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve: 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. These propositions, as abstract truths, would, perhaps, never be controverted. Their application to this case, however, has been denied; and both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument, seldom, if ever, surpassed, have been displayed. *427 The power of congress to create, and of course, to continue, the bank, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable. That the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is intrusted to the discretion of those who use it. But the very terms of this argument admit, that the sovereignty of the state, in the article of taxation itself, is subordinate to, and may be controlled by the constitution of the United States. How far it has been controlled by that instrument, must be a question of construction. In making this construction, no principle, not declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view, while construing the constitution. **42 The argument on the part of the state of Maryland, is, not that the states may directly resist a law of congress, but that they may exercise their *428 acknowledged powers upon it, and that the constitution leaves them this right, in the confidence that they will not abuse it. Before we proceed to examine this argument, and to subject it to test of the constitution, we must be permitted to bestow a

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few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the states. It is admitted, that the power of taxing the people and their property, is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituent over their representative, to guard them against its abuse. But the means employed by the government of the Union have no such security, nor is the right of a state to tax them sustained by the same theory. Those means are not given by the people of a particular state, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the states. They are given by all, *429 for the benefit of all—and upon theory, should be subjected to that government only which belongs to all. It may be objected to this definition, that the power of taxation is not confined to the people and property of a state. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do wo trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable, that it does not. Those powers

are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them. **43 If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable *430 to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a state unimpaired; which leaves to a state the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the states, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down, what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy, what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amonnt to the abuse of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single state cannot give. We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise. But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised *431 by the respective states, consistently with a fair construction of the constitution? That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared

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to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose, that the people of any one state should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it is as it really is. **44 *432 If we apply the principle for which the state of Maryland contends, to the constitution, generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their constitution and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the states. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. Gentlemen say, they do not claim the right to extend state taxation to these objects. They limit their pretensions to property. But on what principle, is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend, that the power of taxation has no other limit than is found in the 10th section of the 1st article of the constitution;

that, with respect to everything else, the power of the states is supreme, and admits of no control. If this be true, the distinction between property and *433 other subjects to which the power of taxation is applicable, is merely arbitrary, and can never be sustained. This is not all. If the controlling power of the states be established; if their supremacy as to taxation be acknowledged; what is to restrain their exercising control in any shape they may please to give it? Their sovereignty is not confined to taxation; that is not the only mode in which it might be displayed. The question is, in truth, a question of supremacy; and if the right of the states to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation. In the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained; and to understand the argument, we must examine the proposition it maintains, and the objections against which it is directed. The subject of those numbers, from which passages have been cited, is the unlimited power of taxation which is vested in the general government. The objection to this unlimited power, which the argument seeks to remove, is stated with fulness and clearness. It is, ‘that an indefinite power of taxation in the latter (the government *434 of the Union) might, and probably would, in time, deprive the former (the government of the states) of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it; the national government might, at any time, abolish the taxes imposed for state objects, upon the pretence of an interference with its own. It might allege a necessity for doing this, in order to give efficacy to the national revenues; and thus, all the resources of taxation might, by degrees, become the subjects of federal

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monopoly, to the entire exclusion and destruction of the state governments.’ **45 The objections to the constitution which are noticed in these numbers, were to the undefined power of the government to tax, not to the incidental privilege of exempting its own measures from state taxation. The consequences apprehended from this undefined power were, that it would absorb all the objects of taxation, ‘to the exclusion and destruction of the state governments.’ The arguments of the Federalist are intended to prove the fallacy of these apprehensions; not to prove that the government was incapable of executing any of its powers, without exposing the means it employed to the embarrassments of state taxation. Arguments urged against these objections, and these apprehensions, are to be understood as relating to the points they *435 mean to prove. Had the authors of those excellent essays been asked, whether they contended for that construction of the constitution, which would place within the reach of the states those measures which the government might adopt for the execution of its powers; no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative. It has also been insisted, that, as the power of taxation in the general and state governments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by the states, will equally sustain the right of the states to tax banks chartered by the general government. But the two cases are not on the same reason. The people of all the states have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform. But when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a *436 part, and the action of a part on

the whole—between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme. But if the full application of this argument could be admitted, it might bring into question the right of congress to tax the state banks, and could not prove the rights of the states to tax the Bank of the United States. The court has bestowed on this subject its most deliberate consideration. The result is a conviction that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. **46 This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government *437 of the Union to carry its powers into execution. Such a tax must be unconstitutional. JUDGMENT.—This cause came on to be heard, on the transcript of the record of the court of appeals of the state of Maryland, and was argued by counsel: on consideration whereof, it is the opinion of this court, that the act of the legislature of Maryland is contrary to the constitution of the United States, and void; and therefore, that the said court of appeals of the state of Maryland erred, in affirming the judgment of the Baltimore county court, in which judgment was rendered against James W. McCulloch; but that the said court of appeals of Maryland ought to have reversed the said judgment of the said Baltimore county court, and ought to have given judgment for the said appellant, McCulloch: It is, therefore, adjudged and ordered, that the said judgment

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of the said court of appeals of the state of Maryland in this case, be, and the same hereby is, reversed and annulled. And this court, proceeding to render such judgment as the said court of appeals should have rendered; it is further adjudged and ordered, that the judgment of the said Baltimore county court be reversed and annulled, and that

judgment be entered in the said Baltimore county court for the said James W. McCulloch. All Citations 17 U.S. 316, 1819 WL 2135, 4 L.Ed. 579, 4 Wheat. 316, 4 A.F.T.R. 4491, 42 Cont.Cas.Fed. (CCH) P 77,296

Footnotes

1 2

3 4 5 6 7

See Hepburn v. Griswold, 8 Wall. 603; Knox v. Lee, 12 Id. 533. But it is competent for congress to confer on the state governments the power to tax the shares of the national banks, within certain limitations; the power of taxation under the constitution, is a concurrent one. Van Allen v. The Assessors, 3 Wall. 585, NELSON, J. But, says the learned judge, congress may, by reason of its paramount authority, exclude the states from the exercise of such power. Ibid. It is difficult, however, to perceive in what part of the constitution, the power is conferred on congress to erect a multitude of moneyed corporations, in the several states, absorbing $400,000,000 of the capital of the country, and to exempt it from state taxation. This case involving a constitutional question of great public importance, and the sovereign rights of the United States and the state of Maryland; and the government of the United States having directed their attorney general to appear for the plaintiff in error, the court dispensed with its general rule, permitting only two counsel to argue for each party. See Roach v. Philadelphia County, 2 Am. L.J. 444; United v. Weise, 3 Wall. Jr. C. C. 72, 79. Letters of Publius, or The Federalist, Nos. 31–36. See Sturges v. Crowninshield, ante, p. 122. See Montague v. Richardson, 24 Conn. 338.

End of Document

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Justices Stevens and Souter filed dissenting opinions.

KeyCite Yellow Flag - Negative Treatment

Justice Breyer filed dissenting opinion, in which Justices Stevens, Souter and Ginsburg joined.

Superseded by Statute as Stated in U.S. v. Dorsey, 9th Cir.(Alaska), August 10, 2005

* * * *

115 S.Ct. 1624 Supreme Court of the United States UNITED STATES, Petitioner v. Alfonso LOPEZ, Jr. No. 93–1260. | Argued Nov. 8, 1994. | Decided April 26, 1995. Defendant was convicted in the United States District Court for the Western District of Texas, H.F. Garcia, J., of possessing firearm in school zone in violation of Gun-Free School Zones Act, and he appealed. The Court of Appeals for the Fifth Circuit, Garwood, Circuit Judge, 2 F.3d 1342, reversed and remanded with directions, and government petitioned for certiorari review. After granting certiorari, 114 S.Ct. 1536, the United States Supreme Court, Chief Justice Rehnquist, held that Gun-Free School Zones Act, making it federal offense for any individual knowingly to possess firearm at place that individual knows or has reasonable cause to believe is school zone, exceeded Congress' commerce clause authority, since possession of gun in local school zone was not economic activity that substantially affected interstate commerce.

Affirmed.

Justice Kennedy filed concurring opinion in which Justice O'Connor joined.

Justice Thomas filed concurring opinion.

Syllabus* After respondent, then a 12th–grade student, carried a concealed handgun into his high school, he was charged with violating the Gun–Free School Zones Act of 1990, which forbids “any individual knowingly to possess a firearm at a place that [he] knows ... is a school zone,” 18 U.S.C. § 922(q)(1)(A). The District Court denied his motion to dismiss the indictment, concluding that § 922(q) is a constitutional exercise of Congress' power to regulate activities in and affecting commerce. In reversing, the Court of Appeals held that, in light of what it characterized as insufficient congressional findings and legislative history, § 922(q) is invalid as beyond Congress' power under the Commerce Clause.

Held: The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession

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of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause *550 authority to a general police power of the sort held only by the States. Pp. 1626–1634.

2 F.3d 1342, (CA5 1993), affirmed.

REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 1634. THOMAS, J., filed a concurring opinion, post, p. 1642. STEVENS, J., post, p. 1651, and SOUTER, J., post, p. 1651, filed dissenting opinions. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 1657.

Attorneys and Law Firms Drew S. Days, III, New Haven, CT, for petitioner. John R. Carter, Georgetown, TX, for respondent.

On March 10, 1992, respondent, who was then a 12th–grade student, arrived at Edison High School in San Antonio, Texas, carrying a concealed .38–caliber handgun and five bullets. Acting upon an anonymous tip, school authorities confronted respondent, who admitted that he was carrying the weapon. He was arrested and charged under Texas law with firearm possession on school premises. See Tex.Penal Code Ann. § 46.03(a)(1) (Supp.1994). The next day, the state charges were dismissed after federal agents charged respondent by complaint with violating the Gun–Free School Zones Act of 1990. 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V).1

A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school zone, in violation of § 922(q). Respondent moved to dismiss his federal indictment on the ground that § 922(q) “is unconstitutional as it is beyond the power of Congress to legislate control over our public schools.” The District Court denied the motion, concluding that § 922(q) “is a constitutional exercise of Congress' well-defined power to regulate activities in and affecting *552 commerce, and the ‘business' of elementary, middle and high schools ... affects interstate commerce.” App. to Pet. for Cert. 55a. Respondent waived his right to a jury trial. The District Court conducted a bench trial, found him guilty of violating § 922(q), and sentenced him to six months' imprisonment and two years' supervised release.

Opinion **1626 *551 Chief Justice REHNQUIST delivered the opinion of the Court. In the Gun–Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “[t]o regulate Commerce ... among the several States....” U.S. Const., Art. I, § 8, cl. 3.

On appeal, respondent challenged his conviction based on his claim that § 922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, “section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause.” 2 F.3d 1342, 1367–1368 (1993). Because of the importance of the issue, we granted certiorari, 511 U.S. 1029, 114 S.Ct. 1536, 128 L.Ed.2d 189 (1994), and we now affirm.

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and

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defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292–293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Ibid.

The Constitution delegates to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” *553 Art. I, § 8, cl. 3. The Court, through Chief Justice Marshall, first defined the nature of Congress' **1627 commerce power in Gibbons v. Ogden, 9 Wheat. 1, 189–190, 6 L.Ed. 23 (1824): “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” The commerce power “is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” Id., at 196. The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause. “It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is

certainly unnecessary. “Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.... The enumeration presupposes something not enumerated; and that something, if we regard the language, or the subject of the sentence, must be the exclusively internal commerce of a State.” Id., at 194–195.

For nearly a century thereafter, the Court's Commerce Clause decisions dealt but rarely with the extent of Congress' power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce. See, e.g., Veazie v. Moor, 14 How. 568, 573–575, 14 L.Ed. 545 (1853) (upholding a state-created steamboat monopoly *554 because it involved regulation of wholly internal commerce); Kidd v. Pearson, 128 U.S. 1, 17, 20–22, 9 S.Ct. 6, 9–10, 32 L.Ed. 346 (1888) (upholding a state prohibition on the manufacture of intoxicating liquor because the commerce power “does not comprehend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State”); see also L. Tribe, American Constitutional Law 306 (2d ed. 1988). Under this line of precedent, the Court held that certain categories of activity such as “production,” “manufacturing,” and “mining” were within the province of state governments, and thus were beyond the power of Congress under the Commerce Clause. See Wickard v. Filburn, 317 U.S. 111, 121, 63 S.Ct. 82, 87, 87 L.Ed. 122 (1942) (describing development of Commerce Clause jurisprudence). * * *

. . . [I]n the watershed case of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), the Court upheld the National Labor Relations Act against a Commerce Clause

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challenge, and in the process, departed from the distinction between “direct” and “indirect” effects on interstate commerce. Id., at 36–38, 57 S.Ct., at 623–624 (“The question [of the scope of Congress' power] is necessarily one of degree”). The Court held that intrastate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” are within Congress' power to regulate. Id., at 37, 57 S.Ct., at 624. * * * But even these modern-era precedents which have expanded congressional power under the Commerce Clause *557 confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power “must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that **1629 to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” 301 U.S., at 37, 57 S.Ct., at 624; see also Darby, supra, 312 U.S., at 119–120, 61 S.Ct., at 459–460 (Congress may regulate intrastate activity that has a “substantial effect” on interstate commerce); Wickard, supra, at 125, 63 S.Ct., at 89 (Congress may regulate activity that “exerts a substantial economic effect on interstate commerce”). Since that time, the Court has heeded that warning and undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276–280, 101 S.Ct. 2352, 2360–2361, 69 L.Ed.2d 1 (1981); Perez v. United States, 402 U.S. 146, 155–156, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971); Katzenbach v. McClung, 379 U.S. 294, 299–301, 85 S.Ct. 377, 381–382, 13 L.Ed.2d 290 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252–253, 85 S.Ct. 348, 354–355, 13 L.Ed.2d 258 (1964).2

* * * Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez, supra, at 150, 91 S.Ct., at 1359; see also Hodel, supra, at 276–277, 101 S.Ct., at 2360–2361. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U.S., at 114, 61 S.Ct., at 457; Heart of Atlanta Motel, supra, at 256, 85 S.Ct., at 357 (“ ‘[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.’ ” (quoting Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 197, 61 L.Ed. 442 (1917))). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150, 91 S.Ct., at 1359 (“[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or ... thefts from interstate shipments (18 U.S.C. § 659)”). Finally, Congress' commerce authority includes the power to regulate those activities *559 having a substantial **1630 relation to interstate commerce, Jones & Laughlin Steel, 301 U.S., at 37, 57 S.Ct., at 624, i.e., those activities that substantially affect interstate commerce, Wirtz, supra, at 196, n. 27, 88 S.Ct., at 2024, n. 27. * * * We now turn to consider the power of Congress, in the light of this framework, to enact § 922(q). The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by

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which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if § 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce.

[2] First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. Examples include the regulation of intrastate coal mining; Hodel, supra, intrastate extortionate credit transactions, Perez, supra, restaurants utilizing substantial interstate supplies, McClung, supra, inns and hotels catering to interstate guests, Heart of Atlanta Motel, supra, and production *560 and consumption of homegrown wheat, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). These examples are by no means exhaustive, but the pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. * * *

[3] [4] Section 922(q) is a criminal statute that by its terms has nothing to do with **1631 “commerce” or any sort of economic enterprise, however broadly one might define those terms. 3 Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. * * *

Although Justice BREYER argues that acceptance of the Government's rationales would not authorize

a general federal police power, he is unable to identify any activity that the States may regulate but Congress may not. Justice BREYER posits that there might be some limitations on Congress' *565 commerce power, such as family law or certain aspects of education. Post, at 1661–1662. These suggested limitations, when viewed in light of the dissent's expansive analysis, are devoid of substance.

Justice BREYER focuses, for the most part, on the threat that firearm possession in **1633 and near schools poses to the educational process and the potential economic consequences flowing from that threat. Post, at 1659–1662. Specifically, the dissent reasons that (1) gun-related violence is a serious problem; (2) that problem, in turn, has an adverse effect on classroom learning; and (3) that adverse effect on classroom learning, in turn, represents a substantial threat to trade and commerce. Post, at 1661. This analysis would be equally applicable, if not more so, to subjects such as family law and direct regulation of education.

For instance, if Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school's curriculum has a “significant” effect on the extent of classroom learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant “effect on classroom learning,” cf. post, at 1661, and that, in turn, has a substantial effect on interstate commerce.

[6] Justice BREYER rejects our reading of precedent and argues that “Congress ... could rationally conclude that schools fall on the commercial side of the line.” Post, at 1664. Again, Justice BREYER's rationale lacks any real limits because, depending on the level of generality, any activity can be looked upon as commercial. Under the dissent's rationale, Congress could just as easily

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look at child rearing as “fall[ing] on the commercial side of the line” because it provides a “valuable service—namely, to equip [children] with the skills they need to survive in life and, more specifically, in the workplace.” Ibid. We do not doubt that Congress *566 has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools. * * * To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 1629. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is *568 truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30, 57 S.Ct., at 621. This we are unwilling to do.

For the foregoing reasons the judgment of the Court of Appeals is

Affirmed.

Justice KENNEDY, with O'CONNOR joins, concurring.

whom

Justice

The history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single,

national market still emergent in our own era counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power. That history gives me some pause about today's decision, but I join the Court's opinion with these observations on what I conceive to be its necessary though limited holding.

Chief Justice Marshall announced that the national authority reaches “that commerce which concerns more States than one” and that the commerce power “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” Gibbons v. Ogden, 9 Wheat. 1, 194, 196, 6 L.Ed. 23 (1824). His statements can be understood now as an early and authoritative recognition that the Commerce Clause grants Congress extensive power and ample discretion to determine its appropriate exercise. The progression of our Commerce Clause cases from Gibbons to the present was not marked, however, by a coherent or consistent course of interpretation; for neither the course of technological advance nor the foundational principles for the jurisprudence itself were self-evident to the courts that sought to resolve contemporary disputes by enduring principles. [Justices Kennedy and O’Connor review the history of Commerce Clause jurisprudence.] The history of our Commerce Clause decisions contains at least two lessons of relevance to this case. The first, as stated at the outset, is the imprecision of content-based boundaries used without more to define the limits of the Commerce Clause. The second, related to the first but of even greater consequence, is that the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on

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our power forecloses us from reverting to an understanding of commerce that would serve only an 18th–century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy. [The two Justices address their concern about the so-called dormant commerce clause, which limits the power of the individual states of the United States over interstate commerce, when Congress has not enacted laws on a particular topic. “The federal balance (see the next sentence below) refers to the relationship between the states and the national government.] The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required. As THE CHIEF JUSTICE explains, unlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. See ante, at 1630–1631. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far. If Congress attempts that extension, then at the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.

An interference of these dimensions occurs here, for it is well established that education is a traditional concern of the States. Milliken v. Bradley, 418 U.S. 717, 741–742, 94 S.Ct. 3112,

3125–3126, 41 L.Ed.2d 1069 (1974); *581 Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). The proximity to schools, including of course schools owned and operated by the States or their subdivisions, is the very premise for making the conduct criminal. In these circumstances, we have a particular duty to ensure that the federal-state balance is not destroyed. Cf. Rice, supra, at 230, 67 S.Ct., at 1152 (“[W]e start with the assumption that the historic police powers of the States” are not displaced by a federal statute “unless that was the clear and manifest purpose of Congress”); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83 S.Ct. 1210, 1219, 10 L.Ed.2d 248 (1963).

**1641 While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 49–50, 93 S.Ct. 1278, 1304–05, 36 L.Ed.2d 16 (1973); New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386–87, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).

If a State or municipality determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures. Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds. See, e.g., Alaska Stat.Ann. §§ 11.61.195(a)(2)(A) , 11.61.220(a)(4)(A) (Supp.1994); Cal.Penal Code Ann. § 626.9 (West Supp.1994); Mass.Gen.Laws c. 269, § 10(j) (1992); N.J.Stat.Ann. § 2C:39–5(e) (West Supp.1994); Va.Code Ann. § 18.2–308.1 (1988); Wis.Stat. § 948.605 (1991–1992).

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Other, more practicable means to rid the schools of guns may be thought by the citizens of some States to be preferable for the safety and welfare of the schools those States are *582 charged with maintaining. See Brief for National Conference of State Legislatures et al. as Amici Curiae 26–30 (injection of federal officials into local problems causes friction and diminishes political accountability of state and local governments). These might include inducements to inform on violators where the information leads to arrests or confiscation of the guns, see Lima, Schools May Launch Weapons Hot Line, Los Angeles Times, Ventura County East ed., Jan. 13, 1995, p. B1, col. 5; Reward for Tips on Guns in Tucson Schools, The Arizona Republic, Jan. 7, 1995, p. B2; programs to encourage the voluntary surrender of guns with some provision for amnesty, see Zaidan, Akron Rallies to Save Youths, The Plain Dealer, Mar. 2, 1995, p. 1B; Swift, Legislators Consider Plan to Get Guns Off Streets, Hartford Courant, Apr. 29, 1992, p. A4; penalties imposed on parents or guardians for failure to supervise the child, see, e.g., Okla.Stat., Tit. 21, § 858 (Supp.1995) (fining parents who allow students to possess firearm at school); Tenn.Code Ann. § 39–17–1312 (Supp.1992) (misdemeanor for parents to allow student to possess firearm at school); Straight Shooter: Gov. Casey's Reasonable Plan to Control Assault Weapons, Pittsburgh Post–Gazette, Mar. 14, 1994, p. B2 (proposed bill); Bailey, Anti–Crime Measures Top Legislators' Agenda, Los Angeles Times, Orange Cty. ed., Mar. 7, 1994, p. B1, col. 2 (same); Krupa, New Gun–Control Plans Could Tighten Local Law, The Boston Globe, June 20, 1993, p. 29; laws providing for suspension or expulsion of gun-toting students, see, e.g., Ala.Code § 16–1–24.1 (Supp.1994); Ind.Code § 20–8.1–5–4(b)(1)(D) (1993); Ky.Rev.Stat.Ann. § 158.150(1)(a) (Michie 1992); Wash.Rev.Code § 9.41.280 (1994), or programs for expulsion with assignment to special facilities, see Martin, Legislators Poised to Take Harsher Stand on Guns in Schools, The Seattle Times, Feb. 1, 1995, p. B1 (automatic year-long expulsion for students with guns and intense semester-long reentry program).

*583 The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. The tendency of this statute to displace state regulation in areas of traditional state concern is evident from its territorial operation. There are over 100,000 elementary and secondary schools in the United States. See U.S. Dept. of Education, National Center for Education Statistics, Digest of Education Statistics 73, 104 (NCES 94–115, 1994) (Tables 63, 94). Each of these now has an invisible federal zone extending 1,000 feet beyond the (often irregular) boundaries of the school property. In some communities no doubt it would be difficult to navigate without infringing on those zones. Yet throughout these areas, school officials would find their own programs for the prohibition **1642 of guns in danger of displacement by the federal authority unless the State chooses to enact a parallel rule. * * *

For these reasons, I join in the opinion and judgment of the Court.

*584 Justice THOMAS, concurring. [Omitted.]

Justice STEVENS, dissenting. The welfare of our future “Commerce with foreign Nations, and among the several States,” U.S. Const., Art. I, § 8, cl. 3, is vitally dependent on the character of the education of our children. I therefore agree entirely with Justice BREYER's explanation of why Congress has ample power to prohibit the possession of firearms in or near schools—just as it may protect the school environment from harms posed by controlled substances such as asbestos or alcohol. I also agree with Justice SOUTER's exposition of the radical character of the Court's holding and its kinship with

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the discredited, pre-Depression version of substantive due process. Cf. Dolan v. City of Tigard, 512 U.S. 374, 405–411, 114 S.Ct. 2309, 2326–2330, 129 L.Ed.2d 304 (1994) (STEVENS, J., dissenting). I believe, however, that the Court's extraordinary decision merits this additional comment.

Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence, *603 either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school-age children is, distressingly, substantial.* Whether or not the national interest in eliminating that market would have justified federal legislation in 1789, it surely does today.

Justice SOUTER, dissenting. [Omitted]

Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting. [Omitted]

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to do so by Congress. Pp. 1014-1022.

KeyCite Red Flag - Severe Negative Treatment

Superseded by Statute as Stated in U.S. v. Lara, U.S., April 19, 2004

98 S.Ct. 1011 Supreme Court of the United States Mark David OLIPHANT and Daniel B. Belgarde, Petitioners, v. The SUQUAMISH INDIAN TRIBE et al. No. 76-5729. | Argued Jan. 9, 1978. | Decided March 6, 1978.* Criminal proceedings were brought in the Suquamish Indian Provisional Court against two non-Indian residents of the Port Madison Reservation. Both petitioners applied for a writ of habeas corpus to the United States District Court for the Western District of Washington, arguing that the tribal court does not have criminal jurisdiction over non-Indians. In separate proceedings, the District Court denied the petitions. The Court of Appeals for the Ninth Circuit, 544 F.2d 1007, affirmed in one case, and the other petitioner's appeal was pending before the Court of Appeals. Upon granting certiorari, the Supreme Court, Mr. Justice Rehnquist, held that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.

(a) From the earliest treaties with Indian tribes, it was assumed that the tribes, few of which maintained any semblance of a formal court system, did not have such jurisdiction absent a congressional statute or treaty provision to that effect, and at least one court held that such jurisdiction did not exist. Pp. 1015-1017.

(b) Congress' actions during the 19th century reflected that body's belief that Indian tribes do not have inherent criminal jurisdiction over non-Indians. Pp. 1017-1019.

(c) The presumption, commonly shared by Congress, the Executive Branch, and lower federal courts, that tribal courts have no power to try non-Indians, carries considerable weight. Pp. 1019-1020.

(d) By submitting to the overriding sovereignty of the United States, Indian tribes necessarily yield the power to try non-Indians except in a manner acceptable to Congress, a fact which seems to be recognized by the Treaty of Point Elliott, signed by the Suquamish Indian Tribe. Pp. 1019-1022.

544 F.2d 1007 (Oliphant judgment), and Belgarde judgment, reversed. Opinion **1013 Mr. Justice REHNQUIST delivered the opinion of the Court.

Reversed.

Mr. Justice Marshall, with whom Mr. Chief Justice Burger joined, filed a dissenting opinion. **1012 Syllabus* *191 Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized

Two hundred years ago, the area bordering Puget Sound consisted of a large number of politically autonomous Indian villages, each occupied by from a few dozen to over 100 Indians. These loosely related villages were aggregated into a series of Indian tribes, one of which, the Suquamish, has become the focal point of this litigation. By the 1855 Treaty of Point Elliott, 12 Stat. 927, the Suquamish Indian Tribe *193 relinquished all rights that it might have had in the lands of the State of Washington and agreed to settle on a

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7,276-acre reservation near Port Madison, Wash. Located on Puget Sound across from the city of Seattle, the Port Madison Reservation is a checkerboard of tribal community land, allotted Indian lands, property held in fee simple by non-Indians, and various roads and public highways maintained by Kitsap County.1

1007. Petitioner Belgarde's appeal is still pending before the Court of Appeals.5 We granted certiorari, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059, to decide whether Indian tribal courts have criminal jurisdiction over non-Indians. We decide that they do not. * * *

The Suquamish Indians are governed by a tribal government which in 1973 adopted a Law and Order Code. The Code, which covers a variety of offenses from theft to rape, purports to extend the Tribe's criminal jurisdiction over both Indians and non-Indians.2 Proceedings are held in the Suquamish *194 Indian Provisional Court. Pursuant to the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U.S.C. § 1302, defendants are entitled to many of the due process protections accorded to defendants in federal or state criminal proceedings.3 However, the guarantees are not identical. Non-Indians, for example, are excluded from Suquamish tribal court juries.4

Both petitioners are non-Indian residents of the Port Madison Reservation. Petitioner Mark David Oliphant was arrested by tribal authorities during the Suquamish's annual Chief Seattle Days celebration and charged with assaulting a tribal officer and resisting arrest. After arraignment before the tribal court, Oliphant was released on his own recognizance. Petitioner Daniel B. Belgarde was arrested by tribal authorities after an alleged high-speed race along the Reservation highways that only ended when Belgarde collided with a tribal police vehicle. Belgarde posted bail and was released. Six days later he was arraigned and **1014 charged under the tribal Code with “recklessly endangering another person” and injuring tribal property. Tribal court proceedings against both petitioners have been stayed pending a decision in this case. [1] Both petitioners applied for a writ of habeas corpus to the United States District Court for the Western District of Washington. Petitioners argued that the Suquamish Indian Provisional Court does not have criminal jurisdiction over non-Indians. In separate proceedings, the District Court disagreed *195 with petitioners' argument and denied the petitions. On August 24, 1976, the Court of Appeals for the Ninth Circuit affirmed the denial of habeas corpus in the case of petitioner Oliphant. Oliphant v. Schlie, 544 F.2d

The Suquamish Indian Tribe does not stand alone today in its assumption of criminal jurisdiction over non-Indians. Of the 127 reservation court systems that currently exercise criminal jurisdiction in the United States, 33 purport to extend that jurisdiction to non-Indians. 7 Twelve other Indian **1015 tribes have enacted ordinances which would permit the assumption of criminal jurisdiction over non-Indians. Like the Suquamish these tribes claim authority to try non-Indians not on the basis of congressional statute or treaty provision but by reason of their retained national sovereignty. * * * [7] While in isolation the Treaty of Point Elliott, 12 Stat. 927 (1855), would appear to be silent as to tribal criminal jurisdiction over non-Indians, the addition of historical perspective casts substantial doubt upon the existence of such jurisdiction.16 In the Ninth Article, for example, the Suquamish *207 “acknowledge their dependence on the government of the United States.” As Mr. Chief Justice Marshall explained in Worcester v. Georgia, 6 Pet. 515, 551-552, 554, 8 L.Ed. 483 (1832), such an acknowledgment is not a mere abstract recognition of the United States' sovereignty. “The Indian nations were, from their situation, necessarily dependent on [the United States] . . . for their protection from lawless and injurious intrusions into their country.” Id., at 555. By acknowledging their dependence on the United States, in the Treaty of Point Elliott, the Suquamish were in all probability recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation. Other provisions *208 of the Treaty also point to the absence of tribal jurisdiction. Thus the Tribe “agree [s] not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” Read in conjunction with 18 U.S.C. § 1152, which extends federal enclave law to non-Indian offenses on Indian reservations, this provision implies that the Suquamish are to promptly deliver up any non-Indian offender, rather than try and punish him

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themselves.17

a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.” 5 Pet., at 17-18.

By themselves, these treaty provisions would probably not be sufficient to remove criminal jurisdiction over non-Indians if the Tribe otherwise retained such jurisdiction. But an examination of our earlier precedents satisfies us that, even ignoring treaty **1021 provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress. Indian tribes do retain elements of “quasi-sovereign” authority after ceding their lands to the United States and announcing their dependence on the Federal Government. See Cherokee Nation v. Georgia, 5 Pet. 1, 15, 8 L.Ed. 25 (1831). But the tribes' retained powers are not such that they are limited only by specific restrictions in treaties or congressional enactments. As the Court of Appeals recognized Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers “inconsistent with their status.” Oliphant v. Schlie, 544 F.2d, at 1009 (emphasis added).

[8] Nor are the intrinsic limitations on Indian tribal authority restricted to limitations on the tribes' power to transfer lands or exercise external political sovereignty. In the first case to reach this Court dealing with the status of Indian tribes, Mr. Justice Johnson in a separate concurrence summarized the nature of the limitations inherently flowing from the overriding sovereignty of the United States as follows: “[T]he restrictions upon the right of soil in the Indians, amount . . . to an exclusion of all competitors [to the United States] from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves.” Fletcher v. Peck, 6 Cranch 87, 147, 3 L.Ed. 162 (1810) (emphasis added). Protection of territory within its *210 external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. This principle would have been obvious a century ago when most Indian tribes were characterized by a “want of fixed laws [and] of competent tribunals of justice.” H.R.Rep. No. 474, 23d Cong., 1st Sess., 18 (1834). It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.

Indian reservations are “a part of the territory of the United *209 States.” United States v. Rogers, 4 How. 567, 571, 11 L.Ed. 1105 (1846). Indian tribes “hold and occupy [the reservations] with the assent of the United States, and under their authority.” Id., at 572. Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. “[T]heir rights to complete sovereignty, as independent nations, [are] necessarily diminished.” Johnson v. M'Intosh, 8 Wheat. 543, 574, 5 L.Ed. 681 (1823).

We have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States. In Johnson v. M'Intosh, supra, we noted that the Indian tribes' “power to dispose of the soil at their own will, to whomsoever they pleased,” was inherently lost to the overriding sovereignty of the United States. And in Cherokee Nation v. Georgia, supra, the Chief Justice observed that since Indian tribes are “completely under the sovereignty and dominion of the United States, . . . any attempt [by foreign nations] to acquire their lands, or to form

* * * As previously noted, Congress extended the jurisdiction of federal courts, in the Trade and Intercourse Act of 1790, to offenses committed by non-Indians against Indians within Indian Country. In doing so, Congress was careful to extend to the non-Indian offender the basic criminal rights that would attach in non-Indian related cases. Under respondents' theory, however, Indian tribes would have been free to try the same non-Indians without these careful proceedings unless

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Congress affirmatively legislated to the contrary. Such an exercise of jurisdiction over non-Indian citizens of the United States would belie the tribes' forfeiture of full sovereignty in return for the protection of the United States.

In summary, respondents' position ignores that “Indians are within the geographical limits of the United States. The soil and people within these limits are under the political control of the Government of the United States, or of the States of the Union. There exists in the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they . . . exist in subordination to one or the other of these.” United States v. Kagama, 118 U.S. 375, 379, 6 S.Ct. 1109, 1111, 30 L.Ed. 228 (1886).

We recognize that some Indian tribal court systems have become increasingly sophisticated and resemble in many *212 respects their state counterparts. We also acknowledge that with the passage of the Indian Civil Rights Act of 1968, which extends certain basic procedural rights to anyone tried in Indian tribal court, many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared. Finally, we are not unaware of the prevalence of non-Indian crime on today's reservations which the tribes forcefully argue requires the ability to try non-Indians. 18 But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians. They have little relevance to the principles which lead us to conclude that Indian tribes do not have inherent **1023 jurisdiction to try and to punish non-Indians. The judgments below are therefore Reversed.

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Renz, Jeffrey 6/27/2016 For Educational Use Only In re Estate of Big Spring, 360 Mont. 370 (2011) 255 P.3d 121, 2011 MT 109

360 Mont. 370 Supreme Court of Montana.

[3] district court could not exercise jurisdiction over probate of member's estate. Reversed and remanded with instructions.

In the Matter of the ESTATE OF William F. BIG SPRING, Jr., Deceased. Attorneys and Law Firms Julie Big Spring and William Big Spring, III, Appellants, v. Angela Conway, Doug Eckerson, and Georgia Eckerson, Appellees. No. DA 10–0099. | Argued and Submitted Nov. 10, 2010. | Decided May 19, 2011.

Synopsis Background: After personal representative of Blackfeet Indian tribe member closed member's estate, daughter of member brought petition for determination of testacy and heirs, and challenged personal representative's handling of estate. The District Court, Ninth Judicial District, Glacier County, Laurie McKinnon, Presiding Judge, denied second daughter and son's motion to dismiss for lack of jurisdiction. Second daughter and son appealed.

Holdings: The Supreme Court, Patricia O. Cotter, J., held that:

[1] daughter of member was an enrolled member of tribe for purposes of analysis of district court's subject matter jurisdiction over probate of estate;

[2] proper jurisdictional analysis in both regulatory and adjudicatory actions involving tribal members or lands is to ask whether the exercise of jurisdiction by a state court or regulatory body is preempted by federal law or, if not, whether it infringes on tribal self government; overruling In re Marriage of Skillen, 287 Mont. 399, 956 P.2d 1; and

**123 For Appellants: Joe J. McKay (argued), Attorney at Law, Browning, Montana. For Appellee Angela Conway: Ronald A. Nelson (argued), Burt Hurwitz, Church, Harris, Johnson & Williams, P.C., Great Falls, Montana. For Appellee Doug Eckerson: Linda Hewitt Conners (argued), Attorney at Law, Kalispell, Montana. For Amicus Curiae: Sandra K. Watts, Attorney at Law, Browning, Montana. Opinion Justice PATRICIA O. COTTER delivered the Opinion of the Court. *372 ¶ 1 Julie Big Spring (Julie) and William F. Big Spring III (William) appeal the order of the Ninth Judicial District Court, Glacier County, denying their motion to dismiss for lack of subject matter jurisdiction. They challenge the District Court's assumption of jurisdiction over the probate of the estate of their father, William F. Big Spring, Jr. (Big Spring), an enrolled member of the Blackfeet Tribe whose estate property was located within the exterior boundaries of the Blackfeet Indian Reservation at the time of his death. We reverse the District Court's order and hold that the Blackfeet Tribal Court has exclusive jurisdiction over the probate of Big Spring's estate (the Estate).

* * * ISSUE ¶ 3 A restatement of the issue on appeal is whether the District Court erred when it assumed subject matter jurisdiction over the probate of the Estate when Big Spring was an enrolled member of the Blackfeet Tribe and all of his estate property was located within the exterior boundaries of

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the Blackfeet Reservation at the time of his death.

FACTUAL AND PROCEDURAL BACKGROUND ¶ 4 Big Spring died on July 26, 2003 at the age of sixty-two. Big Spring was an enrolled member of the Blackfeet Tribe and, at the time of his death, was domiciled on the Blackfeet Indian Reservation (Reservation) in northwestern Montana. Big Spring's estate consisted of trust land and member Indian-owned fee land, all of which was located within the exterior boundaries of the Reservation. Big Spring is survived by three children, Julie, William, and Angela Conway (Angela); his ex-wife, Georgia Eckerson (Georgia); and his mother, Kathleen Big Spring (Kathleen). Georgia is the mother of Julie and William, and it is undisputed that Julie and William are enrolled members of the Blackfeet Tribe. Angela is the daughter of Big Spring and Lisa Wyrick. There are conflicting arguments as to whether Angela is an enrolled member of the Blackfeet Tribe. We deem it appropriate to our analysis to clarify Angela's enrollment status. * * *

[1] ¶ 6 We conclude the record before us establishes that Angela is an enrolled member of the Blackfeet Tribe. * * *

[2] ¶ 7 We defer to the Blackfeet Tribal Court's determination of Angela's status because, unless limited by treaty or statute, tribes have the power to determine membership, which is a power this Court and the United States Supreme Court have recognized. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 327–28, 128 S.Ct. 2709, 2718, 171 L.Ed.2d 457 (2008); Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir.1978) (citing Cherokee Intermarriage Cases, 203 U.S. 76, 27 S.Ct. 29, 51 L.Ed. 96 (1906)); Zempel v. Liberty, 2006 MT 220, ¶ 20, 333 Mont. 417, 143 P.3d 123 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 –56, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978)). For the aforementioned reasons, we conclude for purposes of this appeal that the record before us establishes that Angela is an enrolled Blackfeet Tribal member.

¶ 8 We now turn to a recitation of the underlying facts so as to place this appeal in context. On September 29, 2004, Georgia filed an *375 informal application to be appointed personal representative of the Estate in the Ninth Judicial District Court. In her application she represented that Julie and William were Big Spring's only heirs and that he died intestate. Simultaneously, Julie and William filed documents renouncing their priorities for appointment and nominating Georgia to be appointed personal representative. The Clerk of Court granted Georgia's application the same day. On June 1, 2006, Georgia filed her sworn statement to close the Estate and terminate her appointment as personal representative. The record indicates that between September 29, 2004 and June 1, 2006, Georgia satisfied creditors' claims, sold the Estate's only listed asset—member Indian-owned fee land near East Glacier—to Doug Eckerson (Doug), and distributed proceeds of the sale to Julie and William.

¶ 9 On December 1, 2006, Angela and Kathleen filed a petition in the Ninth Judicial District Court probate action for determination of testacy and heirs, challenging Georgia's handling of the Estate on numerous grounds. Relevant to the issue of subject matter jurisdiction that is before us, the petition asserted: (1) Georgia knew Angela was the daughter of Big Spring and intentionally excluded her from the proceedings; (2) at the time of his death, Big Spring had a valid will, executed September 15, 1965, which appointed Kathleen executrix and devised the entire Estate to her; and (3) Georgia transferred the Estate's only identified non–Indian trust asset to her ex-husband, Doug, for less than adequate consideration. To date, extensive litigation has ensued around these issues.

**125 ¶ 10 To complicate matters, in the six months between the time Georgia closed the Estate and Angela and Kathleen filed their petition, the United States Department of the Interior, Bureau Office of Hearings and Appeals, held a series of probate hearings (hereinafter “DOI Probate Hearings”) to settle the portion of the Estate that was Indian trust and restricted property. On November 20, 2006, Albert Jones, the DOI Probate Hearings judge, issued his findings of facts, conclusions of law, and order. In his decision, Jones found Big Spring's 1965 will valid and, by its terms, concluded that all of Big Spring's interest in the Estate was devised to Kathleen. According to Jones' final decision, no one objected to the finding of a valid will or the finding that Angela was Big Spring's daughter. During the hearings Kathleen executed

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a Renunciation of Interest with Retention of Life Estate.

¶ 11 The result of Kathleen's renunciation was that the Indian trust property passed as if Kathleen had predeceased Big Spring. Kathleen *376 retained a life estate in Big Spring's Indian trust and restricted property with the remainder divided equally among Big Spring's heirs, Julie, William, and Angela.

¶ 12 On August 16, 2007, the District Court held a telephonic scheduling conference in the probate action and set a trial date on Angela and Kathleen's petition for December 5, 2007. On November 30, 2007, the District Court granted Kathleen's voluntary motion to dismiss, with prejudice, her claims regarding the petition for determination of testacy, and also granted the Estate's motion to continue the trial until March 2008. This left Angela's petition to be resolved. * * *

**126 ¶ 17 On October 23, 2009, for the first time since they had renounced their priority as personal representatives of the Estate in 2004, Julie and William formally appeared in this probate matter with counsel, and moved the District Court pursuant to M.R. Civ. P. 12(b)(1) to dismiss the case for lack of subject matter jurisdiction. They argued the Ninth Judicial District Court lacked subject matter jurisdiction and the matter belonged in Blackfeet Tribal Court because, at the time of his death, Big Spring was an enrolled member of the Blackfeet Indian Tribe who was domiciled, and all of his property was located, within the exterior boundaries of the Reservation. Angela and Doug opposed this motion.

¶ 18 In a February 1, 2010 order denying Julie and William's motion to dismiss for lack of subject matter jurisdiction, the District Court defined the issue as whether the jurisdiction of the Blackfeet Tribal Court is exclusive of the district court. The court relied on our decision in Estate of Standing Bear v. Belcourt, 193 Mont. 174, 631 P.2d 285 (1981) for the proposition that tribal courts do not have exclusive jurisdiction over fee property on reservations. Further, while acknowledging the factual distinctions, the court cited to the 2008 United States Supreme Court case, Plains Commerce, for the proposition that tribes do not have plenary jurisdiction over fee property located within the exterior boundaries of their reservations because fee property is alienable. The

District Court then went on to apply the three-pronged test announced in the Montana Supreme Court case, Iron Bear, and found that its exercise of jurisdiction over fee property within the exterior boundaries of the Reservation would not interfere with the tribe's self-government. For these reasons, the District Court concluded it had subject matter jurisdiction to probate the Estate and denied Julie and William's motion to dismiss.

¶ 19 Julie and William timely appeal the District Court's denial of *378 their motion to dismiss. Angela and Doug appeared before this Court urging us to affirm the District Court. Georgia, though named as a defendant below and a respondent here, did not appear before this Court. The Blackfeet Tribe filed an amicus curiae brief arguing for exclusive tribal jurisdiction over the probate of the Estate because assumption of state jurisdiction infringes on tribal self-government. We heard oral arguments in this matter on November 10, 2010.

STANDARD OF REVIEW [3] [4] ¶ 20 We review de novo a district court's ruling on a motion to dismiss for lack of subject matter jurisdiction. Cooper v. Glaser, 2010 MT 55, ¶ 6, 355 Mont. 342, 228 P.3d 443. A district court must determine whether the complaint states facts that, if true, would vest the court with subject matter jurisdiction. Meagher v. Butte–Silver Bow City–County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552. This determination by a district court is a conclusion of law that we review for correctness. Zempel, ¶ 11.

DISCUSSION ¶ 21 Did the District Court err when it assumed subject matter jurisdiction over the probate of the Estate when Big Spring was an enrolled member of the Blackfeet Tribe and all of his estate property was located within the exterior boundaries of the Blackfeet Reservation at the time of his death?

¶ 22 The case before us concerns Montana's civil adjudicatory

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jurisdiction over the probate of an enrolled Blackfeet tribal member's estate, when the property of that estate is located within the exterior boundaries of the Blackfeet Reservation. While seemingly straightforward, our case law regarding civil jurisdiction over issues arising in Indian Country has not been a model of clarity and, as demonstrated in this case, has caused practitioners and courts great confusion as to the appropriate analysis to undertake in such circumstances. Therefore, we address and clarify the law in this area.

A. Julie and William's motion to dismiss for lack of subject matter jurisdiction was timely because such challenges may be raised at any time in the proceeding. [5] ¶ 23 As a preliminary matter, motions to dismiss for lack of subject matter jurisdiction **127 may be raised at any time by any party or by the court, and once a court determines that it lacks subject matter jurisdiction, it must dismiss the action. M.R. Civ. P. 12(h)(3); Wippert v. Blackfeet Tribe, 260 Mont. 93, 102, 859 P.2d 420, 425 (1993). *379 Further, it is well established that a party cannot waive or confer jurisdiction by consent when there is no basis for jurisdiction in law. Indian Health Bd. of Billings, Inc. v. Mont. Dept. of Labor & Indus., 2008 MT 48, ¶ 20, 341 Mont. 411, 177 P.3d 1029 (citing Thompson v. State, 2007 MT 185, ¶ 28, 338 Mont. 511, 167 P.3d 867). Therefore, despite the District Court's intimation in its order that William and Julie somehow consented to the court's exercise of jurisdiction by not objecting to it earlier in the proceedings, we conclude that William and Julie have properly raised the issue of subject matter jurisdiction.

B. The Blackfeet Tribal Court has exclusive subject matter jurisdiction over the probate of the Estate based on longstanding principles of federal Indian case law and because Montana cannot assume civil jurisdiction over the people and lands of the Blackfeet Reservation until both Montana and the Blackfeet Tribe have complied with federal statutory procedures. ¶ 24 All parties cited the three-pronged test in Iron Bear, decided by this Court in 1973, as the appropriate test to determine whether a Montana state court has subject matter jurisdiction over the probate of a tribal member's estate located in Indian Country. * * * ¶ 25 Our research establishes that while the Iron Bear Court

relied on federal case law in its analysis, it misinterpreted the applicability of those cases to reach its holding and the three-pronged test it articulated. The Iron Bear test is at odds with federal statutes and federal case law because the test confers greater subject matter jurisdiction upon Montana state courts than is permitted by federal law.

1. Controlling Principles of Federal Indian Law ¶ 26 In the field of Indian law, federal supremacy and tribal self-government are bedrock principles. The Commerce Clause of the United States Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Through the Supremacy Clause of the United States Constitution, federal preemption of state law in Indian affairs has continued as the principal doctrine underlying Indian law. Id. at art. VI, cl. 2. In Worcester v. Georgia, the United States Supreme Court judicially recognized these bedrock principles of Indian law for the first time when it held that Georgia had no **128 authority over non–Indians who refused to comport with Georgia law because they were residing within Cherokee tribal territory with the permission of both Cherokee and federal authorities. Worcester v. Georgia, 31 U.S. 515, 562, 6 Pet. 515, 8 L.Ed. 483 (1832). Adherence to these principles has resulted in federal treaties, executive orders, and statutes preempting state law in areas that would otherwise be covered by a state's residual jurisdiction over persons and property within the state's borders. See Cohen's Handbook of Federal Indian Law §§ 2.01, 6.01[2] (Nell Jessup Newton, ed., LexisNexis 2005) (hereinafter “Cohen's Handbook ”) for a more in-depth discussion.

[6] ¶ 27 Furthermore, since tribal reservations are not states, and because tribes have a unique right of self-government, it is “generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of law.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). The federal government has a longstanding policy of encouraging tribal self-government. This policy operates “even in areas where state control has not been affirmatively pre-empted by federal statute.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14, 107 S.Ct. 971, 975, 94 L.Ed.2d 10 (1987). For these reasons, the United States Supreme *381 Court has adopted a “comprehensive

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pre-emption inquiry in the Indian law context which examines not only the congressional plan, but also ‘the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.’ ” Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 884, 106 S.Ct. 2305, 2310, 90 L.Ed.2d 881 (1986) (quoting Bracker, 448 U.S. at 145, 100 S.Ct. at 2584) (hereinafter “Three Affiliated Tribes II ”). We adopt a similar comprehensive preemption inquiry in the context of Indian law.

reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” See Alaska *382 v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 526, 118 S.Ct. 948, 952, 140 L.Ed.2d 30 (1998). While 18 U.S.C. § 1151 defines Indian Country for the purpose of criminal law, it is well-settled that its definition applies to civil law as well. Id., 118 S.Ct. at 952 (internal citation omitted). Indian reservations are Indian Country. **129 Id. at 528 n. 3, 118 S.Ct. at 953 n. 3 (internal citation omitted).

[7] ¶ 28 When a state court is presented with an issue that invokes Indian law principles, whether regulatory (such as passing a law) or adjudicatory (such as hearing a probate case), federal precedent dictates that there are three factors that must be considered in a court's determination of subject matter jurisdiction: the status of the parties, the status of the property where the dispute arose or took place, and whether the regulatory or adjudicatory state action is criminal or civil in nature. See generally Cohen's Handbook at §§ 6.01–6.03.

[11] ¶ 31 For the purposes of this appeal we address only those land statuses applicable to this case (while acknowledging there are other types of land statuses associated with Indian law. See generally Cohen's Handbook at §§ 15 –16 for an analysis of tribal and individual Indian property ownership and rights.). Individual tribal members may hold land either in the form of restricted or trust allotment, or in fee simple. Cohen's Handbook at § 16.03. “Allotment is a term of art in Indian law, describing either a parcel of land owned by the United States in trust for an Indian (“trust” allotment) or owned by an Indian subject to a restriction on alienation in the United States or its officials (“restricted” allotment).” Cohen's Handbook at § 16.03 [1] (internal citations omitted). These two types of allotments are treated the same for purposes of Indian Country jurisdiction. United States v. Ramsey, 271 U.S. 467, 471–72, 46 S.Ct. 559, 560, 70 L.Ed. 1039 (1926). If and when the trust expires or the restrictions are removed, an individual tribal member may take title to the land in fee simple absolute, which is referred to as member Indian-owned fee land. See Cohen's Handbook at § 16.03 [4][b][i].

[8] ¶ 29 As to the status of the parties, an individual generally may be classified as: an Indian who is either a member or nonmember of the Indian reservation in question, or a non–Indian. See Montana v. United States, 450 U.S. 544, 563–66, 101 S.Ct. 1245, 1257–59, 67 L.Ed.2d 493 (1981). For consistency and clarity, we will use the terms “member Indian” to mean those Indian persons who are enrolled members of the tribe whose specific reservation is at issue; “nonmember Indian” to mean those persons who are Indians, but are not enrolled members of the specific tribe whose reservation is at issue (though they may be enrolled members of another tribe); and “non–Indian” to mean those persons who are not Indians.

[9] [10] ¶ 30 The status of the property where the dispute arose or took place—be it Indian trust or restricted land, member Indian-owned fee land, nonmember Indian-owned fee land, or non–Indian–owned fee land—is a second factor. Nevada v. Hicks, 533 U.S. 353, 359–60, 121 S.Ct. 2304, 2309–10, 150 L.Ed.2d 398 (2001). The United States Supreme Court has consistently held that the Federal Government and tribes, not states, retain jurisdiction over territories defined as Indian Country in 18 U.S.C. § 1151(a), which includes “all land within the limits of any Indian

¶ 32 In a civil proceeding such as this one, nonmember-owned fee land is land located within the exterior boundaries of a reservation that is owned in fee simple by a nonmember of the tribe (either a nonmember Indian or a non–Indian). For jurisdictional purposes, member Indian-owned fee land is categorized as Indian Country when located within a reservation. 18 U.S.C. § 1151(c).1 For purposes of this case, we consider three categories of property: Indian trust and restricted allotments, member Indian-owned fee land, and nonmember-owned fee land.

¶ 33 The Department of Interior regulates the probate of

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Indian trust allotments. 25 U.S.C. § 372. As indicated supra ¶ 10, the Department of Interior held a series of hearings to settle that portion of the Estate *383 that was an Indian trust allotment. The property at issue in the District Court probate and here on appeal is member Indian-owned fee land.

[12] ¶ 34 The United States Supreme Court has held that when land is involved, the status of the property may be the dispositive factor for jurisdictional purposes, Hicks, 533 U.S. at 360, 121 S.Ct. at 2310, and has repeatedly recognized that “tribal sovereignty is in large part geographically determined.” Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 457, 109 S.Ct. 2994, 3022, 106 L.Ed.2d 343 (1989); see United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.”); Bracker, 448 U.S. at 151, 100 S.Ct. at 2587 (“The Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty.”). 2 In Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), the United States Supreme Court stated that tribal jurisdiction does not vary between fee lands and trust allotments as “ ‘such an impractical pattern of checkerboard jurisdiction’ [is] contrary to the intent of existing federal statutory law of Indian jurisdictional.” Moe, 425 U.S. at 478, 96 S.Ct. at 1643–44 (internal citation omitted). Given that the United States Supreme Court has consistently guarded the authority of Indian tribes over **130 their reservations, there is no doubt that, absent express Congressional limitations, Indian tribes maintain sovereign power over member Indian-owned fee land located within the exterior boundaries of that tribe's reservation.

2. Controlling Federal Indian Case Law ¶ 35 In Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), the United States Supreme Court first articulated that the test to determine if a particular state law could be applied on Indian reservations was “absent a governing Act of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Williams, 358 U.S. at 220, 79 S.Ct. at 271. In Williams, a non–Indian who operated a general *384 store on the Navajo Indian Reservation under a federal license filed suit in state

court against a Navajo Indian and his wife, both of whom were enrolled members of the Navajo Tribe and lived on the Navajo Reservation, to collect for goods sold to them on credit. Id. at 217, 79 S.Ct. at 269. The Supreme Court of Arizona held Arizona courts may exercise jurisdiction over civil suits by non–Indians against Indians for actions arising on an Indian reservation because no Act of Congress expressly forbade their doing so. Id. at 217, 79 S.Ct. at 269. The United States Supreme Court reversed, concluding concurrent state jurisdiction was impermissible because the exercise of state jurisdiction would undermine the authority of the Navajo courts over reservation affairs and would, therefore, infringe on the rights of the Navajo to govern themselves. Id. at 223, 79 S.Ct. at 272. The United States Supreme Court found it unpersuasive that the store owner was a non–Indian; it stated that “[h]e was on the Reservation and the transaction with an Indian took place there,” and further stated that it had “consistently guarded the authority of Indian governments over their reservations,” a power which is only for Congress to take away. Id., 79 S.Ct. at 272.

¶ 36 The United States Supreme Court revisited and reaffirmed this position in Kennerly v. Dist. Court of the Ninth Jud. Dist. of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971) (per curiam). In Kennerly, a non–Indian–owned grocery store in Browning, Montana, which is located within the exterior boundaries of the Blackfeet Reservation, brought suit in state court against enrolled members of the Blackfeet Indian Tribe who resided on the Reservation to collect payment for food sold on credit. *** The United States Supreme Court vacated the order of the Montana Supreme Court, holding that absent affirmative legislation on the part of Montana, as required by Public Law No. 53 –280, Act of August 15, 1953, 67 Stat. 588 (PL –280), and absent consent of the Blackfeet Tribe pursuant to the 1968 Indian Civil Rights Act amendments to PL–280, Montana could not assert civil jurisdiction over issues arising within the exterior boundaries of the Blackfeet Reservation. Kennerly, 400 U.S. at 427–29, 91 S.Ct. at 482–83; see In re Marriage of Skillen, 1998 MT 43, ¶ 15, 287 Mont. 399, 956 P.2d 1. * * * ¶ 45 We expressly overrule Iron Bear in its entirety for three reasons: (1) it incorrectly states the two independent but related barriers articulated in Bracker as part of a conjunctive test; (2) it erroneously adds a third prong (“whether the Tribal

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Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to preempt state jurisdiction”); and (3) it is analytically flawed, as discussed above. * * * 4. The District Court erred in assuming jurisdiction over *390 the probate of the Estate because Public Law 280 precludes the court from assuming subject matter jurisdiction where Montana and the Blackfeet Tribe have not taken the necessary steps for Montana to assume civil jurisdiction over the Blackfeet Indian Reservation. ¶ 47 The current version of Public Law 280 (PL –280) is codified at 28 U.S.C. § 1360 and **134 25 U.S.C. §§ 1321 –26. The statute originally delegated to six states criminal and civil jurisdiction throughout Indian Country within their borders. These states were considered “mandatory states.” Other states, including Montana, were “optional states” that could unilaterally “assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” In re Marriage of Wellman, 258 Mont. 131, 136, 852 P.2d 559, 562 (1993) (quoting Pub.L. No. 280, § 7, 67 Stat. 588, 590 (1953)). Subsequently, in 1968, Congress amended PL–280 to require the consent of the enrolled tribal members on the reservation, expressed through a majority vote of adults at a special election, before a state could assume jurisdiction over criminal or civil actions arising on a reservation and involving a tribal member. Wellman, 258 Mont. at 136, 852 P.2d at 562 (citing 25 U.S.C. § 1326) (hereinafter “PL –280” refers to the current statute, as amended in 1968). Similar to the Enabling Acts of other optional states upon admittance to the United States, and consistent with Article I of the Montana Constitution and the Enabling Act, 50–180, § 4(2), 25 Stat. 676, 676 (1889) ( “all lands owned by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana”), Montana codified the procedural requirements of PL–280 in Title 2, chapter 1, MCA. To date, the only tribes in Montana that have met the requirements set forth in PL–280 are the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. See §§ 2–1–301 and –306, MCA.

¶ 56 The approximately 1,500 acres outside of East Glacier in dispute here is member Indian-owned fee land located entirely within the exterior boundaries of the Blackfeet Reservation. It is not the type of fee land that was at issue in Plains Commerce. Plains Commerce involved non–Indian fee land sold first from Kenneth Long, a non–Indian and founder of Respondent Long Company, to the Petitioner Bank, also a non–Indian, and finally to other non–Indians. Plains Commerce, 554 U.S. at 320–23, 128 S.Ct. at 2714–16. Here, the probate of Big Spring's estate involves only member Indian-owned fee land. * * * CONCLUSION ¶ 58 In conclusion, we hold that the Blackfeet Tribal Court has exclusive jurisdiction over the probate of Big Spring's estate because at the time of his death Big Spring was an enrolled member of the Blackfeet Tribe and all of his estate property was located within the exterior boundaries of the Blackfeet Reservation. Assumption of subject matter jurisdiction by the District Court was impermissible because Montana and the Blackfeet Tribe have not taken the necessary steps for Montana to assume civil jurisdiction over the Blackfeet Reservation. * * *

¶ 61 Reversed with instruction to dismiss for lack of subject matter jurisdiction.

We concur: MIKE McGRATH, C.J., BRIAN MORRIS, MICHAEL E. WHEAT, JIM RICE, JOHN C. McKEON* and RUSSELL C. FAGG**, JJ.

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End of Document

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INTRODUCTION TO INHERIT THE WIND In the late 19th century and early 20th century, a group of Christians in the United States of America went through a process of reaction to intellectual and scientific developments that challenged their religious beliefs. A group of Biblical historians and philologists had traced the Old and New Testaments to some of their earliest sources and published discoveries that demonstrated, among other things, that books of the Old and New Testaments had more than one author, that argued, among other things, that linguistic analysis of the Pentateuch demonstrated that it had not been written by Moses, and that the accepted meaning of some Books was not consistent with the meaning in early Greek or Aramaic. The most significant scientific development at the time was evolutionary theory that challenged the view that God created man in the form that now exists. In response to these developments three views soon coalesced. One held that religious faith could be adjusted to and accommodate the new intellectual and scientific discoveries. Another held that religion and science were in fact compatible and that God’s revelations could be found in the natural world as well as in the Scriptures. The third view, Fundamentalism, is the most important to our discussion. Fundamentalism rejected the findings of science and held that the Scriptures should predominate. The Fundamentalist movement is an American phenomenon. It began with the North America’s version of the Council of Nicea, the Niagara Bible Conference of 1897. This meeting was a reaction to Higher literary criticism and linguistic analysis of the Bible, which tended to establish that the Old Testament had more than one author. The doctrines of Fundamentalism were elaborated between 1910 and 1915 in a 12 volume work entitled The Fundamentals. The Fundamentals set out five basic ideas: 1.

The original books of the Bible (now lost) were free from error and were literal. This means that anything, science or otherwise, no matter how well established by evidence, must be rejected as false if it conflicts with the literal meaning of the Bible. This is because the Bible is the sole source of Truth.

2.

Mary was a virgin when she gave birth to a divine Jesus and Jesus Christ was the Son of God.

3.

Christ substituted himself for man when he died on the Cross and this served to atone for man’s sins.

4.

Chris in his original and wounded body was resurrected from the dead

5.

Christ will soon return to judge the living and the dead and to re-establish God’s Kingdom on earth. This guides Fundamentalists in their world view. Nothing temporal matters. Human suffering does not matter and attempts to alleviate human suffering are a waste of time. Because Christ’s return is imminent, the purpose of every Fundamentalist must be to

185

convert others and save them from damnation. Suffering on earth, after all, is incomparable to suffering in Hell. As Fundamentalism grew and matured, three other philosophies developed. First, the Fundamentalist viewpoint was the only correct one. Second, only Fundamentalist clergy are qualified to interpret the Bible and they further have a duty to oppose and destroy any conflicting interpretations. Finally, scientific views that ran counter to the Fundamentalist biblical interpretation also had to be opposed and destroyed. Fundamentalism also held views about competing religious philosophies. Liberalism, the idea that religion could be adjusted to accommodate and explain recent scientific developments, was worse than heresy. It was its own unitary system of belief. It was both non-Christian because it served to return man to his pre-Christian beliefs, and anti-Christian. Fundamentalism was strongest in the Southern United States, where religious belief was rooted in the Bible, where Catholic and Orthodox religions were weak. Tennessee is one of those states of the United States were Fundamentalism was and is today, very powerful. RELIGION IN THE PUBLIC SCHOOLS OF THE UNITED STATES Inherit the Wind, and State of Tennessee v. John Scopes, the 1924 criminal prosecution that inspired the play, deals with the teaching of evolution in a Tennessee public high school. Religious groups had long seen the United States’ public schools as fertile ground for religious proselytizing. One author argues that the Protestants’ tactics to convert others to their brand of Protestantism were developed in Elizabethan England and carried to the New World by dissenters from the established church.1 The tactics came to include: “If the common schools are in fact an instrument, direct or indirect, of the forces of the Protestant Empire, then these forces can: (1) pursue antiRoman Catholicism; (2) strive to convert school children belonging to minority religions to some form of evangelical Protestantism; (3) reinforce the affinity of various Protestant sects or denominations by their shared political and legal control of the common schools; (4) advance any social reform that serves the interests of the Protestant Empire through the process of public school education; and (5) wear down opposition to the

1

Newsome, Michael, Common School Religion: Judicial Narratives in a Protestant Empire, 11 S. Cal. Interdisc. L.J. 219, 226 (2002) (“The characteristics of the Protestant Empire fundamentally constitute a psychological attack on those whom the Empire seeks to convert to evangelical Protestantism. The ultimate weapon of the Empire is a subtle and sophisticated mixture of coercion and suasion, of attrition and restraint against a backdrop of coercion, force, and violence. The great genius of the Empire lies in its willingness to wait out, wear down, and watch the opposition die, while firmly controlling the levers of state power, force, and coercion. Elizabeth I perfected this strategy, though its origins can be traced to the regime of her father, Henry VIII.”).

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goals and objectives of an American Protestant Empire.”2 Thus, the public schools became the battleground, not of Christians and nonChristians, nor of Protestants and Catholics,3 but of “liberal” Christians and evangelical Christians. [234-235] A truce was called, however, when new waves of Catholic Irish and German Catholic immigrants entered the United States. But the truce held only the United States’ mid- and northeast-Atlantic seaboard, where the Catholics arrived from Europe and where “liberal” Christianity was developing. In the interior and in the South, the evangelicals held sway and the content of the public school curriculum reflected their power.4 A “truce” notwithstanding, mob violence broke out in the Eastern cities, when Catholics agitated against predominately Protestant public schools. In Boston in 1834, for example, buildings were torched and lives were lost in riots that resulted from “ ‘a Catholic bishop’s suggestion that public schools exempt Catholic children from the necessity of reading from the Protestant version of the Bible.’”5 Protestant hegemony in the public schools took the form of Protestant prayer, readings from the Protestant bible, or both.6 By the end of the nineteenth century, it was not unusual for a court of appeals to observe, Christianity is so interwoven with the web and woof of the state government that to sustain the contention that the Constitution prohibits reading the Bible, offering prayers, or singing songs of a religious character in any public building of the government would produce a condition bordering upon moral anarchy.7 Catholic objections to Protestant school prayers and Bible readings did not assert that these were not appropriate for public schools but that only that they should accommodate other religions. In states where Roman Catholics had become populous

2

Common School Religion, above, n.\, at 226. The Catholics lost their battle in the mid-19th Century and retreated to parochial schools. Common School Religion, above, n.\ at 238-242; Daniel F. Piar, Majority Rights, Minority Freedoms: Protestant Culture, Personal Autonomy, and Civil Liberties in Nineteenth-century America, 14 Wm. & Mary Bill Rts. J. 987, 1015-1020 (2005). 4 Common School Religion, above, n.\, at 234-235. 5 Common School Religion, above, n.\, at 242, n.162 (quoting V.T. Thayer & Martin Levit, The Role of the School in American Society 409 (1966)). 6 Michael deHaven Newson, The American Protestant Empire: a Historical Perspective, 40 Washburn L.J. 187, 257 (2001); Majority Rights, Minority Freedoms n.\, above, 14 Wm. & Mary Bill Rts. J. at 988. 3

7

Church v. Bullock, 104 Tex. 1, 7, 109 S.W. 115, 118 (1908); see Pfeiffer v. Board of Education of City of Detroit, 118 Mich. 560, 566, 77 N.W. 250, 252 (1898) (taking judicial notice of a half century of Bible readings, school prayer, and Biblical and theological references in textbooks, without public complaint).

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enough to wield political power, the courts resolved the issue by concluding that it was impossible to reach accommodation and directing a halt to school prayer and Bible readings.8 This was the state of religion in the public schools at the end of the nineteenth century. Predominance of Protestant Christianity in the public schools did not preclude the teaching of organic evolution, even in private Protestant colleges. This changed when a branch of Fundamentalism, the Pentecostals, became involved in the 1920s. The Pentecostals had developed as an off-shoot of Fundamentalism at the start of the 20th century. Unlike the Fundamentalists, the Pentecostals believed in very active evangelism and participation in the public arena. They entered the battle over evolution with sword in hand. A Pentecostal minister, William Riley, urged the State of Tennessee to enact and then enforce a law that prohibited the teaching of evolution in the public schools. By the 1920s the American Civil Liberties Union (ACLU) had been established to fight government control of people’s lives – initially to support union activism and anti-war speech. They soon developed a mission to defend freedom of speech and of belief and eventually, to defend all of the rights of people found in the United States Constitution and laws. The ACLU saw the prosecution of John Scopes, who taught evolution in ___, Tennessee, as a case that would test the state’s power to impose a single religious viewpoint on others. The case may be seen in many paradigms: Majority rule v. minority rights; the rights of parents to direct the religious beliefs and education of their children; science v. religion; academic freedom; scientific facts v. religious belief.

8

Ring v. Board of Education of Dist. 24, 245 Ill. 334, 349, 92 N.E. 251, 256 (1910); Tudor v. Board of Education, 14 N.J. 31, 100 A.2d 857 (N.J. 1953).

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Tennessee prosecuted John Scopes because he taught evolution in Dayton High School. Inherit the Wind is a fictional representation of Scopes’ prosecution and trial, with a love interest added. The characters in Inherit the Wind correspond to many of those involved in the Scopes trial: Inherit the Wind

Scopes Trial

Hillsboro, Tennessee

Dayton, Tennessee

Bertram Cates

John Scopes

Mathew Harrison Brady

William Jennings Bryan

Henry Drummond

Clarence Darrow

E. K. Hornbeck

H. L. Mencken

We will talk about the participants in class.

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14

FIRST DAY'S PROCEEDINGS

TENNESSEE EVOLUTION TRIAL

Mr.. Darrow-May I consider just a moment on the last one? Court-Yes, sir, you may. Mr. Darrow-May I ask Mr. Riley one question, your honor? Court-Yes, sir. Mr. Darrow's question to Mr. Riley: You said you couldn't read. Is that due to your eyes? Mr. Riley (A) No, I am uneducated. Q-That is because of your eyes? A-I say I am uneducated. Q-Have your eyes bothered you? A-No, I am uneducated. Q-You have worked always on a farm? A-Not all the time. I have worked in the mines a good deal of the time. Q-Whereabouts? ,- A-Right up here at Nelson's. Q-How long did you work in the mines? A-Some four or five years. Q-When did you leave the mines? A-Well, it has been twenty years ago. Gen. Stewart-I presume, of course, that the defense know, since they ask about the peremptory challenges, that they have three. Mr. Darrow-Yes, sir, I had already found that out. Court-What do you say to Mr. Massingill?-for the state? Mr. McKenzie-I pass him to you, Colonel. . Questions by Mr. Darrow: Q-What is your business? A-I am a minister. Q-Whereabouts? A-How is that? Q-Where? A-I live in Rhea county. Q-What part of it? A-I live in the second district of Rhea county, twenty miles north of this place. Q-Where do you preach? A-I preach over the county in the rural sections. Q-You mean you haven't any regular church? A-I have. I am pastoring four

churches-have four appointments. Q-Ever preach on evolution? A-I don't think so, definitely; that is, on evolution alone. Q-Now, you wouldn't want ·to sit on this jury unless you were fair, would you? A-Certainly, I would want to be fair; yes, sir. Q-Did you ever preach on evolution? A-Yes. I haven't as a subject; just taken that up; in connection with other subjects. I have referred to it in discussing it. Q-Against it or for it? A-I am strictly for the Bible. Q_I am talking about evolution, I am not talking about the Bible. Did you preach for or .against evolution? A-Is that a fair question, judge? Court-Yes, answer the question. A-Well, I preached against it, of course! (Applause). Q-WhY, "of course?" Court-Let's have order. Mr. Darrow-Your honor, I am going to ask to have anybody excluded that applauds. Court-Yes, if you repeat that, ladies and gentlemen, you will be excluded. We cannot have applause. If you have any feeling in this case you must not express it in the court· house, so don't repeat the applause. If you do, I will have to exclude y,?u. Q-You have a very. firm conytction-a very strong opmlOn agamsl evolution, haven't you? A-Well some points in evolution. Q-Are you trying to get on this jury? A-No, sir. Q-Have you formed a strong conviction against evolution? A-Well, I have. Q-You think you would be a fair juror in this case? . A-Well, I can take the law and the evidence in the case, I think, and try a man right. . Q-I asked if you think you thought you could be a fair juror? A-Yes, sir. Q-Have you heard about Mr. Scopes? A-Yes, sir; yes.

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o.

Mr. Darrow-I don't. Court-I think the lawyers have e right to get all the information ey can on the subject, and I will eat both sides alike. Mr. Darrow-What was that queson? (question read). Court-You may answer that. A-Yes, sir. Q-You have that opinion now? A-I have no opinion to convince e otherwise. Court-Questions by the court: Q-Have you, in your mind now, r. Massingill, a fixed opinion that has taught a theory contrary to I e theory of the Bible 'as to the reation of man? A-Yes, sir. o-Would that have any weight lfu you or any bearing with you In the trial of this case if you were lected as a juror? A-I think I am fair and honest Dough .to. ~ay aside things and give man JustIce. O-Could you disregard any opinI n you have and go in the jury box nd render a fair verdict to both aides regardl,ess of any impression ou now have? . A-The opinion-I have is from the ubUc press and what I heard. Of urse, I could surrender that. 0-You don't know whether it was

15

true or not? What I want to be sure of is this, if you were selected on the jury, could you go in the box and wholly disregard any impression or opinion you have and try the case wholly on the law and the evidence, rendering a fair verdict to both sides? A-You mean in regard to this particular case? Q-In regard to the charges here? A-Sure, I would do that, too. Court-You may proceed, gentlemen. He seems to be competent. Mr. Darrow-You now have an opinion that evolution is contrary to the Bible and that my client has been teaching evolution; as you stand there now, that is your opinion? A-From the information I have in regard to his teaching. Q-That is your opinion now, isn't it, as you stand there now? A-Sure it is. Q-You could change it if you heard evidence enough to change it on? . A-Yes, sir. Q-Otherwise you couldn't? A-I have no right to; I don't think. Mr. Darrow-I challenge for cause. Court-Well, I want every juror to start in with an open mind. I will excuse you, Mr. Massingill. J. H. Harrison (29), called and sworn, upon examination testified: Examination by court: Q-Are you a householder and freeholder in this county? A-Yes, sir. I claim my age, too old, I don't want to sit on the jury. Q-How old are you? . A-Sixty-six. Q-Claiming exemption on account of your age? A-Yes, sir. . court:..... u may be excused. . D. Taylor 14), sworn and exam voir dire, testified: Questions by the court: Q..-Mr. Taylor, are you a householder and freeholder of this county? A-Yes, sir; householder.

DARROW’S EXAMINATION OF WILLIAM JENNINGS BRYAN Mr. Hays {Defense attorney}--The defense desires to call Mr. Bryan as a witness, and, of course, the only question here is whether Mr. Scopes taught what children said he taught, we recognize what Mr. Bryan says as a witness would not be very valuable. We think there are other questions involved, and we should want to take Mr. Bryan's testimony for the purposes of our record, even if your honor thinks it is not admissible in general, so we wish to call him now. Judge--Do you think you have a right to his testimony or evidence like you did these others? B. G. McKenzie {Prosecutor}–I don't think it is necessary to call him, calling a lawyer who represents a client. Judge--If you ask him about any confidential matter, I will protect him, of course. Darrow--I do not intend to do that. Judge--On scientific matters, Col. Bryan can speak for himself. Bryan--If your honor please, I insist that Mr. Darrow can be put on the stand, and Mr. Malone and Mr. Hays. Judge--Call anybody you desire. Ask them any questions you wish. Bryan--Then, we will call all three of them . Darrow--Not at once? Bryan--Where do you want me to sit? Judge--Mr. Bryan, you are not objecting to going on the stand? Bryan--Not at all. Judge--Do you want Mr. Bryan sworn? Darrow--No. Bryan--I can make affirmation; I can say "So help me God, I will tell the truth." Darrow--No, I take it you will tell the truth, Mr. Bryan. You have given considerable study to the Bible, haven't you, Mr. Bryan? Bryan--Yes, sir, I have tried to.

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Darrow--Then you have made a general study of it? Bryan--Yes, I have; I have studied the Bible for about 50 years, or sometime more than that, but, of course, I have studied it more as I have become older than when I was but a boy. Darrow--You claim that everything in the Bible should be literally interpreted? Bryan--I believe everything in the Bible should be accepted as it is given there: some of the Bible is given illustratively. For instance: "Ye are the salt of the earth." I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saving God's people. Darrow--But when you read that Jonah swallowed the whale--or that the whale swallowed Jonah--excuse me please--how do you literally interpret that? Bryan--When I read that a "big fish" swallowed Jonah--it does not say whale. That is my recollection of it. A big fish, and I believe it, and I believe in a God who can make a whale and can make a man and make both what He pleases. Darrow--Now, you say, the big fish swallowed Jonah, and he there remained how long--three days--and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah? Bryan--I am not prepared to say that; the Bible merely says it was done. Darrow--You don't know whether it was the ordinary run of fish, or made for that purpose? Bryan--You may guess; you evolutionists guess... Darrow--You are not prepared to say whether that fish was made especially to swallow a man or not? Bryan--The Bible doesn't say, so I am not prepared to say. Darrow--But do you believe He made them--that He made such a fish and that it was big enough to swallow Jonah? Bryan--Yes, sir. Let me add: One miracle is just as easy to believe as another. Darrow--Just as hard? Bryan--It is hard to believe for you, but easy for me. A miracle is a thing performed beyond what man can perform. When you get within the realm of miracles; and it is just as easy to believe the miracle of Jonah as any other miracle in the Bible.

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Darrow--Perfectly easy to believe that Jonah swallowed the whale? Bryan--If the Bible said so; the Bible doesn't make as extreme statements as evolutionists do. Darrow--The Bible says Joshua commanded the sun to stand still for the purpose of lengthening the day, doesn't it, and you believe it. Bryan--I do. Darrow--Do you believe at that time the entire sun went around the earth? Bryan--No, I believe that the earth goes around the sun. Darrow--Do you believe that the men who wrote it thought that the day could be lengthened or that the sun could be stopped? Bryan--I don't know what they thought. Darrow--You don't know? Bryan--I think they wrote the fact without expressing their own thoughts. Darrow--Have you an opinion as to whether or not the men who wrote that thought-Thomas Stewart (a prosecution lawyer)--I want to object, your honor. It has gone beyond the pale of any issue that could possibly be injected into this lawsuit, except by imagination. I do not think the defendant has a right to conduct the examination any further and I ask your honor to exclude it. Bryan--It seems to me it would be too exacting to confine the defense to the facts. If they are not allowed to get away from the facts, what have they to deal with? Judge--Mr. Bryan is willing to be examined. Go ahead. Darrow--Can you answer my question directly? If the day was lengthened by stopping either the earth or the sun, it must have been the earth? Bryan--Well, I should say so. Darrow--Now, Mr. Bryan, have you ever pondered what would have happened to the earth if it had stood still? Bryan--No. Darrow--You have not?

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Bryan--No; the God I believe in could have taken care of that, Mr. Darrow. Darrow--I see. Have you ever pondered what would naturally happen to the earth if it stood still suddenly? Bryan--No. Darrow--Don't you know it would have been converted into molten mass of matter? Bryan--You testify to that when you get on the stand, I will give you a chance. Darrow--Don't you believe it? Bryan--I would want to hear expert testimony on that. Darrow--You have never investigated that subject? Bryan--I don't think I have ever had the question asked. Darrow--Or ever thought of it? Bryan--I have been too busy on things that I thought were of more importance. Darrow--You believe the story of the flood to be a literal interpretation? Bryan--Yes, sir. Darrow--When was that flood? Bryan--I would not attempt to fix the date. The date is fixed, as suggested this morning. Darrow--About 4004 B.C.? Bryan--That has been the estimate of a man that is accepted today. [A witness had testified on Bishop Ussher's theory that the Earth was formed in 4004 B.C.] I would not say it is accurate. Darrow--That estimate is printed in the Bible? Bryan--Everybody knows, at least, I think most of the people know, that was the estimate given. Darrow--But what do you think that the Bible itself says? Don't you know how it was arrived at? Bryan--I never made a calculation.

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Darrow--A calculation from what? Bryan--I could not say. Darrow--From the generations of man? Bryan--I would not want to say that. Darrow--What do you think? Bryan--I do not think about things I don't think about. Darrow--Do you think about things you do think about? Bryan--Well, sometimes. (Laughter.) Policeman--Let us have order.... Thomas Stewart {prosecution attorney}--Your honor, he is perfectly able to take care of this, but we are attaining no evidence. This is not competent evidence. Bryan--These gentlemen have not had much chance--they did not come here to try this case. They came here to try revealed religion. I am here to defend it and they can ask me any question they please. Judge--All right. (Applause.) Darrow--Great applause from the bleachers. Bryan--From those whom you call "yokels." Darrow--I have never called them yokels. Bryan--That is the ignorance of Tennessee, the bigotry. Darrow--You mean who are applauding you? (Applause.) Bryan--Those are the people whom you insult. Darrow--You insult every man of science and learning in the world because he does believe in your fool religion. Judge--I will not stand for that. Darrow--For what he is doing? Judge--I am talking to both of you.

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Darrow--Do you know anything about how many people there were in Egypt 3,500 years ago, or how many people there were in China 5,000 years ago? Bryan--No. Darrow--Have you ever tried to find out? Bryan--No, sir. You are the first man I ever heard of who has been interested in it. (Laughter.) Darrow--Mr. Bryan, am I the first man you ever heard of who has been interested in the age of human societies and primitive man? Bryan--You are the first man I ever heard speak of the number of people at those different periods. Darrow--Where have you lived all your life? Bryan--Not near you. (Laughter and applause.) Darrow--Nor near anybody of learning? Bryan--Oh, don't assume you know it all. Darrow--Do you know there are thousands of books in our libraries on all those subjects I have been asking you about? Bryan--I couldn't say, but I will take your word for it.... Darrow--Have you any idea how old the earth is? Bryan--No. Darrow--The book you have introduced in evidence tells you, doesn't it? Bryan--I don't think it does, Mr. Darrow. Darrow--Let's see whether it does; is this the one? Bryan--That is the one, I think. Darrow--It says B.C. 4004? Bryan--That is Bishop Ussher's calculation. Darrow--That is printed in the Bible you introduced?

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Bryan--Yes, sir. Darrow--Would you say that the earth was only 4,000 years old? Bryan--Oh, no; I think it is much older than that. Darrow--How much? Bryan--I couldn't say. Darrow--Do you say whether the Bible itself says it is older than that? Bryan--I don't think it is older or not. Darrow--Do you think the earth was made in six days? Bryan--Not six days of 24 hours. Darrow--Doesn't it say so? Bryan--No, sir. Judge--Are you about through, Mr. Darrow? Darrow--I want to ask a few more questions about the creation. Judge--I know. We are going to adjourn when Mr. Bryan comes off the stand for the day. Be very brief, Mr. Darrow. Of course, I believe I will make myself clearer. Of course, it is incompetent testimony before the jury. The only reason I am allowing this to go in at all is that they may have it in the appellate court as showing what the affidavit would be. Bryan--The reason I am answering is not for the benefit of the superior court. It is to keep these gentlemen from saying I was afraid to meet them and let them question me, and I want the Christian world to know that any atheist, agnostic, unbeliever, can question me anytime as to my belief in God, and I will answer him. Darrow--I want to take an exception to this conduct of this witness. He may be very popular down here in the hills-Bryan--Your honor, they have not asked a question legally and the only reason they have asked any question is for the purpose, as the question about Jonah was asked, for a chance to give this agnostic an opportunity to criticize a believer in the world of God; and I answered the question in order to shut his mouth so that he cannot go out and tell his atheistic friends that I would not answer his questions. That is the only reason, no more reason in the world. Malone (another defense counsel)--Your honor on this very subject, I would like to say

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that I would have asked Mr. Bryan, and I consider myself as good a Christian as he is, every question that Mr. Darrow has asked him for the purpose of bringing out whether or not there is to be taken in this court a literal interpretation of the Bible, or whether, obviously, as these questions indicate, if a general and literal construction cannot be put upon the parts of the Bible which have been covered by Mr. Darrow's questions. I hope for the last time no further attempt will be made by counsel on the other side of the case, or Mr. Bryan, to say the defense is concerned at all with Mr. Darrow's particular religious views or lack of religious views. We are here as lawyers with the same right to our views. I have the same right to mine as a Christian as Mr. Bryan has to his, and we do not intend to have this case charged by Mr. Darrow's agnosticism or Mr. Bryan's brand of Christianity. (A great applause.) Darrow --Mr. Bryan, do you believe that the first woman was Eve? Bryan--Yes. Darrow--Do you believe she was literally made out of Adam's rib? Bryan--I do. Darrow--Did you ever discover where Cain got his wife? Bryan--No, sir. I leave the agnostics to hunt for her. Darrow--You have never found out? Bryan--I have never tried to find out. Darrow--You have never tried to find out? Bryan--No. Darrow--The Bible says he got one, doesn't it? Were there other people on the earth at that time? Bryan--I cannot say. Darrow--You cannot say. Did that ever enter your consideration? Bryan--Never bothered me. Darrow--There were no others recorded, but Cain got a wife. Bryan--That is what the Bible says. Darrow--Where she came from you do not know. All right. Does the statement, "The morning and the evening were the first day," and "The morning and the evening were the second day," mean anything to you?

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Bryan--I do not think it necessarily means a 24-hour day. Darrow--You do not? Bryan--No. Darrow--What do you consider it to be? Bryan--I have not attempted to explain it. If you will take the second chapter--let me have the book. [Reaches for a Bible.] The fourth verse of the second chapter says: "These are the generations of the heavens and of the earth, when they were created in the day that the Lord God made the earth and the heavens," the word day there in the very next chapter is used to describe a period. I do not see that there is any necessity for construing the words, "the evening and the morning," as meaning necessarily a 24-hour day, "in the day when the Lord made the heaven and the earth." Darrow--Then, when the Bible said, for instance, "and God called the firmament heaven. And the evening and the morning were the second day," that does not necessarily mean twenty-four hours? Bryan--I do not think it necessarily does. Darrow--Do you think it does or does not? Bryan--I know a great many think so. Darrow--What do you think? Bryan--I do not think it does. Darrow--You think those were not literal days? Bryan--I do not think they were twenty-four-hour days. Darrow--What do you think about it? Bryan--That is my opinion--I do not know that my opinion is better on that subject than those who think it does. Darrow--You do not think that? Bryan--No. But I think it would be just as easy for the kind of God we believe in to make the earth in six days as in six years or in 6 million years or in 600 million years. I do not think it important whether we believe one or the other. Darrow--Do you think those were literal days?

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Bryan--My impression is they were periods, but I would not attempt to argue against anybody who wanted to believe in literal days. Darrow--I will read it to you from the Bible: "And the Lord God said unto the serpent, because thou hast done this, thou art cursed above all cattle, and above every beast of the field; upon thy belly shalt thou go and dust shalt thou eat all the days of thy life." Do you think that is why the serpent is compelled to crawl upon its belly? Bryan--I believe that. Darrow--Have you any idea how the snake went before that time? Bryan--No, sir. Darrow--Do you know whether he walked on his tail or not? Bryan--No, sir. I have no way to know. (Laughter.) Darrow--Now, you refer to the cloud that was put in heaven after the flood, the rainbow. Do you believe in that? Bryan--Read it. Darrow--All right, Mr. Bryan, I will read it for you. Bryan--Your Honor, I think I can shorten this testimony. The only purpose Mr. Darrow has is to slur at the Bible, but I will answer his question. I will answer it all at once, and I have no objection in the world. I want the world to know that this man, who does not believe in a God, is trying to use a court in Tennessee to slur at it, and while it will require time, I am willing to take it. Darrow--I object to your statement. I am examining you on your fool ideas that no intelligent Christian on earth believes. Judge--Court is adjourned until 9 o'clock tomorrow morning. An official report of the proceedings may be found at http://darrow.law.umn.edu/documents/Scopes%206th%20&%207th%20days.pdf

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Gives the court power over the defendant.

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No change (judgment affirmed) Change (judgment modified) Start over (judgment vacated or reversed) 180⁰ (judgment reversed and judgment entered for  opponent – very rare) 217

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stipulation filed in the case, the cause was tried by the court, and a special verdict given, upon which judgment was rendered in favor of Neff; whereupon Pennoyer sued out this writ of error.

Class Notes: in rem refers to the thing. in personam refers to the person, including legal entities, such as corporations. execution generally means the carrying out of a court order. In Pennoyer, it refers to the act, pursuant to a court order, of seizing the defendant’s property or money to pay the plaintiff, the person who has obtained a court judgment against the defendant.

KeyCite Red Flag - Severe Negative Treatment

Overruled in Part by Shaffer v. Heitner, U.S.Del., June 24, 1977

95 U.S. 714 Supreme Court of the United States PENNOYER v. NEFF. October Term, 1877

The parties respectively claimed title as follows: Neff, under a patent issued to him by the United States, March 19, *716 1866; and Pennoyer, by virtue of a sale made by the sheriff of said county, under an execution sued out upon a judgment against Neff, rendered Feb. 19, 1866, by the Circuit Court for said county, in an action wherein he was defendant, and J. H. Mitchell was plaintiff. Neff was then a non-resident of Oregon.

In Mitchell v. Neff, jurisdiction of Neff was obtained by service of summons by publication. Pennoyer offered in evidence duly certified copies of the complaint, summons, order for publication of summons, affidavit of service by publication, and the judgment in that case; to the introduction of which papers the plaintiff objected, because, 1, said judgment is in personam, and appears to have been given without the appearance of the defendant in the action, or personal service of the summons upon him, and while he was a non-resident of the State, and is, therefore, void; 2, said judgment is not in rem, and, therefore, constitutes no basis of title in the defendant; 3, said copies of complaint, &c., do not show jurisdiction to give the judgment alleged, either in rem or personam; and, 4, it appears from said papers that no proof of service by publication was ever made, the affidavit thereof being made by the ‘editor’ of the ‘Pacific Christian Advocate,’ and not by ‘the printer, or his foreman or principal clerk.’ The court admitted the evidence subject to the objections.

Opinion

* * *

**1 ERROR to the Circuit Court of the United States for the District of Oregon. This action was brought by Neff against Pennoyer for the recovery of a tract of land situated in Multnomah County, Oregon. Pennoyer, in his answer, denied Neff's title and right to possession, and set up a title in himself.

By consent of parties, and in pursuance of their written

[OREGON CODE SECTIONS]: ‘SECT. 56. The order shall direct the publication to be made in a newspaper published in the county where the action is commenced, and, if no newspaper be published in the county, then in a newspaper to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge shall also direct a copy of the summons and complaint to be

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forthwith deposited in the post-office, directed to the defendant, at his place of residence, unless it shall appear that such residence is neither known to the party making the application, nor can, with reasonable diligence, be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the State shall be equivalent to publication and deposit in the post-office. In either case, the defendant shall appear and answer by the first day of the term following the *719 expiration of the time prescribed in the order for publication; and, if he does not, judgment may be taken against him for want thereof. In case of personal service out of the State, the summons shall specify the time prescribed in the order for publication.

against the plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment.

‘SECT. 57. The defendant against whom publication is ordered, or his personal representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action; and the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, and upon such terms as may be proper, be allowed to defend after judgment, and within one year after the entry of such judgment, on such terms as may be just; and, if the defence be successful, and the judgment or any part thereof have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. But the title to property sold upon execution issued on such judgment to a purchaser in good faith shall not be thereby affected.’

The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant, who has property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the non-resident. And it also declares that no natural person is subject to the jurisdiction of a court of the State, ‘unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein; and, in the last case, only to the extent of such property at the time the jurisdiction attached.’ Construing this latter provision to mean, that, in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, in illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential

‘SECT. 60. Proof of the service of summons shall be, in case of publication, the affidavit of the printer, or his foreman, or his principal clerk, showing the same.’ * * * MR. JUSTICE FIELD delivered the opinion of the court. **3 This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on execution issued upon a judgment recovered

It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State *720 that he was not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication.

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to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved.

its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident *724 have no property in the State, there is nothing upon which the tribunals can adjudicate.

* * *

* * *

**5 But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken; whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the independence of the State in which the persons are domiciled or the property is situated, and be resisted as usurpation.

Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability.

Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme control over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. Corbett v. Nutt, 10 Wall. 464.

So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident's obligations to

**8 The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below: but the position is assumed, that, where they have property within the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such demands be first

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established in a personal action, and *728 the property of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction of the court to inquire into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment, if void when rendered, will always remain void: it cannot occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the non-resident defendant possessed property in the State at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the defendant had or had not disposed of the property. If before the levy the property should be sold, then, according to this position, the judgment would not be binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the law: the validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. In Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to land sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territory, without service of process; and the court said:—:——

‘These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all resided within the territory or not does not appear, nor is it s matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. In this case, there was no personal notice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which the land was sold.’

**9 *729 The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the United

States and of the several States, as attempts have been made to enforce suc judgments in States other than those in which they were rendered, under the provision of the Constitution requiring that ‘full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State;’ and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated, ‘they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are or shall or taken.’ In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the act applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject-matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, against two joint debtors, only one of whom had been served with process, the other being a non-resident of the State. The Circuit Court held the judgment conclusive and binding upon the non-resident not served with process; but this court reversed its decision, observing, that it was a familiar rule that countries foreign to our own disregarded a judgment merely against the person, where the defendant had not been served with process nor had a day in court; that national comity was never thus extended; that the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse; that no faith and credit or force and effect had been given to such judgments by any State of the Union, so far *730 as known; and that the State courts had uniformly, and in many instances, held them to be void. ‘The international law,’ said the court,' as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process or voluntarily made defence; because neither the legislative jurisdiction nor that of courts of justice had binding force.' And the court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine

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of this court is, that the act ‘was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another.’ The Lafayette Insurance Co. v. French et al., 18 How. 404. * * * Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals *733 of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them.

**12 Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to deter mine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.

Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication,

allowed by the law of Oregon and by similar laws in other States, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other purpose than to subject the property of a non-resident to valid claims against *734 him in the State, ‘due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.’

It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned.

**13 It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the State creating the tribunal may provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations et al. v. Johnson et al., 24 How. 195.

It follows from the views expressed that the personal judgment recovered in the State court of Oregon against the plaintiff herein, then a non-resident of the State, was without any validity, and did not authorize a sale of the property in controversy.

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To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. The jurisdiction which every State possesses to determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute *735 right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156.

corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions would hold their *736 interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345.

**14 In the present case, there is no feature of this kind, and, consequently, no consideration of what would be the effect of such legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money judgment rendered in one State, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein.

Judgment affirmed.

Neither do we mean to assert that a State may not require a non-resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the State to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, ‘It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.’ See also The Lafayette Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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COMMITTEE ON THE JUDICIARY ONE HUNDRED TWELFTH CONGRESS LAMAR SMITH, Texas, Chairman F. JAMES SENSENBRENNER, JR., Wisconsin HOWARD COBLE, North Carolina ELTON GALLEGLY, California BOB GOODLATTE, Virginia DANIEL E. LUNGREN, California STEVE CHABOT, Ohio DARRELL E. ISSA, California MIKE PENCE, Indiana J. RANDY FORBES, Virginia STEVE KING, Iowa TRENT FRANKS, Arizona LOUIE GOHMERT, Texas JIM JORDAN, Ohio TED POE, Texas JASON CHAFFETZ, Utah TIM GRIFFIN, Arkansas TOM MARINO, Pennsylvania TREY GOWDY, South Carolina DENNIS ROSS, Florida SANDY ADAMS, Florida BEN QUAYLE, Arizona MARK AMODEI, Nevada

JOHN CONYERS, JR., Michigan HOWARD L. BERMAN, California JERROLD NADLER, New York ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia MELVIN L. WATT, North Carolina ZOE LOFGREN, California SHEILA JACKSON LEE, Texas MAXINE WATERS, California STEVE COHEN, Tennessee HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia PEDRO R. PIERLUISI, Puerto Rico MIKE QUIGLEY, Illinois JUDY CHU, California TED DEUTCH, Florida ´ NCHEZ, California LINDA T. SA [Vacant]

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel PERRY APELBAUM, Minority Staff Director and Chief Counsel

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FOREWORD This document contains the Federal Rules of Civil Procedure together with forms, as amended to December 1, 2011. The rules and forms have been promulgated and amended by the United States Supreme Court pursuant to law, and further amended by Acts of Congress. This document has been prepared by the Committee in response to the need for an official up-to-date document containing the latest amendments to the rules. For the convenience of the user, where a rule has been amended a reference to the date the amendment was promulgated and the date the amendment became effective follows the text of the rule. The Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Civil Procedure, Judicial Conference of the United States, prepared notes explaining the purpose and intent of the amendments to the rules. The Committee Notes may be found in the Appendix to Title 28, United States Code, following the particular rule to which they relate.

Chairman, Committee on the Judiciary. DECEMBER 1, 2011. (III)

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AUTHORITY FOR PROMULGATION OF RULES TITLE 28, UNITED STATES CODE

§ 2072. Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648, eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, §§ 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.) § 2073. Rules of procedure and evidence; method of prescribing (a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section. (2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing committee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and otherwise promote the interest of justice. (c)(1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for so closing the meeting. Minutes of each meeting for the transaction of business under this chapter shall be maintained by the committee and made available to the public, except that any portion of such minutes, relating to a closed meeting and made available to the public, may contain such deletions as may be necessary to avoid frustrating the purposes of closing the meeting. (V)

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(2) Any meeting for the transaction of business under this chapter, by a committee appointed under this section, shall be preceded by sufficient notice to enable all interested persons to attend. (d) In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or other separate views. (e) Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22, 1994, 108 Stat. 4110.) § 2074. Rules of procedure and evidence; submission to Congress; effective date (a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies. (b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988.)

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HISTORICAL NOTE The Supreme Court prescribes rules of civil procedure for the district courts pursuant to section 2072 of Title 28, United States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved Nov. 19, 1988, 102 Stat. 4648), effective December 1, 1988. Pursuant to section 2074 of Title 28, the Supreme Court transmits to Congress (not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective) a copy of the proposed rule. The rule takes effect no earlier than December 1 of the year in which the rule is transmitted unless otherwise provided by law. By act of June 19, 1934, ch. 651, 48 Stat. 1064 (subsequently 28 United States Code, § 2072), the Supreme Court was authorized to prescribe general rules of civil procedure for the district courts. The rules, and subsequent amendments, were not to take effect until (1) they had been first reported to Congress by the Attorney General at the beginning of a regular session and (2) after the close of that session. Under a 1949 amendment to 28 U.S.C., § 2072, the Chief Justice of the United States, instead of the Attorney General, reported the rules to Congress. In 1950, section 2072 was further amended so that amendments to the rules could be reported to Congress not later than May 1 each year and become effective 90 days after being reported. Effective December 1, 1988, section 2072 was repealed and supplanted by new sections 2072 and 2074, see first paragraph of Historical Note above. The original rules, pursuant to act of June 19, 1934, were adopted by order of the Court on December 20, 1937, transmitted to Congress by the Attorney General on January 3, 1938, and became effective September 16, 1938 (308 U.S. 645; Cong. Rec., vol. 83, pt. 1, p. 13, Exec. Comm. 905; H. Doc. 460 and H. Doc. 588, 75th Cong.) Rule 81(a)(6) was abrogated by order of the Court on December 28, 1939, transmitted to Congress by the Attorney General on January 3, 1940, effective April 3, 1941 (308 U.S. 642; Cong. Rec., vol. 86, pt. 1, p. 14, Exec. Comm. 1152). Further amendments were adopted by the Court by order dated December 27, 1946, transmitted to Congress by the Attorney General on January 3, 1947, and became effective March 19, 1948 (329 U.S. 839; Cong. Rec., vol. 93, pt. 1, p. 41, Exec. Comm. 32; H. Doc. 46 and H. Doc. 473, 80th Cong.). The amendments affected Rules 6, 7, 12, 13, 14, 17, 24, 26, 27, 28, 33, 34, 36, 41, 45, 52, 54, 56, 58, 59, 60, 62, 65, 66, 68, 73, 75, 77, 79, 81, 84, and 86, and Forms 17, 20, 22, and 25. Additional amendments were adopted by the Court by order dated December 29, 1948, transmitted to Congress by the Attorney General on January 3, 1949, and became effective October 20, 1949 (335 U.S. 919; Cong. Rec., vol. 95, pt. 1, p. 94, Exec. Comm. 24; H. (VII)

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Doc. 33, 81st Cong.). The amendments affected Rules 1, 17, 22, 24, 25, 27, 37, 45, 57, 60, 62, 65, 66, 67, 69, 72, 73, 74, 75, 76, 79, 81, 82, and 86, and Forms 1, 19, 22, 23, and 27. Amendment to Rule 81(a)(7) and new Rule 71A and Forms 28 and 29 were adopted by the Court by order dated April 30, 1951, transmitted to Congress on May 1, 1951, and became effective August 1, 1951 (341 U.S. 959; Cong. Rec., vol. 97, pt. 4, p. 4666, Exec. Comm. 414; H. Doc. 121, 82d Cong.). Additional amendments were adopted by the Court by order dated April 17, 1961, transmitted to Congress by the Chief Justice on April 18, 1961, and became effective July 19, 1961 (368 U.S. 1009; Cong. Rec., vol. 107, pt. 5, p. 6524, Exec. Comm. 821). The amendments affected Rules 25, 54, 62, and 86, and Forms 2 and 19. Additional amendments were adopted by the Court by order dated January 21, 1963, transmitted to Congress by the Chief Justice (374 U.S. 861; Cong. Rec., vol. 109, pt. 1, p. 1037, Exec. Comm. 267; H. Doc. 48, 88th Cong.), and became effective July 1, 1963, by order of the Court dated March 18, 1963 (374 U.S. 861; Cong. Rec., vol. 109, pt. 4, p. 4639, Exec. Comm. 569; H. Doc. 48, pt. 2, 88th Cong.; see also H. Doc. 67, 88th Cong.). The amendments affected Rules 4, 5, 6, 7, 12, 13, 14, 15, 24, 25, 26, 28, 30, 41, 49, 50, 52, 56, 58, 71A, 77, 79, 81, and 86, and Forms 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 18, 21, 22–A, and 22–B, and added Forms 30, 31, and 32. Additional amendments were adopted by the Court by order dated February 28, 1966, transmitted to Congress by the Chief Justice on the same day (383 U.S. 1029; Cong. Rec., vol. 112, pt. 4, p. 4229, Exec. Comm. 2094; H. Doc. 391, 89th Cong.), and became effective July 1, 1966. The amendments affected Rules 1, 4, 8, 9, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24, 26, 38, 41, 42, 43, 44, 47, 53, 59, 65, 68, 73, 74, 75, 81, and 82, and Forms 2 and 15, and added Rules 23.1, 23.2, 44.1, and 65.1, and Supplementary Rules A, B, C, D, E, and F for certain Admiralty and Maritime claims. The amendments govern all proceedings in actions brought after they became effective and also all further proceedings in actions then pending, except to the extent that in the opinion of the Court an application in a particular action then pending would not be feasible or would work injustice, in which event the former procedure applies. In addition, Rule 6(c) of the Rules of Civil Procedure promulgated by the Court on December 20, 1937, effective September 16, 1938; Rule 2 of the Rules for Practice and Procedure under section 25 of an act to amend and consolidate the acts respecting copyright, approved March 4, 1909, promulgated by the Court on June 1, 1909, effective July 1, 1909; and the Rules of Practice in Admiralty and Maritime Cases, promulgated by the Court on December 6, 1920, effective March 7, 1921, as revised, amended and supplemented, were rescinded, effective July 1, 1966. Additional amendments were adopted by the Court by order dated December 4, 1967, transmitted to Congress by the Chief Justice on January 15, 1968 (389 U.S. 1121; Cong. Rec., vol. 114, pt. 1, p. 113, Exec. Comm. 1361; H. Doc. 204, 90th Cong.), and became effective July 1, 1968. The amendments affected Rules 6(b), 9(h), 41(a)(1), 77(d), 81(a), and abrogated the chapter heading ‘‘IX. Appeals’’ and Rules 72–76, and Form 27. Additional amendments were adopted by the Court by order dated March 30, 1970, transmitted to Congress by the Chief Justice

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on the same day (398 U.S. 977; Cong. Rec., vol. 116, pt. 7, p. 9861, Exec. Comm. 1839; H. Doc. 91–291), and became effective July 1, 1970. The amendments affected Rules 5(a), 9(h), 26, 29 to 37, 45(d), and 69(a), and Form 24. On March 1, 1971, the Court adopted additional amendments, which were transmitted to Congress by the Chief Justice on the same day (401 U.S. 1017; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H. Doc. 92–57), and became effective July 1, 1971. The amendments affected Rules 6(a), 27(a)(4), 30(b)(6), 77(c), and 81(a)(2). Further amendments were proposed by the Court in its orders dated November 20 and December 18, 1972, and transmitted to Congress by the Chief Justice on February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93–46). Although these amendments were to have become effective July 1, 1973, Public Law 93–12 (approved March 30, 1973, 87 Stat. 9) provided that the proposed amendments ‘‘shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress.’’ Section 3 of Public Law 93–595 (approved January 2, 1975, 88 Stat. 1949) approved the amendments proposed by the Court, to be effective July 1, 1975. The amendments affected Rules 30(c), 43, and 44.1, and abrogated Rule 32(c). On April 29, 1980, the Court adopted additional amendments, which were transmitted to Congress by the Chief Justice on the same day (446 U.S. 995; Cong. Rec., vol. 126, pt. 8, p. 9535, Exec. Comm. 4260; H. Doc. 96–306), and became effective August 1, 1980. The amendments affected Rules 4, 5, 26, 28, 30, 32, 33, 34, 37, and 45. Section 205(a) and (b) of Public Law 96–481 (approved October 21, 1980, 94 Stat. 2330) repealed Rule 37(f) and deleted the corresponding item from the Table of Contents, to be effective October 1, 1981. Amendments to Rule 4 were adopted by the Court by order dated April 28, 1982, transmitted to Congress by the Chief Justice on the same day (456 U.S. 1013; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec. Comm. 3822; H. Doc. 97–173), and became effective August 1, 1982. However, Public Law 97–227 (approved August 2, 1982, 96 Stat. 246) provided that the amendments to Rule 4 shall take effect on October 1, 1983, unless previously approved, disapproved, or modified by Act of Congress, and further provided that this Act shall be effective as of August 1, 1982, but shall not apply to the service of process that takes place between August 1, 1982, and the date of enactment of this Act [August 2, 1982]. Section 5 of Public Law 97–462 (approved January 12, 1983, 96 Stat. 2530) provided that the amendments to Rule 4 the effective date of which was delayed by Public Law 97–227 shall not take effect. Sections 2 to 4 of Public Law 97–462 amended Rule 4(a), (c) to (e), and (g), added Rule 4(j), and added Form 18–A in the Appendix of Forms, effective 45 days after enactment of Public Law 97–462 [February 26, 1983]. Additional amendments were adopted by the Court by order dated April 28, 1983, transmitted to Congress by the Chief Justice on the same day (461 U.S. 1095; Cong. Rec., vol. 129, pt. 8, p. 10479, Exec. Comm. 1027; H. Doc. 98–54), and became effective August 1, 1983. The amendments included new Rules 26(g), 53(f), 72 through

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76 and new Official Forms 33 and 34, and amendments to Rules 6(b), 7(b), 11, 16, 26(a), (b), 52(a), 53(a), (b), (c), and 67. Additional amendments were adopted by the Court by order dated April 29, 1985, transmitted to Congress by the Chief Justice on the same day (471 U.S. 1153; Cong. Rec., vol. 131, pt. 7, p. 9826, Exec. Comm. 1156; H. Doc. 99–63), and became effective August 1, 1985. The amendments affected Rules 6(a), 45(d)(2), 52(a), 71A(h), and 83, Official Form 18–A, and Rules B(1), C(3), and E(4)(f) of the Supplemental Rules for Certain Admiralty and Maritime Claims. Additional amendments were adopted by the Court by order dated March 2, 1987, transmitted to Congress by the Chief Justice on the same day (480 U.S. 953; Cong. Rec., vol. 133, pt. 4, p. 4484, Exec. Comm. 714; H. Doc. 100–40), and became effective August 1, 1987. The amendments affected Rules 4(b), (d)(1), (e), (i)(1), 5(b), (e), 6(e), 8(a), (b), (e)(2), 9(a), 11, 12(a), (b), (e) to (g), 13(a), (e), (f), 14, 15, 16(f), 17, 18, 19(a), (b), 20(b), 22(1), 23(c)(2), 23.1, 24(a), 25(b), (d), 26(b)(3), (e)(1), (2), (f)(5), (g), 27(a)(1), (b), 28(b), 30(b)(1), (2), (4), (6), (7), (c), (e), (f)(1), (g), 31(a), (b), 32(a)(4), 34(a), 35(a), (b)(1), (2), 36, 37(a)(2), (b)(2), (c), (d), (g), 38(c), (d), 41(a)(2), (b), 43(f), 44(a)(1), 44.1, 45(c), (f), 46, 49(a), 50(b), (d), 51, 53(a), (c) to (e)(1), (3), (5), 54(c), 55(a), (b), (e), 56(a), (b), (e) to (g), 60(b), 62(f), 63, 65(b), 65.1, 68, 69, 71, 71A(d)(2), (3)(ii), (e) to (g), (j), 73(b), 75(b)(2), (c)(1), (2), (4), 77(c), 78, and 81(c), and Rules B, C(3), (6), E(2)(b), (4)(b), (c), (5)(c), (9)(b), (c), and F(1) to (6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. Additional amendments were adopted by the Court by order dated April 25, 1988, transmitted to Congress by the Chief Justice on the same day (485 U.S. 1043; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3515; H. Doc. 100–185), and became effective August 1, 1988. The amendments affected Rules 17(a) and 71A(e). Section 7047(b) of Public Law 100–690 (approved November 18, 1988, 102 Stat. 4401) amended Rule 35. Section 7049 of Public Law 100–690, which directed amendment of Rule 17(a) by striking ‘‘with him’’, and section 7050 of Public Law 100–690, which directed amendment of Rule 71A(e) by striking ‘‘taking of the defendants property’’ and inserting ‘‘taking of the defendant’s property’’, could not be executed because of the intervening amendments to those Rules by the Court by order dated April 25, 1988, effective August 1, 1988. Additional amendments were adopted by the Court by order dated April 30, 1991, transmitted to Congress by the Chief Justice on the same day (500 U.S. 963; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1190; H. Doc. 102–77), and became effective December 1, 1991. The amendments affected Rules 5, 15, 24, 34, 35, 41, 44, 45, 47, 48, 50, 52, 53, 63, 72, and 77, the headings for chapters VIII and IX, and Rules C and E of the Supplemental Rules for Certain Admiralty and Maritime Claims, added new Official Forms 1A and 1B, and abrogated Form 18–A. Section 11 of Pub. L. 102–198 (approved December 9, 1991, 105 Stat. 1626) amended Rule 15(c)(3) as transmitted to Congress by the Supreme Court to become effective on December 1, 1991; provided that Forms 1A and 1B included in the transmittal shall not be effective; and provided that Form 18–A, abrogated by the Supreme Court in the transmittal, effective December 1, 1991, shall continue in effect on or after that date.

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Additional amendments were adopted by the Court by order dated April 22, 1993, transmitted to Congress by the Chief Justice on the same day (507 U.S. 1089; Cong. Rec., vol. 139, pt. 6, p. 8127, Exec. Comm. 1102; H. Doc. 103–74), and became effective December 1, 1993. The amendments affected Rules 1, 4, 5, 11, 12, 15, 16, 26, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 50, 52, 53, 54, 58, 71A, 72, 73, 74, 75, and 76, added new Rule 4.1, affected Forms 2, 33, 34, and 34A, added new Forms 1A, 1B, and 35, and abrogated Form 18–A. Additional amendments were adopted by the Court by order dated April 27, 1995, transmitted to Congress by the Chief Justice on the same day (514 U.S. 1151; Cong. Rec., vol. 141, pt. 8, p. 11745, Ex. Comm. 804; H. Doc. 104–64), and became effective December 1, 1995. The amendments affected Rules 50, 52, 59, and 83. Additional amendments were adopted by the Court by order dated April 23, 1996, transmitted to Congress by the Chief Justice on the same day (517 U.S. 1279; Cong. Rec., vol. 142, pt. 6, p. 8831, Ex. Comm. 2487; H. Doc. 104–201), and became effective December 1, 1996. The amendments affected Rules 5 and 43. Additional amendments were adopted by the Court by order dated April 11, 1997, transmitted to Congress by the Chief Justice on the same day (520 U.S. 1305; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2795; H. Doc. 105–67), and became effective December 1, 1997. The amendments affected Rules 9 and 73, abrogated Rules 74, 75, and 76, and affected Forms 33 and 34. Additional amendments were adopted by the Court by order dated April 24, 1998, transmitted to Congress by the Chief Justice on the same day (523 U.S. 1221; H. Doc. 105–266), and became effective December 1, 1998. The amendments affected Rule 23. Additional amendments were adopted by the Court by order dated April 26, 1999, transmitted to Congress by the Chief Justice on the same day (526 U.S. 1183; Cong. Rec., vol. 145, pt. 6, p. 7907, Ex. Comm. 1787; H. Doc. 106–54), and became effective December 1, 1999. The amendments affected Rule 6 and Form 2. Additional amendments were adopted by the Court by order dated April 17, 2000, transmitted to Congress by the Chief Justice on the same day (529 U.S. 1155; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7336; H. Doc. 106–228), and became effective December 1, 2000. The amendments affected Rules 4, 5, 12, 14, 26, 30, and 37 and Rules B, C, and E of the Supplemental Rules for Certain Admiralty and Maritime Claims. Additional amendments were adopted by the Court by order dated April 23, 2001, transmitted to Congress by the Chief Justice on the same day (532 U.S. 992; Cong. Rec., vol. 147, pt. 5, p. 6126, Ex. Comm. 1575; H. Doc. 107–61), and became effective December 1, 2001. The amendments affected Rules 5, 6, 65, 77, 81, and 82. Additional amendments were adopted by the Court by order dated April 29, 2002, transmitted to Congress by the Chief Justice on the same day (535 U.S. 1147; Cong. Rec., vol. 148, pt. 5, p. 6813, Ex. Comm. 6623; H. Doc. 107–204), and became effective December 1, 2002. The amendments affected Rules 54, 58, and 81 and Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims and added new Rule 7.1. Additional amendments were adopted by the Court by order dated March 27, 2003, transmitted to Congress by the Chief Justice on the same day (538 U.S. 1083; Cong. Rec., vol. 149, pt. 6, p. 7689,

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Ex. Comm. 1493; H. Doc. 108–56), and became effective December 1, 2003. The amendments affected Rules 23, 51, 53, 54, and 71A and Forms 19, 31, and 32. Additional amendments were adopted by the Court by order dated April 25, 2005, transmitted to Congress by the Chief Justice on the same day (544 U.S. 1173; Cong. Rec., vol. 151, pt. 7, p. 8784, Ex. Comm. 1906; H. Doc. 109–23), and became effective December 1, 2005. The amendments affected Rules 6, 27, and 45, and Rules B and C of the Supplemental Rules for Certain Admiralty and Maritime Claims. Additional amendments were adopted by the Court by order dated April 12, 2006, transmitted to Congress by the Chief Justice on the same day (547 U.S. 1233; Cong. Rec., vol. 152, pt. 6, p. 7213, Ex. Comm. 7317; H. Doc. 109–105), and became effective December 1, 2006. The amendments affected Rules 5, 9, 14, 16, 24, 26, 33, 34, 37, 45, 50, and 65.1, added new Rule 5.1, affected Form 35, affected Rules A, C, and E of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, and added new Rule G to such Supplemental Rules. Additional amendments were adopted by the Court by order dated April 30, 2007, transmitted to Congress by the Chief Justice on the same day (550 U.S. 1003; Cong. Rec., vol. 153, pt. 8, p. 10612, Ex. Comm. 1377; H. Doc. 110–27), and became effective December 1, 2007. The amendments affected Rules 1 through 86 and added new Rule 5.2; Forms 1 through 35 were amended to become restyled Forms 1 through 82. An additional amendment was adopted by the Court by order dated April 23, 2008, transmitted to Congress by the Chief Justice on the same day (553 U.S. 1149; Cong. Rec., vol. 154, pt. 8, p. 11078, Ex. Comm. 6881; H. Doc. 110–117), and became effective December 1, 2008. The amendment affected Rule C of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Additional amendments were adopted by the Court by order dated March 26, 2009, transmitted to Congress by the Chief Justice on March 25, 2009 (556 U.S. 1341; Cong. Rec., vol. 155, pt. 8, p. 10210, Ex. Comm. 1264; H. Doc. 111–29), and became effective December 1, 2009. The amendments affected Rules 6, 12, 13, 14, 15, 23, 27, 32, 38, 48, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, and 81, added new Rule 62.1, and affected Forms 3, 4, and 60, and Rules B, C, and G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Additional amendments were adopted by the Court by order dated April 28, 2010, transmitted to Congress by the Chief Justice on the same day (559 U.S.——; Cong. Rec., vol. 156, p. H3481, Daily Issue, Ex. Comm. 7473; H. Doc. 111–111), and became effective December 1, 2010. The amendments affected Rules 8, 26, and 56, and Form 52. Committee Notes

Committee Notes prepared by the Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Civil Procedure, Judicial Conference of the United States, explaining the purpose and intent of the amendments are set out in the Appendix to Title 28, United States Code, following

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the particular rule to which they relate. In addition, the rules and amendments, together with Committee Notes, are set out in the House documents listed above.

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TABLE OF CONTENTS Foreword .............................................................................................................. Authority for promulgation of rules .................................................................... Historical note .....................................................................................................

Page III V VII

RULES TITLE I. SCOPE OF RULES; FORM OF ACTION Rule 1. Scope and Purpose ............................................................................. Rule 2. One Form of Action ........................................................................... TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS Rule 3. Commencing an Action ...................................................................... Rule 4. Summons ........................................................................................... Rule 4.1. Serving Other Process ..................................................................... Rule 5. Serving and Filing Pleadings and Other Papers ................................ Rule 5.1. Constitutional Challenge to a Statute—Notice, Certification, and Intervention ...................................................................................... Rule 5.2. Privacy Protection For Filings Made with the Court ..................... Rule 6. Computing and Extending Time; Time for Motion Papers ................ TITLE III. PLEADINGS AND MOTIONS Rule 7. Pleadings Allowed; Form of Motions and Other Papers .................... Rule 7.1. Disclosure Statement ...................................................................... Rule 8. General Rules of Pleading ................................................................. Rule 9. Pleading Special Matters ................................................................... Rule 10. Form of Pleadings ............................................................................ Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions ......................................................................... Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing ................................................................ Rule 13. Counterclaim and Crossclaim .......................................................... Rule 14. Third-Party Practice ........................................................................ Rule 15. Amended and Supplemental Pleadings ............................................ Rule 16. Pretrial Conferences; Scheduling; Management .............................. TITLE IV. PARTIES Rule 17. Plaintiff and Defendant; Capacity; Public Officers .......................... Rule 18. Joinder of Claims ............................................................................. Rule 19. Required Joinder of Parties ............................................................. Rule 20. Permissive Joinder of Parties .......................................................... Rule 21. Misjoinder and Nonjoinder of Parties .............................................. Rule 22. Interpleader ...................................................................................... Rule 23. Class Actions .................................................................................... Rule 23.1. Derivative Actions ......................................................................... Rule 23.2. Actions Relating to Unincorporated Associations ......................... Rule 24. Intervention ..................................................................................... Rule 25. Substitution of Parties .................................................................... TITLE V. DISCLOSURES AND DISCOVERY Rule 26. Duty to Disclose; General Provisions Governing Discovery ............ Rule 27. Depositions to Perpetuate Testimony .............................................. Rule 28. Persons Before Whom Depositions May Be Taken ........................... Rule 29. Stipulations About Discovery Procedure ......................................... Rule 30. Depositions by Oral Examination .................................................... Rule 31. Depositions by Written Questions .................................................... Rule 32. Using Depositions in Court Proceedings .......................................... Rule 33. Interrogatories to Parties ................................................................ Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes ............................................................................................

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TITLE V. DISCLOSURES AND DISCOVERY—Continued Rule 35. Physical and Mental Examinations ................................................. Rule 36. Requests for Admission .................................................................... Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions .......................................................................................... TITLE VI. TRIALS Rule 38. Right to a Jury Trial; Demand ......................................................... Rule 39. Trial by Jury or by the Court .......................................................... Rule 40. Scheduling Cases for Trial ............................................................... Rule 41. Dismissal of Actions ......................................................................... Rule 42. Consolidation; Separate Trials ......................................................... Rule 43. Taking Testimony ............................................................................ Rule 44. Proving an Official Record ............................................................... Rule 44.1. Determining Foreign Law .............................................................. Rule 45. Subpoena .......................................................................................... Rule 46. Objecting to a Ruling or Order ......................................................... Rule 47. Selecting Jurors ............................................................................... Rule 48. Number of Jurors; Verdict; Polling .................................................. Rule 49. Special Verdict; General Verdict and Questions .............................. Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling ....................................................... Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error .. Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings ............................................................................................ Rule 53. Masters ............................................................................................. TITLE VII. JUDGMENT Rule 54. Judgment; Costs ............................................................................... Rule 55. Default; Default Judgment .............................................................. Rule 56. Summary Judgment ......................................................................... Rule 57. Declaratory Judgment ..................................................................... Rule 58. Entering Judgment .......................................................................... Rule 59. New Trial; Altering or Amending a Judgment ................................. Rule 60. Relief from a Judgment or Order ..................................................... Rule 61. Harmless Error ................................................................................. Rule 62. Stay of Proceedings to Enforce a Judgment .................................... Rule 62.1. Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal ................................................................................. Rule 63. Judge’s Inability to Proceed ............................................................ TITLE VIII. PROVISIONAL AND FINAL REMEDIES Rule 64. Seizing a Person or Property ........................................................... Rule 65. Injunctions and Restraining Orders ................................................. Rule 65.1. Proceedings Against a Surety ........................................................ Rule 66. Receivers .......................................................................................... Rule 67. Deposit into Court ............................................................................ Rule 68. Offer of Judgment ............................................................................ Rule 69. Execution ......................................................................................... Rule 70. Enforcing a Judgment for a Specific Act ......................................... Rule 71. Enforcing Relief For or Against a Nonparty .................................... TITLE IX. SPECIAL PROCEEDINGS Rule 71.1. Condemning Real or Personal Property ........................................ Rule 72. Magistrate Judges: Pretrial Order ................................................... Rule 73. Magistrate Judges: Trial by Consent; Appeal .................................. Rule 74. [Abrogated.] Rule 75. [Abrogated.] Rule 76. [Abrogated.] TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS Rule 77. Conducting Business; Clerk’s Authority; Notice of an Order or Judgment .......................................................................................... Rule 78. Hearing Motions; Submission on Briefs ........................................... Rule 79. Records Kept by the Clerk ............................................................... Rule 80. Stenographic Transcript as Evidence ............................................... TITLE XI. GENERAL PROVISIONS Rule 81. Applicability of the Rules in General; Removed Actions ................. Rule 82. Jurisdiction and Venue Unaffected .................................................. Rule 83. Rules by District Courts; Judge’s Directives ................................... Rule 84. Forms ...............................................................................................

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CONTENTS TITLE XI. GENERAL PROVISIONS—Continued Rule 85. Title ................................................................................................. Rule 86. Effective Dates .................................................................................

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APPENDIX OF FORMS Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form Form

Form Form Form Form Form Form Form Form Form Form Form Form

1. Caption ................................................................................................... 2. Date, Signature, Address, E-mail Address, and Telephone Number ....... 3. Summons ................................................................................................ 4. Summons on a Third-Party Complaint .................................................. 5. Notice of a Lawsuit and Request to Waive Service of a Summons ......... 6. Waiver of the Service of Summons ......................................................... 7. Statement of Jurisdiction ...................................................................... 8. Statement of Reasons for Omitting a Party .......................................... 9. Statement Noting a Party’s Death ......................................................... 10. Complaint to Recover a Sum Certain ................................................... 11. Complaint for Negligence ..................................................................... 12. Complaint for Negligence When the Plaintiff Does Not Know Who Is Responsible ........................................................................................ 13. Complaint for Negligence Under the Federal Employers’ Liability Act 14. Complaint for Damages Under the Merchant Marine Act ..................... 15. Complaint for the Conversion of Property ............................................ 16. Third-Party Complaint ......................................................................... 17. Complaint for Specific Performance of a Contract to Convey Land ..... 18. Complaint for Patent Infringement ...................................................... 19. Complaint for Copyright Infringement and Unfair Competition .......... 20. Complaint for Interpleader and Declaratory Relief .............................. 21. Complaint on a Claim for a Debt and to Set Aside a Fraudulent Conveyance Under Rule 18(b) ............................................................. 30. Answer Presenting Defenses Under Rule 12(b) ...................................... 31. Answer to a Complaint for Money Had and Received with a Counterclaim for Interpleader ........................................................... 40. Motion to Dismiss Under Rule 12(b) for Lack of Jurisdiction, Improper Venue, Insufficient Service of Process, or Failure to State a Claim .............................................................................................. 41. Motion to Bring in a Third-Party Defendant ........................................ 42. Motion to Intervene as a Defendant Under Rule 24 ............................... 50. Request to Produce Documents and Tangible Things, or to Enter onto Land Under Rule 34 ............................................................................ 51. Request for Admissions Under Rule 36 .................................................. 52. Report of the Parties’ Planning Meeting .............................................. 60. Notice of Condemnation ....................................................................... 61. Complaint for Condemnation ................................................................ 70. Judgment on a Jury Verdict ................................................................. 71. Judgment by the Court without a Jury ................................................ 80. Notice of a Magistrate Judge’s Availability ......................................... 81. Consent to an Assignment to a Magistrate Judge ................................ 82. Order of Assignment to a Magistrate Judge .........................................

98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120

121 122 123 124 125 126 127 128 129 130 131 132 133

SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS Rule Rule Rule Rule Rule Rule Rule

A. Scope of Rules ......................................................................................... B. In Personam Actions: Attachment and Garnishment ............................. C. In Rem Actions: Special Provisions ........................................................ D. Possessory, Petitory, and Partition Actions .......................................... E. Actions in Rem and Quasi in Rem: General Provisions .......................... F. Limitation of Liability ........................................................................... G. Forfeiture Actions In Rem ......................................................................

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134 134 135 137 138 141 144

244

RULES OF CIVIL PROCEDURE FOR THE

UNITED STATES DISTRICT COURTS 1 Effective September 16, 1938, as amended to December 1, 2011

TITLE I. SCOPE OF RULES; FORM OF ACTION Rule 1. Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 2. One Form of Action There is one form of action—the civil action. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS Rule 3. Commencing an Action A civil action is commenced by filing a complaint with the court. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 4. Summons (a) CONTENTS; AMENDMENTS. (1) Contents. A summons must: (A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiff’s attorney or—if unrepresented—of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court’s seal. (2) Amendments. The court may permit a summons to be amended. 1 Title

amended December 29, 1948, effective October 20, 1949.

(1)

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(b) ISSUANCE. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served. (c) SERVICE. (1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service. (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. (3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. (d) WAIVING SERVICE. (1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must: (A) be in writing and be addressed: (i) to the individual defendant; or (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form; (D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and (G) be sent by first-class mail or other reliable means. (2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses. (3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not

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serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States. (4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver. (5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue. (e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. (f) SERVING AN INDIVIDUAL IN A FOREIGN COUNTRY. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States: (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: (A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction; (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by: (i) delivering a copy of the summons and of the complaint to the individual personally; or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or (3) by other means not prohibited by international agreement, as the court orders. (g) SERVING A MINOR OR AN INCOMPETENT PERSON. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the

247

Rule 4

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courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3). (h) SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). (i) SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES. (1) United States. To serve the United States, a party must: (A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office; (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer. (2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee. (3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g). (4) Extending Time. The court must allow a party a reasonable time to cure its failure to: (A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

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(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee. (j) SERVING A FOREIGN, STATE, OR LOCAL GOVERNMENT. (1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608. (2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant. (k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE. (1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located; (B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or (C) when authorized by a federal statute. (2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws. (l) PROVING SERVICE. (1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit. (2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows: (A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or (B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee. (3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended. (m) TIME LIMIT FOR SERVICE. If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause

249

Rule 4.1

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6

for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). (n) ASSERTING JURISDICTION OVER PROPERTY OR ASSETS. (1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule. (2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district. (As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 97–462, § 2, Jan. 12, 1983, 96 Stat. 2527, eff. Feb. 26, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 4.1. Serving Other Process (a) IN GENERAL. Process—other than a summons under Rule 4 or a subpoena under Rule 45—must be served by a United States marshal or deputy marshal or by a person specially appointed for that purpose. It may be served anywhere within the territorial limits of the state where the district court is located and, if authorized by a federal statute, beyond those limits. Proof of service must be made under Rule 4(l). (b) ENFORCING ORDERS: COMMITTING FOR CIVIL CONTEMPT. An order committing a person for civil contempt of a decree or injunction issued to enforce federal law may be served and enforced in any district. Any other order in a civil-contempt proceeding may be served only in the state where the issuing court is located or elsewhere in the United States within 100 miles from where the order was issued. (As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 5. Serving and Filing Pleadings and Other Papers (a) SERVICE: WHEN REQUIRED. (1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party: (A) an order stating that service is required; (B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants; (C) a discovery paper required to be served on a party, unless the court orders otherwise; (D) a written motion, except one that may be heard ex parte; and (E) a written notice, appearance, demand, or offer of judgment, or any similar paper. (2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading

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Rule 5

that asserts a new claim for relief against such a party must be served on that party under Rule 4. (3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized. (b) SERVICE: HOW MADE. (1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. (2) Service in General. A paper is served under this rule by: (A) handing it to the person; (B) leaving it: (i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the person’s last known address—in which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery. (3) Using Court Facilities. If a local rule so authorizes, a party may use the court’s transmission facilities to make service under Rule 5(b)(2)(E). (c) SERVING NUMEROUS DEFENDANTS. (1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that: (A) defendants’ pleadings and replies to them need not be served on other defendants; (B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and (C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties. (2) Notifying Parties. A copy of every such order must be served on the parties as the court directs. (d) FILING. (1) Required Filings; Certificate of Service. Any paper after the complaint that is required to be served—together with a certificate of service—must be filed within a reasonable time after service. But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed

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Rule 5.1

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8

until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission. (2) How Filing Is Made—In General. A paper is filed by delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk. (3) Electronic Filing, Signing, or Verification. A court may, by local rule, allow papers to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States. A local rule may require electronic filing only if reasonable exceptions are allowed. A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules. (4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice. (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 5.1. Constitutional Challenge to a Statute—Notice, Certification, and Intervention (a) NOTICE BY A PARTY. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned—or on the state attorney general if a state statute is questioned—either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. (b) CERTIFICATION BY THE COURT. The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned. (c) INTERVENTION; FINAL DECISION ON THE MERITS. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.

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Rule 5.2

(d) NO FORFEITURE. A party’s failure to file and serve the notice, or the court’s failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted. (As added Apr. 12, 2006, eff. Dec. 1, 2006; amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 5.2. Privacy Protection For Filings Made with the Court (a) REDACTED FILINGS. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) the last four digits of the social-security number and taxpayer-identification number; (2) the year of the individual’s birth; (3) the minor’s initials; and (4) the last four digits of the financial-account number. (b) EXEMPTIONS FROM THE REDACTION REQUIREMENT. The redaction requirement does not apply to the following: (1) a financial-account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding; (2) the record of an administrative or agency proceeding; (3) the official record of a state-court proceeding; (4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; (5) a filing covered by Rule 5.2(c) or (d); and (6) a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255. (c) LIMITATIONS ON REMOTE ACCESS TO ELECTRONIC FILES; SOCIALSECURITY APPEALS AND IMMIGRATION CASES. Unless the court orders otherwise, in an action for benefits under the Social Security Act, and in an action or proceeding relating to an order of removal, to relief from removal, or to immigration benefits or detention, access to an electronic file is authorized as follows: (1) the parties and their attorneys may have remote electronic access to any part of the case file, including the administrative record; (2) any other person may have electronic access to the full record at the courthouse, but may have remote electronic access only to: (A) the docket maintained by the court; and (B) an opinion, order, judgment, or other disposition of the court, but not any other part of the case file or the administrative record. (d) FILINGS MADE UNDER SEAL. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record. (e) PROTECTIVE ORDERS. For good cause, the court may by order in a case: (1) require redaction of additional information; or (2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.

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Rule 6

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10

(f) OPTION FOR ADDITIONAL UNREDACTED FILING UNDER SEAL. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record. (g) OPTION FOR FILING A REFERENCE LIST. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. (h) WAIVER OF PROTECTION OF IDENTIFIERS. A person waives the protection of Rule 5.2(a) as to the person’s own information by filing it without redaction and not under seal. (As added Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 6. Computing and Extending Time; Time for Motion Papers (a) COMPUTING TIME. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. (1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2) Period Stated in Hours. When the period is stated in hours: (A) begin counting immediately on the occurrence of the event that triggers the period; (B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and (C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday. (3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible: (A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or (B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday. (4) ‘‘Last Day’’ Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends: (A) for electronic filing, at midnight in the court’s time zone; and (B) for filing by other means, when the clerk’s office is scheduled to close.

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Rule 7

(5) ‘‘Next Day’’ Defined. The ‘‘next day’’ is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. (6) ‘‘Legal Holiday’’ Defined. ‘‘Legal holiday’’ means: (A) the day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day; (B) any day declared a holiday by the President or Congress; and (C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located. (b) EXTENDING TIME. (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. (2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). (c) MOTIONS, NOTICES OF HEARING, AND AFFIDAVITS. (1) In General. A written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing, with the following exceptions: (A) when the motion may be heard ex parte; (B) when these rules set a different time; or (C) when a court order—which a party may, for good cause, apply for ex parte—sets a different time. (2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time. (d) ADDITIONAL TIME AFTER CERTAIN KINDS OF SERVICE. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a). (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) TITLE III. PLEADINGS AND MOTIONS Rule 7. Pleadings Allowed; Form of Motions and Other Papers (a) PLEADINGS. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint;

255

Rule 7.1

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(3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) MOTIONS AND OTHER PAPERS. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 7.1. Disclosure Statement (a) WHO MUST FILE; CONTENTS. A nongovernmental corporate party must file 2 copies of a disclosure statement that: (1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (2) states that there is no such corporation. (b) TIME TO FILE; SUPPLEMENTAL FILING. A party must: (1) file the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and (2) promptly file a supplemental statement if any required information changes. (As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 8. General Rules of Pleading (a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) DEFENSES; ADMISSIONS AND DENIALS. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party

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FEDERAL RULES OF CIVIL PROCEDURE

Rule 8

that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) AFFIRMATIVE DEFENSES. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: • accord and satisfaction; • arbitration and award; • assumption of risk; • contributory negligence; • duress; • estoppel; • failure of consideration; • fraud; • illegality; • injury by fellow servant; • laches; • license; • payment; • release; • res judicata; • statute of frauds; • statute of limitations; and • waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) PLEADING TO BE CONCISE AND DIRECT; ALTERNATIVE STATEMENTS; INCONSISTENCY. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency. (e) CONSTRUING PLEADINGS. Pleadings must be construed so as to do justice.

257

Rule 9

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(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010.) Rule 9. Pleading Special Matters (a) CAPACITY OR AUTHORITY TO SUE; LEGAL EXISTENCE. (1) In General. Except when required to show that the court has jurisdiction, a pleading need not allege: (A) a party’s capacity to sue or be sued; (B) a party’s authority to sue or be sued in a representative capacity; or (C) the legal existence of an organized association of persons that is made a party. (2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party’s knowledge. (b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. (c) CONDITIONS PRECEDENT. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. (d) OFFICIAL DOCUMENT OR ACT. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done. (e) JUDGMENT. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it. (f) TIME AND PLACE. An allegation of time or place is material when testing the sufficiency of a pleading. (g) SPECIAL DAMAGES. If an item of special damage is claimed, it must be specifically stated. (h) ADMIRALTY OR MARITIME CLAIM. (1) How Designated. If a claim for relief is within the admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated. (2) Designation for Appeal. A case that includes an admiralty or maritime claim within this subdivision (h) is an admiralty case within 28 U.S.C. § 1292(a)(3). (As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

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FEDERAL RULES OF CIVIL PROCEDURE

Rule 11

Rule 10. Form of Pleadings (a) CAPTION; NAMES OF PARTIES. Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. (b) PARAGRAPHS; SEPARATE STATEMENTS. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense. (c) ADOPTION BY REFERENCE; EXHIBITS. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions (a) SIGNATURE. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention. (b) REPRESENTATIONS TO THE COURT. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) SANCTIONS. (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any

259

Rule 12

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attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion. (3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. (5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2); or (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction. (d) INAPPLICABILITY TO DISCOVERY. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37. (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing (a) TIME TO SERVE A RESPONSIVE PLEADING. (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent,

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Rule 12

or within 90 days after it was sent to the defendant outside any judicial district of the United States. (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney. (3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later. (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. (b) HOW TO PRESENT DEFENSES. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. (c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. (d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All

261

Rule 12

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parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (e) MOTION FOR A MORE DEFINITE STATEMENT. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. (f) MOTION TO STRIKE. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. (g) JOINING MOTIONS. (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule. (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. (h) WAIVING AND PRESERVING CERTAIN DEFENSES. (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial. (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. (i) HEARING BEFORE TRIAL. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion— and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

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Rule 14

Rule 13. Counterclaim and Crossclaim (a) COMPULSORY COUNTERCLAIM. (1) In General. A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (2) Exceptions. The pleader need not state the claim if: (A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. (b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (c) RELIEF SOUGHT IN A COUNTERCLAIM. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party. (d) COUNTERCLAIM AGAINST THE UNITED STATES. These rules do not expand the right to assert a counterclaim—or to claim a credit—against the United States or a United States officer or agency. (e) COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. (f) [ABROGATED.] (g) CROSSCLAIM AGAINST A COPARTY. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. (h) JOINING ADDITIONAL PARTIES. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim. (i) SEPARATE TRIALS; SEPARATE JUDGMENTS. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party’s claims have been dismissed or otherwise resolved. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 14. Third-Party Practice (a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY. (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint

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Rule 14

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on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer. (2) Third-Party Defendant’s Claims and Defenses. The person served with the summons and third-party complaint—the ‘‘third-party defendant’’: (A) must assert any defense against the third-party plaintiff’s claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. (3) Plaintiff’s Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately. (5) Third-Party Defendant’s Claim Against a Nonparty. A thirdparty defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it. (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the ‘‘summons’’ includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested. (b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so. (c) ADMIRALTY OR MARITIME CLAIM. (1) Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable—either to the plaintiff or to the third-party plaintiff—for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.

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Rule 15

(2) Defending Against a Demand for Judgment for the Plaintiff. The third-party plaintiff may demand judgment in the plaintiff’s favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff’s claim as well as the third-party plaintiff’s claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 15. Amended and Supplemental Pleadings (a) AMENDMENTS BEFORE TRIAL. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. (b) AMENDMENTS DURING AND AFTER TRIAL. (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment— to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. (c) RELATION BACK OF AMENDMENTS. (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

265

Rule 16

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(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. (2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney’s designee, to the Attorney General of the United States, or to the officer or agency. (d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time. (As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Pub. L. 102–198, § 11(a), Dec. 9, 1991, 105 Stat. 1626; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 16. Pretrial Conferences; Scheduling; Management (a) PURPOSES OF A PRETRIAL CONFERENCE. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement. (b) SCHEDULING. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge—or a magistrate judge when authorized by local rule—must issue a scheduling order: (A) after receiving the parties’ report under Rule 26(f); or (B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared.

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(3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure or discovery of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trialpreparation material after information is produced; (v) set dates for pretrial conferences and for trial; and (vi) include other appropriate matters. (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent. (c) ATTENDANCE AND MATTERS FOR CONSIDERATION AT A PRETRIAL CONFERENCE. (1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement. (2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desirable; (C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702; (E) determining the appropriateness and timing of summary adjudication under Rule 56; (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; (G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial; (H) referring matters to a magistrate judge or a master; (I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule; (J) determining the form and content of the pretrial order; (K) disposing of pending motions; (L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex

267

Rule 17

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issues, multiple parties, difficult legal questions, or unusual proof problems; (M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue; (N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c); (O) establishing a reasonable limit on the time allowed to present evidence; and (P) facilitating in other ways the just, speedy, and inexpensive disposition of the action. (d) PRETRIAL ORDERS. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it. (e) FINAL PRETRIAL CONFERENCE AND ORDERS. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice. (f) SANCTIONS. (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) TITLE IV. PARTIES Rule 17. Plaintiff and Defendant; Capacity; Public Officers (a) REAL PARTY IN INTEREST. (1) Designation in General. An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought: (A) an executor; (B) an administrator; (C) a guardian;

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Rule 17

(D) a bailee; (E) a trustee of an express trust; (F) a party with whom or in whose name a contract has been made for another’s benefit; and (G) a party authorized by statute. (2) Action in the Name of the United States for Another’s Use or Benefit. When a federal statute so provides, an action for another’s use or benefit must be brought in the name of the United States. (3) Joinder of the Real Party in Interest. The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest. (b) CAPACITY TO SUE OR BE SUED. Capacity to sue or be sued is determined as follows: (1) for an individual who is not acting in a representative capacity, by the law of the individual’s domicile; (2) for a corporation, by the law under which it was organized; and (3) for all other parties, by the law of the state where the court is located, except that: (A) a partnership or other unincorporated association with no such capacity under that state’s law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws; and (B) 28 U.S.C. §§ 754 and 959(a) govern the capacity of a receiver appointed by a United States court to sue or be sued in a United States court. (c) MINOR OR INCOMPETENT PERSON. (1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary. (2) Without a Representative. A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action. (d) PUBLIC OFFICER’S TITLE AND NAME. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer’s name be added. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L. 100–690, title VII, § 7049, Nov. 18, 1988, 102 Stat. 4401; Apr. 30, 2007, eff. Dec. 1, 2007.)

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Rule 18

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26

Rule 18. Joinder of Claims (a) IN GENERAL. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. (b) JOINDER OF CONTINGENT CLAIMS. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 19. Required Joinder of Parties (a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subjectmatter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. (3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party. (b) WHEN JOINDER IS NOT FEASIBLE. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. (c) PLEADING THE REASONS FOR NONJOINDER. When asserting a claim for relief, a party must state:

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Rule 22

(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and (2) the reasons for not joining that person. (d) EXCEPTION FOR CLASS ACTIONS. This rule is subject to Rule 23. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 20. Permissive Joinder of Parties (a) PERSONS WHO MAY JOIN OR BE JOINED. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. (2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. (3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities. (b) PROTECTIVE MEASURES. The court may issue orders—including an order for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 21. Misjoinder and Nonjoinder of Parties Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 22. Interpleader (a) GROUNDS. (1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: (A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or

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Rule 23

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28

(B) the plaintiff denies liability in whole or in part to any or all of the claimants. (2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim. (b) RELATION TO OTHER RULES AND STATUTES. This rule supplements—and does not limit—the joinder of parties allowed by Rule 20. The remedy this rule provides is in addition to—and does not supersede or limit—the remedy provided by 28 U.S.C. §§ 1335, 1397, and 2361. An action under those statutes must be conducted under these rules. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 23. Class Actions (a) PREREQUISITES. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. (b) TYPES OF CLASS ACTIONS. A class action may be maintained if Rule 23(a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

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Rule 23

(c) CERTIFICATION ORDER; NOTICE TO CLASS MEMBERS; JUDGMENT; ISSUES CLASSES; SUBCLASSES. (1) Certification Order. (A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action. (B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). (C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment. (2) Notice. (A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class. (B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). (3) Judgment. Whether or not favorable to the class, the judgment in a class action must: (A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and (B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members. (4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues. (5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule. (d) CONDUCTING THE ACTION. (1) In General. In conducting an action under this rule, the court may issue orders that: (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;

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Rule 23

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30

(B) require—to protect class members and fairly conduct the action—giving appropriate notice to some or all class members of: (i) any step in the action; (ii) the proposed extent of the judgment; or (iii) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action; (C) impose conditions on the representative parties or on intervenors; (D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or (E) deal with similar procedural matters. (2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16. (e) SETTLEMENT, VOLUNTARY DISMISSAL, OR COMPROMISE. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court’s approval. (f) APPEALS. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. (g) CLASS COUNSEL. (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court: (A) must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and

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Rule 23.1

(iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class; (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorney’s fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the appointment. (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class. (3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. (4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class. (h) ATTORNEY’S FEES AND NONTAXABLE COSTS. In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement. The following procedures apply: (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) A class member, or a party from whom payment is sought, may object to the motion. (3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a). (4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D). (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 23.1. Derivative Actions (a) PREREQUISITES. This rule applies when one or more shareholders or members of a corporation or an unincorporated association bring a derivative action to enforce a right that the corporation or association may properly assert but has failed to enforce. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of shareholders or members who are similarly situated in enforcing the right of the corporation or association. (b) PLEADING REQUIREMENTS. The complaint must be verified and must:

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Rule 23.2

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(1) allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiff’s share or membership later devolved on it by operation of law; (2) allege that the action is not a collusive one to confer jurisdiction that the court would otherwise lack; and (3) state with particularity: (A) any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and (B) the reasons for not obtaining the action or not making the effort. (c) SETTLEMENT, DISMISSAL, AND COMPROMISE. A derivative action may be settled, voluntarily dismissed, or compromised only with the court’s approval. Notice of a proposed settlement, voluntary dismissal, or compromise must be given to shareholders or members in the manner that the court orders. (As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 23.2. Actions Relating to Unincorporated Associations This rule applies to an action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties. The action may be maintained only if it appears that those parties will fairly and adequately protect the interests of the association and its members. In conducting the action, the court may issue any appropriate orders corresponding with those in Rule 23(d), and the procedure for settlement, voluntary dismissal, or compromise must correspond with the procedure in Rule 23(e). (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 24. Intervention (a) INTERVENTION OF RIGHT. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. (b) PERMISSIVE INTERVENTION. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. (2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on: (A) a statute or executive order administered by the officer or agency; or

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Rule 25

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. (c) NOTICE AND PLEADING REQUIRED. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 25. Substitution of Parties (a) DEATH. (1) Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed. (2) Continuation Among the Remaining Parties. After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record. (3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. Service may be made in any judicial district. (b) INCOMPETENCY. If a party becomes incompetent, the court may, on motion, permit the action to be continued by or against the party’s representative. The motion must be served as provided in Rule 25(a)(3). (c) TRANSFER OF INTEREST. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3). (d) PUBLIC OFFICERS; DEATH OR SEPARATION FROM OFFICE. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

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Rule 26

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TITLE V. DISCLOSURES AND DISCOVERY Rule 26. Duty to Disclose; General Provisions Governing Discovery (a) REQUIRED DISCLOSURES. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure: (i) an action for review on an administrative record; (ii) a forfeiture action in rem arising from a federal statute; (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; (v) an action to enforce or quash an administrative summons or subpoena; (vi) an action by the United States to recover benefit payments; (vii) an action by the United States to collect on a student loan guaranteed by the United States; (viii) a proceeding ancillary to a proceeding in another court; and (ix) an action to enforce an arbitration award. (C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set

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by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. (D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures. (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

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(i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure. (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). (3) Pretrial Disclosures. (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment: (i) the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises; (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and (iii) an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises. (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause. (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served. (b) DISCOVERY SCOPE AND LIMITS. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

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(2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

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(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: (i) a written statement that the person has signed or otherwise adopted or approved; or (ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person’s oral statement. (4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. (C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.

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(5) Claiming Privilege or Protecting Trial-Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. (c) PROTECTIVE ORDERS. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

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(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses. (d) TIMING AND SEQUENCE OF DISCOVERY. (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. (2) Sequence. Unless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. (e) SUPPLEMENTING DISCLOSURES AND RESPONSES. (1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due. (f) CONFERENCE OF THE PARTIES; PLANNING FOR DISCOVERY. (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on: (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a

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statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule: (A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. (g) SIGNING DISCLOSURES AND DISCOVERY REQUESTS, RESPONSES, AND OBJECTIONS. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name—or by the party personally, if unrepresented—and must state the signer’s address, email address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

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(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2010, eff. Dec. 1, 2010.) Rule 27. Depositions to Perpetuate Testimony (a) BEFORE AN ACTION IS FILED. (1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner’s name and must show: (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner’s interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent. (2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies. (3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons

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whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed. (4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed districtcourt action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken. (b) PENDING APPEAL. (1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court. (2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show: (A) the name, address, and expected substance of the testimony of each deponent; and (B) the reasons for perpetuating the testimony. (3) Court Order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending district-court action. (c) PERPETUATION BY AN ACTION. This rule does not limit a court’s power to entertain an action to perpetuate testimony. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 28. Persons Before Whom Depositions May Be Taken (a) WITHIN THE UNITED STATES. (1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before: (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or (B) a person appointed by the court where the action is pending to administer oaths and take testimony. (2) Definition of ‘‘Officer.’’ The term ‘‘officer’’ in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a). (b) IN A FOREIGN COUNTRY. (1) In General. A deposition may be taken in a foreign country:

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(A) under an applicable treaty or convention; (B) under a letter of request, whether or not captioned a ‘‘letter rogatory’’; (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony. (2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued: (A) on appropriate terms after an application and notice of it; and (B) without a showing that taking the deposition in another manner is impracticable or inconvenient. (3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed ‘‘To the Appropriate Authority in [name of country].’’ A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken. (4) Letter of Request—Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States. (c) DISQUALIFICATION. A deposition must not be taken before a person who is any party’s relative, employee, or attorney; who is related to or employed by any party’s attorney; or who is financially interested in the action. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 1, 2007, eff. Dec. 1, 2007.) Rule 29. Stipulations About Discovery Procedure Unless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition; and (b) other procedures governing or limiting discovery be modified—but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial. (As amended Mar. 30, 1970, eff. July 1, 1970; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 30. Depositions by Oral Examination (a) WHEN A DEPOSITION MAY BE TAKEN. (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45.

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(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (B) if the deponent is confined in prison. (b) NOTICE OF THE DEPOSITION; OTHER FORMAL REQUIREMENTS. (1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. (2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition. (3) Method of Recording. (A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. (B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise. (4) By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions. (5) Officer’s Duties. (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes:

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(i) the officer’s name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent’s name; (iv) the officer’s administration of the oath or affirmation to the deponent; and (v) the identity of all persons present. (B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)–(iii) at the beginning of each unit of the recording medium. The deponent’s and attorneys’ appearance or demeanor must not be distorted through recording techniques. (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters. (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. (c) EXAMINATION AND CROSS-EXAMINATION; RECORD OF THE EXAMINATION; OBJECTIONS; WRITTEN QUESTIONS. (1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer. (2) Objections. An objection at the time of the examination— whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). (3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must

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Rule 30

ask the deponent those questions and record the answers verbatim. (d) DURATION; SANCTION; MOTION TO TERMINATE OR LIMIT. (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. (2) Sanction. The court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent. (3) Motion to Terminate or Limit. (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. (B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending. (C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses. (e) REVIEW BY THE WITNESS; CHANGES. (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2) Changes Indicated in the Officer’s Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period. (f) CERTIFICATION AND DELIVERY; EXHIBITS; COPIES OF THE TRANSCRIPT OR RECORDING; FILING. (1) Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness’s testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked ‘‘Deposition of [witness’s name]’’ and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

291

Rule 31

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48

(2) Documents and Tangible Things. (A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party’s request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may: (i) offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition. (B) Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case. (3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent. (4) Notice of Filing. A party who files the deposition must promptly notify all other parties of the filing. (g) FAILURE TO ATTEND A DEPOSITION OR SERVE A SUBPOENA; EXPENSES. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if the noticing party failed to: (1) attend and proceed with the deposition; or (2) serve a subpoena on a nonparty deponent, who consequently did not attend. (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 31. Depositions by Written Questions (a) WHEN A DEPOSITION MAY BE TAKEN. (1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the

292

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Rule 32

plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take a deposition before the time specified in Rule 26(d); or (B) if the deponent is confined in prison. (3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken. (4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6). (5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times. (b) DELIVERY TO THE OFFICER; OFFICER’S DUTIES. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to: (1) take the deponent’s testimony in response to the questions; (2) prepare and certify the deposition; and (3) send it to the party, attaching a copy of the questions and of the notice. (c) NOTICE OF COMPLETION OR FILING. (1) Completion. The party who noticed the deposition must notify all other parties when it is completed. (2) Filing. A party who files the deposition must promptly notify all other parties of the filing. (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 32. Using Depositions in Court Proceedings (a) USING DEPOSITIONS. (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8).

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Rule 32

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(2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence. (3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4). (4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used. (5) Limitations on Use. (A) Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days’ notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken. (B) Unavailable Deponent; Party Could Not Obtain an Attorney. A deposition taken without leave of court under the unavailability provision of Rule 30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition. (6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts. (7) Substituting a Party. Substituting a party under Rule 25 does not affect the right to use a deposition previously taken. (8) Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence. (b) OBJECTIONS TO ADMISSIBILITY. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.

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Rule 33

(c) FORM OF PRESENTATION. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party’s request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise. (d) WAIVER OF OBJECTIONS. (1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice. (2) To the Officer’s Qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made: (A) before the deposition begins; or (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known. (3) To the Taking of the Deposition. (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if: (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition. (C) Objection to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it. (4) To Completing and Returning the Deposition. An objection to how the officer transcribed the testimony—or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition—is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known. (As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 33. Interrogatories to Parties (a) IN GENERAL. (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25

295

Rule 34

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52

written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. (b) ANSWERS AND OBJECTIONS. (1) Responding Party. The interrogatories must be answered: (A) by the party to whom they are directed; or (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections. (c) USE. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence. (d) OPTION TO PRODUCE BUSINESS RECORDS. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (a) IN GENERAL. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following

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Rule 34

items in the responding party’s possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) PROCEDURE. (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced. (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

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Rule 35

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54

(c) NONPARTIES. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 35. Physical and Mental Examinations (a) ORDER FOR AN EXAMINATION. (1) In General. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. (2) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. (b) EXAMINER’S REPORT. (1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined. (2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests. (3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request—and is entitled to receive—from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them. (4) Waiver of Privilege. By requesting and obtaining the examiner’s report, or by deposing the examiner, the party examined waives any privilege it may have—in that action or any other action involving the same controversy—concerning testimony about all examinations of the same condition. (5) Failure to Deliver a Report. The court on motion may order—on just terms—that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner’s testimony at trial. (6) Scope. This subdivision (b) applies also to an examination made by the parties’ agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner’s report or deposing an examiner under other rules.

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Rule 36

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Pub. L. 100–690, title VII, § 7047(b), Nov. 18, 1988, 102 Stat. 4401; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 36. Requests for Admission (a) SCOPE AND PROCEDURE. (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. (2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court. (4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. (5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial. (6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses. (b) EFFECT OF AN ADMISSION; WITHDRAWING OR AMENDING IT. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action

299

Rule 37

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56

on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) MOTION FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. (2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. (3) Specific Motions. (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34. (C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. (4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. (5) Payment of Expenses; Protective Orders. (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if:

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Rule 37

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. (B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. (C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion. (b) FAILURE TO COMPLY WITH A COURT ORDER. (1) Sanctions in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. (2) Sanctions in the District Where the Action Is Pending. (A) For Not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. (B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may

301

Rule 37

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issue any of the orders listed in Rule 37(b)(2)(A)(i)–(vi), unless the disobedient party shows that it cannot produce the other person. (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (c) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER RESPONSE, OR TO ADMIT. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi). (2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. (d) PARTY’S FAILURE TO ATTEND ITS OWN DEPOSITION, SERVE ANSWERS TO INTERROGATORIES, OR RESPOND TO A REQUEST FOR INSPECTION. (1) In General. (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: (i) a party or a party’s officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person’s deposition; or (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

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(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. (e) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. (f) FAILURE TO PARTICIPATE IN FRAMING A DISCOVERY PLAN. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96–481, § 205(a), Oct. 21, 1980, 94 Stat. 2330, eff. Oct. 1, 1981; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) TITLE VI. TRIALS Rule 38. Right to a Jury Trial; Demand (a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate. (b) DEMAND. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) SPECIFYING ISSUES. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury. (d) WAIVER; WITHDRAWAL. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent. (e) ADMIRALTY AND MARITIME CLAIMS. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).

303

Rule 39

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60

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 39. Trial by Jury or by the Court (a) WHEN A DEMAND IS MADE. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless: (1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or (2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial. (b) WHEN NO DEMAND IS MADE. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded. (c) ADVISORY JURY; JURY TRIAL BY CONSENT. In an action not triable of right by a jury, the court, on motion or on its own: (1) may try any issue with an advisory jury; or (2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 40. Scheduling Cases for Trial Each court must provide by rule for scheduling trials. The court must give priority to actions entitled to priority by a federal statute. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 41. Dismissal of Actions (a) VOLUNTARY DISMISSAL. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order

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Rule 43

states otherwise, a dismissal under this paragraph (2) is without prejudice. (b) INVOLUNTARY DISMISSAL; EFFECT. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits. (c) DISMISSING A COUNTERCLAIM, CROSSCLAIM, OR THIRD-PARTY CLAIM. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1)(A)(i) must be made: (1) before a responsive pleading is served; or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial. (d) COSTS OF A PREVIOUSLY DISMISSED ACTION. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 42. Consolidation; Separate Trials (a) CONSOLIDATION. If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. (b) SEPARATE TRIALS. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 43. Taking Testimony (a) IN OPEN COURT. At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. (b) AFFIRMATION INSTEAD OF AN OATH. When these rules require an oath, a solemn affirmation suffices.

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Rule 44

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(c) EVIDENCE ON A MOTION. When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions. (d) INTERPRETER. The court may appoint an interpreter of its choosing; fix reasonable compensation to be paid from funds provided by law or by one or more parties; and tax the compensation as costs. (As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and Dec. 18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 44. Proving an Official Record (a) MEANS OF PROVING. (1) Domestic Record. Each of the following evidences an official record—or an entry in it—that is otherwise admissible and is kept within the United States, any state, district, or commonwealth, or any territory subject to the administrative or judicial jurisdiction of the United States: (A) an official publication of the record; or (B) a copy attested by the officer with legal custody of the record—or by the officer’s deputy—and accompanied by a certificate that the officer has custody. The certificate must be made under seal: (i) by a judge of a court of record in the district or political subdivision where the record is kept; or (ii) by any public officer with a seal of office and with official duties in the district or political subdivision where the record is kept. (2) Foreign Record. (A) In General. Each of the following evidences a foreign official record—or an entry in it—that is otherwise admissible: (i) an official publication of the record; or (ii) the record—or a copy—that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties. (B) Final Certification of Genuineness. A final certification must certify the genuineness of the signature and official position of the attester or of any foreign official whose certificate of genuineness relates to the attestation or is in a chain of certificates of genuineness relating to the attestation. A final certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. (C) Other Means of Proof. If all parties have had a reasonable opportunity to investigate a foreign record’s authenticity and accuracy, the court may, for good cause, either: (i) admit an attested copy without final certification; or (ii) permit the record to be evidenced by an attested summary with or without a final certification.

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Rule 45

(b) LACK OF A RECORD. A written statement that a diligent search of designated records revealed no record or entry of a specified tenor is admissible as evidence that the records contain no such record or entry. For domestic records, the statement must be authenticated under Rule 44(a)(1). For foreign records, the statement must comply with (a)(2)(C)(ii). (c) OTHER PROOF. A party may prove an official record—or an entry or lack of an entry in it—by any other method authorized by law. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 44.1. Determining Foreign Law A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law. (As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 45. Subpoena (a) IN GENERAL. (1) Form and Contents. (A) Requirements—In General. Every subpoena must: (i) state the court from which it issued; (ii) state the title of the action, the court in which it is pending, and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and (iv) set out the text of Rule 45(c) and (d). (B) Command to Attend a Deposition—Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony. (C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced. (D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.

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Rule 45

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(2) Issued from Which Court. A subpoena must issue as follows: (A) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held; (B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and (C) for production or inspection, if separate from a subpoena commanding a person’s attendance, from the court for the district where the production or inspection is to be made. (3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of: (A) a court in which the attorney is authorized to practice; or (B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending. (b) SERVICE. (1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party. (2) Service in the United States. Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place: (A) within the district of the issuing court; (B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection; (C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection; or (D) that the court authorizes on motion and for good cause, if a federal statute so provides. (3) Service in a Foreign Country. 28 U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country. (4) Proof of Service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server. (c) PROTECTING A PERSON SUBJECT TO A SUBPOENA. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must

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Rule 45

take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction— which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or (iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial.

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Rule 45

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(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (d) DUTIES IN RESPONDING TO A SUBPOENA. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must

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Rule 48

not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii). (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 46. Objecting to a Ruling or Order A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. (As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 47. Selecting Jurors (a) EXAMINING JURORS. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper. (b) PEREMPTORY CHALLENGES. The court must allow the number of peremptory challenges provided by 28 U.S.C. § 1870. (c) EXCUSING A JUROR. During trial or deliberation, the court may excuse a juror for good cause. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 48. Number of Jurors; Verdict; Polling (a) NUMBER OF JURORS. A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c). (b) VERDICT. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members. (c) POLLING. After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties

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Rule 49

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stipulated to, the court may direct the jury to deliberate further or may order a new trial. (As amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 49. Special Verdict; General Verdict and Questions (a) SPECIAL VERDICT. (1) In General. The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by: (A) submitting written questions susceptible of a categorical or other brief answer; (B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or (C) using any other method that the court considers appropriate. (2) Instructions. The court must give the instructions and explanations necessary to enable the jury to make its findings on each submitted issue. (3) Issues Not Submitted. A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict. (b) GENERAL VERDICT WITH ANSWERS TO WRITTEN QUESTIONS. (1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both. (2) Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58, an appropriate judgment on the verdict and answers. (3) Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may: (A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict; (B) direct the jury to further consider its answers and verdict; or (C) order a new trial. (4) Answers Inconsistent with Each Other and the Verdict. When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial.

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Rule 50

(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling (a) JUDGMENT AS A MATTER OF LAW. (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. (b) RENEWING THE MOTION AFTER TRIAL; ALTERNATIVE MOTION FOR A NEW TRIAL. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. (c) GRANTING THE RENEWED MOTION; CONDITIONAL RULING ON A MOTION FOR A NEW TRIAL. (1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial. (2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment’s finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders. (d) TIME FOR A LOSING PARTY’S NEW-TRIAL MOTION. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment. (e) DENYING THE MOTION FOR JUDGMENT AS A MATTER OF LAW; REVERSAL ON APPEAL. If the court denies the motion for judgment

313

Rule 51

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as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment. (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error (a) REQUESTS. (1) Before or at the Close of the Evidence. At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. (2) After the Close of the Evidence. After the close of the evidence, a party may: (A) file requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and (B) with the court’s permission, file untimely requests for instructions on any issue. (b) INSTRUCTIONS. The court: (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; (2) must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered; and (3) may instruct the jury at any time before the jury is discharged. (c) OBJECTIONS. (1) How to Make. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. (2) When to Make. An objection is timely if: (A) a party objects at the opportunity provided under Rule 51(b)(2); or (B) a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused. (d) ASSIGNING ERROR; PLAIN ERROR. (1) Assigning Error. A party may assign as error: (A) an error in an instruction actually given, if that party properly objected; or (B) a failure to give an instruction, if that party properly requested it and—unless the court rejected the request in a definitive ruling on the record—also properly objected. (2) Plain Error. A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.

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(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings (a) FINDINGS AND CONCLUSIONS. (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58. (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action. (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion. (4) Effect of a Master’s Findings. A master’s findings, to the extent adopted by the court, must be considered the court’s findings. (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings. (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility. (b) AMENDED OR ADDITIONAL FINDINGS. On a party’s motion filed no later than 28 days after the entry of judgment, the court may amend its findings—or make additional findings—and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. (c) JUDGMENT ON PARTIAL FINDINGS. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 53. Masters (a) APPOINTMENT. (1) Scope. Unless a statute provides otherwise, a court may appoint a master only to:

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(A) perform duties consented to by the parties; (B) hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by: (i) some exceptional condition; or (ii) the need to perform an accounting or resolve a difficult computation of damages; or (C) address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district. (2) Disqualification. A master must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under 28 U.S.C. § 455, unless the parties, with the court’s approval, consent to the appointment after the master discloses any potential grounds for disqualification. (3) Possible Expense or Delay. In appointing a master, the court must consider the fairness of imposing the likely expenses on the parties and must protect against unreasonable expense or delay. (b) ORDER APPOINTING A MASTER. (1) Notice. Before appointing a master, the court must give the parties notice and an opportunity to be heard. Any party may suggest candidates for appointment. (2) Contents. The appointing order must direct the master to proceed with all reasonable diligence and must state: (A) the master’s duties, including any investigation or enforcement duties, and any limits on the master’s authority under Rule 53(c); (B) the circumstances, if any, in which the master may communicate ex parte with the court or a party; (C) the nature of the materials to be preserved and filed as the record of the master’s activities; (D) the time limits, method of filing the record, other procedures, and standards for reviewing the master’s orders, findings, and recommendations; and (E) the basis, terms, and procedure for fixing the master’s compensation under Rule 53(g). (3) Issuing. The court may issue the order only after: (A) the master files an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. § 455; and (B) if a ground is disclosed, the parties, with the court’s approval, waive the disqualification. (4) Amending. The order may be amended at any time after notice to the parties and an opportunity to be heard. (c) MASTER’S AUTHORITY. (1) In General. Unless the appointing order directs otherwise, a master may: (A) regulate all proceedings; (B) take all appropriate measures to perform the assigned duties fairly and efficiently; and (C) if conducting an evidentiary hearing, exercise the appointing court’s power to compel, take, and record evidence. (2) Sanctions. The master may by order impose on a party any noncontempt sanction provided by Rule 37 or 45, and may

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Rule 53

recommend a contempt sanction against a party and sanctions against a nonparty. (d) MASTER’S ORDERS. A master who issues an order must file it and promptly serve a copy on each party. The clerk must enter the order on the docket. (e) MASTER’S REPORTS. A master must report to the court as required by the appointing order. The master must file the report and promptly serve a copy on each party, unless the court orders otherwise. (f) ACTION ON THE MASTER’S ORDER, REPORT, OR RECOMMENDATIONS. (1) Opportunity for a Hearing; Action in General. In acting on a master’s order, report, or recommendations, the court must give the parties notice and an opportunity to be heard; may receive evidence; and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions. (2) Time to Object or Move to Adopt or Modify. A party may file objections to—or a motion to adopt or modify—the master’s order, report, or recommendations no later than 21 days after a copy is served, unless the court sets a different time. (3) Reviewing Factual Findings. The court must decide de novo all objections to findings of fact made or recommended by a master, unless the parties, with the court’s approval, stipulate that: (A) the findings will be reviewed for clear error; or (B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final. (4) Reviewing Legal Conclusions. The court must decide de novo all objections to conclusions of law made or recommended by a master. (5) Reviewing Procedural Matters. Unless the appointing order establishes a different standard of review, the court may set aside a master’s ruling on a procedural matter only for an abuse of discretion. (g) COMPENSATION. (1) Fixing Compensation. Before or after judgment, the court must fix the master’s compensation on the basis and terms stated in the appointing order, but the court may set a new basis and terms after giving notice and an opportunity to be heard. (2) Payment. The compensation must be paid either: (A) by a party or parties; or (B) from a fund or subject matter of the action within the court’s control. (3) Allocating Payment. The court must allocate payment among the parties after considering the nature and amount of the controversy, the parties’ means, and the extent to which any party is more responsible than other parties for the reference to a master. An interim allocation may be amended to reflect a decision on the merits. (h) APPOINTING A MAGISTRATE JUDGE. A magistrate judge is subject to this rule only when the order referring a matter to the magistrate judge states that the reference is made under this rule.

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Rule 54

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(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) TITLE VII. JUDGMENT Rule 54. Judgment; Costs (a) DEFINITION; FORM. ‘‘Judgment’’ as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master’s report, or a record of prior proceedings. (b) JUDGMENT ON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES. When an action presents more than one claim for relief— whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. (c) DEMAND FOR JUDGMENT; RELIEF TO BE GRANTED. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. (d) COSTS; ATTORNEY’S FEES. (1) Costs Other Than Attorney’s Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days’ notice. On motion served within the next 7 days, the court may review the clerk’s action. (2) Attorney’s Fees. (A) Claim to Be by Motion. A claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages. (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.

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Rule 55

(C) Proceedings. Subject to Rule 23(h), the court must, on a party’s request, give an opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78. The court may decide issues of liability for fees before receiving submissions on the value of services. The court must find the facts and state its conclusions of law as provided in Rule 52(a). (D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings. Also, the court may refer issues concerning the value of services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may refer a motion for attorney’s fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter. (E) Exceptions. Subparagraphs (A)–(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 55. Default; Default Judgment (a) ENTERING A DEFAULT. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. (b) ENTERING A DEFAULT JUDGMENT. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk— on the plaintiff’s request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals— preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. (c) SETTING ASIDE A DEFAULT OR A DEFAULT JUDGMENT. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b).

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Rule 56

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(d) JUDGMENT AGAINST THE UNITED STATES. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court. (As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 56. Summary Judgment (a) MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGA party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) TIME TO FILE A MOTION. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. (c) PROCEDURES. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record. (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. (d) WHEN FACTS ARE UNAVAILABLE TO THE NONMOVANT. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. (e) FAILING TO PROPERLY SUPPORT OR ADDRESS A FACT. If a party fails to properly support an assertion of fact or fails to properly MENT.

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Rule 58

address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order. (f) JUDGMENT INDEPENDENT OF THE MOTION. After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. (g) FAILING TO GRANT ALL THE REQUESTED RELIEF. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case. (h) AFFIDAVIT OR DECLARATION SUBMITTED IN BAD FAITH. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to respond—may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010.) Rule 57. Declaratory Judgment These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. § 2201. Rules 38 and 39 govern a demand for a jury trial. The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The court may order a speedy hearing of a declaratoryjudgment action. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 58. Entering Judgment (a) SEPARATE DOCUMENT. Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion: (1) for judgment under Rule 50(b); (2) to amend or make additional findings under Rule 52(b); (3) for attorney’s fees under Rule 54; (4) for a new trial, or to alter or amend the judgment, under Rule 59; or (5) for relief under Rule 60.

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Rule 59

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(b) ENTERING JUDGMENT. (1) Without the Court’s Direction. Subject to Rule 54(b) and unless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when: (A) the jury returns a general verdict; (B) the court awards only costs or a sum certain; or (C) the court denies all relief. (2) Court’s Approval Required. Subject to Rule 54(b), the court must promptly approve the form of the judgment, which the clerk must promptly enter, when: (A) the jury returns a special verdict or a general verdict with answers to written questions; or (B) the court grants other relief not described in this subdivision (b). (c) TIME OF ENTRY. For purposes of these rules, judgment is entered at the following times: (1) if a separate document is not required, when the judgment is entered in the civil docket under Rule 79(a); or (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket. (d) REQUEST FOR ENTRY. A party may request that judgment be set out in a separate document as required by Rule 58(a). (e) COST OR FEE AWARDS. Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely motion for attorney’s fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 59. New Trial; Altering or Amending a Judgment (a) IN GENERAL. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. (b) TIME TO FILE A MOTION FOR A NEW TRIAL. A motion for a new trial must be filed no later than 28 days after the entry of judgment.

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Rule 60

(c) TIME TO SERVE AFFIDAVITS. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits. (d) NEW TRIAL ON THE COURT’S INITIATIVE OR FOR REASONS NOT IN THE MOTION. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party’s motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order. (e) MOTION TO ALTER OR AMEND A JUDGMENT. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 60. Relief from a Judgment or Order (a) CORRECTIONS BASED ON CLERICAL MISTAKES; OVERSIGHTS AND OMISSIONS. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave. (b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. (c) TIMING AND EFFECT OF THE MOTION. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. (2) Effect on Finality. The motion does not affect the judgment’s finality or suspend its operation. (d) OTHER POWERS TO GRANT RELIEF. This rule does not limit a court’s power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding;

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Rule 61

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80

(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the court. (e) BILLS AND WRITS ABOLISHED. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 61. Harmless Error Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 62. Stay of Proceedings to Enforce a Judgment (a) AUTOMATIC STAY; EXCEPTIONS FOR INJUNCTIONS, RECEIVERSHIPS, AND PATENT ACCOUNTINGS. Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocutory or final judgment in an action for an injunction or a receivership; or (2) a judgment or order that directs an accounting in an action for patent infringement. (b) STAY PENDING THE DISPOSITION OF A MOTION. On appropriate terms for the opposing party’s security, the court may stay the execution of a judgment—or any proceedings to enforce it—pending disposition of any of the following motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a judgment; or (4) under Rule 60, for relief from a judgment or order. (c) INJUNCTION PENDING AN APPEAL. While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory three-judge district court, the order must be made either: (1) by that court sitting in open session; or (2) by the assent of all its judges, as evidenced by their signatures. (d) STAY WITH BOND ON APPEAL. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond.

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Rule 63

(e) STAY WITHOUT BOND ON AN APPEAL BY THE UNITED STATES, ITS OFFICERS, OR ITS AGENCIES. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department of the federal government. (f) STAY IN FAVOR OF A JUDGMENT DEBTOR UNDER STATE LAW. If a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give. (g) APPELLATE COURT’S POWER NOT LIMITED. This rule does not limit the power of the appellate court or one of its judges or justices: (1) to stay proceedings—or suspend, modify, restore, or grant an injunction—while an appeal is pending; or (2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered. (h) STAY WITH MULTIPLE CLAIMS OR PARTIES. A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 62.1. Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal (a) RELIEF PENDING APPEAL. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. (b) NOTICE TO THE COURT OF APPEALS. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue. (c) REMAND. The district court may decide the motion if the court of appeals remands for that purpose. (As added Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 63. Judge’s Inability to Proceed If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party’s request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.

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Rule 64

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82

(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.) TITLE VIII. PROVISIONAL AND FINAL REMEDIES Rule 64. Seizing a Person or Property (a) REMEDIES UNDER STATE LAW—IN GENERAL. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies. (b) SPECIFIC KINDS OF REMEDIES. The remedies available under this rule include the following—however designated and regardless of whether state procedure requires an independent action: • arrest; • attachment; • garnishment; • replevin; • sequestration; and • other corresponding or equivalent remedies. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 65. Injunctions and Restraining Orders (a) PRELIMINARY INJUNCTION. (1) Notice. The court may issue a preliminary injunction only on notice to the adverse party. (2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party’s right to a jury trial. (b) TEMPORARY RESTRAINING ORDER. (1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. (2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

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Rule 65.1

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order. (4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires. (c) SECURITY. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. (d) CONTENTS AND SCOPE OF EVERY INJUNCTION AND RESTRAINING ORDER. (1) Contents. Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required. (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B). (e) OTHER LAWS NOT MODIFIED. These rules do not modify the following: (1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee; (2) 28 U.S.C. § 2361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or (3) 28 U.S.C. § 2284, which relates to actions that must be heard and decided by a three-judge district court. (f) COPYRIGHT IMPOUNDMENT. This rule applies to copyright-impoundment proceedings. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 65.1. Proceedings Against a Surety Whenever these rules (including the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions) require or allow a party to give security, and security is given through a

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Rule 66

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84

bond or other undertaking with one or more sureties, each surety submits to the court’s jurisdiction and irrevocably appoints the court clerk as its agent for receiving service of any papers that affect its liability on the bond or undertaking. The surety’s liability may be enforced on motion without an independent action. The motion and any notice that the court orders may be served on the court clerk, who must promptly mail a copy of each to every surety whose address is known. (As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 66. Receivers These rules govern an action in which the appointment of a receiver is sought or a receiver sues or is sued. But the practice in administering an estate by a receiver or a similar court-appointed officer must accord with the historical practice in federal courts or with a local rule. An action in which a receiver has been appointed may be dismissed only by court order. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 67. Deposit into Court (a) DEPOSITING PROPERTY. If any part of the relief sought is a money judgment or the disposition of a sum of money or some other deliverable thing, a party—on notice to every other party and by leave of court—may deposit with the court all or part of the money or thing, whether or not that party claims any of it. The depositing party must deliver to the clerk a copy of the order permitting deposit. (b) INVESTING AND WITHDRAWING FUNDS. Money paid into court under this rule must be deposited and withdrawn in accordance with 28 U.S.C. §§ 2041 and 2042 and any like statute. The money must be deposited in an interest-bearing account or invested in a court-approved, interest-bearing instrument. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 68. Offer of Judgment (a) MAKING AN OFFER; JUDGMENT ON AN ACCEPTED OFFER. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. (b) UNACCEPTED OFFER. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. (c) OFFER AFTER LIABILITY IS DETERMINED. When one party’s liability to another has been determined but the extent of liability

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Rule 70

remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time—but at least 14 days—before the date set for a hearing to determine the extent of liability. (d) PAYING COSTS AFTER AN UNACCEPTED OFFER. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 69. Execution (a) IN GENERAL. (1) Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies. (2) Obtaining Discovery. In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located. (b) AGAINST CERTAIN PUBLIC OFFICERS. When a judgment has been entered against a revenue officer in the circumstances stated in 28 U.S.C. § 2006, or against an officer of Congress in the circumstances stated in 2 U.S.C. § 118, the judgment must be satisfied as those statutes provide. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 70. Enforcing a Judgment for a Specific Act (a) PARTY’S FAILURE TO ACT; ORDERING ANOTHER TO ACT. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done—at the disobedient party’s expense—by another person appointed by the court. When done, the act has the same effect as if done by the party. (b) VESTING TITLE. If the real or personal property is within the district, the court—instead of ordering a conveyance—may enter a judgment divesting any party’s title and vesting it in others. That judgment has the effect of a legally executed conveyance. (c) OBTAINING A WRIT OF ATTACHMENT OR SEQUESTRATION. On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party’s property to compel obedience. (d) OBTAINING A WRIT OF EXECUTION OR ASSISTANCE. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance. (e) HOLDING IN CONTEMPT. The court may also hold the disobedient party in contempt.

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Rule 71

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86

(As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 71. Enforcing Relief For or Against a Nonparty When an order grants relief for a nonparty or may be enforced against a nonparty, the procedure for enforcing the order is the same as for a party. (As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) TITLE IX. SPECIAL PROCEEDINGS Rule 71.1. Condemning Real or Personal Property (a) APPLICABILITY OF OTHER RULES. These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise. (b) JOINDER OF PROPERTIES. The plaintiff may join separate pieces of property in a single action, no matter whether they are owned by the same persons or sought for the same use. (c) COMPLAINT. (1) Caption. The complaint must contain a caption as provided in Rule 10(a). The plaintiff must, however, name as defendants both the property—designated generally by kind, quantity, and location—and at least one owner of some part of or interest in the property. (2) Contents. The complaint must contain a short and plain statement of the following: (A) the authority for the taking; (B) the uses for which the property is to be taken; (C) a description sufficient to identify the property; (D) the interests to be acquired; and (E) for each piece of property, a designation of each defendant who has been joined as an owner or owner of an interest in it. (3) Parties. When the action commences, the plaintiff need join as defendants only those persons who have or claim an interest in the property and whose names are then known. But before any hearing on compensation, the plaintiff must add as defendants all those persons who have or claim an interest and whose names have become known or can be found by a reasonably diligent search of the records, considering both the property’s character and value and the interests to be acquired. All others may be made defendants under the designation ‘‘Unknown Owners.’’ (4) Procedure. Notice must be served on all defendants as provided in Rule 71.1(d), whether they were named as defendants when the action commenced or were added later. A defendant may answer as provided in Rule 71.1(e). The court, meanwhile, may order any distribution of a deposit that the facts warrant. (5) Filing; Additional Copies. In addition to filing the complaint, the plaintiff must give the clerk at least one copy for the defendants’ use and additional copies at the request of the clerk or a defendant. (d) PROCESS. (1) Delivering Notice to the Clerk. On filing a complaint, the plaintiff must promptly deliver to the clerk joint or several

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Rule 71.1

notices directed to the named defendants. When adding defendants, the plaintiff must deliver to the clerk additional notices directed to the new defendants. (2) Contents of the Notice. (A) Main Contents. Each notice must name the court, the title of the action, and the defendant to whom it is directed. It must describe the property sufficiently to identify it, but need not describe any property other than that to be taken from the named defendant. The notice must also state: (i) that the action is to condemn property; (ii) the interest to be taken; (iii) the authority for the taking; (iv) the uses for which the property is to be taken; (v) that the defendant may serve an answer on the plaintiff’s attorney within 21 days after being served with the notice; (vi) that the failure to so serve an answer constitutes consent to the taking and to the court’s authority to proceed with the action and fix the compensation; and (vii) that a defendant who does not serve an answer may file a notice of appearance. (B) Conclusion. The notice must conclude with the name, telephone number, and e-mail address of the plaintiff’s attorney and an address within the district in which the action is brought where the attorney may be served. (3) Serving the Notice. (A) Personal Service. When a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States, personal service of the notice (without a copy of the complaint) must be made in accordance with Rule 4. (B) Service by Publication. (i) A defendant may be served by publication only when the plaintiff’s attorney files a certificate stating that the attorney believes the defendant cannot be personally served, because after diligent inquiry within the state where the complaint is filed, the defendant’s place of residence is still unknown or, if known, that it is beyond the territorial limits of personal service. Service is then made by publishing the notice—once a week for at least 3 successive weeks—in a newspaper published in the county where the property is located or, if there is no such newspaper, in a newspaper with general circulation where the property is located. Before the last publication, a copy of the notice must also be mailed to every defendant who cannot be personally served but whose place of residence is then known. Unknown owners may be served by publication in the same manner by a notice addressed to ‘‘Unknown Owners.’’ (ii) Service by publication is complete on the date of the last publication. The plaintiff’s attorney must prove publication and mailing by a certificate, attach

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Rule 71.1

FEDERAL RULES OF CIVIL PROCEDURE

88

a printed copy of the published notice, and mark on the copy the newspaper’s name and the dates of publication. (4) Effect of Delivery and Service. Delivering the notice to the clerk and serving it have the same effect as serving a summons under Rule 4. (5) Amending the Notice; Proof of Service and Amending the Proof. Rule 4(a)(2) governs amending the notice. Rule 4(l) governs proof of service and amending it. (e) APPEARANCE OR ANSWER. (1) Notice of Appearance. A defendant that has no objection or defense to the taking of its property may serve a notice of appearance designating the property in which it claims an interest. The defendant must then be given notice of all later proceedings affecting the defendant. (2) Answer. A defendant that has an objection or defense to the taking must serve an answer within 21 days after being served with the notice. The answer must: (A) identify the property in which the defendant claims an interest; (B) state the nature and extent of the interest; and (C) state all the defendant’s objections and defenses to the taking. (3) Waiver of Other Objections and Defenses; Evidence on Compensation. A defendant waives all objections and defenses not stated in its answer. No other pleading or motion asserting an additional objection or defense is allowed. But at the trial on compensation, a defendant—whether or not it has previously appeared or answered—may present evidence on the amount of compensation to be paid and may share in the award. (f) AMENDING PLEADINGS. Without leave of court, the plaintiff may—as often as it wants—amend the complaint at any time before the trial on compensation. But no amendment may be made if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or (2). The plaintiff need not serve a copy of an amendment, but must serve notice of the filing, as provided in Rule 5(b), on every affected party who has appeared and, as provided in Rule 71.1(d), on every affected party who has not appeared. In addition, the plaintiff must give the clerk at least one copy of each amendment for the defendants’ use, and additional copies at the request of the clerk or a defendant. A defendant may appear or answer in the time and manner and with the same effect as provided in Rule 71.1(e). (g) SUBSTITUTING PARTIES. If a defendant dies, becomes incompetent, or transfers an interest after being joined, the court may, on motion and notice of hearing, order that the proper party be substituted. Service of the motion and notice on a nonparty must be made as provided in Rule 71.1(d)(3). (h) TRIAL OF THE ISSUES. (1) Issues Other Than Compensation; Compensation. In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when compensation must be determined: (A) by any tribunal specially constituted by a federal statute to determine compensation; or

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Rule 71.1

(B) if there is no such tribunal, by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission. (2) Appointing a Commission; Commission’s Powers and Report. (A) Reasons for Appointing. If a party has demanded a jury, the court may instead appoint a three-person commission to determine compensation because of the character, location, or quantity of the property to be condemned or for other just reasons. (B) Alternate Commissioners. The court may appoint up to two additional persons to serve as alternate commissioners to hear the case and replace commissioners who, before a decision is filed, the court finds unable or disqualified to perform their duties. Once the commission renders its final decision, the court must discharge any alternate who has not replaced a commissioner. (C) Examining the Prospective Commissioners. Before making its appointments, the court must advise the parties of the identity and qualifications of each prospective commissioner and alternate, and may permit the parties to examine them. The parties may not suggest appointees, but for good cause may object to a prospective commissioner or alternate. (D) Commission’s Powers and Report. A commission has the powers of a master under Rule 53(c). Its action and report are determined by a majority. Rule 53(d), (e), and (f) apply to its action and report. (i) DISMISSAL OF THE ACTION OR A DEFENDANT. (1) Dismissing the Action. (A) By the Plaintiff. If no compensation hearing on a piece of property has begun, and if the plaintiff has not acquired title or a lesser interest or taken possession, the plaintiff may, without a court order, dismiss the action as to that property by filing a notice of dismissal briefly describing the property. (B) By Stipulation. Before a judgment is entered vesting the plaintiff with title or a lesser interest in or possession of property, the plaintiff and affected defendants may, without a court order, dismiss the action in whole or in part by filing a stipulation of dismissal. And if the parties so stipulate, the court may vacate a judgment already entered. (C) By Court Order. At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of property. But if the plaintiff has already taken title, a lesser interest, or possession as to any part of it, the court must award compensation for the title, lesser interest, or possession taken. (2) Dismissing a Defendant. The court may at any time dismiss a defendant who was unnecessarily or improperly joined. (3) Effect. A dismissal is without prejudice unless otherwise stated in the notice, stipulation, or court order.

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Rule 72

FEDERAL RULES OF CIVIL PROCEDURE

90

(j) DEPOSIT AND ITS DISTRIBUTION. (1) Deposit. The plaintiff must deposit with the court any money required by law as a condition to the exercise of eminent domain and may make a deposit when allowed by statute. (2) Distribution; Adjusting Distribution. After a deposit, the court and attorneys must expedite the proceedings so as to distribute the deposit and to determine and pay compensation. If the compensation finally awarded to a defendant exceeds the amount distributed to that defendant, the court must enter judgment against the plaintiff for the deficiency. If the compensation awarded to a defendant is less than the amount distributed to that defendant, the court must enter judgment against that defendant for the overpayment. (k) CONDEMNATION UNDER A STATE’S POWER OF EMINENT DOMAIN. This rule governs an action involving eminent domain under state law. But if state law provides for trying an issue by jury—or for trying the issue of compensation by jury or commission or both— that law governs. (l) COSTS. Costs are not subject to Rule 54(d). (As added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963, eff. July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L. 100–690, title VII, § 7050, Nov. 18, 1988, 102 Stat. 4401; Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 72. Magistrate Judges: Pretrial Order (a) NONDISPOSITIVE MATTERS. When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. (b) DISPOSITIVE MOTIONS AND PRISONER PETITIONS. (1) Findings and Recommendations. A magistrate judge must promptly conduct the required proceedings when assigned, without the parties’ consent, to hear a pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement. A record must be made of all evidentiary proceedings and may, at the magistrate judge’s discretion, be made of any other proceedings. The magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact. The clerk must promptly mail a copy to each party. (2) Objections. Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party’s objections within 14 days after being served with a copy. Unless the

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Rule 76

district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient. (3) Resolving Objections. The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 73. Magistrate Judges: Trial by Consent; Appeal (a) TRIAL BY CONSENT. When authorized under 28 U.S.C. § 636(c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. § 636(c)(5). (b) CONSENT PROCEDURE. (1) In General. When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. § 636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a party’s response to the clerk’s notice only if all parties have consented to the referral. (2) Reminding the Parties About Consenting. A district judge, magistrate judge, or other court official may remind the parties of the magistrate judge’s availability, but must also advise them that they are free to withhold consent without adverse substantive consequences. (3) Vacating a Referral. On its own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule. (c) APPEALING A JUDGMENT. In accordance with 28 U.S.C. § 636(c)(3), an appeal from a judgment entered at a magistrate judge’s direction may be taken to the court of appeals as would any other appeal from a district-court judgment. (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 74. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]

Rule 75. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]

Rule 76. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]

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Rule 77

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92

TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS Rule 77. Conducting Business; Clerk’s Authority; Notice of an Order or Judgment (a) WHEN COURT IS OPEN. Every district court is considered always open for filing any paper, issuing and returning process, making a motion, or entering an order. (b) PLACE FOR TRIAL AND OTHER PROCEEDINGS. Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district. But no hearing—other than one ex parte—may be conducted outside the district unless all the affected parties consent. (c) CLERK’S OFFICE HOURS; CLERK’S ORDERS. (1) Hours. The clerk’s office—with a clerk or deputy on duty—must be open during business hours every day except Saturdays, Sundays, and legal holidays. But a court may, by local rule or order, require that the office be open for specified hours on Saturday or a particular legal holiday other than one listed in Rule 6(a)(4)(A). (2) Orders. Subject to the court’s power to suspend, alter, or rescind the clerk’s action for good cause, the clerk may: (A) issue process; (B) enter a default; (C) enter a default judgment under Rule 55(b)(1); and (D) act on any other matter that does not require the court’s action. (d) SERVING NOTICE OF AN ORDER OR JUDGMENT. (1) Service. Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk must record the service on the docket. A party also may serve notice of the entry as provided in Rule 5(b). (2) Time to Appeal Not Affected by Lack of Notice. Lack of notice of the entry does not affect the time for appeal or relieve—or authorize the court to relieve—a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a). (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 78. Hearing Motions; Submission on Briefs (a) PROVIDING A REGULAR SCHEDULE FOR ORAL HEARINGS. A court may establish regular times and places for oral hearings on motions. (b) PROVIDING FOR SUBMISSION ON BRIEFS. By rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings. (As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)

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Rule 81

Rule 79. Records Kept by the Clerk (a) CIVIL DOCKET. (1) In General. The clerk must keep a record known as the ‘‘civil docket’’ in the form and manner prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. The clerk must enter each civil action in the docket. Actions must be assigned consecutive file numbers, which must be noted in the docket where the first entry of the action is made. (2) Items to be Entered. The following items must be marked with the file number and entered chronologically in the docket: (A) papers filed with the clerk; (B) process issued, and proofs of service or other returns showing execution; and (C) appearances, orders, verdicts, and judgments. (3) Contents of Entries; Jury Trial Demanded. Each entry must briefly show the nature of the paper filed or writ issued, the substance of each proof of service or other return, and the substance and date of entry of each order and judgment. When a jury trial has been properly demanded or ordered, the clerk must enter the word ‘‘jury’’ in the docket. (b) CIVIL JUDGMENTS AND ORDERS. The clerk must keep a copy of every final judgment and appealable order; of every order affecting title to or a lien on real or personal property; and of any other order that the court directs to be kept. The clerk must keep these in the form and manner prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. (c) INDEXES; CALENDARS. Under the court’s direction, the clerk must: (1) keep indexes of the docket and of the judgments and orders described in Rule 79(b); and (2) prepare calendars of all actions ready for trial, distinguishing jury trials from nonjury trials. (d) OTHER RECORDS. The clerk must keep any other records required by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 80. Stenographic Transcript as Evidence If stenographically reported testimony at a hearing or trial is admissible in evidence at a later trial, the testimony may be proved by a transcript certified by the person who reported it. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec. 1, 2007.) TITLE XI. GENERAL PROVISIONS Rule 81. Applicability of the Rules in General; Removed Actions (a) APPLICABILITY TO PARTICULAR PROCEEDINGS.

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(1) Prize Proceedings. These rules do not apply to prize proceedings in admiralty governed by 10 U.S.C. §§ 7651–7681. (2) Bankruptcy. These rules apply to bankruptcy proceedings to the extent provided by the Federal Rules of Bankruptcy Procedure. (3) Citizenship. These rules apply to proceedings for admission to citizenship to the extent that the practice in those proceedings is not specified in federal statutes and has previously conformed to the practice in civil actions. The provisions of 8 U.S.C. § 1451 for service by publication and for answer apply in proceedings to cancel citizenship certificates. (4) Special Writs. These rules apply to proceedings for habeas corpus and for quo warranto to the extent that the practice in those proceedings: (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions. (5) Proceedings Involving a Subpoena. These rules apply to proceedings to compel testimony or the production of documents through a subpoena issued by a United States officer or agency under a federal statute, except as otherwise provided by statute, by local rule, or by court order in the proceedings. (6) Other Proceedings. These rules, to the extent applicable, govern proceedings under the following laws, except as these laws provide other procedures: (A) 7 U.S.C. §§ 292, 499g(c), for reviewing an order of the Secretary of Agriculture; (B) 9 U.S.C., relating to arbitration; (C) 15 U.S.C. § 522, for reviewing an order of the Secretary of the Interior; (D) 15 U.S.C. § 715d(c), for reviewing an order denying a certificate of clearance; (E) 29 U.S.C. §§ 159, 160, for enforcing an order of the National Labor Relations Board; (F) 33 U.S.C. §§ 918, 921, for enforcing or reviewing a compensation order under the Longshore and Harbor Workers’ Compensation Act; and (G) 45 U.S.C. § 159, for reviewing an arbitration award in a railway-labor dispute. (b) SCIRE FACIAS AND MANDAMUS. The writs of scire facias and mandamus are abolished. Relief previously available through them may be obtained by appropriate action or motion under these rules. (c) REMOVED ACTIONS. (1) Applicability. These rules apply to a civil action after it is removed from a state court. (2) Further Pleading. After removal, repleading is unnecessary unless the court orders it. A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods: (A) 21 days after receiving—through service or otherwise—a copy of the initial pleading stating the claim for relief;

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(B) 21 days after being served with the summons for an initial pleading on file at the time of service; or (C) 7 days after the notice of removal is filed. (3) Demand for a Jury Trial. (A) As Affected by State Law. A party who, before removal, expressly demanded a jury trial in accordance with state law need not renew the demand after removal. If the state law did not require an express demand for a jury trial, a party need not make one after removal unless the court orders the parties to do so within a specified time. The court must so order at a party’s request and may so order on its own. A party who fails to make a demand when so ordered waives a jury trial. (B) Under Rule 38. If all necessary pleadings have been served at the time of removal, a party entitled to a jury trial under Rule 38 must be given one if the party serves a demand within 14 days after: (i) it files a notice of removal; or (ii) it is served with a notice of removal filed by another party. (d) LAW APPLICABLE. (1) ‘‘State Law’’ Defined. When these rules refer to state law, the term ‘‘law’’ includes the state’s statutes and the state’s judicial decisions. (2) ‘‘State’’ Defined. The term ‘‘state’’ includes, where appropriate, the District of Columbia and any United States commonwealth or territory. (3) ‘‘Federal Statute’’ Defined in the District of Columbia. In the United States District Court for the District of Columbia, the term ‘‘federal statute’’ includes any Act of Congress that applies locally to the District. (As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1, 1951; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule 82. Jurisdiction and Venue Unaffected These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is not a civil action for purposes of 28 U.S.C. §§ 1391–1392. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 83. Rules by District Courts; Judge’s Directives (a) LOCAL RULES. (1) In General. After giving public notice and an opportunity for comment, a district court, acting by a majority of its district judges, may adopt and amend rules governing its practice. A local rule must be consistent with—but not duplicate— federal statutes and rules adopted under 28 U.S.C. §§ 2072 and 2075, and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. A

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local rule takes effect on the date specified by the district court and remains in effect unless amended by the court or abrogated by the judicial council of the circuit. Copies of rules and amendments must, on their adoption, be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. (2) Requirement of Form. A local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply. (b) PROCEDURE WHEN THERE IS NO CONTROLLING LAW. A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s local rules. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement. (As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 84. Forms The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 85. Title These rules may be cited as the Federal Rules of Civil Procedure. (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 86. Effective Dates (a) IN GENERAL. These rules and any amendments take effect at the time specified by the Supreme Court, subject to 28 U.S.C. § 2074. They govern: (1) proceedings in an action commenced after their effective date; and (2) proceedings after that date in an action then pending unless: (A) the Supreme Court specifies otherwise; or (B) the court determines that applying them in a particular action would be infeasible or work an injustice. (b) DECEMBER 1, 2007 AMENDMENTS. If any provision in Rules 1–5.1, 6–73, or 77–86 conflicts with another law, priority in time for the purpose of 28 U.S.C. § 2072(b) is not affected by the amendments taking effect on December 1, 2007. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21 and Mar. 18, 1963, eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.)

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Rule A

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SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET FORFEITURE ACTIONS 1 Rule A. Scope of Rules (1) These Supplemental Rules apply to: (A) the procedure in admiralty and maritime claims within the meaning of Rule 9(h) with respect to the following remedies: (i) maritime attachment and garnishment, (ii) actions in rem, (iii) possessory, petitory, and partition actions, and (iv) actions for exoneration from or limitation of liability; (B) forfeiture actions in rem arising from a federal statute; and (C) the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental Rules to actions in rem include such analogous statutory condemnation proceedings. (2) The Federal Rules of Civil Procedure also apply to the foregoing proceedings except to the extent that they are inconsistent with these Supplemental Rules. (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 12, 2006, eff. Dec. 1, 2006.) Rule B. In Personam Actions: Attachment and Garnishment (1) WHEN AVAILABLE; COMPLAINT, AFFIDAVIT, JUDICIAL IZATION, AND PROCESS. In an in personam action:

AUTHOR-

(a) If a defendant is not found within the district when a verified complaint praying for attachment and the affidavit required by Rule B(1)(b) are filed, a verified complaint may contain a prayer for process to attach the defendant’s tangible or intangible personal property—up to the amount sued for— in the hands of garnishees named in the process. (b) The plaintiff or the plaintiff’s attorney must sign and file with the complaint an affidavit stating that, to the affiant’s knowledge, or on information and belief, the defendant cannot be found within the district. The court must review the complaint and affidavit and, if the conditions of this Rule B appear to exist, enter an order so stating and authorizing process of attachment and garnishment. The clerk may issue supplemental process enforcing the court’s order upon application without further court order. (c) If the plaintiff or the plaintiff’s attorney certifies that exigent circumstances make court review impracticable, the clerk must issue the summons and process of attachment and garnishment. The plaintiff has the burden in any post-attachment hearing under Rule E(4)(f) to show that exigent circumstances existed. 1 Title

amended April 12, 2006, effective December 1, 2006.

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Rule C

(d)(i) If the property is a vessel or tangible property on board a vessel, the summons, process, and any supplemental process must be delivered to the marshal for service. (ii) If the property is other tangible or intangible property, the summons, process, and any supplemental process must be delivered to a person or organization authorized to serve it, who may be (A) a marshal; (B) someone under contract with the United States; (C) someone specially appointed by the court for that purpose; or, (D) in an action brought by the United States, any officer or employee of the United States. (e) The plaintiff may invoke state-law remedies under Rule 64 for seizure of person or property for the purpose of securing satisfaction of the judgment. (2) NOTICE TO DEFENDANT. No default judgment may be entered except upon proof—which may be by affidavit—that: (a) the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4; (b) the plaintiff or the garnishee has mailed to the defendant the complaint, summons, and process of attachment or garnishment, using any form of mail requiring a return receipt; or (c) the plaintiff or the garnishee has tried diligently to give notice of the action to the defendant but could not do so. (3) ANSWER. (a) By Garnishee. The garnishee shall serve an answer, together with answers to any interrogatories served with the complaint, within 21 days after service of process upon the garnishee. Interrogatories to the garnishee may be served with the complaint without leave of court. If the garnishee refuses or neglects to answer on oath as to the debts, credits, or effects of the defendant in the garnishee’s hands, or any interrogatories concerning such debts, credits, and effects that may be propounded by the plaintiff, the court may award compulsory process against the garnishee. If the garnishee admits any debts, credits, or effects, they shall be held in the garnishee’s hands or paid into the registry of the court, and shall be held in either case subject to the further order of the court. (b) By Defendant. The defendant shall serve an answer within 30 days after process has been executed, whether by attachment of property or service on the garnishee. (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule C. In Rem Actions: Special Provisions (1) WHEN AVAILABLE. An action in rem may be brought: (a) To enforce any maritime lien; (b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto. Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable. Statutory provisions exempting vessels or other property owned or possessed by or operated by or for the United States from arrest

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or seizure are not affected by this rule. When a statute so provides, an action against the United States or an instrumentality thereof may proceed on in rem principles. (2) COMPLAINT. In an action in rem the complaint must: (a) be verified; (b) describe with reasonable particularity the property that is the subject of the action; and (c) state that the property is within the district or will be within the district while the action is pending. (3) JUDICIAL AUTHORIZATION AND PROCESS. (a) Arrest Warrant. (i) The court must review the complaint and any supporting papers. If the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action. (ii) If the plaintiff or the plaintiff’s attorney certifies that exigent circumstances make court review impracticable, the clerk must promptly issue a summons and a warrant for the arrest of the vessel or other property that is the subject of the action. The plaintiff has the burden in any post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed. (b) Service. (i) If the property that is the subject of the action is a vessel or tangible property on board a vessel, the warrant and any supplemental process must be delivered to the marshal for service. (ii) If the property that is the subject of the action is other property, tangible or intangible, the warrant and any supplemental process must be delivered to a person or organization authorized to enforce it, who may be: (A) a marshal; (B) someone under contract with the United States; (C) someone specially appointed by the court for that purpose; or, (D) in an action brought by the United States, any officer or employee of the United States. (c) Deposit in Court. If the property that is the subject of the action consists in whole or in part of freight, the proceeds of property sold, or other intangible property, the clerk must issue—in addition to the warrant—a summons directing any person controlling the property to show cause why it should not be deposited in court to abide the judgment. (d) Supplemental Process. The clerk may upon application issue supplemental process to enforce the court’s order without further court order. (4) NOTICE. No notice other than execution of process is required when the property that is the subject of the action has been released under Rule E(5). If the property is not released within 14 days after execution, the plaintiff must promptly—or within the time that the court allows—give public notice of the action and arrest in a newspaper designated by court order and having general circulation in the district, but publication may be terminated if the property is released before publication is completed. The notice must specify the time under Rule C(6) to file a statement of interest in or right against the seized property and to answer.

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Rule D

This rule does not affect the notice requirements in an action to foreclose a preferred ship mortgage under 46 U.S.C. §§ 31301 et seq., as amended. (5) ANCILLARY PROCESS. In any action in rem in which process has been served as provided by this rule, if any part of the property that is the subject of the action has not been brought within the control of the court because it has been removed or sold, or because it is intangible property in the hands of a person who has not been served with process, the court may, on motion, order any person having possession or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or other person or organization having a warrant for the arrest of the property, or paid into court to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require. (6) RESPONSIVE PLEADING; INTERROGATORIES. (a) Statement of Interest; Answer. In an action in rem: (i) a person who asserts a right of possession or any ownership interest in the property that is the subject of the action must file a verified statement of right or interest: (A) within 14 days after the execution of process, or (B) within the time that the court allows; (ii) the statement of right or interest must describe the interest in the property that supports the person’s demand for its restitution or right to defend the action; (iii) an agent, bailee, or attorney must state the authority to file a statement of right or interest on behalf of another; and (iv) a person who asserts a right of possession or any ownership interest must serve an answer within 21 days after filing the statement of interest or right. (b) Interrogatories. Interrogatories may be served with the complaint in an in rem action without leave of court. Answers to the interrogatories must be served with the answer to the complaint. (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 23, 2008, eff. Dec. 1, 2008; Mar. 26, 2009, eff. Dec. 1, 2009.) Rule D. Possessory, Petitory, and Partition Actions In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime property, and in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties. (As added Feb. 28, 1966, eff. July 1, 1966.)

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Rule E. Actions in Rem and Quasi in Rem: General Provisions (1) APPLICABILITY. Except as otherwise provided, this rule applies to actions in personam with process of maritime attachment and garnishment, actions in rem, and petitory, possessory, and partition actions, supplementing Rules B, C, and D. (2) COMPLAINT; SECURITY. (a) Complaint. In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. (b) Security for Costs. Subject to the provisions of Rule 54(d) and of relevant statutes, the court may, on the filing of the complaint or on the appearance of any defendant, claimant, or any other party, or at any later time, require the plaintiff, defendant, claimant, or other party to give security, or additional security, in such sum as the court shall direct to pay all costs and expenses that shall be awarded against the party by any interlocutory order or by the final judgment, or on appeal by any appellate court. (3) PROCESS. (a) In admiralty and maritime proceedings process in rem or of maritime attachment and garnishment may be served only within the district. (b) Issuance and Delivery. Issuance and delivery of process in rem, or of maritime attachment and garnishment, shall be held in abeyance if the plaintiff so requests. (4) EXECUTION OF PROCESS; MARSHAL’S RETURN; CUSTODY OF PROPERTY; PROCEDURES FOR RELEASE. (a) In General. Upon issuance and delivery of the process, or, in the case of summons with process of attachment and garnishment, when it appears that the defendant cannot be found within the district, the marshal or other person or organization having a warrant shall forthwith execute the process in accordance with this subdivision (4), making due and prompt return. (b) Tangible Property. If tangible property is to be attached or arrested, the marshal or other person or organization having the warrant shall take it into the marshal’s possession for safe custody. If the character or situation of the property is such that the taking of actual possession is impracticable, the marshal or other person executing the process shall affix a copy thereof to the property in a conspicuous place and leave a copy of the complaint and process with the person having possession or the person’s agent. In furtherance of the marshal’s custody of any vessel the marshal is authorized to make a written request to the collector of customs not to grant clearance to such vessel until notified by the marshal or deputy marshal or by the clerk that the vessel has been released in accordance with these rules. (c) Intangible Property. If intangible property is to be attached or arrested the marshal or other person or organization having the warrant shall execute the process by leaving with

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Rule E

the garnishee or other obligor a copy of the complaint and process requiring the garnishee or other obligor to answer as provided in Rules B(3)(a) and C(6); or the marshal may accept for payment into the registry of the court the amount owed to the extent of the amount claimed by the plaintiff with interest and costs, in which event the garnishee or other obligor shall not be required to answer unless alias process shall be served. (d) Directions With Respect to Property in Custody. The marshal or other person or organization having the warrant may at any time apply to the court for directions with respect to property that has been attached or arrested, and shall give notice of such application to any or all of the parties as the court may direct. (e) Expenses of Seizing and Keeping Property; Deposit. These rules do not alter the provisions of Title 28, U.S.C., § 1921, as amended, relative to the expenses of seizing and keeping property attached or arrested and to the requirement of deposits to cover such expenses. (f) Procedure for Release From Arrest or Attachment. Whenever property is arrested or attached, any person claiming an interest in it shall be entitled to a prompt hearing at which the plaintiff shall be required to show why the arrest or attachment should not be vacated or other relief granted consistent with these rules. This subdivision shall have no application to suits for seamen’s wages when process is issued upon a certification of sufficient cause filed pursuant to Title 46, U.S.C. §§ 603 and 604 2 or to actions by the United States for forfeitures for violation of any statute of the United States. (5) RELEASE OF PROPERTY. (a) Special Bond. Whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on the giving of security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of any appellate court. The parties may stipulate the amount and nature of such security. In the event of the inability or refusal of the parties so to stipulate the court shall fix the principal sum of the bond or stipulation at an amount sufficient to cover the amount of the plaintiff’s claim fairly stated with accrued interest and costs; but the principal sum shall in no event exceed (i) twice the amount of the plaintiff’s claim or (ii) the value of the property on due appraisement, whichever is smaller. The bond or stipulation shall be conditioned for the payment of the principal sum and interest thereon at 6 per cent per annum. (b) General Bond. The owner of any vessel may file a general bond or stipulation, with sufficient surety, to be approved by the court, conditioned to answer the judgment of such court in all or any actions that may be brought thereafter in such court in which the vessel is attached or arrested. Thereupon the execution of all such process against such vessel shall be 2 Repealed by Pub. L. 98–89, § 4(b), Aug. 26, 1983, 97 Stat. 600, section 1 of which enacted Title 46, Shipping.

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stayed so long as the amount secured by such bond or stipulation is at least double the aggregate amount claimed by plaintiffs in all actions begun and pending in which such vessel has been attached or arrested. Judgments and remedies may be had on such bond or stipulation as if a special bond or stipulation had been filed in each of such actions. The district court may make necessary orders to carry this rule into effect, particularly as to the giving of proper notice of any action against or attachment of a vessel for which a general bond has been filed. Such bond or stipulation shall be indorsed by the clerk with a minute of the actions wherein process is so stayed. Further security may be required by the court at any time. If a special bond or stipulation is given in a particular case, the liability on the general bond or stipulation shall cease as to that case. (c) Release by Consent or Stipulation; Order of Court or Clerk; Costs. Any vessel, cargo, or other property in the custody of the marshal or other person or organization having the warrant may be released forthwith upon the marshal’s acceptance and approval of a stipulation, bond, or other security, signed by the party on whose behalf the property is detained or the party’s attorney and expressly authorizing such release, if all costs and charges of the court and its officers shall have first been paid. Otherwise no property in the custody of the marshal, other person or organization having the warrant, or other officer of the court shall be released without an order of the court; but such order may be entered as of course by the clerk, upon the giving of approved security as provided by law and these rules, or upon the dismissal or discontinuance of the action; but the marshal or other person or organization having the warrant shall not deliver any property so released until the costs and charges of the officers of the court shall first have been paid. (d) Possessory, Petitory, and Partition Actions. The foregoing provisions of this subdivision (5) do not apply to petitory, possessory, and partition actions. In such cases the property arrested shall be released only by order of the court, on such terms and conditions and on the giving of such security as the court may require. (6) REDUCTION OR IMPAIRMENT OF SECURITY. Whenever security is taken the court may, on motion and hearing, for good cause shown, reduce the amount of security given; and if the surety shall be or become insufficient, new or additional sureties may be required on motion and hearing. (7) SECURITY ON COUNTERCLAIM. (a) When a person who has given security for damages in the original action asserts a counterclaim that arises from the transaction or occurrence that is the subject of the original action, a plaintiff for whose benefit the security has been given must give security for damages demanded in the counterclaim unless the court, for cause shown, directs otherwise. Proceedings on the original claim must be stayed until this security is given, unless the court directs otherwise.

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(b) The plaintiff is required to give security under Rule E(7)(a) when the United States or its corporate instrumentality counterclaims and would have been required to give security to respond in damages if a private party but is relieved by law from giving security. (8) RESTRICTED APPEARANCE. An appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment, may be expressly restricted to the defense of such claim, and in that event is not an appearance for the purposes of any other claim with respect to which such process is not available or has not been served. (9) DISPOSITION OF PROPERTY; SALES. (a) Interlocutory Sales; Delivery. (i) On application of a party, the marshal, or other person having custody of the property, the court may order all or part of the property sold—with the sales proceeds, or as much of them as will satisfy the judgment, paid into court to await further orders of the court—if: (A) the attached or arrested property is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action; (B) the expense of keeping the property is excessive or disproportionate; or (C) there is an unreasonable delay in securing release of the property. (ii) In the circumstances described in Rule E(9)(a)(i), the court, on motion by a defendant or a person filing a statement of interest or right under Rule C(6), may order that the property, rather than being sold, be delivered to the movant upon giving security under these rules. (b) Sales, Proceeds. All sales of property shall be made by the marshal or a deputy marshal, or by other person or organization having the warrant, or by any other person assigned by the court where the marshal or other person or organization having the warrant is a party in interest; and the proceeds of sale shall be forthwith paid into the registry of the court to be disposed of according to law. (10) PRESERVATION OF PROPERTY. When the owner or another person remains in possession of property attached or arrested under the provisions of Rule E(4)(b) that permit execution of process without taking actual possession, the court, on a party’s motion or on its own, may enter any order necessary to preserve the property and to prevent its removal. (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule F. Limitation of Liability (1) TIME FOR FILING COMPLAINT; SECURITY. Not later than six months after receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit

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of claimants, a sum equal to the amount or value of the owner’s interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at the owner’s option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, the owner’s interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security for costs and, if the plaintiff elects to give security, for interest at the rate of 6 percent per annum from the date of the security. (2) COMPLAINT. The complaint shall set forth the facts on the basis of which the right to limit liability is asserted and all facts necessary to enable the court to determine the amount to which the owner’s liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceedings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer the plaintiff’s interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip. (3) CLAIMS AGAINST OWNER; INJUNCTION. Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or the owner’s property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or the plaintiff’s property with respect to any claim subject to limitation in the action. (4) NOTICE TO CLAIMANTS. Upon the owner’s compliance with subdivision (1) of this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice. The date so fixed shall not be less than 30 days after issuance of the notice. For cause shown, the court may enlarge the time within which claims may be filed. The notice shall be published in such newspaper or newspapers as the court may direct once a week for

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four successive weeks prior to the date fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to be limited arose. In cases involving death a copy of such notice shall be mailed to the decedent at the decedent’s last known address, and also to any person who shall be known to have made any claim on account of such death. (5) CLAIMS AND ANSWER. Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify the facts upon which the claimant relies in support of the claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability the claimant shall file and serve an answer to the complaint unless the claim has included an answer. (6) INFORMATION TO BE GIVEN CLAIMANTS. Within 30 days after the date specified in the notice for filing claims, or within such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant) a list setting forth (a) the name of each claimant, (b) the name and address of the claimant’s attorney (if the claimant is known to have one), (c) the nature of the claim, i.e., whether property loss, property damage, death, personal injury etc., and (d) the amount thereof. (7) INSUFFICIENCY OF FUND OR SECURITY. Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff’s interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff’s interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced. (8) OBJECTIONS TO CLAIMS: DISTRIBUTION OF FUND. Any interested party may question or controvert any claim without filing an objection thereto. Upon determination of liability the fund deposited or secured, or the proceeds of the vessel and pending freight, shall be divided pro rata, subject to all relevant provisions of law, among the several claimants in proportion to the amounts of their respective claims, duly proved, saving, however, to all parties any priority to which they may be legally entitled. (9) VENUE; TRANSFER. The complaint shall be filed in any district in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit liability; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters aforesaid, and suit has not been commenced

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against the owner, the proceedings may be had in the district in which the vessel may be, but if the vessel is not within any district and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of parties and witnesses, in the interest of justice, the court may transfer the action to any district; if venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of these rules. (As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff. Aug. 1, 1987.) Rule G. Forfeiture Actions In Rem (1) SCOPE. This rule governs a forfeiture action in rem arising from a federal statute. To the extent that this rule does not address an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply. (2) COMPLAINT. The complaint must: (a) be verified; (b) state the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue; (c) describe the property with reasonable particularity; (d) if the property is tangible, state its location when any seizure occurred and—if different—its location when the action is filed; (e) identify the statute under which the forfeiture action is brought; and (f) state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial. (3) JUDICIAL AUTHORIZATION AND PROCESS. (a) Real Property. If the defendant is real property, the government must proceed under 18 U.S.C. § 985. (b) Other Property; Arrest Warrant. If the defendant is not real property: (i) the clerk must issue a warrant to arrest the property if it is in the government’s possession, custody, or control; (ii) the court—on finding probable cause—must issue a warrant to arrest the property if it is not in the government’s possession, custody, or control and is not subject to a judicial restraining order; and (iii) a warrant is not necessary if the property is subject to a judicial restraining order. (c) Execution of Process. (i) The warrant and any supplemental process must be delivered to a person or organization authorized to execute it, who may be: (A) a marshal or any other United States officer or employee; (B) someone under contact with the United States; or (C) someone specially appointed by the court for that purpose. (ii) The authorized person or organization must execute the warrant and any supplemental process on property in the United States as soon as practicable unless:

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(A) the property is in the government’s possession, custody, or control; or (B) the court orders a different time when the complaint is under seal, the action is stayed before the warrant and supplemental process are executed, or the court finds other good cause. (iii) The warrant and any supplemental process may be executed within the district or, when authorized by statute, outside the district. (iv) If executing a warrant on property outside the United States is required, the warrant may be transmitted to an appropriate authority for serving process where the property is located. (4) NOTICE. (a) Notice by Publication. (i) When Publication Is Required. A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders. But notice need not be published if: (A) the defendant property is worth less than $1,000 and direct notice is sent under Rule G(4)(b) to every person the government can reasonably identify as a potential claimant; or (B) the court finds that the cost of publication exceeds the property’s value and that other means of notice would satisfy due process. (ii) Content of the Notice. Unless the court orders otherwise, the notice must: (A) describe the property with reasonable particularity; (B) state the times under Rule G(5) to file a claim and to answer; and (C) name the government attorney to be served with the claim and answer. (iii) Frequency of Publication. Published notice must appear: (A) once a week for three consecutive weeks; or (B) only once if, before the action was filed, notice of nonjudicial forfeiture of the same property was published on an official internet government forfeiture site for at least 30 consecutive days, or in a newspaper of general circulation for three consecutive weeks in a district where publication is authorized under Rule G(4)(a)(iv). (iv) Means of Publication. The government should select from the following options a means of publication reasonably calculated to notify potential claimants of the action: (A) if the property is in the United States, publication in a newspaper generally circulated in the district where the action is filed, where the property was seized, or where property that was not seized is located;

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(B) if the property is outside the United States, publication in a newspaper generally circulated in a district where the action is filed, in a newspaper generally circulated in the country where the property is located, or in legal notices published and generally circulated in the country where the property is located; or (C) instead of (A) or (B), posting a notice on an official internet government forfeiture site for at least 30 consecutive days. (b) Notice to Known Potential Claimants. (i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B). (ii) Content of the Notice. The notice must state: (A) the date when the notice is sent; (B) a deadline for filing a claim, at least 35 days after the notice is sent; (C) that an answer or a motion under Rule 12 must be filed no later than 21 days after filing the claim; and (D) the name of the government attorney to be served with the claim and answer. (iii) Sending Notice. (A) The notice must be sent by means reasonably calculated to reach the potential claimant. (B) Notice may be sent to the potential claimant or to the attorney representing the potential claimant with respect to the seizure of the property or in a related investigation, administrative forfeiture proceeding, or criminal case. (C) Notice sent to a potential claimant who is incarcerated must be sent to the place of incarceration. (D) Notice to a person arrested in connection with an offense giving rise to the forfeiture who is not incarcerated when notice is sent may be sent to the address that person last gave to the agency that arrested or released the person. (E) Notice to a person from whom the property was seized who is not incarcerated when notice is sent may be sent to the last address that person gave to the agency that seized the property. (iv) When Notice Is Sent. Notice by the following means is sent on the date when it is placed in the mail, delivered to a commercial carrier, or sent by electronic mail. (v) Actual Notice. A potential claimant who had actual notice of a forfeiture action may not oppose or seek relief from forfeiture because of the government’s failure to send the required notice. (5) RESPONSIVE PLEADINGS. (a) Filing a Claim. (i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:

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(A) identify the specific property claimed; (B) identify the claimant and state the claimant’s interest in the property; (C) be signed by the claimant under penalty of perjury; and (D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D). (ii) Unless the court for good cause sets a different time, the claim must be filed: (A) by the time stated in a direct notice sent under Rule G(4)(b); (B) if notice was published but direct notice was not sent to the claimant or the claimant’s attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet government forfeiture site; or (C) if notice was not published and direct notice was not sent to the claimant or the claimant’s attorney: (1) if the property was in the government’s possession, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execution of a warrant issued under Rule G(3)(b); or (2) if the property was not in the government’s possession, custody, or control when the complaint was filed, no later than 60 days after the government complied with 18 U.S.C. § 985(c) as to real property, or 60 days after process was executed on the property under Rule G(3). (iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor’s behalf must state the authority to do so. (b) Answer. A claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. A claimant waives an objection to in rem jurisdiction or to venue if the objection is not made by motion or stated in the answer. (6) SPECIAL INTERROGATORIES. (a) Time and Scope. The government may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the government must serve the interrogatories within 21 days after the motion is served. (b) Answers or Objections. Answers or objections to these interrogatories must be served within 21 days after the interrogatories are served. (c) Government’s Response Deferred. The government need not respond to a claimant’s motion to dismiss the action under Rule G(8)(b) until 21 days after the claimant has answered these interrogatories.

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(7) PRESERVING, PREVENTING CRIMINAL USE, AND DISPOSING OF PROPERTY; SALES. (a) Preserving and Preventing Criminal Use of Property. When the government does not have actual possession of the defendant property the court, on motion or on its own, may enter any order necessary to preserve the property, to prevent its removal or encumbrance, or to prevent its use in a criminal offense. (b) Interlocutory Sale or Delivery. (i) Order to Sell. On motion by a party or a person having custody of the property, the court may order all or part of the property sold if: (A) the property is perishable or at risk of deterioration, decay, or injury by being detained in custody pending the action; (B) the expense of keeping the property is excessive or is disproportionate to its fair market value; (C) the property is subject to a mortgage or to taxes on which the owner is in default; or (D) the court finds other good cause. (ii) Who Makes the Sale. A sale must be made by a United States agency that has authority to sell the property, by the agency’s contractor, or by any person the court designates. (iii) Sale Procedures. The sale is governed by 28 U.S.C. §§ 2001, 2002, and 2004, unless all parties, with the court’s approval, agree to the sale, aspects of the sale, or different procedures. (iv) Sale Proceeds. Sale proceeds are a substitute res subject to forfeiture in place of the property that was sold. The proceeds must be held in an interest-bearing account maintained by the United States pending the conclusion of the forfeiture action. (v) Delivery on a Claimant’s Motion. The court may order that the property be delivered to the claimant pending the conclusion of the action if the claimant shows circumstances that would permit sale under Rule G(7)(b)(i) and gives security under these rules. (c) Disposing of Forfeited Property. Upon entry of a forfeiture judgment, the property or proceeds from selling the property must be disposed of as provided by law. (8) MOTIONS. (a) Motion To Suppress Use of the Property as Evidence. If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence. (b) Motion To Dismiss the Action. (i) A claimant who establishes standing to contest forfeiture may move to dismiss the action under Rule 12(b). (ii) In an action governed by 18 U.S.C. § 983(a)(3)(D) the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of the complaint is governed by Rule G(2).

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(c) Motion To Strike a Claim or Answer. (i) At any time before trial, the government may move to strike a claim or answer: (A) for failing to comply with Rule G(5) or (6), or (B) because the claimant lacks standing. (ii) The motion: (A) must be decided before any motion by the claimant to dismiss the action; and (B) may be presented as a motion for judgment on the pleadings or as a motion to determine after a hearing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence. (d) Petition To Release Property. (i) If a United States agency or an agency’s contractor holds property for judicial or nonjudicial forfeiture under a statute governed by 18 U.S.C. § 983(f), a person who has filed a claim to the property may petition for its release under § 983(f). (ii) If a petition for release is filed before a judicial forfeiture action is filed against the property, the petition may be filed either in the district where the property was seized or in the district where a warrant to seize the property issued. If a judicial forfeiture action against the property is later filed in another district—or if the government shows that the action will be filed in another district—the petition may be transferred to that district under 28 U.S.C. § 1404. (e) Excessive Fines. A claimant may seek to mitigate a forfeiture under the Excessive Fines Clause of the Eighth Amendment by motion for summary judgment or by motion made after entry of a forfeiture judgment if: (i) the claimant has pleaded the defense under Rule 8; and (ii) the parties have had the opportunity to conduct civil discovery on the defense. (9) TRIAL. Trial is to the court unless any party demands trial by jury under Rule 38. (As added Apr. 12, 2006, eff. Dec. 1, 2006; amended Mar. 26, 2009, eff. Dec. 1, 2009.)

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COMMITTEE ON THE JUDICIARY ONE HUNDRED TENTH CONGRESS JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California RICK BOUCHER, Virginia JERROLD NADLER, New York ROBERT C. SCOTT, Virginia MELVIN L. WATT, North Carolina ZOE LOFGREN, California SHEILA JACKSON LEE, Texas MAXINE WATERS, California WILLIAM D. DELAHUNT, Massachusetts ROBERT WEXLER, Florida ´ NCHEZ, California LINDA T. SA STEVE COHEN, Tennessee HANK JOHNSON, Georgia BETTY SUTTON, Ohio LUIS V. GUTIERREZ, Illinois BRAD SHERMAN, California TAMMY BALDWIN, Wisconsin ANTHONY D. WEINER, New York ADAM B. SCHIFF, California ARTUR DAVIS, Alabama DEBBIE WASSERMAN SCHULTZ, Florida KEITH ELLISON, Minnesota

LAMAR SMITH, Texas F. JAMES SENSENBRENNER, JR., Wisconsin HOWARD COBLE, North Carolina ELTON GALLEGLY, California BOB GOODLATTE, Virginia STEVE CHABOT, Ohio DANIEL E. LUNGREN, California CHRIS CANNON, Utah RIC KELLER, Florida DARRELL ISSA, California MIKE PENCE, Indiana J. RANDY FORBES, Virginia STEVE KING, Iowa TOM FEENEY, Florida TRENT FRANKS, Arizona LOUIE GOHMERT, Texas JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel JOSEPH GIBSON, Minority Chief Counsel

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FOREWORD This document contains the Federal Rules of Criminal Procedure, as amended to December 1, 2007. The rules have been promulgated and amended by the United States Supreme Court pursuant to law, and further amended by Acts of Congress. This document has been prepared by the Committee in response to the need for an official up-to-date document containing the latest amendments to the rules. For the convenience of the user, where a rule has been amended a reference to the date the amendment was promulgated and the date the amendment became effective follows the text of the rule. The Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Criminal Procedure, Judicial Conference of the United States, prepared notes explaining the purpose and intent of the amendments to the rules. The Committee Notes may be found in the Appendix to Title 18, United States Code, following the particular rule to which they relate.

Chairman, Committee on the Judiciary. DECEMBER 1, 2007. (III)

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§ 2072. Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648, eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, §§ 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.) § 2073. Rules of procedure and evidence; method of prescribing (a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section. (2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing committee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and otherwise promote the interest of justice. (c)(1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for so closing the meeting. Minutes of each meeting for the transaction of business under this chapter shall be maintained by the committee and made available to the public, except that any portion of such minutes, relating to a closed meeting and made available to the public, may contain such deletions as may be necessary to avoid frustrating the purposes of closing the meeting. (V)

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(2) Any meeting for the transaction of business under this chapter, by a committee appointed under this section, shall be preceded by sufficient notice to enable all interested persons to attend. (d) In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or other separate views. (e) Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22, 1994, 108 Stat. 4110.) § 2074. Rules of procedure and evidence; submission to Congress; effective date (a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies. (b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988.)

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HISTORICAL NOTE The Supreme Court prescribes rules of criminal procedure for the district courts pursuant to section 2072 of Title 28, United States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved November 19, 1988, 102 Stat. 4648), effective December 1, 1988. Pursuant to section 2074 of Title 28, the Supreme Court transmits to Congress (not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective) a copy of the proposed rule. The rule takes effect no earlier than December 1 of the year in which the rule is transmitted unless otherwise provided by law. Prior to enactment of Pub. L. 100–702, the Supreme Court promulgated rules of criminal procedure for the district courts pursuant to two sections of Title 18, United States Code. Section 3771 authorized the Court to prescribe rules for all criminal proceedings prior to and including verdict, or finding of guilty or not guilty by the court, or plea of guilty. Section 3772 empowered the Court to prescribe rules with respect to all proceedings after verdict or finding of guilty by the court, or plea of guilty. Proceedings Prior to and Including Verdict

By act of June 29, 1940, ch. 445, 54 Stat. 688 (subsequently 18 United States Code, § 3771), the Supreme Court was authorized to prescribe general rules of criminal procedure prior to and including verdict, finding of guilty or not guilty by the court, or plea of guilty, in criminal proceedings. The rules, and subsequent amendments, were not to take effect until (1) they had been first reported to Congress by the Attorney General at the beginning of a regular session and (2) after the close of that session. Under a 1949 amendment to 18 U.S.C., § 3771, the Chief Justice of the United States, instead of the Attorney General, reported the rules to Congress. In 1950, section 3771 was further amended so that amendments to the rules could be reported to Congress not later than May 1 each year and become effective 90 days after being reported. Effective December 1, 1988, section 3771 was repealed and supplanted by new sections 2072 and 2074 of Title 28, United States Code, see first paragraph of Historical Note above. The original rules pursuant to act of June 30, 1940, were adopted by order of the Court on December 26, 1944, transmitted to Congress by the Attorney General on January 3, 1945, and became effective March 21, 1946 (327 U.S. 821; Cong. Rec., vol. 91, pt. 1, p. 17, Exec. Comm. 4; H. Doc. 12, 79th Cong.). Amendments were adopted by order of the Court dated December 27, 1948, transmitted to Congress by the Attorney General on January 3, 1949, and became effective October 20, 1949 (335 U.S. 917, 949; Cong. Rec., vol. 95, pt. 1, p. 13, Exec. Comm. 16; H. Doc. 30, 81st (VII)

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Cong.). The amendments affected Rules 17(e)(2), 41(b)(3), 41(g), 54(a)(1), 54(b), 54(c), 55, 56, and 57(a) and Forms 1–27, inclusive. Further amendments were adopted by order of the Court dated April 9, 1956, transmitted to Congress by the Chief Justice on the same day, and became effective July 8, 1956 (350 U.S. 1017; Cong. Rec., vol. 102, pt. 5, p. 5973, Exec. Comm. 16; H. Doc. 377, 84th Cong.). The amendments affected Rules 41(a), 46(a)(2), 54(a)(1), and 54(c). Further amendments were adopted by order of the Court dated February 28, 1966, transmitted to Congress by the Chief Justice on the same day, and became effective July 1, 1966 (383 U.S. 1087; Cong. Rec., vol. 112, pt. 4, p. 4229, Exec. Comm. 2093; H. Doc. 390, 89th Cong.). The amendments affected Rules 4, 5, 6, 7, 11, 14, 16, 17, 18, 20, 21, 23, 24, 25, 28, 29, 30, 32, 33, 34, 35, 37, 38, 40, 44, 45, 46, 49, 54, 55, and 56, and Form 26, added new Rules 17.1 and 26.1, and rescinded Rules 19 and 45(c). Further amendments were adopted by the Court by order dated December 4, 1967, transmitted to Congress by the Chief Justice on January 15, 1968, and became effective July 1, 1968, together with the new Federal Rules of Appellate Procedure (389 U.S. 1125; Cong. Rec., vol. 114, pt. 1, p. 113, Exec. Comm. 1361; H. Doc. 204, 90th Cong.). The amendments affected Rules 45(b), 49(c), 56, and 57, and abrogated the chapter heading ‘‘VIII. Appeal’’, Rules 37, 38(b), (c), and 39, and Forms 26 and 27. On March 1, 1971, the Court adopted additional amendments which were transmitted to Congress by the Chief Justice on March 1, 1971. These amendments became effective July 1, 1971 (401 U.S. 1025; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H. Doc. 92–57). The amendments affected Rules 45(a) and 56. Additional amendments were adopted by the Court by order dated April 24, 1972, transmitted to Congress by the Chief Justice, accompanied by his letter of transmittal dated April 24, 1972. These amendments became effective October 1, 1972 (406 U.S. 979; Cong. Rec., vol. 118, pt. 11, p. 14262, Exec. Comm. 1903; H. Doc. 92–285). The amendments affected Rules 1, 3, 4(b), (c), 5, 5.1, 6(b), 7(c), 9(b), (c), (d), 17(a), (g), 31(e), 32(b), 38(a), 40, 41, 44, 46, 50, 54, and 55. Additional amendments were adopted by the Court by order dated March 18, 1974, transmitted to Congress by the Chief Justice on the same date. These amendments became effective July 1, 1974 (415 U.S. 1056; Cong. Rec., vol. 120, pt. 5, p. 7012, Exec. Comm. 2062; H. Doc. 93–241). The amendments affected Rules 41(a) and 50. Further amendments were proposed by the Court in its order dated November 20, 1972, transmitted to Congress by the Chief Justice on February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133, 1136; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93–46). Although these amendments were to have become effective July 1, 1973, Public Law 93–12 (approved March 30, 1973, 87 Stat. 9) provided that the proposed amendments ‘‘shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress.’’ Section 3 of Public Law 93–595 (approved January 2, 1975, 88 Stat. 1949) approved the amendments proposed by the Court, to be effective July 1, 1975. The amendments affected Rules 26, 26.1, and 28.

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IX

In its order dated April 22, 1974, the Court proposed additional amendments which were transmitted to Congress by the Chief Justice on the same day. The amendments were to have become effective August 1, 1974 (416 U.S. 1001; Cong. Rec., vol. 120, pt. 9, p. 11472, Exec. Comm. 2223; H. Doc. 93–292). The effective date of the proposed amendments was postponed until August 1, 1975, by Public Law 93–361 (approved July 30, 1974, 88 Stat. 397). Public Law 94–64 (approved July 31, 1975, 89 Stat. 370) approved the amendments proposed by the Court and further amended the rules, to be effective December 1, 1975, except Rule 11(e)(6), to be effective August 1, 1975. The amendments affected Rules 4, 9(a), 11, 12, 15, 16, 17(f), 20, 32(a), (c), (e), and 43, and added Rules 12.1, 12.2, and 29.1. Technical amendments to Rules 9(b), 9(c), 16(a), and 16(b) were made by section 5 of Public Law 94–149 (approved Dec. 12, 1975, 89 Stat. 806). Additional amendments were proposed by the Court by order dated April 26, 1976, were transmitted to Congress by the Chief Justice on the same day (425 U.S. 1157; Cong. Rec., vol. 122, pt. 9, p. 11117, Exec. Comm. 3084; H. Doc. 94–464), and were to be effective August 1, 1976. Public Law 94–349 (approved July 8, 1976, 90 Stat. 822) delayed the effective date of the amendments to Rules 6(e), 23, 24, and 41(c)(2), and the addition of Rule 40.1 until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier. Also, it approved the amendments to Rules 6(f), 41(a), and 50(b), to be effective August 1, 1976. Public Law 95–78 (approved July 30, 1977, 91 Stat. 319) disapproved the amendment to Rule 24 and the addition of Rule 40.1, approved amendments to Rule 23, and modified and approved amendments to Rules 6(e) and 41(c), to be effective October 1, 1977. Additional amendments were proposed by the Court by order dated April 30, 1979, were transmitted to Congress by the Chief Justice on the same day (441 U.S. 970, 985; Cong. Rec., vol. 125, pt. 8, p. 9366, Exec. Comm. 1456; H. Doc. 96–112), and were to be effective August 1, 1979. Amendments to Rules 6(e), 7(c)(2), 9(a), 11(e)(2), 18, 32(c)(3)(E), 35, and 41(a), (b), and (c) became effective August 1, 1979. Public Law 96–42 (approved July 31, 1979, 93 Stat. 326) delayed the effective date of the amendments to Rules 11(e)(6), 17(h), 32(f), and 44(c), and the addition of new Rules 26.2 and 32.1, until December 1, 1980, or until and to the extent approved by Act of Congress, whichever is earlier, and modified and approved the amendment to Rule 40 to be effective August 1, 1979. In the absence of further action by Congress, the amendments that were the subject of a delayed effective date pursuant to Public Law 96–42 became effective December 1, 1980. Additional amendments were adopted by the Court by order dated April 28, 1982, transmitted to Congress by the Chief Justice on the same day (456 U.S. 1021; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec. Comm. 3822; H. Doc. 97–173), and became effective August 1, 1982. The amendments affected Rules 1, 5(b), 9(a), (b)(1), (2), (c)(1), (2), 11(c)(1), (4), (5), 20(b), 40(d)(1), (2), 45(a), 54(a), (b)(4), (c), and abrogated Rule 9(d). An amendment to Rule 32(c)(2) was made by section 3 of Public Law 97–291 (approved October 12, 1982, 96 Stat. 1249.) Additional amendments were adopted by the Court by order dated April 28, 1983, transmitted to Congress by the Chief Justice

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on the same day (461 U.S. 1117; Cong. Rec., vol. 129, pt. 8, p. 10479, Exec. Comm. 1028; H. Doc. 98–55), and became effective August 1, 1983. The amendments affected Rules 6(e), (g), 11(a), (h), 12(i), 12.2(b), (c), (d), (e), 16(a), 23(b), 32(a), (c), (d), 35(b), and 55, and abrogated Rule 58 and the Appendix of Forms. Section 209 of Public Law 98–473 (approved October 12, 1984, 98 Stat. 1986) amended Rules 5(c), 15(a), 40(f), 46(a), (c), (e)(2), and 54(b)(3), and added Rule 46(h). Section 215 of Public Law 98–473 (98 Stat. 2014, as amended) amended Rules 6(e)(3)(C), 32(a)(1), (2), (c)(1) to (3), (d), 35, 38, 40(d)(1), and 54(c), effective on the first day of the first calendar month beginning 36 months after October 12, 1984 (November 1, 1987). Section 404(a) of Public Law 98–473 (98 Stat. 2067) amended Rule 12.2(a). Section 404(b) to (d) of Public Law 98–473 would have amended Rule 12.2(b) to (d), but the amendments by section 404(b) and (d) were repealed by section 11(b) of Public Law 98–596 (approved October 30, 1984, 98 Stat. 3138) and the amendment by section 404(c) of Public Law 98–473 could not be executed because it directed the deletion of language not found in the text of the Rule [that defect being cured by section 11(a) of Public Law 98–596, which amended Rule 12.2(c) and (d)]. The amendments and repeals by section 11 of Public Law 98–596 are effective on and after the date of enactment of Public Law 98–473 (October 12, 1984). Additional amendments were adopted by the Court by order dated April 29, 1985, transmitted to Congress by the Chief Justice on the same day (471 U.S. 1167; Cong. Rec., vol. 131, pt. 7, p. 9826, Exec. Comm. 1154; H. Doc. 99–64), and became effective August 1, 1985. The amendments affected Rules 6(e)(3), 11(c)(1), 12.1(f), 12.2(e), 35(b), 45(a), 49(e), and 57. The amendment to Rule 35(b) was effective until November 1, 1986, when section 215(b) of Public Law 98–473 (approved October 12, 1984, 98 Stat. 2015) was to go into effect. Section 235(a)(1) of Public Law 98–473, which originally provided for an effective date of November 1, 1986, for the amendments made by section 215(b) of Public Law 98–473, was later amended by section 4 of Public Law 99–217 to provide for an effective date of November 1, 1987. Section 1009 of Public Law 99–570 (approved October 27, 1986, 100 Stat. 3207–8) amended Rule 35(b), effective on the date (November 1, 1987) of the taking effect of Rule 35(b) as amended by section 215(b) of Public Law 98–473. Sections 12(b), 24, 25(a), and 54(a) of Public Law 99–646 (approved November 10, 1986, 100 Stat. 3594, 3597, 3607) affected Rules 12.2(c), 29(d), 32(c)(2)(B), and 32.1(b). The amendments to Rules 29(d) and 32.1(b) became effective 30 days after the date of enactment of Public Law 99–646. The amendment to Rule 32(c)(2)(B) became effective November 1, 1987, when the amendment made by section 215(a)(5) of Public Law 98–473 went into effect. Additional amendments were adopted by the Court by order dated March 9, 1987, transmitted to Congress by the Chief Justice on the same day (480 U.S. 1041; Cong. Rec., vol. 133, pt. 4, p. 5256, Exec. Comm. 825; H. Doc. 100–47), and became effective August 1, 1987. The amendments affected Rules 4(c)(1), (d)(3), (4), 5(c), 5.1(a), (c), 6(a), (c), (f), 7(b), (c)(1), (3), 10, 11(a)(2), (c)(2) to (5), (d), (e)(2), (4), 12(h), 12.1(a), (b) to (d), 12.2(a), (b), (d), 15(a) to (e), 16(a)(1)(A)

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XI

to (C), (b)(1)(B), (2), (c), 17(a), (d), (g), 17.1, 20, 21(a), (b), 24(a), 25, 26.2(a), (c), (f)(1), 30, 32(a), (c)(3)(A) to (E), 32.1, 33, 38(a)(2), (3), 40(a), (d)(3), (e), (f), 41(c)(1), (e), 42, 43(b), 44(a), (c), 45(e), 46(b), (d), (g), 49(b), and 51. Additional amendments were adopted by the Court by order dated April 25, 1988, transmitted to Congress by the Chief Justice on the same day (485 U.S. 1057; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3516; H. Doc. 100–186), and became effective August 1, 1988. The amendments affected Rules 30 and 56. Sections 6483, 7076, and 7089(c) of Public Law 100–690 (approved November 18, 1988, 102 Stat. 4382, 4406, 4409) amended Rules 11(c)(1) and 54(c), and added Rule 12.3. Additional amendments were adopted by the Court by order dated April 25, 1989, transmitted to Congress by the Chief Justice on the same day (490 U.S. 1135; Cong. Rec., vol. 135, pt. 6, p. 7542, Exec. Comm. 1059; H. Doc. 101–55), and became effective December 1, 1989. The amendments affected Rules 11(c)(1), 32(a), (c), 32.1(a), (b), 40(d), and 41(e). Additional amendments were adopted by the Court by order dated May 1, 1990, transmitted to Congress by the Chief Justice on the same day (495 U.S. 967; Cong. Rec., vol. 136, pt. 6, p. 9091, Ex. Comm. 3098; H. Doc. 101–185), and became effective December 1, 1990. The amendments affected Rules 5(b), 41(a), and 54(b)(4), (c), and added new Rule 58. Additional amendments were adopted by the Court by order dated April 30, 1991, transmitted to Congress by the Chief Justice on the same day (500 U.S. 991; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1191; H. Doc. 102–78), and became effective December 1, 1991. The amendments affected Rules 16(a), 32(c), 32.1(a), 35(b), (c), 46(h), 54(a), and 58(b), (d). Additional amendments were adopted by the Court by order dated April 22, 1993, transmitted to Congress by the Chief Justice on the same day (507 U.S. 1161; Cong. Rec., vol. 139, pt. 6, p. 8127, Ex. Comm. 1103; H. Doc. 103–75), and became effective December 1, 1993. The amendments affected Rules 1, 3, 4(c)(1), (d), 5, 5.1, 6(e)(4), (f), 9(a) to (c), 12(i), 16(a)(1)(E), (2), (b)(1)(C), 17(a), (g), 26.2(c), (d), (g), 32(e), 32.1(c), 40(a), (b), (d), (e), (f), 41(a), (c), (d), (g), 44(a), 46(i), 49(e), 50(b), 54(b)(3), (4), (c), 55, 57, and 58(a)(1), (b)(2), (3), (c)(2), (d)(2), (g)(2), and added new Rule 26.3. Additional amendments were adopted by the Court by order dated April 29, 1994, transmitted to Congress by the Chief Justice on the same day (511 U.S. 1175; Cong. Rec., vol. 140, pt. 7, p. 8903, Ex. Comm. 3084; H. Doc. 103–249), and became effective December 1, 1994. The amendments affected Rules 16(a)(1)(A), 29(b), 32, and 40(d). Sections 230101(b), (c) and 330003(h) of Public Law 103–322 (approved September 13, 1994, 108 Stat. 2078, 2141) affected Rules 32 and 46(i)(1). The amendments to Rule 32 became effective December 1, 1994. The amendment to Rule 46 became effective September 13, 1994. Additional amendments were adopted by the Court by order dated April 27, 1995, transmitted to Congress by the Chief Justice on the same day (514 U.S. 1159; Cong. Rec., vol. 141, pt. 8, p. 11745, Ex. Comm. 805; H. Doc. 104–65), and became effective December 1, 1995. The amendments affected Rules 5, 40, 43, 49, and 57.

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An additional amendment was adopted by the Court by order dated April 23, 1996, transmitted to Congress by the Chief Justice on the same day (517 U.S. 1285; Cong. Rec., vol. 142, pt. 6, p. 8831, Ex. Comm. 2488; H. Doc. 104–202), and became effective December 1, 1996. The amendment affected Rule 32(d)(2). Sections 207(a) and 211 of Public Law 104–132 (approved April 24, 1996, 110 Stat. 1236, 1241) amended Rule 32(b), effective, to the extent constitutionally permissible, for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of Public Law 104–132. Additional amendments were adopted by the Court by order dated April 11, 1997, transmitted to Congress by the Chief Justice on the same day (520 U.S. 1313; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2796; H. Doc. 105–68), and became effective December 1, 1997. The amendments affected Rules 16 and 58. Additional amendments were adopted by the Court by order dated April 24, 1998, transmitted to Congress by the Chief Justice on the same day (523 U.S. 1227; H. Doc. 105–267), and became effective December 1, 1998. The amendments affected Rules 5.1, 26.2, 31, 33, 35, and 43. Additional amendments were adopted by the Court by order dated April 26, 1999, transmitted to Congress by the Chief Justice on the same day (526 U.S. 1189; Cong. Rec., vol. 145, pt. 6, p. 7907, Ex. Comm. 1788; H. Doc. 106–55), and became effective December 1, 1999. The amendments affected Rules 6, 11, 24, and 54. Additional amendments were adopted by the Court by order dated April 17, 2000, transmitted to Congress by the Chief Justice on the same day (529 U.S. 1179; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7335; H. Doc. 106–227), and became effective December 1, 2000. The amendments affected Rules 7, 31, 32, and 38, and added new Rule 32.2. Sections 203(a) and 219 of Public Law 107–56 (approved October 26, 2001, 115 Stat. 278, 291) amended Rules 6(e)(3)(C), (D) and 41(a). Additional amendments were adopted by the Court by order dated April 29, 2002, transmitted to Congress by the Chief Justice on the same day (535 U.S. 1157; Cong. Rec., vol. 148, pt. 5, p. 6813, Ex. Comm. 6621; H. Doc. 107–203), and became effective December 1, 2002. The amendments affected Rules 1 to 60. Section 11019(b), (c) of Pub. L. 107–273 (approved November 2, 2002, 116 Stat. 1825, 1826) amended Rule 16(a)(1)(G), (b)(1)(C), effective December 1, 2002. Sections 4 and 895 of Pub. L. 107–296 (approved November 25, 2002, 116 Stat. 2142, 2256) which directed the amendment of Rule 6(e)(2), (3)(A)(ii), (C)(i), (iii), effective 60 days after the date of enactment of Pub. L. 107–296, could not be executed after the amendments of April 29, 2002, effective December 1, 2002. Section 610(b) of Pub. L. 108–21 (approved April 30, 2003, 117 Stat. 692) amended Rule 7(c)(1). An additional amendment was adopted by the Court by order dated April 26, 2004, transmitted to Congress by the Chief Justice on the same day (541 U.S. 1103; Cong. Rec., vol. 150, p. H2482, Daily Issue, Ex. Comm. 7865; H. Doc. 108–182), and became effective December 1, 2004. The amendment affected Rule 35. Section 6501(a) of Pub. L. 108–458 (approved December 17, 2004, 118 Stat. 3760) amended Rule 6(e).

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XIII

Additional amendments were adopted by the Court by order dated April 25, 2005, transmitted to Congress by the Chief Justice on the same day (544 U.S. 1181; Cong. Rec., vol. 151, p. H3060, Daily Issue, Ex. Comm. 1905; H. Doc. 109–22), and became effective December 1, 2005. The amendments affected Rules 12.2, 29, 32.1, 33, 34, and 45, and added new Rule 59. Additional amendments were adopted by the Court by order dated April 12, 2006, transmitted to Congress by the Chief Justice on the same day (547 U.S. ——; Cong. Rec., vol. 152, p. H2179, Daily Issue, Ex. Comm. 7316; H. Doc. 109–104), and became effective December 1, 2006. The amendments affected Rules 5, 6, 32.1, 40, 41, and 58. Additional amendments were adopted by the Court by order dated April 30, 2007, transmitted to Congress by the Chief Justice on the same day (550 U.S. ——; Cong. Rec., vol. 153, p. H4208, Daily Issue, Ex. Comm. 1376; H. Doc. 110–26), and became effective December 1, 2007. The amendments affected Rules 11, 32, 35, 45, added a new Rule 49.1, and abrogated the Model Form for Use in 28 U.S.C. § 2254 Cases Involving a Rule 9 Issue. Proceedings After Verdict

By act of February 24, 1933, ch. 119, 47 Stat. 904, as amended (subsequently 18 United States Code, § 3772), the Supreme Court was authorized to prescribe general rules of criminal procedure with respect to proceedings after verdict or finding of guilty by the court, or plea of guilty, which became effective on dates fixed by the Court. These rules were not required to be submitted to Congress. Rules 32 to 39, inclusive, were adopted by order of the Court on February 8, 1946, and became effective on March 21, 1946 (327 U.S. 825). Prior rules promulgated on May 7, 1934 (292 U.S. 659), were not specifically rescinded by that order but were superseded by these later rules. Amendments to Rules 37(a)(1), 38(a)(3), (c), and 39(b)(2) were adopted by order of the Court dated December 27, 1948, and became effective on January 1, 1949 (335 U.S. 917). Additional amendment to Rule 37 was adopted by order of the Court dated April 12, 1954, and became effective on July 1, 1954 (346 U.S. 941). The Court adopted separate Federal Rules of Appellate Procedure by order dated December 4, 1967, transmitted to Congress on January 15, 1968, effective July 1, 1968. As noted above, Rules 37, 38(b), (c), and 39, and Forms 26 and 27, were abrogated effective July 1, 1968, by that same order. Effective December 1, 1988, section 3772 of Title 18 was repealed and supplanted by section 2072 of Title 28, United States Code, see first paragraph of Historical Note above. Committee Notes

Committee Notes prepared by the Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Criminal Procedure, Judicial Conference of the United States, explaining the purpose and intent of the amendments are set out in the Appendix to Title 18, United States Code, following

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the particular rule to which they relate. In addition, the rules and amendments, together with Committee Notes, are set out in the House documents listed above.

408

TABLE OF CONTENTS Foreword .............................................................................................................. Authority for promulgation of rules .................................................................... Historical note .....................................................................................................

Page III V VII

RULES Title I. Applicability Rule 1. Scope; Definitions .............................................................................. Rule 2. Interpretation .................................................................................... Title II. Preliminary Proceedings Rule 3. The Complaint ................................................................................... Rule 4. Arrest Warrant or Summons on a Complaint .................................... Rule 5. Initial Appearance ............................................................................. Rule 5.1. Preliminary Hearing ....................................................................... Title III. The Grand Jury, the Indictment, and the Information Rule 6. The Grand Jury .................................................................................. Rule 7. The Indictment and the Information ................................................. Rule 8. Joinder of Offenses or Defendants ..................................................... Rule 9. Arrest Warrant or Summons on an Indictment or Information ........ Title IV. Arraignment and Preparation for Trial Rule 10. Arraignment ..................................................................................... Rule 11. Pleas ................................................................................................. Rule 12. Pleadings and Pretrial Motions ....................................................... Rule 12.1. Notice of an Alibi Defense ............................................................. Rule 12.2. Notice of an Insanity Defense; Mental Examination ..................... Rule 12.3. Notice of a Public-Authority Defense ............................................ Rule 12.4. Disclosure Statement .................................................................... Rule 13. Joint Trial of Separate Cases ........................................................... Rule 14. Relief from Prejudicial Joinder ........................................................ Rule 15. Depositions ....................................................................................... Rule 16. Discovery and Inspection ................................................................. Rule 17. Subpoena .......................................................................................... Rule 17.1. Pretrial Conference ....................................................................... Title V. Venue Rule 18. Place of Prosecution and Trial ......................................................... Rule 19. (Reserved) Rule 20. Transfer for Plea and Sentence ........................................................ Rule 21. Transfer for Trial ............................................................................. Rule 22. (Transferred) Title VI. Trial Rule 23. Jury or Nonjury Trial ...................................................................... Rule 24. Trial Jurors ...................................................................................... Rule 25. Judge’s Disability ............................................................................ Rule 26. Taking Testimony ............................................................................ Rule 26.1. Foreign Law Determination .......................................................... Rule 26.2. Producing a Witness’s Statement .................................................. Rule 26.3. Mistrial .......................................................................................... Rule 27. Proving an Official Record ............................................................... Rule 28. Interpreters ...................................................................................... Rule 29. Motion for a Judgment of Acquittal ................................................ Rule 29.1. Closing Argument .......................................................................... Rule 30. Jury Instructions ............................................................................. Rule 31. Jury Verdict ..................................................................................... Title VII. Post-Conviction Procedures Rule 32. Sentence and Judgment ................................................................... Rule 32.1. Revoking or Modifying Probation or Supervised Release ..............

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1 2 2 2 4 6 7 11 12 12 13 14 16 17 18 20 21 22 22 22 23 26 28 28 28 29 29 30 31 31 32 32 33 33 33 33 34 34 35 35 39

XVI

CONTENTS

Title VII. Post-Conviction Procedures—Continued Rule 32.2. Criminal Forfeiture ....................................................................... Rule 33. New Trial .......................................................................................... Rule 34. Arresting Judgment ......................................................................... Rule 35. Correcting or Reducing a Sentence .................................................. Rule 36. Clerical Error ................................................................................... Rule 37. (Reserved) Rule 38. Staying a Sentence or a Disability .................................................. Rule 39. (Reserved) Title VIII. Supplementary and Special Proceedings Rule 40. Arrest for Failing to Appear in Another District or for Violating Conditions of Release Set in Another District ................................. Rule 41. Search and Seizure ........................................................................... Rule 42. Criminal Contempt ........................................................................... Title IX. General Provisions Rule 43. Defendant’s Presence ....................................................................... Rule 44. Right to and Appointment of Counsel .............................................. Rule 45. Computing and Extending Time ....................................................... Rule 46. Release from Custody; Supervising Detention ................................. Rule 47. Motions and Supporting Affidavits .................................................. Rule 48. Dismissal .......................................................................................... Rule 49. Serving and Filing Papers ................................................................ Rule 49.1. Privacy Protection For Filings Made with the Court ................... Rule 50. Prompt Disposition .......................................................................... Rule 51. Preserving Claimed Error ................................................................ Rule 52. Harmless and Plain Error ................................................................. Rule 53. Courtroom Photographing and Broadcasting Prohibited ................. Rule 54. (Transferred) Rule 55. Records ............................................................................................. Rule 56. When Court Is Open .......................................................................... Rule 57. District Court Rules ......................................................................... Rule 58. Petty Offenses and Other Misdemeanors .......................................... Rule 59. Matters Before a Magistrate Judge .................................................. Rule 60. Title .................................................................................................

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46 46 50 51 52 52 53 55 55 55 56 57 57 57 57 58 58 58 59 62 63

FEDERAL RULES OF CRIMINAL PROCEDURE Effective March 21, 1946, as amended to December 1, 2007

TITLE I. APPLICABILITY Rule 1. Scope; Definitions (a) Scope. (1) In General. These rules govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States. (2) State or Local Judicial Officer. When a rule so states, it applies to a proceeding before a state or local judicial officer. (3) Territorial Courts. These rules also govern the procedure in all criminal proceedings in the following courts: (A) the district court of Guam; (B) the district court for the Northern Mariana Islands, except as otherwise provided by law; and (C) the district court of the Virgin Islands, except that the prosecution of offenses in that court must be by indictment or information as otherwise provided by law. (4) Removed Proceedings. Although these rules govern all proceedings after removal from a state court, state law governs a dismissal by the prosecution. (5) Excluded Proceedings. Proceedings not governed by these rules include: (A) the extradition and rendition of a fugitive; (B) a civil property forfeiture for violating a federal statute; (C) the collection of a fine or penalty; (D) a proceeding under a statute governing juvenile delinquency to the extent the procedure is inconsistent with the statute, unless Rule 20(d) provides otherwise; (E) a dispute between seamen under 22 U.S.C. §§ 256–258; and (F) a proceeding against a witness in a foreign country under 28 U.S.C. § 1784. (b) Definitions. The following definitions apply to these rules: (1) ‘‘Attorney for the government’’ means: (A) the Attorney General or an authorized assistant; (B) a United States attorney or an authorized assistant; (C) when applicable to cases arising under Guam law, the Guam Attorney General or other person whom Guam law authorizes to act in the matter; and (D) any other attorney authorized by law to conduct proceedings under these rules as a prosecutor. (2) ‘‘Court’’ means a federal judge performing functions authorized by law. (1)

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(3) ‘‘Federal judge’’ means: (A) a justice or judge of the United States as these terms are defined in 28 U.S.C. § 451; (B) a magistrate judge; and (C) a judge confirmed by the United States Senate and empowered by statute in any commonwealth, territory, or possession to perform a function to which a particular rule relates. (4) ‘‘Judge’’ means a federal judge or a state or local judicial officer. (5) ‘‘Magistrate judge’’ means a United States magistrate judge as defined in 28 U.S.C. §§ 631–639. (6) ‘‘Oath’’ includes an affirmation. (7) ‘‘Organization’’ is defined in 18 U.S.C. § 18. (8) ‘‘Petty offense’’ is defined in 18 U.S.C. § 19. (9) ‘‘State’’ includes the District of Columbia, and any commonwealth, territory, or possession of the United States. (10) ‘‘State or local judicial officer’’ means: (A) a state or local officer authorized to act under 18 U.S.C. § 3041; and (B) a judicial officer empowered by statute in the District of Columbia or in any commonwealth, territory, or possession to perform a function to which a particular rule relates. (c) Authority of a Justice or Judge of the United States. When these rules authorize a magistrate judge to act, any other federal judge may also act. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 2. Interpretation These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE II. PRELIMINARY PROCEEDINGS Rule 3. The Complaint The complaint is a written statement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 4. Arrest Warrant or Summons on a Complaint (a) Issuance. If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it. At the request of an attorney for the government, the

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Rule 4

judge must issue a summons, instead of a warrant, to a person authorized to serve it. A judge may issue more than one warrant or summons on the same complaint. If a defendant fails to appear in response to a summons, a judge may, and upon request of an attorney for the government must, issue a warrant. (b) Form. (1) Warrant. A warrant must: (A) contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty; (B) describe the offense charged in the complaint; (C) command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and (D) be signed by a judge. (2) Summons. A summons must be in the same form as a warrant except that it must require the defendant to appear before a magistrate judge at a stated time and place. (c) Execution or Service, and Return. (1) By Whom. Only a marshal or other authorized officer may execute a warrant. Any person authorized to serve a summons in a federal civil action may serve a summons. (2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest. (3) Manner. (A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant’s existence and of the offense charged and, at the defendant’s request, must show the warrant to the defendant as soon as possible. (B) A summons is served on an individual defendant: (i) by delivering a copy to the defendant personally; or (ii) by leaving a copy at the defendant’s residence or usual place of abode with a person of suitable age and discretion residing at that location and by mailing a copy to the defendant’s last known address. (C) A summons is served on an organization by delivering a copy to an officer, to a managing or general agent, or to another agent appointed or legally authorized to receive service of process. A copy must also be mailed to the organization’s last known address within the district or to its principal place of business elsewhere in the United States. (4) Return. (A) After executing a warrant, the officer must return it to the judge before whom the defendant is brought in accordance with Rule 5. At the request of an attorney for the government, an unexecuted warrant must be brought back to and canceled by a magistrate judge or, if none is reasonably available, by a state or local judicial officer.

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Rule 5

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(B) The person to whom a summons was delivered for service must return it on or before the return day. (C) At the request of an attorney for the government, a judge may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to the marshal or other authorized person for execution or service. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 5. Initial Appearance (a) In General. (1) Appearance Upon an Arrest. (A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise. (B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise. (2) Exceptions. (A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. § 1073 need not comply with this rule if: (i) the person arrested is transferred without unnecessary delay to the custody of appropriate state or local authorities in the district of arrest; and (ii) an attorney for the government moves promptly, in the district where the warrant was issued, to dismiss the complaint. (B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies. (C) If a defendant is arrested for failing to appear in another district, Rule 40 applies. (3) Appearance Upon a Summons. When a defendant appears in response to a summons under Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable. (b) Arrest Without a Warrant. If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)’s requirement of probable cause must be promptly filed in the district where the offense was allegedly committed. (c) Place of Initial Appearance; Transfer to Another District. (1) Arrest in the District Where the Offense Was Allegedly Committed. If the defendant is arrested in the district where the offense was allegedly committed: (A) the initial appearance must be in that district; and (B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer. (2) Arrest in a District Other Than Where the Offense Was Allegedly Committed. If the defendant was arrested in a district

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Rule 5

other than where the offense was allegedly committed, the initial appearance must be: (A) in the district of arrest; or (B) in an adjacent district if: (i) the appearance can occur more promptly there; or (ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest. (3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply: (A) the magistrate judge must inform the defendant about the provisions of Rule 20; (B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed must first issue a warrant before the magistrate judge transfers the defendant to that district; (C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1; (D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if: (i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of either; and (ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and (E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed. (d) Procedure in a Felony Case. (1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following: (A) the complaint against the defendant, and any affidavit filed with it; (B) the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel; (C) the circumstances, if any, under which the defendant may secure pretrial release; (D) any right to a preliminary hearing; and (E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant. (2) Consulting with Counsel. The judge must allow the defendant reasonable opportunity to consult with counsel. (3) Detention or Release. The judge must detain or release the defendant as provided by statute or these rules. (4) Plea. A defendant may be asked to plead only under Rule 10. (e) Procedure in a Misdemeanor Case. If the defendant is charged with a misdemeanor only, the judge must inform the defendant in accordance with Rule 58(b)(2).

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Rule 5.1

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(f) Video Teleconferencing. Video teleconferencing may be used to conduct an appearance under this rule if the defendant consents. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1982, eff. Aug. 1, 1982; Oct. 12, 1984; Mar. 9, 1987, eff. Aug. 1, 1987; May 1, 1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule (a) than nary

5.1. Preliminary Hearing In General. If a defendant is charged with an offense other a petty offense, a magistrate judge must conduct a prelimihearing unless: (1) the defendant waives the hearing; (2) the defendant is indicted; (3) the government files an information under Rule 7(b) charging the defendant with a felony; (4) the government files an information charging the defendant with a misdemeanor; or (5) the defendant is charged with a misdemeanor and consents to trial before a magistrate judge. (b) Selecting a District. A defendant arrested in a district other than where the offense was allegedly committed may elect to have the preliminary hearing conducted in the district where the prosecution is pending. (c) Scheduling. The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody. (d) Extending the Time. With the defendant’s consent and upon a showing of good cause—taking into account the public interest in the prompt disposition of criminal cases—a magistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay. (e) Hearing and Finding. At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings. (f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense. (g) Recording the Proceedings. The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A recording of the proceeding may be made available to any party upon request. A copy of the recording and a transcript may be provided to any party upon request and upon any payment required by applicable Judicial Conference regulations.

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Rule 6

(h) Producing a Statement. (1) In General. Rule 26.2(a)–(d) and (f) applies at any hearing under this rule, unless the magistrate judge for good cause rules otherwise in a particular case. (2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to deliver a statement to the moving party, the magistrate judge must not consider the testimony of a witness whose statement is withheld. (As added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE INFORMATION Rule 6. The Grand Jury (a) Summoning a Grand Jury. (1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement. (2) Alternate Jurors. When a grand jury is selected, the court may also select alternate jurors. Alternate jurors must have the same qualifications and be selected in the same manner as any other juror. Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror is subject to the same challenges, takes the same oath, and has the same authority as the other jurors. (b) Objection to the Grand Jury or to a Grand Juror. (1) Challenges. Either the government or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified. (2) Motion to Dismiss an Indictment. A party may move to dismiss the indictment based on an objection to the grand jury or on an individual juror’s lack of legal qualification, unless the court has previously ruled on the same objection under Rule 6(b)(1). The motion to dismiss is governed by 28 U.S.C. § 1867(e). The court must not dismiss the indictment on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment. (c) Foreperson and Deputy Foreperson. The court will appoint one juror as the foreperson and another as the deputy foreperson. In the foreperson’s absence, the deputy foreperson will act as the foreperson. The foreperson may administer oaths and affirmations and will sign all indictments. The foreperson—or another juror designated by the foreperson—will record the number of jurors concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so orders.

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Rule 6

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(d) Who May Be Present. (1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device. (2) During Deliberations and Voting. No person other than the jurors, and any interpreter needed to assist a hearing-impaired or speech-impaired juror, may be present while the grand jury is deliberating or voting. (e) Recording and Disclosing the Proceedings. (1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter’s notes, and any transcript prepared from those notes. (2) Secrecy. (A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B). (B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: (i) a grand juror; (ii) an interpreter; (iii) a court reporter; (iv) an operator of a recording device; (v) a person who transcribes recorded testimony; (vi) an attorney for the government; or (vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). (3) Exceptions. (A) Disclosure of a grand-jury matter—other than the grand jury’s deliberations or any grand juror’s vote—may be made to: (i) an attorney for the government for use in performing that attorney’s duty; (ii) any government personnel—including those of a state, state subdivision, Indian tribe, or foreign government—that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law; or (iii) a person authorized by 18 U.S.C. § 3322. (B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attorney’s duty to enforce federal criminal law. An attorney for the government must promptly provide the court that impaneled the grand jury with the names of all persons to whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation of secrecy under this rule. (C) An attorney for the government may disclose any grand-jury matter to another federal grand jury.

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Rule 6

(D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in 50 U.S.C. § 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official’s duties. An attorney for the government may also disclose any grand-jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities. (i) Any official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information. Any state, state subdivision, Indian tribal, or foreign government official who receives information under Rule 6(e)(3)(D) may use the information only in a manner consistent with any guidelines issued by the Attorney General and the Director of National Intelligence. (ii) Within a reasonable time after disclosure is made under Rule 6(e)(3)(D), an attorney for the government must file, under seal, a notice with the court in the district where the grand jury convened stating that such information was disclosed and the departments, agencies, or entities to which the disclosure was made. (iii) As used in Rule 6(e)(3)(D), the term ‘‘foreign intelligence information’’ means: (a) information, whether or not it concerns a United States person, that relates to the ability of the United States to protect against— • actual or potential attack or other grave hostile acts of a foreign power or its agent; • sabotage or international terrorism by a foreign power or its agent; or • clandestine intelligence activities by an intelligence service or network of a foreign power or by its agent; or (b) information, whether or not it concerns a United States person, with respect to a foreign power or foreign territory that relates to— • the national defense or the security of the United States; or • the conduct of the foreign affairs of the United States.

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Rule 6

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(E) The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; (iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation; (iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or (v) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law. (F) A petition to disclose a grand-jury matter under Rule 6(e)(3)(E)(i) must be filed in the district where the grand jury convened. Unless the hearing is ex parte—as it may be when the government is the petitioner—the petitioner must serve the petition on, and the court must afford a reasonable opportunity to appear and be heard to: (i) an attorney for the government; (ii) the parties to the judicial proceeding; and (iii) any other person whom the court may designate. (G) If the petition to disclose arises out of a judicial proceeding in another district, the petitioned court must transfer the petition to the other court unless the petitioned court can reasonably determine whether disclosure is proper. If the petitioned court decides to transfer, it must send to the transferee court the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand-jury secrecy. The transferee court must afford those persons identified in Rule 6(e)(3)(F) a reasonable opportunity to appear and be heard. (4) Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons. (5) Closed Hearing. Subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury. (6) Sealed Records. Records, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.

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Rule 7

(7) Contempt. A knowing violation of Rule 6, or of any guidelines jointly issued by the Attorney General and the Director of National Intelligence under Rule 6, may be punished as a contempt of court. (f) Indictment and Return. A grand jury may indict only if at least 12 jurors concur. The grand jury—or its foreperson or deputy foreperson—must return the indictment to a magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge. (g) Discharging the Grand Jury. A grand jury must serve until the court discharges it, but it may serve more than 18 months only if the court, having determined that an extension is in the public interest, extends the grand jury’s service. An extension may be granted for no more than 6 months, except as otherwise provided by statute. (h) Excusing a Juror. At any time, for good cause, the court may excuse a juror either temporarily or permanently, and if permanently, the court may impanel an alternate juror in place of the excused juror. (i) ‘‘Indian Tribe’’ Defined. ‘‘Indian tribe’’ means an Indian tribe recognized by the Secretary of the Interior on a list published in the Federal Register under 25 U.S.C. § 479a–1. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; July 30, 1977, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 1999, eff. Dec. 1, 1999; Oct. 26, 2001; Apr. 29, 2002, eff. Dec. 1, 2002; Nov. 25, 2002; Dec. 17, 2004; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 7. The Indictment and the Information (a) When Used. (1) Felony. An offense (other than criminal contempt) must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year. (2) Misdemeanor. An offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 58(b)(1). (b) Waiving Indictment. An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant’s rights—waives prosecution by indictment. (c) Nature and Contents. (1) In General. The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one

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Rule 8

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or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. For purposes of an indictment referred to in section 3282 of title 18, United States Code, for which the identity of the defendant is unknown, it shall be sufficient for the indictment to describe the defendant as an individual whose name is unknown, but who has a particular DNA profile, as that term is defined in section 3282. (2) Criminal Forfeiture. No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information provides notice that the defendant has an interest in property that is subject to forfeiture in accordance with the applicable statute. (3) Citation Error. Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction. (d) Surplusage. Upon the defendant’s motion, the court may strike surplusage from the indictment or information. (e) Amending an Information. Unless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding. (f) Bill of Particulars. The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2003.) Rule 8. Joinder of Offenses or Defendants (a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both— are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. (b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 9. Arrest Warrant or Summons on an Indictment or Information (a) Issuance. The court must issue a warrant—or at the government’s request, a summons—for each defendant named in an indictment or named in an information if one or more affidavits accompanying the information establish probable cause to believe

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 10

that an offense has been committed and that the defendant committed it. The court may issue more than one warrant or summons for the same defendant. If a defendant fails to appear in response to a summons, the court may, and upon request of an attorney for the government must, issue a warrant. The court must issue the arrest warrant to an officer authorized to execute it or the summons to a person authorized to serve it. (b) Form. (1) Warrant. The warrant must conform to Rule 4(b)(1) except that it must be signed by the clerk and must describe the offense charged in the indictment or information. (2) Summons. The summons must be in the same form as a warrant except that it must require the defendant to appear before the court at a stated time and place. (c) Execution or Service; Return; Initial Appearance. (1) Execution or Service. (A) The warrant must be executed or the summons served as provided in Rule 4(c)(1), (2), and (3). (B) The officer executing the warrant must proceed in accordance with Rule 5(a)(1). (2) Return. A warrant or summons must be returned in accordance with Rule 4(c)(4). (3) Initial Appearance. When an arrested or summoned defendant first appears before the court, the judge must proceed under Rule 5. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Dec. 12, 1975; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL Rule 10. Arraignment (a) In General. An arraignment must be conducted in open court and must consist of: (1) ensuring that the defendant has a copy of the indictment or information; (2) reading the indictment or information to the defendant or stating to the defendant the substance of the charge; and then (3) asking the defendant to plead to the indictment or information. (b) Waiving Appearance. A defendant need not be present for the arraignment if: (1) the defendant has been charged by indictment or misdemeanor information; (2) the defendant, in a written waiver signed by both the defendant and defense counsel, has waived appearance and has affirmed that the defendant received a copy of the indictment or information and that the plea is not guilty; and (3) the court accepts the waiver. (c) Video Teleconferencing. Video teleconferencing may be used to arraign a defendant if the defendant consents. (As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)

423

Rule 11

FEDERAL RULES OF CRIMINAL PROCEDURE

14

Rule 11. Pleas (a) Entering a Plea. (1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere. (2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. (3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ views and the public interest in the effective administration of justice. (4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty. (b) Considering and Accepting a Guilty or Nolo Contendere Plea. (1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following: (A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath; (B) the right to plead not guilty, or having already so pleaded, to persist in that plea; (C) the right to a jury trial; (D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding; (E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses; (F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere; (G) the nature of each charge to which the defendant is pleading; (H) any maximum possible penalty, including imprisonment, fine, and term of supervised release; (I) any mandatory minimum penalty; (J) any applicable forfeiture; (K) the court’s authority to order restitution; (L) the court’s obligation to impose a special assessment; (M) in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a); and (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 11

(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement). (3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. (c) Plea Agreement Procedure. (1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will: (A) not bring, or will move to dismiss, other charges; (B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement). (2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera. (3) Judicial Consideration of a Plea Agreement. (A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report. (B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. (4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment. (5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera): (A) inform the parties that the court rejects the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and

425

Rule 12

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16

(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated. (d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal. (e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack. (f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410. (g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c). (h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Aug. 1 and Dec. 1, 1975; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1, 1980; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Nov. 18, 1988; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 12. Pleadings and Pretrial Motions (a) Pleadings. The pleadings in a criminal proceeding are the indictment, the information, and the pleas of not guilty, guilty, and nolo contendere. (b) Pretrial Motions. (1) In General. Rule 47 applies to a pretrial motion. (2) Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue. (3) Motions That Must Be Made Before Trial. The following must be raised before trial: (A) a motion alleging a defect in instituting the prosecution; (B) a motion alleging a defect in the indictment or information—but at any time while the case is pending, the

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 12.1

court may hear a claim that the indictment or information fails to invoke the court’s jurisdiction or to state an offense; (C) a motion to suppress evidence; (D) a Rule 14 motion to sever charges or defendants; and (E) a Rule 16 motion for discovery. (4) Notice of the Government’s Intent to Use Evidence. (A) At the Government’s Discretion. At the arraignment or as soon afterward as practicable, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C). (B) At the Defendant’s Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government’s intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16. (c) Motion Deadline. The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing. (d) Ruling on a Motion. The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party’s right to appeal. When factual issues are involved in deciding a motion, the court must state its essential findings on the record. (e) Waiver of a Defense, Objection, or Request. A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver. (f) Recording the Proceedings. All proceedings at a motion hearing, including any findings of fact and conclusions of law made orally by the court, must be recorded by a court reporter or a suitable recording device. (g) Defendant’s Continued Custody or Release Status. If the court grants a motion to dismiss based on a defect in instituting the prosecution, in the indictment, or in the information, it may order the defendant to be released or detained under 18 U.S.C. § 3142 for a specified time until a new indictment or information is filed. This rule does not affect any federal statutory period of limitations. (h) Producing Statements at a Suppression Hearing. Rule 26.2 applies at a suppression hearing under Rule 12(b)(3)(C). At a suppression hearing, a law enforcement officer is considered a government witness. (As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 12.1. Notice of an Alibi Defense (a) Government’s Request for Notice and Defendant’s Response. (1) Government’s Request. An attorney for the government may request in writing that the defendant notify an attorney

427

Rule 12.2

FEDERAL RULES OF CRIMINAL PROCEDURE

18

for the government of any intended alibi defense. The request must state the time, date, and place of the alleged offense. (2) Defendant’s Response. Within 10 days after the request, or at some other time the court sets, the defendant must serve written notice on an attorney for the government of any intended alibi defense. The defendant’s notice must state: (A) each specific place where the defendant claims to have been at the time of the alleged offense; and (B) the name, address, and telephone number of each alibi witness on whom the defendant intends to rely. (b) Disclosing Government Witnesses. (1) Disclosure. If the defendant serves a Rule 12.1(a)(2) notice, an attorney for the government must disclose in writing to the defendant or the defendant’s attorney: (A) the name, address, and telephone number of each witness the government intends to rely on to establish the defendant’s presence at the scene of the alleged offense; and (B) each government rebuttal witness to the defendant’s alibi defense. (2) Time to Disclose. Unless the court directs otherwise, an attorney for the government must give its Rule 12.1(b)(1) disclosure within 10 days after the defendant serves notice of an intended alibi defense under Rule 12.1(a)(2), but no later than 10 days before trial. (c) Continuing Duty to Disclose. Both an attorney for the government and the defendant must promptly disclose in writing to the other party the name, address, and telephone number of each additional witness if: (1) the disclosing party learns of the witness before or during trial; and (2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier. (d) Exceptions. For good cause, the court may grant an exception to any requirement of Rule 12.1(a)–(c). (e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant’s alibi. This rule does not limit the defendant’s right to testify. (f) Inadmissibility of Withdrawn Intention. Evidence of an intention to rely on an alibi defense, later withdrawn, or of a statement made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention. (As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff. Dec. 1, 1975; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 12.2. Notice of an Insanity Defense; Mental Examination (a) Notice of an Insanity Defense. A defendant who intends to assert a defense of insanity at the time of the alleged offense must so notify an attorney for the government in writing within the time provided for filing a pretrial motion, or at any later time the court sets, and file a copy of the notice with the clerk. A defendant who fails to do so cannot rely on an insanity defense. The

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 12.2

court may, for good cause, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders. (b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on either (1) the issue of guilt or (2) the issue of punishment in a capital case, the defendant must—within the time provided for filing a pretrial motion or at any later time the court sets—notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk. The court may, for good cause, allow the defendant to file the notice late, grant the parties additional trial-preparation time, or make other appropriate orders. (c) Mental Examination. (1) Authority to Order an Examination; Procedures. (A) The court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241. (B) If the defendant provides notice under Rule 12.2(a), the court must, upon the government’s motion, order the defendant to be examined under 18 U.S.C. § 4242. If the defendant provides notice under Rule 12.2(b) the court may, upon the government’s motion, order the defendant to be examined under procedures ordered by the court. (2) Disclosing Results and Reports of Capital Sentencing Examination. The results and reports of any examination conducted solely under Rule 12.2(c)(1) after notice under Rule 12.2(b)(2) must be sealed and must not be disclosed to any attorney for the government or the defendant unless the defendant is found guilty of one or more capital crimes and the defendant confirms an intent to offer during sentencing proceedings expert evidence on mental condition. (3) Disclosing Results and Reports of the Defendant’s Expert Examination. After disclosure under Rule 12.2(c)(2) of the results and reports of the government’s examination, the defendant must disclose to the government the results and reports of any examination on mental condition conducted by the defendant’s expert about which the defendant intends to introduce expert evidence. (4) Inadmissibility of a Defendant’s Statements. No statement made by a defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on the statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on which the defendant: (A) has introduced evidence of incompetency or evidence requiring notice under Rule 12.2(a) or (b)(1), or (B) has introduced expert evidence in a capital sentencing proceeding requiring notice under Rule 12.2(b)(2). (d) Failure to Comply. (1) Failure to Give Notice or to Submit to Examination. The court may exclude any expert evidence from the defendant on the issue of the defendant’s mental disease, mental defect, or

429

Rule 12.3

FEDERAL RULES OF CRIMINAL PROCEDURE

20

any other mental condition bearing on the defendant’s guilt or the issue of punishment in a capital case if the defendant fails to: (A) give notice under Rule 12.2(b); or (B) submit to an examination when ordered under Rule 12.2(c). (2) Failure to Disclose. The court may exclude any expert evidence for which the defendant has failed to comply with the disclosure requirement of Rule 12.2(c)(3). (e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.2(a) or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention. (As added Apr. 22, 1974, eff. Dec. 1, 1975; amended July 31, 1975, eff. Dec. 1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984; Oct. 30, 1984, eff. Oct. 12, 1984; Apr. 29, 1985, eff. Aug. 1, 1985; Nov. 10, 1986; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.) Rule 12.3. Notice of a Public-Authority Defense (a) Notice of the Defense and Disclosure of Witnesses. (1) Notice in General. If a defendant intends to assert a defense of actual or believed exercise of public authority on behalf of a law enforcement agency or federal intelligence agency at the time of the alleged offense, the defendant must so notify an attorney for the government in writing and must file a copy of the notice with the clerk within the time provided for filing a pretrial motion, or at any later time the court sets. The notice filed with the clerk must be under seal if the notice identifies a federal intelligence agency as the source of public authority. (2) Contents of Notice. The notice must contain the following information: (A) the law enforcement agency or federal intelligence agency involved; (B) the agency member on whose behalf the defendant claims to have acted; and (C) the time during which the defendant claims to have acted with public authority. (3) Response to the Notice. An attorney for the government must serve a written response on the defendant or the defendant’s attorney within 10 days after receiving the defendant’s notice, but no later than 20 days before trial. The response must admit or deny that the defendant exercised the public authority identified in the defendant’s notice. (4) Disclosing Witnesses. (A) Government’s Request. An attorney for the government may request in writing that the defendant disclose the name, address, and telephone number of each witness the defendant intends to rely on to establish a public-authority defense. An attorney for the government may serve the request when the government serves its response to the defendant’s notice under Rule 12.3(a)(3), or later, but must serve the request no later than 20 days before trial.

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 12.4

(B) Defendant’s Response. Within 7 days after receiving the government’s request, the defendant must serve on an attorney for the government a written statement of the name, address, and telephone number of each witness. (C) Government’s Reply. Within 7 days after receiving the defendant’s statement, an attorney for the government must serve on the defendant or the defendant’s attorney a written statement of the name, address, and telephone number of each witness the government intends to rely on to oppose the defendant’s public-authority defense. (5) Additional Time. The court may, for good cause, allow a party additional time to comply with this rule. (b) Continuing Duty to Disclose. Both an attorney for the government and the defendant must promptly disclose in writing to the other party the name, address, and telephone number of any additional witness if: (1) the disclosing party learns of the witness before or during trial; and (2) the witness should have been disclosed under Rule 12.3(a)(4) if the disclosing party had known of the witness earlier. (c) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the public-authority defense. This rule does not limit the defendant’s right to testify. (d) Protective Procedures Unaffected. This rule does not limit the court’s authority to issue appropriate protective orders or to order that any filings be under seal. (e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.3(a), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention. (As added Nov. 18, 1988; amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 12.4. Disclosure Statement (a) Who Must File. (1) Nongovernmental Corporate Party. Any nongovernmental corporate party to a proceeding in a district court must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation. (2) Organizational Victim. If an organization is a victim of the alleged criminal activity, the government must file a statement identifying the victim. If the organizational victim is a corporation, the statement must also disclose the information required by Rule 12.4(a)(1) to the extent it can be obtained through due diligence. (b) Time for Filing; Supplemental Filing. A party must: (1) file the Rule 12.4(a) statement upon the defendant’s initial appearance; and (2) promptly file a supplemental statement upon any change in the information that the statement requires. (As added Apr. 29, 2002, eff. Dec. 1, 2002.)

431

Rule 13

FEDERAL RULES OF CRIMINAL PROCEDURE

22

Rule 13. Joint Trial of Separate Cases The court may order that separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 14. Relief from Prejudicial Joinder (a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires. (b) Defendant’s Statements. Before ruling on a defendant’s motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendant’s statement that the government intends to use as evidence. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 15. Depositions (a) When Taken. (1) In General. A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data. (2) Detained Material Witness. A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript. (b) Notice. (1) In General. A party seeking to take a deposition must give every other party reasonable written notice of the deposition’s date and location. The notice must state the name and address of each deponent. If requested by a party receiving the notice, the court may, for good cause, change the deposition’s date or location. (2) To the Custodial Officer. A party seeking to take the deposition must also notify the officer who has custody of the defendant of the scheduled date and location. (c) Defendant’s Presence. (1) Defendant in Custody. The officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witness’s presence during the examination, unless the defendant: (A) waives in writing the right to be present; or

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Rule 16

(B) persists in disruptive conduct justifying exclusion after being warned by the court that disruptive conduct will result in the defendant’s exclusion. (2) Defendant Not in Custody. A defendant who is not in custody has the right upon request to be present at the deposition, subject to any conditions imposed by the court. If the government tenders the defendant’s expenses as provided in Rule 15(d) but the defendant still fails to appear, the defendant—absent good cause—waives both the right to appear and any objection to the taking and use of the deposition based on that right. (d) Expenses. If the deposition was requested by the government, the court may—or if the defendant is unable to bear the deposition expenses, the court must—order the government to pay: (1) any reasonable travel and subsistence expenses of the defendant and the defendant’s attorney to attend the deposition; and (2) the costs of the deposition transcript. (e) Manner of Taking. Unless these rules or a court order provides otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action, except that: (1) A defendant may not be deposed without that defendant’s consent. (2) The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial. (3) The government must provide to the defendant or the defendant’s attorney, for use at the deposition, any statement of the deponent in the government’s possession to which the defendant would be entitled at trial. (f) Use as Evidence. A party may use all or part of a deposition as provided by the Federal Rules of Evidence. (g) Objections. A party objecting to deposition testimony or evidence must state the grounds for the objection during the deposition. (h) Depositions by Agreement Permitted. The parties may by agreement take and use a deposition with the court’s consent. (As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Oct. 12, 1984; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 16. Discovery and Inspection (a) Government’s Disclosure. (1) Information Subject to Disclosure. (A) Defendant’s Oral Statement. Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial. (B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:

433

Rule 16

FEDERAL RULES OF CRIMINAL PROCEDURE

24

(i) any relevant written or recorded statement by the defendant if: • the statement is within the government’s possession, custody, or control; and • the attorney for the government knows—or through due diligence could know—that the statement exists; (ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and (iii) the defendant’s recorded testimony before a grand jury relating to the charged offense. (C) Organizational Defendant. Upon a defendant’s request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement: (i) was legally able to bind the defendant regarding the subject of the statement because of that person’s position as the defendant’s director, officer, employee, or agent; or (ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person’s position as the defendant’s director, officer, employee, or agent. (D) Defendant’s Prior Record. Upon a defendant’s request, the government must furnish the defendant with a copy of the defendant’s prior criminal record that is within the government’s possession, custody, or control if the attorney for the government knows—or through due diligence could know—that the record exists. (E) Documents and Objects. Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant. (F) Reports of Examinations and Tests. Upon a defendant’s request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the government’s possession, custody, or control; (ii) the attorney for the government knows—or through due diligence could know—that the item exists; and

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 16

(iii) the item is material to preparing the defense or the government intends to use the item in its case-inchief at trial. (G) Expert Witnesses. At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant’s request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant’s mental condition. The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. (2) Information Not Subject to Disclosure. Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500. (3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a grand jury’s recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2. (b) Defendant’s Disclosure. (1) Information Subject to Disclosure. (A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if: (i) the item is within the defendant’s possession, custody, or control; and (ii) the defendant intends to use the item in the defendant’s case-in-chief at trial. (B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the defendant’s possession, custody, or control; and (ii) the defendant intends to use the item in the defendant’s case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness’s testimony. (C) Expert Witnesses. The defendant must, at the government’s request, give to the government a written summary of any testimony that the defendant intends to use under

435

Rule 17

FEDERAL RULES OF CRIMINAL PROCEDURE

26

Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if— (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or (ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition. This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications[.] (2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of: (A) reports, memoranda, or other documents made by the defendant, or the defendant’s attorney or agent, during the case’s investigation or defense; or (B) a statement made to the defendant, or the defendant’s attorney or agent, by: (i) the defendant; (ii) a government or defense witness; or (iii) a prospective government or defense witness. (c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if: (1) the evidence or material is subject to discovery or inspection under this rule; and (2) the other party previously requested, or the court ordered, its production. (d) Regulating Discovery. (1) Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal. (2) Failure to Comply. If a party fails to comply with this rule, the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Dec. 12, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002; Nov. 2, 2002, eff. Dec. 1, 2002.) Rule 17. Subpoena (a) Content. A subpoena must state the court’s name and the title of the proceeding, include the seal of the court, and command

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27

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 17

the witness to attend and testify at the time and place the subpoena specifies. The clerk must issue a blank subpoena—signed and sealed—to the party requesting it, and that party must fill in the blanks before the subpoena is served. (b) Defendant Unable to Pay. Upon a defendant’s ex parte application, the court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness’s fees and the necessity of the witness’s presence for an adequate defense. If the court orders a subpoena to be issued, the process costs and witness fees will be paid in the same manner as those paid for witnesses the government subpoenas. (c) Producing Documents and Objects. (1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. (2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive. (d) Service. A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena. The server must deliver a copy of the subpoena to the witness and must tender to the witness one day’s witness-attendance fee and the legal mileage allowance. The server need not tender the attendance fee or mileage allowance when the United States, a federal officer, or a federal agency has requested the subpoena. (e) Place of Service. (1) In the United States. A subpoena requiring a witness to attend a hearing or trial may be served at any place within the United States. (2) In a Foreign Country. If the witness is in a foreign country, 28 U.S.C. § 1783 governs the subpoena’s service. (f) Issuing a Deposition Subpoena. (1) Issuance. A court order to take a deposition authorizes the clerk in the district where the deposition is to be taken to issue a subpoena for any witness named or described in the order. (2) Place. After considering the convenience of the witness and the parties, the court may order—and the subpoena may require—the witness to appear anywhere the court designates. (g) Contempt. The court (other than a magistrate judge) may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district. A magistrate judge may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by that magistrate judge as provided in 28 U.S.C. § 636(e). (h) Information Not Subject to a Subpoena. No party may subpoena a statement of a witness or of a prospective witness under this rule. Rule 26.2 governs the production of the statement. (As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975;

437

Rule 17.1

FEDERAL RULES OF CRIMINAL PROCEDURE

28

July 31, 1975, eff. Dec. 1, 1975; Apr. 30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 17.1. Pretrial Conference On its own, or on a party’s motion, the court may hold one or more pretrial conferences to promote a fair and expeditious trial. When a conference ends, the court must prepare and file a memorandum of any matters agreed to during the conference. The government may not use any statement made during the conference by the defendant or the defendant’s attorney unless it is in writing and is signed by the defendant and the defendant’s attorney. (As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE V. VENUE Rule 18. Place of Prosecution and Trial Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 19. [Reserved] Rule 20. Transfer for Plea and Sentence (a) Consent to Transfer. A prosecution may be transferred from the district where the indictment or information is pending, or from which a warrant on a complaint has been issued, to the district where the defendant is arrested, held, or present if: (1) the defendant states in writing a wish to plead guilty or nolo contendere and to waive trial in the district where the indictment, information, or complaint is pending, consents in writing to the court’s disposing of the case in the transferee district, and files the statement in the transferee district; and (2) the United States attorneys in both districts approve the transfer in writing. (b) Clerk’s Duties. After receiving the defendant’s statement and the required approvals, the clerk where the indictment, information, or complaint is pending must send the file, or a certified copy, to the clerk in the transferee district. (c) Effect of a Not Guilty Plea. If the defendant pleads not guilty after the case has been transferred under Rule 20(a), the clerk must return the papers to the court where the prosecution began, and that court must restore the proceeding to its docket. The defendant’s statement that the defendant wished to plead guilty or nolo contendere is not, in any civil or criminal proceeding, admissible against the defendant. (d) Juveniles. (1) Consent to Transfer. A juvenile, as defined in 18 U.S.C. § 5031, may be proceeded against as a juvenile delinquent in the district where the juvenile is arrested, held, or present if:

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 23

(A) the alleged offense that occurred in the other district is not punishable by death or life imprisonment; (B) an attorney has advised the juvenile; (C) the court has informed the juvenile of the juvenile’s rights—including the right to be returned to the district where the offense allegedly occurred—and the consequences of waiving those rights; (D) the juvenile, after receiving the court’s information about rights, consents in writing to be proceeded against in the transferee district, and files the consent in the transferee district; (E) the United States attorneys for both districts approve the transfer in writing; and (F) the transferee court approves the transfer. (2) Clerk’s Duties. After receiving the juvenile’s written consent and the required approvals, the clerk where the indictment, information, or complaint is pending or where the alleged offense occurred must send the file, or a certified copy, to the clerk in the transferee district. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Apr. 28, 1982, eff. Aug. 1, 1982; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 21. Transfer for Trial (a) For Prejudice. Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there. (b) For Convenience. Upon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties and witnesses and in the interest of justice. (c) Proceedings on Transfer. When the court orders a transfer, the clerk must send to the transferee district the file, or a certified copy, and any bail taken. The prosecution will then continue in the transferee district. (d) Time to File a Motion to Transfer. A motion to transfer may be made at or before arraignment or at any other time the court or these rules prescribe. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 22. [Transferred] TITLE VI. TRIAL Rule 23. Jury or Nonjury Trial (a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.

439

Rule 24

FEDERAL RULES OF CRIMINAL PROCEDURE

30

(b) Jury Size. (1) In General. A jury consists of 12 persons unless this rule provides otherwise. (2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court’s approval, stipulate in writing that: (A) the jury may consist of fewer than 12 persons; or (B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins. (3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror. (c) Nonjury Trial. In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. (As amended Feb. 28, 1966, eff. July 1, 1966; July 30, 1977, eff. Oct. 1, 1977; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 24. Trial Jurors (a) Examination. (1) In General. The court may examine prospective jurors or may permit the attorneys for the parties to do so. (2) Court Examination. If the court examines the jurors, it must permit the attorneys for the parties to: (A) ask further questions that the court considers proper; or (B) submit further questions that the court may ask if it considers them proper. (b) Peremptory Challenges. Each side is entitled to the number of peremptory challenges to prospective jurors specified below. The court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly. (1) Capital Case. Each side has 20 peremptory challenges when the government seeks the death penalty. (2) Other Felony Case. The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year. (3) Misdemeanor Case. Each side has 3 peremptory challenges when the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both. (c) Alternate Jurors. (1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties. (2) Procedure. (A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

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Rule 26

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors. (3) Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew. (4) Peremptory Challenges. Each side is entitled to the number of additional peremptory challenges to prospective alternate jurors specified below. These additional challenges may be used only to remove alternate jurors. (A) One or Two Alternates. One additional peremptory challenge is permitted when one or two alternates are impaneled. (B) Three or Four Alternates. Two additional peremptory challenges are permitted when three or four alternates are impaneled. (C) Five or Six Alternates. Three additional peremptory challenges are permitted when five or six alternates are impaneled. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 25. Judge’s Disability (a) During Trial. Any judge regularly sitting in or assigned to the court may complete a jury trial if: (1) the judge before whom the trial began cannot proceed because of death, sickness, or other disability; and (2) the judge completing the trial certifies familiarity with the trial record. (b) After a Verdict or Finding of Guilty. (1) In General. After a verdict or finding of guilty, any judge regularly sitting in or assigned to a court may complete the court’s duties if the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability. (2) Granting a New Trial. The successor judge may grant a new trial if satisfied that: (A) a judge other than the one who presided at the trial cannot perform the post-trial duties; or (B) a new trial is necessary for some other reason. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 26. Taking Testimony In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by rules adopted under 28 U.S.C. §§ 2072–2077. (As amended Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)

441

Rule 26.1

FEDERAL RULES OF CRIMINAL PROCEDURE

32

Rule 26.1. Foreign Law Determination A party intending to raise an issue of foreign law must provide the court and all parties with reasonable written notice. Issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or source—including testimony—without regard to the Federal Rules of Evidence. (As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 26.2. Producing a Witness’s Statement (a) Motion to Produce. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony. (b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witness’s testimony, the court must order that the statement be delivered to the moving party. (c) Producing a Redacted Statement. If the party who called the witness claims that the statement contains information that is privileged or does not relate to the subject matter of the witness’s testimony, the court must inspect the statement in camera. After excising any privileged or unrelated portions, the court must order delivery of the redacted statement to the moving party. If the defendant objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record. (d) Recess to Examine a Statement. The court may recess the proceedings to allow time for a party to examine the statement and prepare for its use. (e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires. (f) ‘‘Statement’’ Defined. As used in this rule, a witness’s ‘‘statement’’ means: (1) a written statement that the witness makes and signs, or otherwise adopts or approves; (2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or (3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement. (g) Scope. This rule applies at trial, at a suppression hearing under Rule 12, and to the extent specified in the following rules: (1) Rule 5.1(h) (preliminary hearing); (2) Rule 32(i)(2) (sentencing); (3) Rule 32.1(e) (hearing to revoke or modify probation or supervised release); (4) Rule 46(j) (detention hearing); and (5) Rule 8 of the Rules Governing Proceedings under 28 U.S.C. § 2255.

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Rule 29

(As added Apr. 30, 1979, eff. Dec. 1, 1980; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 26.3. Mistrial Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. (As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 27. Proving an Official Record A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action. (As amended Apr. 29, 2002, eff. Dec, 1, 2002.) Rule 28. Interpreters The court may select, appoint, and set the reasonable compensation for an interpreter. The compensation must be paid from funds provided by law or by the government, as the court may direct. (As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 29. Motion for a Judgment of Acquittal (a) Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the defendant may offer evidence without having reserved the right to do so. (b) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved. (c) After Jury Verdict or Discharge. (1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later. (2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal. (3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the

443

Rule 29.1

FEDERAL RULES OF CRIMINAL PROCEDURE

34

case to the jury as a prerequisite for making such a motion after jury discharge. (d) Conditional Ruling on a Motion for a New Trial. (1) Motion for a New Trial. If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination. (2) Finality. The court’s order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal. (3) Appeal. (A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new trial and an appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise. (B) Denial of a Motion for a New Trial. If the court conditionally denies a motion for a new trial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs. (As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 10, 1986, eff. Dec. 10, 1986; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.) Rule 29.1. Closing Argument Closing arguments proceed in the following order: (a) the government argues; (b) the defense argues; and (c) the government rebuts. (As added Apr. 22, 1974, eff. Dec. 1, 1975; amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 30. Jury Instructions (a) In General. Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party. (b) Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions. (c) Time for Giving Instructions. The court may instruct the jury before or after the arguments are completed, or at both times. (d) Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 32

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 31. Jury Verdict (a) Return. The jury must return its verdict to a judge in open court. The verdict must be unanimous. (b) Partial Verdicts, Mistrial, and Retrial. (1) Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed. (2) Multiple Counts. If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed. (3) Mistrial and Retrial. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree. (c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following: (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right. (d) Jury Poll. After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE VII. POST–CONVICTION PROCEDURES Rule 32. Sentence and Judgment (a) Definitions. The following definitions apply under this rule: (1) ‘‘Crime of violence or sexual abuse’’ means: (A) a crime that involves the use, attempted use, or threatened use of physical force against another’s person or property; or (B) a crime under 18 U.S.C. §§ 2241–2248 or §§ 2251–2257. (2) ‘‘Victim’’ means an individual against whom the defendant committed an offense for which the court will impose sentence. (b) Time of Sentencing. (1) In General. The court must impose sentence without unnecessary delay. (2) Changing Time Limits. The court may, for good cause, change any time limits prescribed in this rule. (c) Presentence Investigation. (1) Required Investigation. (A) In General. The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless:

445

Rule 32

FEDERAL RULES OF CRIMINAL PROCEDURE

36

(i) 18 U.S.C. § 3593(c) or another statute requires otherwise; or (ii) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains its finding on the record. (B) Restitution. If the law requires restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution. (2) Interviewing the Defendant. The probation officer who interviews a defendant as part of a presentence investigation must, on request, give the defendant’s attorney notice and a reasonable opportunity to attend the interview. (d) Presentence Report. (1) Applying the Advisory Sentencing Guidelines. The presentence report must: (A) identify all applicable guidelines and policy statements of the Sentencing Commission; (B) calculate the defendant’s offense level and criminal history category; (C) state the resulting sentencing range and kinds of sentences available; (D) identify any factor relevant to: (i) the appropriate kind of sentence, or (ii) the appropriate sentence within the applicable sentencing range; and (E) identify any basis for departing from the applicable sentencing range. (2) Additional Information. The presentence report must also contain the following information: (A) the defendant’s history and characteristics, including: (i) any prior criminal record; (ii) the defendant’s financial condition; and (iii) any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or in correctional treatment; (B) verified information, stated in a nonargumentative style, that assesses the financial, social, psychological, and medical impact on any individual against whom the offense has been committed; (C) when appropriate, the nature and extent of nonprison programs and resources available to the defendant; (D) when the law provides for restitution, information sufficient for a restitution order; (E) if the court orders a study under 18 U.S.C. § 3552(b), any resulting report and recommendation; and (F) any other information that the court requires, including information relevant to the factors under 18 U.S.C. § 3553(a). (3) Exclusions. The presentence report must exclude the following: (A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program;

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 32

(B) any sources of information obtained upon a promise of confidentiality; and (C) any other information that, if disclosed, might result in physical or other harm to the defendant or others. (e) Disclosing the Report and Recommendation. (1) Time to Disclose. Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty. (2) Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period. (3) Sentence Recommendation. By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence. (f) Objecting to the Report. (1) Time to Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report. (2) Serving Objections. An objecting party must provide a copy of its objections to the opposing party and to the probation officer. (3) Action on Objections. After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further and revise the presentence report as appropriate. (g) Submitting the Report. At least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer’s comments on them. (h) Notice of Possible Departure from Sentencing Guidelines. Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure. (i) Sentencing. (1) In General. At sentencing, the court: (A) must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report; (B) must give to the defendant and an attorney for the government a written summary of—or summarize in camera—any information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them a reasonable opportunity to comment on that information;

447

Rule 32

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38

(C) must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence; and (D) may, for good cause, allow a party to make a new objection at any time before sentence is imposed. (2) Introducing Evidence; Producing a Statement. The court may permit the parties to introduce evidence on the objections. If a witness testifies at sentencing, Rule 26.2(a)–(d) and (f) applies. If a party fails to comply with a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s testimony. (3) Court Determinations. At sentencing, the court: (A) may accept any undisputed portion of the presentence report as a finding of fact; (B) must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and (C) must append a copy of the court’s determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons. (4) Opportunity to Speak. (A) By a Party. Before imposing sentence, the court must: (i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf; (ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and (iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney. (B) By a Victim. Before imposing sentence, the court must address any victim of a crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence. Whether or not the victim is present, a victim’s right to address the court may be exercised by the following persons if present: (i) a parent or legal guardian, if the victim is younger than 18 years or is incompetent; or (ii) one or more family members or relatives the court designates, if the victim is deceased or incapacitated. (C) In Camera Proceedings. Upon a party’s motion and for good cause, the court may hear in camera any statement made under Rule 32(i)(4). (j) Defendant’s Right to Appeal. (1) Advice of a Right to Appeal. (A) Appealing a Conviction. If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction. (B) Appealing a Sentence. After sentencing—regardless of the defendant’s plea—the court must advise the defendant of any right to appeal the sentence.

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Rule 32.1

(C) Appeal Costs. The court must advise a defendant who is unable to pay appeal costs of the right to ask for permission to appeal in forma pauperis. (2) Clerk’s Filing of Notice. If the defendant so requests, the clerk must immediately prepare and file a notice of appeal on the defendant’s behalf. (k) Judgment. (1) In General. In the judgment of conviction, the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence. If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it. (2) Criminal Forfeiture. Forfeiture procedures are governed by Rule 32.2. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Apr. 30, 1979, eff. Aug. 1, 1979, and Dec. 1, 1980; Oct. 12, 1982; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1996; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 32.1. Revoking or Modifying Probation or Supervised Release (a) Initial Appearance. (1) Person In Custody. A person held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge. (A) If the person is held in custody in the district where an alleged violation occurred, the initial appearance must be in that district. (B) If the person is held in custody in a district other than where an alleged violation occurred, the initial appearance must be in that district, or in an adjacent district if the appearance can occur more promptly there. (2) Upon a Summons. When a person appears in response to a summons for violating probation or supervised release, a magistrate judge must proceed under this rule. (3) Advice. The judge must inform the person of the following: (A) the alleged violation of probation or supervised release; (B) the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and (C) the person’s right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1). (4) Appearance in the District With Jurisdiction. If the person is arrested or appears in the district that has jurisdiction to conduct a revocation hearing—either originally or by transfer of jurisdiction—the court must proceed under Rule 32.1(b)–(e).

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40

(5) Appearance in a District Lacking Jurisdiction. If the person is arrested or appears in a district that does not have jurisdiction to conduct a revocation hearing, the magistrate judge must: (A) if the alleged violation occurred in the district of arrest, conduct a preliminary hearing under Rule 32.1(b) and either: (i) transfer the person to the district that has jurisdiction, if the judge finds probable cause to believe that a violation occurred; or (ii) dismiss the proceedings and so notify the court that has jurisdiction, if the judge finds no probable cause to believe that a violation occurred; or (B) if the alleged violation did not occur in the district of arrest, transfer the person to the district that has jurisdiction if: (i) the government produces certified copies of the judgment, warrant, and warrant application, or produces copies of those certified documents by reliable electronic means; and (ii) the judge finds that the person is the same person named in the warrant. (6) Release or Detention. The magistrate judge may release or detain the person under 18 U.S.C. § 3143(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person. (b) Revocation. (1) Preliminary Hearing. (A) In General. If a person is in custody for violating a condition of probation or supervised release, a magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred. The person may waive the hearing. (B) Requirements. The hearing must be recorded by a court reporter or by a suitable recording device. The judge must give the person: (i) notice of the hearing and its purpose, the alleged violation, and the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; (ii) an opportunity to appear at the hearing and present evidence; and (iii) upon request, an opportunity to question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear. (C) Referral. If the judge finds probable cause, the judge must conduct a revocation hearing. If the judge does not find probable cause, the judge must dismiss the proceeding. (2) Revocation Hearing. Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to: (A) written notice of the alleged violation;

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 32.2

(B) disclosure of the evidence against the person; (C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear; (D) notice of the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and (E) an opportunity to make a statement and present any information in mitigation. (c) Modification. (1) In General. Before modifying the conditions of probation or supervised release, the court must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and present any information in mitigation. (2) Exceptions. A hearing is not required if: (A) the person waives the hearing; or (B) the relief sought is favorable to the person and does not extend the term of probation or of supervised release; and (C) an attorney for the government has received notice of the relief sought, has had a reasonable opportunity to object, and has not done so. (d) Disposition of the Case. The court’s disposition of the case is governed by 18 U.S.C. § 3563 and § 3565 (probation) and § 3583 (supervised release). (e) Producing a Statement. Rule 26.2(a)–(d) and (f) applies at a hearing under this rule. If a party fails to comply with a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s testimony. (As added Apr. 30, 1979, eff. Dec. 1, 1980; amended Nov. 10, 1986, eff. Dec. 10, 1986; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 32.2. Criminal Forfeiture (a) Notice to the Defendant. A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute. (b) Entering a Preliminary Order of Forfeiture. (1) In General. As soon as practicable after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted, on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute. If the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay. The court’s determination may

451

Rule 32.2

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42

be based on evidence already in the record, including any written plea agreement or, if the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt. (2) Preliminary Order. If the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment or directing the forfeiture of specific property without regard to any third party’s interest in all or part of it. Determining whether a third party has such an interest must be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2(c). (3) Seizing Property. The entry of a preliminary order of forfeiture authorizes the Attorney General (or a designee) to seize the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third-party rights. At sentencing—or at any time before sentencing if the defendant consents—the order of forfeiture becomes final as to the defendant and must be made a part of the sentence and be included in the judgment. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property’s value pending any appeal. (4) Jury Determination. Upon a party’s request in a case in which a jury returns a verdict of guilty, the jury must determine whether the government has established the requisite nexus between the property and the offense committed by the defendant. (c) Ancillary Proceeding; Entering a Final Order of Forfeiture. (1) In General. If, as prescribed by statute, a third party files a petition asserting an interest in the property to be forfeited, the court must conduct an ancillary proceeding, but no ancillary proceeding is required to the extent that the forfeiture consists of a money judgment. (A) In the ancillary proceeding, the court may, on motion, dismiss the petition for lack of standing, for failure to state a claim, or for any other lawful reason. For purposes of the motion, the facts set forth in the petition are assumed to be true. (B) After disposing of any motion filed under Rule 32.2(c)(1)(A) and before conducting a hearing on the petition, the court may permit the parties to conduct discovery in accordance with the Federal Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues. When discovery ends, a party may move for summary judgment under Federal Rule of Civil Procedure 56. (2) Entering a Final Order. When the ancillary proceeding ends, the court must enter a final order of forfeiture by amending the preliminary order as necessary to account for any third-party rights. If no third party files a timely petition, the preliminary order becomes the final order of forfeiture if the court finds that the defendant (or any combination of defendants convicted in the case) had an interest in the

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 33

property that is forfeitable under the applicable statute. The defendant may not object to the entry of the final order on the ground that the property belongs, in whole or in part, to a codefendant or third party; nor may a third party object to the final order on the ground that the third party had an interest in the property. (3) Multiple Petitions. If multiple third-party petitions are filed in the same case, an order dismissing or granting one petition is not appealable until rulings are made on all the petitions, unless the court determines that there is no just reason for delay. (4) Ancillary Proceeding Not Part of Sentencing. An ancillary proceeding is not part of sentencing. (d) Stay Pending Appeal. If a defendant appeals from a conviction or an order of forfeiture, the court may stay the order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay does not delay the ancillary proceeding or the determination of a third party’s rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may amend the order of forfeiture but must not transfer any property interest to a third party until the decision on appeal becomes final, unless the defendant consents in writing or on the record. (e) Subsequently Located Property; Substitute Property. (1) In General. On the government’s motion, the court may at any time enter an order of forfeiture or amend an existing order of forfeiture to include property that: (A) is subject to forfeiture under an existing order of forfeiture but was located and identified after that order was entered; or (B) is substitute property that qualifies for forfeiture under an applicable statute. (2) Procedure. If the government shows that the property is subject to forfeiture under Rule 32.2(e)(1), the court must: (A) enter an order forfeiting that property, or amend an existing preliminary or final order to include it; and (B) if a third party files a petition claiming an interest in the property, conduct an ancillary proceeding under Rule 32.2(c). (3) Jury Trial Limited. There is no right to a jury trial under Rule 32.2(e). (As added Apr. 17, 2000, eff. Dec. 1, 2000; amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 33. New Trial (a) Defendant’s Motion. Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment. (b) Time to File. (1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

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Rule 34

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44

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty. (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.) Rule 34. Arresting Judgment (a) In General. Upon the defendant’s motion or on its own, the court must arrest judgment if: (1) the indictment or information does not charge an offense; or (2) the court does not have jurisdiction of the charged offense. (b) Time to File. The defendant must move to arrest judgment within 7 days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.) Rule 35. Correcting or Reducing a Sentence (a) Correcting Clear Error. Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error. (b) Reducing a Sentence for Substantial Assistance. (1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. (2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved: (A) information not known to the defendant until one year or more after sentencing; (B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or (C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant. (3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s presentence assistance. (4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute. (c) ‘‘Sentencing’’ Defined. As used in this rule, ‘‘sentencing’’ means the oral announcement of the sentence. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, eff. Nov. 1, 1987;

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 38

Apr. 29, 1985, eff. Aug. 1, 1985; Oct. 27, 1986, eff. Nov. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 26, 2004, eff. Dec. 1, 2004; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 36. Clerical Error After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 37. [Reserved] Rule 38. Staying a Sentence or a Disability (a) Death Sentence. The court must stay a death sentence if the defendant appeals the conviction or sentence. (b) Imprisonment. (1) Stay Granted. If the defendant is released pending appeal, the court must stay a sentence of imprisonment. (2) Stay Denied; Place of Confinement. If the defendant is not released pending appeal, the court may recommend to the Attorney General that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal. (c) Fine. If the defendant appeals, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay a sentence to pay a fine or a fine and costs. The court may stay the sentence on any terms considered appropriate and may require the defendant to: (1) deposit all or part of the fine and costs into the district court’s registry pending appeal; (2) post a bond to pay the fine and costs; or (3) submit to an examination concerning the defendant’s assets and, if appropriate, order the defendant to refrain from dissipating assets. (d) Probation. If the defendant appeals, the court may stay a sentence of probation. The court must set the terms of any stay. (e) Restitution and Notice to Victims. (1) In General. If the defendant appeals, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay—on any terms considered appropriate—any sentence providing for restitution under 18 U.S.C. § 3556 or notice under 18 U.S.C. § 3555. (2) Ensuring Compliance. The court may issue any order reasonably necessary to ensure compliance with a restitution order or a notice order after disposition of an appeal, including: (A) a restraining order; (B) an injunction; (C) an order requiring the defendant to deposit all or part of any monetary restitution into the district court’s registry; or (D) an order requiring the defendant to post a bond. (f) Forfeiture. A stay of a forfeiture order is governed by Rule 32.2(d).

455

Rule 39

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46

(g) Disability. If the defendant’s conviction or sentence creates a civil or employment disability under federal law, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay the disability pending appeal on any terms considered appropriate. The court may issue any order reasonably necessary to protect the interest represented by the disability pending appeal, including a restraining order or an injunction. (As amended Dec. 27, 1948, eff. Jan. 1, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Apr. 24, 1972, eff. Oct. 1, 1972; Oct. 12, 1984, eff. Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 39. [Reserved] TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS Rule 40. Arrest for Failing to Appear in Another District or for Violating Conditions of Release Set in Another District (a) In General. A person must be taken without unnecessary delay before a magistrate judge in the district of arrest if the person has been arrested under a warrant issued in another district for: (i) failing to appear as required by the terms of that person’s release under 18 U.S.C. §§ 3141–3156 or by a subpoena; or (ii) violating conditions of release set in another district. (b) Proceedings. The judge must proceed under Rule 5(c)(3) as applicable. (c) Release or Detention Order. The judge may modify any previous release or detention order issued in another district, but must state in writing the reasons for doing so. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1982, eff. Aug. 1, 1982; Oct. 12, 1984, eff. Oct. 12, 1984, and Nov. 1, 1987; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 41. Search and Seizure (a) Scope and Definitions. (1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances. (2) Definitions. The following definitions apply under this rule: (A) ‘‘Property’’ includes documents, books, papers, any other tangible objects, and information. (B) ‘‘Daytime’’ means the hours between 6:00 a.m. and 10:00 p.m. according to local time. (C) ‘‘Federal law enforcement officer’’ means a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant. (D) ‘‘Domestic terrorism’’ and ‘‘international terrorism’’ have the meanings set out in 18 U.S.C. § 2331.

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 41

(E) ‘‘Tracking device’’ has the meaning set out in 18 U.S.C. § 3117(b). (b) Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government: (1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district; (2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed; (3) a magistrate judge—in an investigation of domestic terrorism or international terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district; and (4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both. (c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following: (1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; (3) property designed for use, intended for use, or used in committing a crime; or (4) a person to be arrested or a person who is unlawfully restrained. (d) Obtaining a Warrant. (1) In General. After receiving an affidavit or other information, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record—must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device. (2) Requesting a Warrant in the Presence of a Judge. (A) Warrant on an Affidavit. When a federal law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces. (B) Warrant on Sworn Testimony. The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances. (C) Recording Testimony. Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.

457

Rule 41

FEDERAL RULES OF CRIMINAL PROCEDURE

48

(3) Requesting a Warrant by Telephonic or Other Means. (A) In General. A magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means. (B) Recording Testimony. Upon learning that an applicant is requesting a warrant under Rule 41(d)(3)(A), a magistrate judge must: (i) place under oath the applicant and any person on whose testimony the application is based; and (ii) make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing. (C) Certifying Testimony. The magistrate judge must have any recording or court reporter’s notes transcribed, certify the transcription’s accuracy, and file a copy of the record and the transcription with the clerk. Any written verbatim record must be signed by the magistrate judge and filed with the clerk. (D) Suppression Limited. Absent a finding of bad faith, evidence obtained from a warrant issued under Rule 41(d)(3)(A) is not subject to suppression on the ground that issuing the warrant in that manner was unreasonable under the circumstances. (e) Issuing the Warrant. (1) In General. The magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute it. (2) Contents of the Warrant. (A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to: (i) execute the warrant within a specified time no longer than 10 days; (ii) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and (iii) return the warrant to the magistrate judge designated in the warrant. (B) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to: (i) complete any installation authorized by the warrant within a specified time no longer than 10 calendar days; (ii) perform any installation authorized by the warrant during the daytime, unless the judge for good

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 41

cause expressly authorizes installation at another time; and (iii) return the warrant to the judge designated in the warrant. (3) Warrant by Telephonic or Other Means. If a magistrate judge decides to proceed under Rule 41(d)(3)(A), the following additional procedures apply: (A) Preparing a Proposed Duplicate Original Warrant. The applicant must prepare a ‘‘proposed duplicate original warrant’’ and must read or otherwise transmit the contents of that document verbatim to the magistrate judge. (B) Preparing an Original Warrant. If the applicant reads the contents of the proposed duplicate original warrant, the magistrate judge must enter those contents into an original warrant. If the applicant transmits the contents by reliable electronic means, that transmission may serve as the original warrant. (C) Modification. The magistrate judge may modify the original warrant. The judge must transmit any modified warrant to the applicant by reliable electronic means under Rule 41(e)(3)(D) or direct the applicant to modify the proposed duplicate original warrant accordingly. (D) Signing the Warrant. Upon determining to issue the warrant, the magistrate judge must immediately sign the original warrant, enter on its face the exact date and time it is issued, and transmit it by reliable electronic means to the applicant or direct the applicant to sign the judge’s name on the duplicate original warrant. (f) Executing and Returning the Warrant. (1) Warrant to Search for and Seize a Person or Property. (A) Noting the Time. The officer executing the warrant must enter on it the exact date and time it was executed. (B) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. (C) Receipt. The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. (D) Return. The officer executing the warrant must promptly return it—together with a copy of the inventory—to the magistrate judge designated on the warrant. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant. (2) Warrant for a Tracking Device. (A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.

459

Rule 42

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50

(B) Return. Within 10 calendar days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. (C) Service. Within 10 calendar days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person’s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3). (3) Delayed Notice. Upon the government’s request, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record—may delay any notice required by this rule if the delay is authorized by statute. (g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. (h) Motion to Suppress. A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides. (i) Forwarding Papers to the Clerk. The magistrate judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk in the district where the property was seized. (As amended Dec. 27, 1948, eff. Oct. 20, 1949; Apr. 9, 1956, eff. July 8, 1956; Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1, 1974; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; July 30, 1977, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; May 1, 1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Oct. 26, 2001; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 42. Criminal Contempt (a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice. (1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must: (A) state the time and place of the trial; (B) allow the defendant a reasonable time to prepare a defense; and (C) state the essential facts constituting the charged criminal contempt and describe it as such.

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Rule 43

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt. (3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment. (b) Summary Disposition. Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk. (As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) TITLE IX. GENERAL PROVISIONS Rule 43. Defendant’s Presence (a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at: (1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including jury impanelment and the return of the verdict; and (3) sentencing. (b) When Not Required. A defendant need not be present under any of the following circumstances: (1) Organizational Defendant. The defendant is an organization represented by counsel who is present. (2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant’s absence. (3) Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law. (4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c). (c) Waiving Continued Presence. (1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances: (A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

461

Rule 44

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52

(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or (C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom. (2) Waiver’s Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence. (As amended Apr. 22, 1974, eff. Dec. 1, 1975; July 31, 1975, eff. Dec. 1, 1975; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 44. Right to and Appointment of Counsel (a) Right to Appointed Counsel. A defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right. (b) Appointment Procedure. Federal law and local court rules govern the procedure for implementing the right to counsel. (c) Inquiry Into Joint Representation. (1) Joint Representation. Joint representation occurs when: (A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and (B) the defendants are represented by the same counsel, or counsel who are associated in law practice. (2) Court’s Responsibilities in Cases of Joint Representation. The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 45. Computing and Extending Time (a) Computing Time. The following rules apply in computing any period of time specified in these rules, any local rule, or any court order: (1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period. (2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days. (3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or day on which weather or other conditions make the clerk’s office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day when the clerk’s office is inaccessible.

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Rule 46

(4) ‘‘Legal Holiday’’ Defined. As used in this rule, ‘‘legal holiday’’ means: (A) the day set aside by statute for observing: (i) New Year’s Day; (ii) Martin Luther King, Jr.’s Birthday; (iii) Washington’s Birthday; (iv) Memorial Day; (v) Independence Day; (vi) Labor Day; (vii) Columbus Day; (viii) Veterans’ Day; (ix) Thanksgiving Day; (x) Christmas Day; and (B) any other day declared a holiday by the President, the Congress, or the state where the district court is held. (b) Extending Time. (1) In General. When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made: (A) before the originally prescribed or previously extended time expires; or (B) after the time expires if the party failed to act because of excusable neglect. (2) Exception. The court may not extend the time to take any action under Rule 35, except as stated in that rule. (c) Additional Time After Certain Kinds of Service. Whenever a party must or may act within a specified period after service and service is made in the manner provided under Federal Rule of Civil Procedure 5(b)(2)(B), (C), or (D), 3 days are added after the period would otherwise expire under subdivision (a). (As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 46. Release from Custody; Supervising Detention (a) Before Trial. The provisions of 18 U.S.C. §§ 3142 and 3144 govern pretrial release. (b) During Trial. A person released before trial continues on release during trial under the same terms and conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the person’s conduct will not obstruct the orderly and expeditious progress of the trial. (c) Pending Sentencing or Appeal. The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant. (d) Pending Hearing on a Violation of Probation or Supervised Release. Rule 32.1(a)(6) governs release pending a hearing on a violation of probation or supervised release. (e) Surety. The court must not approve a bond unless any surety appears to be qualified. Every surety, except a legally approved

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Rule 46

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54

corporate surety, must demonstrate by affidavit that its assets are adequate. The court may require the affidavit to describe the following: (1) the property that the surety proposes to use as security; (2) any encumbrance on that property; (3) the number and amount of any other undischarged bonds and bail undertakings the surety has issued; and (4) any other liability of the surety. (f) Bail Forfeiture. (1) Declaration. The court must declare the bail forfeited if a condition of the bond is breached. (2) Setting Aside. The court may set aside in whole or in part a bail forfeiture upon any condition the court may impose if: (A) the surety later surrenders into custody the person released on the surety’s appearance bond; or (B) it appears that justice does not require bail forfeiture. (3) Enforcement. (A) Default Judgment and Execution. If it does not set aside a bail forfeiture, the court must, upon the government’s motion, enter a default judgment. (B) Jurisdiction and Service. By entering into a bond, each surety submits to the district court’s jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability. (C) Motion to Enforce. The court may, upon the government’s motion, enforce the surety’s liability without an independent action. The government must serve any motion, and notice as the court prescribes, on the district clerk. If so served, the clerk must promptly mail a copy to the surety at its last known address. (4) Remission. After entering a judgment under Rule 46(f)(3), the court may remit in whole or in part the judgment under the same conditions specified in Rule 46(f)(2). (g) Exoneration. The court must exonerate the surety and release any bail when a bond condition has been satisfied or when the court has set aside or remitted the forfeiture. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody. (h) Supervising Detention Pending Trial. (1) In General. To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses. (2) Reports. An attorney for the government must report biweekly to the court, listing each material witness held in custody for more than 10 days pending indictment, arraignment, or trial. For each material witness listed in the report, an attorney for the government must state why the witness should not be released with or without a deposition being taken under Rule 15(a). (i) Forfeiture of Property. The court may dispose of a charged offense by ordering the forfeiture of 18 U.S.C. § 3142(c)(1)(B)(xi) property under 18 U.S.C. § 3146(d), if a fine in the amount of the property’s value would be an appropriate sentence for the charged offense.

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Rule 49

(j) Producing a Statement. (1) In General. Rule 26.2(a)–(d) and (f) applies at a detention hearing under 18 U.S.C. § 3142, unless the court for good cause rules otherwise. (2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s testimony at the detention hearing. (As amended Apr. 9, 1956, eff. July 8, 1956; Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Oct. 12, 1984; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Sept. 13, 1994; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 47. Motions and Supporting Affidavits (a) In General. A party applying to the court for an order must do so by motion. (b) Form and Content of a Motion. A motion—except when made during a trial or hearing—must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit. (c) Timing of a Motion. A party must serve a written motion— other than one that the court may hear ex parte—and any hearing notice at least 5 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application. (d) Affidavit Supporting a Motion. The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit at least one day before the hearing, unless the court permits later service. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 48. Dismissal (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent. (b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 49. Serving and Filing Papers (a) When Required. A party must serve on every other party any written motion (other than one to be heard ex parte), written notice, designation of the record on appeal, or similar paper. (b) How Made. Service must be made in the manner provided for a civil action. When these rules or a court order requires or permits service on a party represented by an attorney, service must be made on the attorney instead of the party, unless the court orders otherwise.

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Rule 49.1

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56

(c) Notice of a Court Order. When the court issues an order on any post-arraignment motion, the clerk must provide notice in a manner provided for in a civil action. Except as Federal Rule of Appellate Procedure 4(b) provides otherwise, the clerk’s failure to give notice does not affect the time to appeal, or relieve—or authorize the court to relieve—a party’s failure to appeal within the allowed time. (d) Filing. A party must file with the court a copy of any paper the party is required to serve. A paper must be filed in a manner provided for in a civil action. (As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 49.1. Privacy Protection For Filings Made with the Court (a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial-account number, or the home address of an individual, a party or nonparty making the filing may include only; (1) the last four digits of the social-security number and taxpayer-identification number; (2) the year of the individual’s birth; (3) the minor’s initials; (4) the last four digits of the financial-account number; and (5) the city and state of the home address. (b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following: (1) a financial-account number or real property address that identifies the property allegedly subject to forfeiture in a forfeiture proceeding; (2) the record of an administrative or agency proceeding; (3) the official record of a state-court proceeding; (4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; (5) a filing covered by Rule 49.1(d); (6) a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255; (7) a court filing that is related to a criminal matter or investigation and that is prepared before the filing of a criminal charge or is not filed as part of any docketed criminal case; (8) an arrest or search warrant; and (9) a charging document and an affidavit filed in support of any charging document. (c) Immigration Cases. A filing in an action brought under 28 U.S.C. § 2241 that relates to the petitioner’s immigration rights is governed by Federal Rule of Civil Procedure 5.2. (d) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record. (e) Protective Orders. For good cause, the court may by order in a case:

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Rule 53

(1) require redaction of additional information; or (2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court. (f) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record. (g) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. (h) Waiver of Protection of Identifiers. A person waives the protection of Rule 49.1(a) as to the person’s own information by filing it without redaction and not under seal. (As added Apr. 30, 2007, eff. Dec. 1, 2007.) Rule 50. Prompt Disposition Scheduling preference must be given to criminal proceedings as far as practicable. (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1, 1974; Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 51. Preserving Claimed Error (a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary. (b) Preserving a Claim of Error. A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103. (As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 52. Harmless and Plain Error (a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. (b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 53. Courtroom Photographing and Broadcasting Prohibited Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

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Rule 54

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58

Rule 54. [Transferred] 1 Rule 55. Records The clerk of the district court must keep records of criminal proceedings in the form prescribed by the Director of the Administrative Office of the United States Courts. The clerk must enter in the records every court order or judgment and the date of entry. (As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 56. When Court Is Open (a) In General. A district court is considered always open for any filing, and for issuing and returning process, making a motion, or entering an order. (b) Office Hours. The clerk’s office—with the clerk or a deputy in attendance—must be open during business hours on all days except Saturdays, Sundays, and legal holidays. (c) Special Hours. A court may provide by local rule or order that its clerk’s office will be open for specified hours on Saturdays or legal holidays other than than those set aside by statute for observing New Year’s Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, and Christmas Day. (As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 57. District Court Rules (a) In General. (1) Adopting Local Rules. Each district court acting by a majority of its district judges may, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice. A local rule must be consistent with—but not duplicative of—federal statutes and rules adopted under 28 U.S.C. § 2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. (2) Limiting Enforcement. A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of an unintentional failure to comply with the requirement. (b) Procedure When There Is No Controlling Law. A judge may regulate practice in any manner consistent with federal law, these rules, and the local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules unless the alleged violator was furnished with actual notice of the requirement before the noncompliance. 1 All

of Rule 54 was moved to Rule 1.

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Rule 58

(c) Effective Date and Notice. A local rule adopted under this rule takes effect on the date specified by the district court and remains in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of local rules and their amendments, when promulgated, must be furnished to the judicial council and the Administrative Office of the United States Courts and must be made available to the public. (As amended Dec. 27, 1948, eff. Oct. 20, 1949; Dec. 4, 1967, eff. July 1, 1968; Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 29, 2002, eff. Dec. 1, 2002.) Rule 58. Petty Offenses and Other Misdemeanors (a) Scope. (1) In General. These rules apply in petty offense and other misdemeanor cases and on appeal to a district judge in a case tried by a magistrate judge, unless this rule provides otherwise. (2) Petty Offense Case Without Imprisonment. In a case involving a petty offense for which no sentence of imprisonment will be imposed, the court may follow any provision of these rules that is not inconsistent with this rule and that the court considers appropriate. (3) Definition. As used in this rule, the term ‘‘petty offense for which no sentence of imprisonment will be imposed’’ means a petty offense for which the court determines that, in the event of conviction, no sentence of imprisonment will be imposed. (b) Pretrial Procedure. (1) Charging Document. The trial of a misdemeanor may proceed on an indictment, information, or complaint. The trial of a petty offense may also proceed on a citation or violation notice. (2) Initial Appearance. At the defendant’s initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following: (A) the charge, and the minimum and maximum penalties, including imprisonment, fines, any special assessment under 18 U.S.C. § 3013, and restitution under 18 U.S.C. § 3556; (B) the right to retain counsel; (C) the right to request the appointment of counsel if the defendant is unable to retain counsel—unless the charge is a petty offense for which the appointment of counsel is not required; (D) the defendant’s right not to make a statement, and that any statement made may be used against the defendant; (E) the right to trial, judgment, and sentencing before a district judge—unless: (i) the charge is a petty offense; or (ii) the defendant consents to trial, judgment, and sentencing before a magistrate judge;

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Rule 58

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(F) the right to a jury trial before either a magistrate judge or a district judge—unless the charge is a petty offense; and (G) any right to a preliminary hearing under Rule 5.1, and the general circumstances, if any, under which the defendant may secure pretrial release. (3) Arraignment. (A) Plea Before a Magistrate Judge. A magistrate judge may take the defendant’s plea in a petty offense case. In every other misdemeanor case, a magistrate judge may take the plea only if the defendant consents either in writing or on the record to be tried before a magistrate judge and specifically waives trial before a district judge. The defendant may plead not guilty, guilty, or (with the consent of the magistrate judge) nolo contendere. (B) Failure to Consent. Except in a petty offense case, the magistrate judge must order a defendant who does not consent to trial before a magistrate judge to appear before a district judge for further proceedings. (c) Additional Procedures in Certain Petty Offense Cases. The following procedures also apply in a case involving a petty offense for which no sentence of imprisonment will be imposed: (1) Guilty or Nolo Contendere Plea. The court must not accept a guilty or nolo contendere plea unless satisfied that the defendant understands the nature of the charge and the maximum possible penalty. (2) Waiving Venue. (A) Conditions of Waiving Venue. If a defendant is arrested, held, or present in a district different from the one where the indictment, information, complaint, citation, or violation notice is pending, the defendant may state in writing a desire to plead guilty or nolo contendere; to waive venue and trial in the district where the proceeding is pending; and to consent to the court’s disposing of the case in the district where the defendant was arrested, is held, or is present. (B) Effect of Waiving Venue. Unless the defendant later pleads not guilty, the prosecution will proceed in the district where the defendant was arrested, is held, or is present. The district clerk must notify the clerk in the original district of the defendant’s waiver of venue. The defendant’s statement of a desire to plead guilty or nolo contendere is not admissible against the defendant. (3) Sentencing. The court must give the defendant an opportunity to be heard in mitigation and then proceed immediately to sentencing. The court may, however, postpone sentencing to allow the probation service to investigate or to permit either party to submit additional information. (4) Notice of a Right to Appeal. After imposing sentence in a case tried on a not-guilty plea, the court must advise the defendant of a right to appeal the conviction and of any right to appeal the sentence. If the defendant was convicted on a plea of guilty or nolo contendere, the court must advise the defendant of any right to appeal the sentence.

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 58

(d) Paying a Fixed Sum in Lieu of Appearance. (1) In General. If the court has a local rule governing forfeiture of collateral, the court may accept a fixed-sum payment in lieu of the defendant’s appearance and end the case, but the fixed sum may not exceed the maximum fine allowed by law. (2) Notice to Appear. If the defendant fails to pay a fixed sum, request a hearing, or appear in response to a citation or violation notice, the district clerk or a magistrate judge may issue a notice for the defendant to appear before the court on a date certain. The notice may give the defendant an additional opportunity to pay a fixed sum in lieu of appearance. The district clerk must serve the notice on the defendant by mailing a copy to the defendant’s last known address. (3) Summons or Warrant. Upon an indictment, or upon a showing by one of the other charging documents specified in Rule 58(b)(1) of probable cause to believe that an offense has been committed and that the defendant has committed it, the court may issue an arrest warrant or, if no warrant is requested by an attorney for the government, a summons. The showing of probable cause must be made under oath or under penalty of perjury, but the affiant need not appear before the court. If the defendant fails to appear before the court in response to a summons, the court may summarily issue a warrant for the defendant’s arrest. (e) Recording the Proceedings. The court must record any proceedings under this rule by using a court reporter or a suitable recording device. (f) New Trial. Rule 33 applies to a motion for a new trial. (g) Appeal. (1) From a District Judge’s Order or Judgment. The Federal Rules of Appellate Procedure govern an appeal from a district judge’s order or a judgment of conviction or sentence. (2) From a Magistrate Judge’s Order or Judgment. (A) Interlocutory Appeal. Either party may appeal an order of a magistrate judge to a district judge within 10 days of its entry if a district judge’s order could similarly be appealed. The party appealing must file a notice with the clerk specifying the order being appealed and must serve a copy on the adverse party. (B) Appeal from a Conviction or Sentence. A defendant may appeal a magistrate judge’s judgment of conviction or sentence to a district judge within 10 days of its entry. To appeal, the defendant must file a notice with the clerk specifying the judgment being appealed and must serve a copy on an attorney for the government. (C) Record. The record consists of the original papers and exhibits in the case; any transcript, tape, or other recording of the proceedings; and a certified copy of the docket entries. For purposes of the appeal, a copy of the record of the proceedings must be made available to a defendant who establishes by affidavit an inability to pay or give security for the record. The Director of the Administrative Office of the United States Courts must pay for those copies.

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Rule 59

FEDERAL RULES OF CRIMINAL PROCEDURE

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(D) Scope of Appeal. The defendant is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge. (3) Stay of Execution and Release Pending Appeal. Rule 38 applies to a stay of a judgment of conviction or sentence. The court may release the defendant pending appeal under the law relating to release pending appeal from a district court to a court of appeals. (As added May 1, 1990, eff. Dec. 1, 1990; amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006.) Rule 59. Matters Before a Magistrate Judge (a) Nondispositive Matters. A district judge may refer to a magistrate judge for determination any matter that does not dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings and, when appropriate, enter on the record an oral or written order stating the determination. A party may serve and file objections to the order within 10 days after being served with a copy of a written order or after the oral order is stated on the record, or at some other time the court sets. The district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous. Failure to object in accordance with this rule waives a party’s right to review. (b) Dispositive Matters. (1) Referral to Magistrate Judge. A district judge may refer to a magistrate judge for recommendation a defendant’s motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any matter that may dispose of a charge or defense. The magistrate judge must promptly conduct the required proceedings. A record must be made of any evidentiary proceeding and of any other proceeding if the magistrate judge considers it necessary. The magistrate judge must enter on the record a recommendation for disposing of the matter, including any proposed findings of fact. The clerk must immediately serve copies on all parties. (2) Objections to Findings and Recommendations. Within 10 days after being served with a copy of the recommended disposition, or at some other time the court sets, a party may serve and file specific written objections to the proposed findings and recommendations. Unless the district judge directs otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient. Failure to object in accordance with this rule waives a party’s right to review. (3) De Novo Review of Recommendations. The district judge must consider de novo any objection to the magistrate judge’s recommendation. The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions. (As added Apr. 25, 2005, eff. Dec. 1, 2005.)

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FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 60

Rule 60. Title These rules may be known and cited as the Federal Rules of Criminal Procedure. (As amended Apr. 29, 2002, eff. Dec. 1, 2002.)

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REVISED MODEL STATE ADMINISTRATIVE PROCEDURE ACT

Drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES

at its

ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-NINETEENTH YEAR IN CHICAGO, ILLINOIS JULY 9-16, 2010

WITH PREFATORY NOTE AND COMMENTS

COPYRIGHT 8 2010 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS

October 15, 2010

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ABOUT ULC The Uniform Law Commission (ULC), also known as National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 119h year, provides states with non-partisan, wellconceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. ULC members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical. •

ULC strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states.

•

ULC statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government.

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ULC keeps state law up-to-date by addressing important and timely legal issues.

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ULC’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states.

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ULC’s work facilitates economic development and provides a legal platform for foreign entities to deal with U.S. citizens and businesses.

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Uniform Law Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service, and receive no salary or compensation for their work.

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ULC’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilizes input from legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed laws.

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ULC is a state-supported organization that represents true value for the states, providing services that most states could not otherwise afford or duplicate.

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DRAFTING COMMITTEE TO REVISE MODEL STATE ADMINISTRATIVE PROCEDURE ACT The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in revising this Act consists of the following individuals: FRANCIS J. PAVETTI, 18 The Strand, Goshen Point, Waterford, CT 06385, Chair JERRY L. BASSETT, Legislative Reference Service, 613 Alabama State House, 11 S. Union St., Montgomery, AL 36130 STEPHEN C. CAWOOD, 108 Kentucky Ave., P.O. Drawer 128, Pineville, KY 40977-0128 KENNETH D. DEAN, University of Missouri-Columbia School of Law, 116 Jesse Hall, Columbia, MO 65211 BRIAN K. FLOWERS, Council of the District of Columbia, 1350 Pennsylvania Ave. NW, Suite 4, Washington, DC 20004 JOHN L. GEDID, Widener Law School, 3800 Vartan Way, P.O. Box 69382, Harrisburg, PA 17106-9382 H. LANE KNEEDLER, 901 E. Byrd St., Suite 1700, Richmond, VA 23219 RAYMOND P. PEPE, 17 N. Second St., 18th Floor, Harrisburg, PA 17101-1507 ROBERT J. TENNESSEN, 2427 W. 21st St., Minneapolis, MN 55405 GREGORY L. OGDEN, Pepperdine University School of Law, 24255 Pacific Coast Hwy., Malibu, CA 90263, Reporter EX OFFICIO ROBERT A. STEIN, University of Minnesota Law School, 229 19th Ave. S., Minneapolis, MN 55455, President BRIAN K. FLOWERS, Council of the District of Columbia, 1350 Pennsylvania Ave. NW, Suite 4, Washington, DC 20004 AMERICAN BAR ASSOCIATION ADVISOR RONALD M. LEVIN, Washington University School of Law, Campus Box 1120, 1 Brookings Dr., St. Louis, MO 63130-4862, ABA Advisor ROSE MARY BAILLY, 80 New Scotland Rd., Albany, NY 12208-3434, ABA Section Advisor LARRY CRADDOCK, 2601 N. Lamar Blvd., Austin, TX 78705-4260, ABA Section Advisor EDWIN L. FELTER, JR., 633 17th St., Suite 1300, Denver, CO 80202, ABA Section Advisor JULIAN MANN III, 1711 New Hope Church Rd., Raleigh, NC 27609-6285, ABA Section Advisor EDWARD J. SCHOENBAUM, 1108 S. Grand Ave. W., Springfield, IL 62704-3553, ABA Section Advisor EXECUTIVE DIRECTOR JOHN A. SEBERT, 111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive Director Copies of this Act may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 111 N. Wabash Ave., Suite 1010 Chicago, Illinois 60602 312/450-6600 www.nccusl.org

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REVISED MODEL STATE ADMINISTRATIVE PROCEDURE ACT TABLE OF CONTENTS

Prefatory Note ................................................................................................................................. 1 [ARTICLE] 1 GENERAL PROVISIONS SECTION 101. SHORT TITLE. ................................................................................................... 7 SECTION 102. DEFINITIONS. .................................................................................................... 7 SECTION 103. APPLICABILITY. ............................................................................................. 18 [ARTICLE] 2 PUBLIC ACCESS TO AGENCY LAW AND POLICY SECTION 201. PUBLICATION, COMPILATION, INDEXING, AND PUBLIC INSPECTION OF RULEMAKING DOCUMENTS................................................................................ 19 SECTION 202. PUBLICATION; AGENCY DUTIES. .............................................................. 23 SECTION 203. REQUIRED AGENCY PUBLICATION AND RECORDKEEPING .............. 25 SECTION 204. DECLARATORY ORDER ............................................................................... 26 SECTION 205. STANDARD PROCEDURAL RULES............................................................ 28 [ARTICLE] 3 RULEMAKING; PROCEDURAL REQUIREMENTS AND EFFECTIVENESS OF RULES SECTION 301. RULEMAKING DOCKET................................................................................ 30 SECTION 302. RULEMAKING RECORD................................................................................ 31 SECTION 303. ADVANCE NOTICE OF PROPOSED RULEMAKING; NEGOTIATED RULEMAKING. ............................................................................................................... 33 SECTION 304. NOTICE OF PROPOSED RULE. ..................................................................... 34 SECTION 305. REGULATORY ANALYSIS ............................................................................ 36 SECTION 306. PUBLIC PARTICIPATION .............................................................................. 37 SECTION 307. TIME LIMIT ON ADOPTION OF RULE. ....................................................... 39 SECTION 308. VARIANCE BETWEEN PROPOSED AND FINAL RULE............................ 40 SECTION 309. EMERGENCY RULE ....................................................................................... 40 SECTION 310. DIRECT FINAL RULE ..................................................................................... 42 SECTION 311. GUIDANCE DOCUMENT ............................................................................... 43 SECTION 312. REQUIRED INFORMATION FOR RULE ...................................................... 49 SECTION 313. CONCISE EXPLANATORY STATEMENT ................................................... 49 SECTION 314. INCORPORATION BY REFERENCE............................................................. 50 SECTION 315. COMPLIANCE. ................................................................................................. 51 SECTION 316. FILING OF RULE ............................................................................................. 51 SECTION 317. EFFECTIVE DATE OF RULE ......................................................................... 52 SECTION 318. PETITION FOR ADOPTION OF RULE .......................................................... 53

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[ARTICLE] 4 ADJUDICATION IN CONTESTED CASE SECTION 401. SECTION 402. SECTION 403. SECTION 404. SECTION 405. SECTION 406. SECTION 407. SECTION 408. SECTION 409. SECTION 410. SECTION 411. SECTION 412. SECTION 413. SECTION 414. SECTION 415. SECTION 416. SECTION 417. SECTION 418. SECTION 419.

CONTESTED CASE ......................................................................................... 54 PRESIDING OFFICER. .................................................................................... 55 CONTESTED CASE PROCEDURE ................................................................ 58 EVIDENCE IN CONTESTED CASE ............................................................... 62 NOTICE IN CONTESTED CASE .................................................................... 64 HEARING RECORD IN CONTESTED CASE................................................ 66 EMERGENCY ADJUDICATION PROCEDURE ........................................... 67 EX PARTE COMMUNICATIONS................................................................... 69 INTERVENTION .............................................................................................. 73 SUBPOENAS .................................................................................................... 75 DISCOVERY ..................................................................................................... 75 DEFAULT ......................................................................................................... 78 ORDERS: RECOMMENDED, INITIAL, OR FINAL. .................................... 79 AGENCY REVIEW OF INITIAL ORDER. ..................................................... 82 AGENCY REVIEW OF RECOMMENDED ORDER ..................................... 84 RECONSIDERATION ...................................................................................... 85 STAY ................................................................................................................. 86 AVAILABILITY OF ORDERS; INDEX .......................................................... 87 LICENSES. ........................................................................................................ 88 [ARTICLE] 5 JUDICIAL REVIEW

SECTION 501. RIGHT TO JUDICIAL REVIEW; FINAL AGENCY ACTION REVIEWABLE................................................................................................................. 90 SECTION 502. RELATION TO OTHER JUDICIAL REVIEW LAW AND RULES .............. 91 SECTION 503. TIME TO SEEK JUDICIAL REVIEW OF AGENCY ACTION; LIMITATIONS ................................................................................................................. 92 SECTION 504. STAYS PENDING APPEAL. ........................................................................... 93 SECTION 505. STANDING ....................................................................................................... 93 SECTION 506. EXHAUSTION OF ADMINISTRATIVE REMEDIES.................................... 94 SECTION 507. AGENCY RECORD ON JUDICIAL REVIEW; EXCEPTIONS. .................... 95 SECTION 508. SCOPE OF REVIEW ........................................................................................ 96 [ARTICLE] 6 OFFICE OF ADMININISTRATIVE HEARINGS SECTION 601. CREATION OF OFFICE OF ADMINISTRATIVE HEARINGS .................... 98 SECTION 602. CHIEF ADMINISTRATIVE LAW JUDGE; APPOINTMENT; QUALIFICATIONS; TERM; REMOVAL. ..................................................................... 98 SECTION 603. ADMININSTRATIVE LAW JUDGES; APPOINTMENT; QUALIFICATIONS; DISCIPLINE. ................................................................................ 99 SECTION 604. CHIEF ADMINISTRATIVE LAW JUDGE; POWERS; DUTIES ................ 100 SECTION 605. COOPERATION OF AGENCIES................................................................... 101 SECTION 606. ADMINISTRATIVE LAW JUDGES; POWERS; DUTIES; DECISION MAKING AUTHORITY ................................................................................................ 102

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SECTION 607. AGENCIES EXCLUDED. .............................................................................. 103 [[ARTICLE] 7] RULES REVIEW SECTION 701. [LEGISLATIVE RULES REVIEW COMMITTEE] ...................................... 104 SECTION 702. REVIEW BY [RULES REVIEW COMMITTEE] .......................................... 104 SECTION 703. [RULES REVIEW COMMITTEE] PROCEDURE AND POWERS. ............ 106 [ARTICLE] 8 MISCELLANEOUS PROVISIONS SECTION 801. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. .................................................................................. 109 SECTION 802. REPEALS ........................................................................................................ 109 SECTION 803. EFFECTIVE DATE. ........................................................................................ 109

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REVISED MODEL STATE ADMINISTRATIVE PROCEDURE ACT Prefatory Note The 1946 Model State Administrative Procedure Act The Model State Administrative Procedure Act (Act) of the National Conference of Commissioners on Uniform State Laws (Uniform Law Commissioners) has furnished guidance to the states since 1946, the date that the first version of the Act was promulgated and published. The Federal Administrative Procedure Act was drafted at about the same time as the 1946 Act, and there was substantial communication between the drafters of the two acts. The 1946 Act incorporated basic principles with only enough elaboration of detail to support essential features 1 of an administrative procedure act. This is a major characteristic of a “model”, as distinguished from a “uniform”, act. The drafters of the 1946 Act explained that a model act approach was required because details of administrative procedure must vary from state to state as a result of different general histories, different histories of legislative enactment and different state constitutions. Furthermore, the drafters explained, the Act could only articulate general principles because 1) agencies – even within a single state – perform widely diverse tasks, so that no single detailed procedure is adequate for all their needs; and 2) the legislatures of different states have taken dissimilar approaches to virtually identical problems. 2 By about 1960, twelve states had adopted the 1946 Act. 3 The 1961 Model State Administrative Procedure Act As a result of several studies conducted in the nineteen fifties, the Uniform Law Commissioners decided to revise the 1946 Act. The basis given for that decision was that a maturing of thought on administrative procedure had occurred since 1946. The drafters of the 1961 Act explained that their goals were fairness to the parties involved and creation of procedure that is effective from the standpoint of government. 4 The resulting 1961 Act also followed the model, not uniform, act approach, because “details must vary from state to state.” The 1961 APA purposely included only “basic principles” and “essential major features.” Some of those major principles were: requiring agency rulemaking for procedural rules; rulemaking procedure that provided for notice, public input and publication; judicial review of rules; guarantees of fundamental fairness in adjudications; and provision for judicial review of agency adjudication. Over one half of the states adopted the 1961 Act or large parts of it. 5 1 2

1946 Model State Administrative Procedure Act preface at 200. Id. at 200

3

Those states, as identified in the preface to the 1961 Model State Administrative Procedure Act were: North Dakota, Wisconsin, North Carolina, Ohio, Virginia, California, Illinois, Pennsylvania, Missouri, Indiana. 4

Preface to 1961 Model State Administrative Procedure Act.

5

Uniform Laws Annotated at 357 (1980 Master Edition) catalogued numerous states that used the 1961 Model State Administrative Procedure Act. They are: Arizona, Arkansas, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.

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The 1981 Model State Administrative Procedure Act In the nineteen seventies, the Uniform Law Commissioners began work on another revision of the Act which was completed in 1981. The Uniform Law Commissioners based the need for this revision on greater experience with administrative procedure by state governments, and growth in state government in such areas as the environment, workplace safety and benefit programs. This growth, it was argued, was so great as to effect a change in the nature of state government. The 1981 Act sought to deal with those changes. The preface to the 1981 Act explained that the approach to drafting had changed from the 1946 and 1961 Acts. According to the drafters, the 1981 Act was entirely new, with more detail than earlier versions of the Act. This expanded focus on detail was explained to be based on changed circumstances in the states and greater state experience with administrative procedure since 1961. 6 The 1981 Act, when completed, consisted of ninety-four sections 7. In the twentyodd years since promulgation of the 1981 Act, Arizona, New Hampshire, and Washington have adopted many of its provisions. Several other states have drawn some of their administrative procedure provisions from the 1981 Act. 8 The Present Revision There are several reasons for revision of the 1981 Act. It has been more than twenty-eight years since the Act was last revised. There now exists a substantial body of legislative action, judicial opinion and academic commentary that explain, interpret and critique the 1961 and 1981 Acts and the Federal Administrative Procedure Act. In the past two decades state legislatures, dissatisfied with agency rulemaking and adjudication, have enacted statutes that modify administrative adjudication and rulemaking procedure. The Section on Administrative Law & Regulatory Practice of the American Bar Association has recently undertaken a major study of the Federal Administrative Procedure Act and has recommended revision of some provisions of that act. Since some sections of the Model State Administrative Procedure Act are similar to the Federal Act, the ABA study furnishes useful comparisons for the Act. The emergence of the Internet, which did not exist at the time of the last revision of the Act, is another event that the Model State Administrative Procedure Act must address. Many states adopted legislative review statutes since the 1981 Act was adopted. Finally, since the 1981 Act, twenty five states have adopted central panel administrative law judge provisions. What has been learned from the experience in those states can be used to improve this Act. The 2010 Act is a Model Act like the 1946, 1961, and 1981 Acts. A model act is needed because state administrative law in the 50 states is not uniform, and there are a variety of approaches used in the various states. The drafting committee has sought to draft provisions that 6

Preface, 1981 Model State Administrative Procedure Act. The greater emphasis on detail in the 1981 Model State Administrative Procedure Act is apparent from the text of the preface. 7

For example, the 1961 Model State Administrative Procedure Act contained nineteen sections; the 1981 Model State Administrative Procedure Act contained almost ninety sections divided among five different articles. The 2010 Act contains slightly more than 60 sections divided into eight articles. The 2010 Act is 75% of the length of the 1981 Act, but covers more topics. 8

Some of those states are: Florida, Iowa, Kansas, California, Mississippi and Montana.

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represent best practices in the states, and has limited the use of alternatives. The drafting committee had three goals governing the drafting process, fairness, efficiency, and ensuring public access to agency information. The 2010 Act has made use of bracketed language in many sections so that a state legislature may make one of several decisions depending on the type of bracket. For example, the bracketed term [publisher] in Article Two allows state legislatures to substitute the specific state agency name in their state for the agency that performs publication functions. Other brackets give state legislatures the choice to select one of several alternatives. For example, in Section 201(b), four options are bracketed for the type of format, electronic or written, in which the publisher can publish rulemaking documents. Other brackets are used for timing requirements and the numbers of days, months or years are bracketed so that state legislatures have the option of changing the specified amount of time for that particular timing requirement. The bracketed number represents the drafting committee recommendation as to best practices. See for example, Section 304(a), which brackets the number 30 as part of timing requirements for rulemaking. Finally brackets are use in Article Seven with the term [joint resolution] or [concurrent resolution] because states constitutions vary as to whether a concurrent resolution (without the governor signing a bill) is proper for legislative disapproval review of an agency rule. States can choose which provisions of the 2010 Act to adopt. The 2010 Act returns to the external hearing rights approach followed in the 1961 Act because this is the approach taken by the federal APA and the majority of state laws. The 2010 Act requires hearings when constitutionally required as well as hearings required by statute. This approach is codified in the definition of a contested case in Section 102(7). The external hearing rights approach is narrower than the approach adopted in the 1981 Act which contained an internal definition of the scope of hearing rights (1981 MSAPA Section 4-102). Under the 1981 Act, evidentiary hearings were required for an extremely wide range of disputes between citizens and the government. For example, under the 1981 Act, a hearing would be required for a state park ranger’s refusal to issue a camping permit, even if the permit denial did not infringe upon other constitutionally or statutorily protected rights. A variety of other generalized approaches, however, have been taken in some states to require hearings whenever agency actions substantially and directly affect the property, privileges or rights of individuals who are parties to or are affected by agency actions. The Act’s inclusion of an external rights approach does not imply that the uses of generalized standards to determine when hearings are required are inappropriate in those states. The 2010 Act is lengthier than the 1961 Act, but shorter and less detailed than the 1981 Act . The 2010 Act is designed especially for adoption by states that currently have the 1961 Act, but would like to replace that act with a more modern up to date administrative procedure act. The 2010 Act is designed to ensure fairness in administrative proceedings, increase public access to the law administered by agencies, and promote efficiency in agency proceedings by providing for extensive use of electronic technology by state governments. The 2010 Act is streamlined when compared to the 1981 Act and has been drafted to be less detailed and less comprehensive. Consistent with both the 1961 MSAPA and the 1981 MSAPA, the Act provides for a uniform minimum set of procedures to be followed by agencies subject to the act. The 2010 9

9 . The 1981 Act contained 19,572 words. The 2010 Act contains only 16,505 words. This is a reduction of approximately 20% even though the 2010 Act has many new provisions and one entirely new Article 6 concerning administrative law judges.

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Act creates only procedural rights and imposes only procedural duties. Throughout the 2010 Act there are provisions that refer generally to other state laws governing related topics. When specific state laws are inconsistent with the provisions of the 2010 Act, those specific state laws will be controlling. The 2010 Act is divided into eight articles. Article One contains extensive definitions of key terms used in the act. These definitions are designed to be used with the operative provisions in the other articles of the act. Some of the key definitions in Article One include contested case, Section 102(7), which defines the scope of hearings rights under Article Four to include opportunities for hearings required by federal or state constitutional or statutory law. This definition utilizes the external hearing right approach and limits the circumstances to which the Article Four hearing procedures apply. Another key definition is guidance document, Section 102(14), which is applicable to Section 311 which authorizes an agency to issue a guidance document without following the rulemaking procedural requirements of Article Three. Another key definition is Rule, Section 102(30), which defines which agency pronouncements are rules that have to be adopted following the procedures of Article Three, Sections 304 to 308, and which listed documents are not subject to those requirements (Section 102 (30) (A) to (F). Many of the new Article One definitions result from the technological development of the internet and the widespread use of electronic media by governmental entities. Examples of this type of definition include electronic (Section 102(8), electronic record (Section 102(9), and internet web site (Section 102(17). New definitions for contested cases under Article Four include presiding officer (Section 102(26), final order (Section 102(12)), initial order (Section 102(16)), and recommended order (Section 102(28)). The latter three definitions reflect the complexity of types of orders in state administrative law. Article Two contains provisions ensuring public access to agency law and policy. This article provides for indexing of agency documents, as well as electronic posting and distribution of documents. Article Two modernizes and codifies publishing responsibilities for agencies that have primary responsibility for rules publishing (Section 201), and for agencies that adopt rules (Section 202 and 203). Article Two also provides for declaratory orders which interpret or apply statutes administered by the agency and states the manner of applicability of agency rules, guidance documents or orders (Section 204) and default procedural rules (Section 205). The provisions of Article Two are not intended to replace the requirements of state open meeting or public records laws. Article Three contains provisions governing rulemaking by agencies. Important new provisions are agency record in rulemaking (Section 302), which provides for the rulemaking documents to be maintained by the agency and facilitates judicial review based on an agency rulemaking record; negotiated rulemaking (Section 303) which provide for a process by which an agency can obtain feedback from various stakeholder groups appointed to a committee and can attempt to obtain advisory information concerning consensus on the terms or substance of a proposed rule through the committee process; direct final rulemaking (Section 310), which provides for a streamlined process for adoption of rules that are expected to be non controversial; and guidance document (Section 311) which include an agency interpretive statement and other statements that are issue by an agency but that do not have the force of law behind them. Section 311 provides for the procedures to be use with guidance documents, and also provides for important safeguards in the use of guidance documents by an agency. Article Three provides a basic set of rulemaking procedures under Sections 304 to 308 that an agency must follow, with

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an exception for emergency rulemaking (Section 309) and for direct final rulemaking (Section 310) which are governed by different procedures that are specified in each section. Article Four contains provisions for adjudication in contested cases. Section 401 provides that Article Four applies to an adjudication made by an agency in a contested case. The contested case definition, Section 102(7), codifies the external hearing rights concept. When an opportunity for a hearing is required by a federal or a state constitutional or statutory law provision, the Article Four procedures are applicable. Article Four provides for a variety of presiding officers (Section 402), including the agency head, and for recommended, initial, and final orders in contested cases (Section 413). This is based on variations in state law governing delegation of decisional authority in adjudication. Article 4 procedures are designed to be used by both central panel agencies (governed by Article Six) and enforcement agencies that conduct their own contested case hearings (Section 402(a)). Section 408 governs ex parte communications but also contains separation of functions provisions (Section 408(d), (e)). Section 408 (c) prescribes limited exceptions for ex parte communications authorized by statute or for uncontested procedural issues. Section 408(d) prescribes limited exceptions for communications with legal advisors, and ministerial communications with staff of the presiding officer and the final decision maker. Section 408(e) includes an agency head exception that is narrower than the provisions of the 1981 Act (Section 4-213(b)). Section 408(e) permits the agency head to have communications with staff that does not augment, diminish or modify the evidence in the agency hearing record (Section 408(e)(2)), and that satisfies one of three other alternatives: including an explanation of the technical or scientific basis or terms in the evidence in the agency hearing record (Section 408(e)(2)(A)), an explanation of the precedent, policies, or procedures of the agency (Section 408(e)(2)(B)), or any other communication that does not address the quality, sufficiency of , or the weight that should be given to evidence in the agency hearing record, or the credibility of witnesses (Section 408(e)(2)(C)). These three alternatives are new and are a departure from the 1981 Act which included only the “does not augment, diminish or modify the evidence in the agency hearing record” language. An ex parte communication will fall within the Section 408(e) exception if both the stated language of subsection (e)(2), and one of the alternatives listed in subsection (e)(2)(A),(B), or (C), are satisfied. Section 408(e)(2) is a middle ground reached by the drafting committee in response to polar positions that advocated on the one hand for no agency head exception (thus deleting subsection (e) entirely), and views on the other hand that supported the approach of the 1981 Act (with only the language of subsection (e)(2) and not the added language in subsection (e)(2)(A),(B), or (C). This middle ground recognizes the need for agency heads, who often lack legal or technical knowledge of the issues that come before the agency, so as to obtain staff advice when acting as a presiding officer or a final decision maker, but also carefully circumscribes the types of communication that can occur. If an improper ex parte communication is made or received by a presiding officer or final decision maker, Section 408(f) requires that the communication be made part of the record, and Section 408(g) requires notice to the parties and an opportunity to respond to the communication. Article Five contains provisions governing judicial review of final agency action. The standing (Section 505) and scope of review (Section 507) sections are key provisions that are set forth in short and concise language. Most states have a substantial body of judicial review case law covering these issues and others. The 2010 Act’s provisions are designed to be consistent with the existing laws of many states that take a variety of approaches to judicial review. The Act

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does not address civil or appellate procedure issues, the court chosen for judicial review of administrative law rules or orders, or the vehicle for review such as whether an appeal or a writ of mandate is filed to invoke judicial review of administrative agency action. Those issues are governed by state law other than this act. Article Six contains provisions governing central panel hearing agencies, typically named the office of administrative hearings. The growth of central panel agencies in the states since the adoption of the 1981 Act has been significant with 25 states currently having these agencies. In central panel agencies, the ALJ’s who preside over contested case hearings work for the central panel agency, not for the agency whose contested case is being adjudicated. This provides for a neutral separation of the hearing and decision authority from the agency authority to enforce the law and adopt agency rules. Central panel agencies have independence from other executive branch agencies which can provide for greater fairness in contested case hearings. Article Six is based on the ABA Model Central Panel Act, and provides for the essential provisions of law that a state legislature would need to create a central panel agency. This Act is drafted so that central panel administrative law judges would be presiding officers in contested case proceedings governed by the provisions of Article Four (Section 402(a)), and those provisions would govern procedures in contested cases heard by central panel administrative law judges. The chief administrative law judge of the central panel agency may also adopt procedural rules to govern contested case hearings (Section 604(6)). A key provision in Article Six is Section 606(a) which provides that an administrative law judge shall issue a final order in a contested case, if final order authority has been delegated to the central panel agency by the agency head. Article Seven contains provisions related to legislative review of agency rules. Legislative review of agency rules has become widespread in the states. State constitutions vary as to whether a joint or concurrent resolution (without gubernatorial approval) vetoing an agency rule satisfies the state constitution. Some state constitutions require that the legislature pass a bill that is presented to the governor for approval. Article Seven is drafted so that both state approaches are presented as bracketed alternatives. Under Section 703, the rules review committee has the power to approve or disapprove of rules within 30 days after receiving a copy of the rule from the adopting agency. Disapproved rules will still become effective at the adjournment of the next regular session of the legislature unless before adjournment the Legislature adopts a joint or concurrent resolution sustaining the action of the rules review committee.

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REVISED MODEL STATE ADMINISTRATIVE PROCEDURE ACT

[ARTICLE] 1 GENERAL PROVISIONS SECTION 101. SHORT TITLE. This [act] may be cited as the [State] Administrative Procedure Act. SECTION 102. DEFINITIONS. In this [act]: (1) “Adjudication” means the process for determining facts or applying law pursuant to which an agency formulates and issues an order. “Adjudicate” has a corresponding meaning. (2) “Adopt”, with respect to a rule, includes to adopt a new rule and to amend or repeal an existing rule. “Adoption” has a corresponding meaning. (3) “Agency” means a state board, authority, commission, institution, department, division, office, officer, or other state entity that is authorized by law of this state to make rules or to adjudicate. The term does not include the Governor, the [Legislature], or the Judiciary. (4) “Agency action” means: (A) the whole or part of an order or rule; (B) the failure to issue an order or rule; or (C) an agency’s performing or failing to perform a duty, function, or activity or to make a determination required by law. (5) “Agency head” means the individual in whom, or one or more members of the body of individuals in which, the ultimate legal authority of an agency is vested. (6) “Agency record” means the agency rulemaking record required by Section 302, the hearing record in adjudication required by Section 406, the hearing record in an emergency adjudication under Section 407, or the record for review compiled under Section 507(b). (7) “Contested case” means an adjudication in which an opportunity for an evidentiary

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hearing is required by the federal constitution, a federal statute, or the constitution or a statute of this state. (8) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (9) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means. (10) “Emergency adjudication” means an adjudication in a contested case when the public health, safety, or welfare requires immediate action. (11) “Evidentiary hearing” means a hearing for the receipt of evidence on issues on which a decision of the presiding officer may be made in a contested case. (12) “Final order” means the order issued by the agency head sitting as the presiding officer in a contested case, the order issued following the agency head review of a recommended order, the order issued following the agency head review of an initial order, or the order issued by the presiding officer when the presiding officer has been delegated final decisional authority with no subsequent agency head review. (13) “Final rule” means a rule adopted, amended, or repealed under Sections 304 through 308, an emergency rule adopted under Section 309, or a direct final rule adopted under Section 310. (14) “Guidance document” means a record of general applicability developed by an agency which lacks the force of law but states the agency’s current approach to, or interpretation of, law, or describes how and when the agency will exercise discretionary functions. The term does not include records described in paragraph (30)(A), (B), (C), or (D). (15) “Index” means a searchable list in a record of subjects and titles with page numbers, hyperlinks, or other connectors that link each index entry to the text to which it refers.

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(16) “Initial order” means an order that is issued by a presiding officer with final decisional authority if the order is subject to discretionary review by the agency. (17) “Internet website” means a website on the Internet or other appropriate technology or successor technology that permits the public to search a database that archives materials required to be published by the [publisher] under this [act]. (18) “Law” means the federal or state constitution, a federal or state statute, a federal or state judicial decision, a federal or state rule of court, or an executive order that rests on statutory or constitutional authority. (19) “License” means a permit, certificate, approval, registration, charter, or similar form of permission required by law and issued by an agency. (20) “Licensing” means the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license. (21) “Notice” means a record containing information required to be sent to a person by this [act]. (22) “Notify” means to take steps reasonably required to inform a person, regardless of whether the person actually comes to know of the information. (23) “Order” means an agency decision that determines or declares the rights, duties, privileges, immunities, or other interests of a specific person. (24) “Party” means the agency taking action, the person against which the action is directed, any other person named as a party, or any person permitted to intervene and that does intervene. (25) “Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or

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commercial entity. (26) “Presiding officer” means an individual who presides over the evidentiary hearing in a contested case. (27) “Proceeding” means any type of formal or informal agency process or procedure commenced or conducted by an agency. The term includes adjudication, rulemaking, and investigation. (28) “Recommended order” means an order issued by a presiding officer if the officer does not have final decisional authority and the order is subject to review by the agency head. (29) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (30) “Rule” means the whole or a part of an agency statement of general applicability that implements, interprets, or prescribes law or policy or the organization, procedure, or practice requirements of an agency and has the force of law. The term includes the amendment or repeal of an existing rule. The term does not include: (A) a statement that concerns only the internal management of an agency and which does not affect private rights or procedures available to the public; (B) an intergovernmental or interagency memorandum, directive, or communication that does not affect private rights or procedures available to the public; (C) an opinion of the Attorney General; (D) a statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspections, settling commercial disputes, negotiating commercial arrangements, or defending, prosecuting, or settling cases, if disclosure of the criteria or guidelines would enable persons violating the law to avoid detection, facilitate disregard of requirements imposed by law, or give an improper advantage to persons that are in

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an adverse position to the state; (E) a form developed by an agency to implement or interpret agency law or policy; or (F) a guidance document. (31) “Rulemaking” means the process for the adoption of a new rule or the amendment or repeal of an existing rule. (32) “Sign” means, with present intent to authenticate or adopt a record: (A) to execute or adopt a tangible symbol; or (B) to attach to or logically associate with the record an electronic symbol, sound, or process. (33) “Writing” means a record inscribed on a tangible medium. “Written” has a corresponding meaning. Comment Adjudication. This definition is based on 1981 MSAPA Section 4-101(a). The purpose of the definition is to differentiate between agency proceedings under Article Four from rulemaking proceedings under Article Three. This definition should be read in conjunction with the definitions of “contested case” Section 102(7), “evidentiary hearing” under Section 102(11), and of “order”, Section 102(23), infra. Article Four procedures apply to adjudications that are contested cases, Section 401, and that result in a final order of the agency, Section 413. Adopt with respect to a rule. This definition is new to this act. The purpose of this definition is to include amendment or repeal of an existing rule within the meaning of the term adopt with respect to a rule. This definition eliminates to need to use the phrase, “adopt, amend, or repeal” in numerous sections of the act. This definition should be read in conjunction with the terms “final rule” in Section 102(13), “rule” in Section 102(30), and “rulemaking” in Section 102(31). This term is primarily used in Article Three which governs rulemaking by agencies. Agency. This definition is based on 1961 MSAPA Section 1(1), and 1981 MSAPA Section 102(1). The definition includes the authorized by law to make rules or to adjudicate language from 1961 MSAPA Section 1(1), which was omitted from 1981 MSAPA Section 102(1). This definition uses the term to adjudicate rather than the term to determine contested cases from the 1961 Act. The purpose of this definition is to subject as many state actors in the executive branch of state government as possible to this definition. The definition applies only to state actors, not local agencies. There are exceptions for the governor, the legislature, and the judiciary. The exception for the governor means the governor personally. The term agency is

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used numerous times in the other articles of the Act. The term “agency” includes the Office of Administrative Hearings provided in Article 6. The term “agency should be read in conjunction with the terms “party” in section 102(24), and the term “person” in Section 102(25). Agency Action. This definition is based on 1981 MSAPA Section 1-102(2). The purpose of the definition is to identify those matters that are subject to judicial review under Article Five. The term “agency action” includes the term “rule”, defined in Section 102(30), and the term “order”, defined in section 102(23). Failure to issue an order or rule is not judicially reviewable except as provided in Section 501(d) of the Act. Failure to issue an order or rule does not include an agency denial of a petition for a declaratory order or to initiate rulemaking. See Sections 204(d) and 318(1) of the Act. The third definition of agency action, under Section 102(4)(C), is broader and includes agency action that is neither a “rule” nor an “order”. The purpose of the third definition is to make agency action broadly subject to judicial review, but the availability of judicial review of agency action is governed by the provisions of Article Five, See Section 501, and the scope of review by Section 508. Agency Head. This definition is based on 1981 MSAPA Section 1-102(3). The purpose of the definition is to differentiate between the agency as an organic whole and the particular person or persons (single agency head, or commissioners, and board members ) in whom the final decisional authority of the agency is vested. The term “agency head” is also used numerous times throughout the act to differentiate between agency employees other than the agency head who may be delegated the responsibility to carry out functions under the Act from the agency head who has the legal authority to carry out those functions. See, for example, Section 402(a) in which the agency head has the authority to be the presiding officer in a contested case, but the agency head may also designate another individual to be the presiding officer. Agency Record. This definition is new to the Act. The purpose of the definition is to differentiate between the different types of agency records required to be maintained under the provisions of Articles Three, Four, and Five. The definition lists the different types of agency records by more specific terms and by sections of the Act. The definition provides a roadmap for the various types of agency records requirements in the Act. The definition should be read, as applicable, in conjunction with the provisions of Sections 302, 309, 310, 406, 407, and 507(b). The term “record” defined in Section 102 (29) refers to the medium for storage of information and does not address the requirements of the content of agency records. Contested case. This term is similar to the “contested case” definition in Section 1(2) of the 1961 MSAPA. Like the 1961 MSAPA, this Act looks to external sources such as statutes and constitutions to determine when a party is entitled to an evidentiary hearing. However, this term differs from the 1961 MSAPA=s term “contested case” because it also includes evidentiary hearings required by the constitution, federal or state, and makes provision in Article 4 for the type of evidentiary hearing to be held in a case where a constitution creates the right to an evidentiary hearing. Including constitutionally created rights to an evidentiary hearing within the provisions of this Act eliminates the problem of looking outside the Act to determine the type of evidentiary hearing required in cases where the right to the evidentiary hearing is created by a constitution. Evidentiary hearing rights created by judicial decisions means constitutional decisions by courts in that state. See Goldberg v. Kelly, 397 U.S. 254 (1970). The definition of “contested case” should be read in conjunction with the definitions of “adjudication” under Section 102(1), “evidentiary hearing” under Section 102(11), “final order” under Section

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102(12), and of “order”, Section 102(23). Article Four procedures apply to adjudications that are contested cases, Section 401, and that result in a final order of the agency, Section 413. Article Four does not apply to informal adjudications, which are not contested cases. Electronic. This definition is new to the act. The definition is based on and has the same meaning as the provisions of the Uniform Computer Information Transactions Act Section 102(a)(26), and the Uniform Electronic Transactions Act, Section 2(5). The term “electronic” refers to the use of electrical, digital, magnetic, wireless, optical, electromagnetic and similar technologies. It is a descriptive term meant to include all technologies involving electronic processes. The listing of specific technologies is not intended to be a limiting one. The definition is intended to assure that this act will be applied broadly as new technologies develop. For example, biometric identification technologies would be included if they affect communication and storage of information by electronic means. As electronic technologies expand and include other competencies, those competencies should also be included under this definition. State agencies widely use electronic media to disseminate information to the public. See Article Two for agency duties to provide public access to agency law. This definition should be read in conjunction with the terms “record” defined in Section 102(29), “electronic record” defined in Section 102(9), and “internet web site” defined in Section 102(17). Electronic Record. This definition is new to the Act. The definition is based on and has the same meaning as the provisions of the Uniform Electronic Transactions Act, Section 2(7). An “electronic record” is a document that is in an “electronic” form. Documents may be communicated in electronic form; they may be received in electronic form; they may be recorded and stored in electronic form; and they may be received in paper copies and converted into an electronic record. This Act does not limit the type of electronic documents received by the [publisher]. The purpose of defining and recognizing electronic documents is to facilitate and encourage agency use of electronic communication and maintenance of electronic records. State agencies widely use electronic media to disseminate information to the public. See Article Two for agency duties to provide public access to agency law. This definition should be read in conjunction with the terms “record” defined in Section 102(29), “electronic” defined in Section 102(8), and “internet web site” defined in Section 102(17). Emergency Adjudication. This definition is based on 1981 MSAPA Section 4-105(a). The definition should be read in conjunction with Section 407, emergency adjudication procedure. The definition is designed to be used with the emergency adjudication procedures provided by Section 407. The danger to the public health, safety, or welfare standard requiring immediate action is a strict standard that is defined by law other than this Act. Federal and state case law have held that in an emergency situation an agency may act rapidly and postpone any formal hearing without violation, respectively, of federal or state constitutional law. FDIC v. Mallen, 486 U.S. 230 (1988); Gilbert v. Homar (1997) 520 U.S. 924; Dep=t of Agric. v. Yanes, 755 P.2d 611 (OK. 1987). Evidentiary Hearing. This definition is new to this Act and describes the process for an evidentiary hearing. This definition should be read in conjunction with the definitions of “adjudication” under Section 102(1), “contested case” under Section 102(7), “final order” under Section 102(12), and of “order”, Section 102(23). Article Four procedures apply to adjudications that are contested cases, Section 401, and that result in a final order of the agency, Section 413. The definition of contested case in Section 102(7) includes the language “opportunity for an

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evidentiary hearing”, and that term is defined here. The contested case definition provides for external sources of law to determine the opportunity for an evidentiary hearing, but the type of hearing provided is defined in this definition. The specifics of hearing procedure for contested cases are detailed in the provisions of Article Four of this Act. Final Order. This definition is new to this act and applies to Article Four adjudication proceedings. See Section 413, Orders: Final, Recommended, and Initial. This definition should be read in conjunction with the terms “initial order” in Section 102(16), “order” in Section 102(23), and “recommended order” in section 102(28). Guidance document. This definition is new to this act and is similar to the Michigan APA, M.C.L.A. 24.203(6), and the Virginia APA, Va. Code Ann. SECTION 2.2-4001. See also the; Idaho I.C. SECTION 67-5250 and N.Y. McKinney’s State Administrative Procedure Act, SECTION 102. This is a definition intended to recognize that there exist agency statements for the guidance of staff and the public that differ from, and that do not constitute, rules. Many states recognize such statements under the label “interpretive statement” or “policy statement.” See Wash. Rev. Code, SECTION 34.05.010(8) & (15). See: Michael Asimow, Guidance Documents in the States, 54 Adm. L. Rev. 631 (2002); Michael Asimow, California Underground Regulations, 44 Adm. L. Rev. 43 (1992). This definition should be read in conjunction with Section 311, Guidance Documents. Agencies are required by Section 202(a) to publish guidance documents issued by agencies under Section 311 and to publish the index of currently effective guidance documents prepared under Section 311(f). Index. This definition is new to this act and is designed to include both paper and electronic versions of an index . The definition of index has been added as a guide to agencies, [publisher]s and editors about their duties to make records available and easily accessible to the public in the form of an index, as that term is used throughout this act. States can satisfy the requirement of an index by providing a record that is searchable by Word on the Internet, unless a hard copy index is required. Agencies may also satisfy the index requirements by providing hypertext links to index items. This definition should be read in conjunction with Sections 201, and 202. The rules publisher is required to publish an index of the contents in the administrative bulletin, Section 201(g), and index of the contents of the administrative code, Section 201(h). Agencies are required by Section 202 to publish an index of declaratory orders prepared under Section 204(g), an index of currently effective guidance documents prepared under Section 311(f), and an index of final orders in contested cases prepared under Section 418(a). Initial Order. This definition is new to this act and applies to Article Four adjudication proceedings. See Section 413, Orders: Final, Recommended, and Initial. This definition should be read in conjunction with the terms “final order” in Section 102(12), “order” in Section 102(23), and “recommended order” in section 102(28). Internet website. This definition is new to the act and is designed to be used by agencies and publishers to comply with the requirements of Section 201, publication: publisher’s duties, Section 202, publication: agency duties, Section 316, filing of rules,, and Section 418, availability of orders; index of this Act. In many states, the Internet website is maintained by the [publisher], and in some states the agency also maintains its own Internet website. State agencies widely use electronic media to disseminate information to the public. See Article Two for agency duties to provide public access to agency law. This definition should be read in conjunction with

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the terms “electronic” defined in Section 102(8), “electronic record” defined in Section 102(9), and “record” defined in Section 102(29). The definition of “internet web site” broadly includes successor technology so that the definition does not become obsolete with technological changes that have not been anticipated. Law. This definition is new to this act and includes a broad definition of types of laws applicable to this Act. The definition broadly defines “law” to include legal authority that is binding on either the public or the agency. The term “Law” includes an executive order that rests on statutory or constitutional authorization. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188-89 (1999); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). See also Kevin M. Stack, “The Statutory President,” 90 Iowa L. Rev. 539, 550-52 (2005); Jim Rossi, “State Executive Law making in Crisis,” 56 Duke L. Rev. 237, 261-64 (2006). For example, a Governor’s declaration of a state of emergency would fall within the category of an executive order with statutory or constitutional authorization. See, e.g., New Mexico Executive Order 2005-040 (2005). This definition should be read in conjunction with the defined terms “rule”, Section 102(30) and “order”, Section 102(23). License. This definition is based on 1981 MSAPA Section 102(4), which is a revised version of 1961 MSAPA Section 1(3) definition of license. This definition should be read in conjunction with Section 419, licenses. Licensing. This definition is based on 1961 MSAPA Section 14(a). This definition should be read in conjunction with Section 419, licenses. Notice. The definition of notice is new to this act and refers to the content of information required to be provided by provisions of this act. This definition is be used with Article Four adjudication in contested cases, Section 405, notice in contested cases. Notify. The definition of notify is new to this act and is similar to the definition of notice in the Uniform Arbitration Act Section 2(a), and the Uniform Computer Information Transactions Act Section 102(a)(49), which is based on the provisions of the Uniform Commercial Code Section 1-201(26). The definition is consistent with the due process of law requirements for methods of notifying persons. Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 314-316 (1950); Goldberg v. Kelley, 397 U.S. 254, 267-268 (1970); Dusenberry v. United States, 534 U.S. 161, 168-170 (2002); See Ho v. Donovan 569 F.3d 677, 680-681 (7th. Cir.,2009). Under those requirements, using a method of notice that is reasonable likely to inform is sufficient to satisfy due process of law requirements. The notice sender does not have to prove that the notice recipient received the notice in every case to satisfy due process of law requirements. See Section 405, notice in contested case, for more specific requirements of notice in contested cases. Order. This definition is based on 1981 MSAPA Section 102(5). An order includes solely agency legal determinations that are addressed to particular, identified persons in particular circumstances. An order may be addressed to more than one person. Further, the definition is consistent with modern law in rejecting the right/privilege distinction in constitutional law. The addition of the language “or other interests” is intended to clarify this change and to include entitlements. The definition of “order” should be read in conjunction with the definitions of “adjudication” under Section 102(1), “contested case” under Section 102(7)”,

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“evidentiary hearing” under Section 102(11), and “final order” under section 102(12). The term “order” is primarily used in Article Four contested case proceedings. Article Four procedures apply to adjudications that are contested cases, Section 401, and that result in a final order of the agency, Section 413. In addition to this term, three type of orders are defined in the act, and the term “order” should be read in conjunction with the terms “final order” in section 102(12), “initial order in section 102(16), and “recommended order” in section 102(28) Party. This definition is similar to 1961 MSAPA Section 1(5), and 1981 MSAPA Section 102(6). The definition includes the agency, any person against whom agency action is brought and any person who intervenes. The term” party’ should be read in conjunction with the terms “agency” in Section 102(3), and the term “person” in Section 102(25). The term “party” is used in Article Four contested case proceedings. For example, See Section 403, contested case procedure, Section 404, evidence in contested case, Section 405, notice in contested case, and Section 409 intervention. The term “agency” is also used extensively in Articles Three, Four, and Five. This section is not intended to deal with the issue of a person’s entitlement to judicial review. Standing and other issues relating to judicial review of agency action are addressed in Article 5 of this Act. Person. This definition is based on 1961 MSAPA Section 1(6), and 1981 MSAPA Section 102(8). The term “person” should be read in conjunction with the term “agency” in Section 102(3), and the term “party” in Section 102(24). The term “person” is broadly defined to include individuals, associations of individuals, and corporate and governmental entities. The term “person” is used extensively in the act including Article Two (See, e.g., Section 204(a)), Article Three (See, e.g., Section 306(a)), Article Four (See, e.g., Section 405(b)), and Article Five ( See, e.g., Section 505). The term “person” is based on the standard definition used in acts adopted by the National Conference of Commissioners on Uniform State Laws. See UCITA Section 102 (a)(51). Presiding Officer. This definition is new to the Act and should be read in conjunction with the definitions of “adjudication” under Section 102(1), “agency head” under Section 102(5) “contested case” under Section 102(7), “evidentiary hearing” under Section 102(11), and of “order”, Section 102(23). The term ‘presiding officer” is used in Article Four procedures which apply to adjudications that are contested cases, Section 401, and that result in a final order of the agency, Section 413. The presiding officer presides over contested case evidentiary hearings, Section 402. Under Section 402(a), the “presiding officer” includes an agency staff member, an administrative law judge appointed under Section 602, the agency head, or one or more members of the agency head when designated to preside at a hearing. Proceeding. This definition is new to this act and broadly defines agency actions including those conducted by an agency in rulemaking, governed by Article Three, and in adjudication, governed by Article four. Recommended Order. This definition is new to this act and applies to Article Four adjudication proceedings. See Section 413, Orders: Final, Recommended, and Initial. This definition should be read in conjunction with the terms “final order” in section 102(12), “initial order” in Section 102(16), and “order” in Section 102(23). Record. This definition is new to the act and is based on the broad definition of record in

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modern electronic age statutes such as the Uniform Computer Information Transactions Act, Section 102(a)(55), and the Uniform Electronic Transactions Act, Section 2(13). This definition is also based on the definition of record in the E-Sign Act, 15 U.S.C. Section 7006(9). The definition includes both paper and electronic documents. State agencies widely use electronic media to disseminate information to the public. See Article Two for agency duties to provide public access to agency law. This definition should be read in conjunction with the terms “electronic” defined in Section 102(8), “electronic record” defined in Section 102(9), and “internet web site” defined in Section 102(17). The term “record” refers to the medium for storage of information and does not address the requirements for the content of agency records. See the definition of “agency record” in Section 102(6) and the types of agency records defined there for that purpose. Rule. This first sentence of this definition is based on 1961 MSAPA Section 1(7), and 1981 MSAPA Section 102 (10). The language “and has the force of law” is new to this act and is designed to contrast rules with guidance documents which do not have the force of law. The second sentence of this definition is based on the second sentence of 1981 MSAPA Section 102(10). The exceptions to the definition are widely used in state APAs. Subsection (A) is drawn from 1981 Model State APA § 3-116(1). Subsection (B) is based on 1961 MSAPA Section 1(7)(C). Subsection (C) is drawn from 1981 Model State APA § 3-116(9). Subsection (D) is drawn from 1981 Model State APA § 3-116(2). Subsection (E) is based on 1981 Model State APA § 3-116(7). Subsection (f) is new to this act, and should be read in conjunction with the term “guidance document” in Section 102(14) and Section 311, Guidance documents. With the exception of guidance documents which must be made available to the public under Section 311(c), the stated exceptions are designed to exempt those statements from the procedural and publication requirements of Article Three that otherwise apply to “rules”. The essential part of this definition is the requirement of general applicability of the statement. This criterion distinguishes a rule from an order, which focuses on particular applicability to identified parties only. Applicability of a rule may be general, even though at the time of the adoption of the rule there is only one person or firm affected: persons or firms in the future who are in the same situation will also be bound by the standard established by such a rule. It is sometimes helpful to ask in borderline situations what the effect of the statement will be in the future. If unnamed parties in the same factual situation in the future will be bound by the statement, then it is a rule. The word “statement” has been used to make clear that, regardless of the term that an agency uses to describe a declaration or publication and whether it is internal or external to the agency, if the legal operation or effect of the agency action is that it has the force of law, then it meets this definition. The term “rule” applies primarily to Article Three rulemaking proceedings but the term is also used in the other articles. The term “rule” should be read in conjunction with the term “rulemaking” in Section 102(31). Rulemaking. This definition is a revised version of 1981 MSAPA Section 102(11). The purpose of this definition is to include amendment or repeal of an existing rule within the meaning of adoption of a rule. This definition eliminates the need to repeat the phrase “adopt, amend or repeal” in numerous sections of the act. This definition should be read in conjunction with the term “rule” in Section 102 (30). This term is primarily used in Article Three which governs rulemaking by agencies. Sign. This definition is based on UETA Section 2(8), and includes both paper and

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electronic signatures. See also the federal E-Sign Act, 15 U.S.C. Section 7001 et. Seq. Written. This definition is new to this act and relates to the definition of record in Section 102(29) in that written documents are inscribed on a tangible medium. The definition of record in Section 102(29) includes both tangible medium (written) and electronic documents.

SECTION 103. APPLICABILITY. (a) This [act] applies to an agency unless the agency is expressly exempted by a statute of this state. (b) This [act] applies to all agency proceedings and all proceedings for judicial review or civil enforcement of agency action commenced after [the effective date of this [act]]. This [act] does not apply to an adjudication for which notice was given before that date and rulemaking for which notice was given or a petition was filed before that date. Comment Subsection (a) is intended to define which agencies are subject to the provisions of this act. Many states have made use of an applicability provision to define the coverage of their Administrative Procedure Act. See: Iowa, I.C.A. SECTION 17A.23; Kansas, K.S.A. SECTION 77-503; Kentucky, KRS SECTION 13B.020; Maryland, MD Code, State Government, SECTION 10-203; Minnesota, M.S.A. SECTION 14.03; Mississippi, Miss. Code Ann. SECTION 25-43-1.103; Washington, West’s RCWA 34.05.020. States vary widely as to what state agencies are subject to the APA, and what agencies are exempt from the APA. The issue of what agencies are exempt from the APA will be decided by each state using its own legislative process. Some states list the agencies or agency proceedings that are exempt from the requirements of the APA. See Washington, West’s RCWA 34.05.30.This section provides a way to resolve those issues. Subsection (b) is based on Section 1-108 of the 1981 MSAPA. Agency proceedings on remand following judicial review after the act takes effect are governed by the prior law.

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[ARTICLE] 2 PUBLIC ACCESS TO AGENCY LAW AND POLICY SECTION 201. PUBLICATION, COMPILATION, INDEXING, AND PUBLIC INSPECTION OF RULEMAKING DOCUMENTS. (a) The [publisher] shall administer this section and other sections of this [act] that require publication. The [publisher] shall publish the [administrative bulletin] and the [administrative code]. (b) The [publisher] shall publish in [electronic and written] [electronic or written] [electronic] [written] format all rulemaking-related documents listed in Section 202(c). The [publisher] shall prescribe a uniform numbering system, form, and style for proposed rules. (c) The [publisher] shall maintain the official record of a rulemaking, including the text of the rule and any supporting documents, filed with the [publisher] by an agency. An agency engaged in rulemaking shall maintain the rulemaking record required by Section 302(b) for that rule. (d) The [publisher] shall create and maintain an Internet website. The [publisher] shall make available on the Internet website the [administrative bulletin], the [administrative code], and any guidance document filed with the [publisher] by an agency. (e) The [publisher] shall publish the [administrative bulletin] at least once [each month]. (f) The [administrative bulletin] must be provided in written form on request, for which the [publisher] may charge a reasonable fee. (g) The [administrative bulletin] must contain: (1) notices of proposed rulemaking prepared so that the text of the proposed rule shows the text of any existing rule proposed to be changed and the change proposed; (2) newly filed final rules prepared so that the text of a newly filed amended rule

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shows the text of the existing rule and the change that is made; (3) any other notice and material required to be published in the [administrative bulletin]; and (4) an index. (h) The [administrative code] must be compiled, indexed by subject, and published in a format and medium prescribed by the [publisher]. The rules of an agency must be published and indexed in the [administrative code]. (i) The [publisher] shall make the [administrative bulletin] and the [administrative code] available for public inspection and, for a reasonable charge, copying. (j) The [publisher], with notification to the agency, may make minor nonsubstantive corrections in spelling, grammar, and format in a proposed or final rule. The [publisher] shall make a record of the corrections. (k) The [publisher] shall make available on the [publisher’s] Internet website, at no charge, all the documents provided by an agency under Section 202(c). Legislative Note: Throughout this act the drafting committee has used the term [publisher] to describe the official or agency to which substantive publishing functions are assigned. All states have such an official, but their titles vary. Each state using this act should determine what that agency is, then insert its title in place of [publisher] throughout this act. Each state also has an [administrative bulletin] and an [administrative code]. The bulletin is similar to the Federal Register, and the code is similar to the Code of Federal Regulations. The names of the administrative bulletin and the administrative code vary from state to state. Each state should insert the proper title in place of [administrative bulletin], and [administrative code]. The [publisher] has statutory authority under subsections (f) and (i) to provide written materials for a reasonable charge. In many states, [publishers] have statutory authority under a public records act to adopt regulations setting fees for providing written copies of documents under this section. Comment Article 2 is intended to provide easy public access to agency law and policy that are relevant to agency process. Article 2 also adds provisions for electronic publication of the administrative bulletin and code. The development of the internet and the widespread use of electronic media have made public access to agency law and policy much easier. The arrival of the Internet and electronic information transfer, which occurred after the last revision of the

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Model State Administrative Procedure Act, has revolutionized communication. It has made available rapid, efficient and low cost communication and information transfer. Many states as well as the federal agencies have found that it is an ideal medium for communication between agencies and the public, especially in connection with rulemaking. Since the last Model Administrative Procedure Act was written, many states have adopted various types of statutes that permit agencies to use electronic technology to communicate with the public. The agencies have found this technology particularly useful in connection with rulemaking. Section 201 is a revised and modernized version of 1961 MSAPA Section 5 and 1981 MSAPA Section 2-101. The purpose of this section is to provide adequate notice to the public of proposed and final agency action in rulemaking. It also seeks to assure adequate record keeping and availability of records for the public. Subsection (a) provides for the publisher’s responsibilities to administer publication provisions of this section and other publication sections of the act, and to publish the administrative bulletin and the administrative code. Throughout this article and article three, the term publisher is bracketed. States have a variety of names for the agency that performs publishing responsibilities. Each state should insert the correct name for that state in the brackets whenever the term publisher appears in the act. The terms administrative bulletin and administrative code are also bracketed for similar reasons. Each state should insert the correct name for that state whenever those terms appear in that act. Section 201 does not address the issue related to what languages rules should be published in, nor does it address issues related to translation of information contained in these documents into languages other than English. Subsection (b) requires the publisher to publish rulemaking documents that are filed by an agency with the publisher under section 202(c). Subsection (b) has four bracketed options for publication format. A state may select one of the four options. The issue raised by these options is whether or not a state wants to make available to its citizens a written publication option or electronic publication only. Electronic publication provides for substantial cost savings to agencies but some members of the public may lack access to the internet or may prefer a written publication format. The second sentence of subsection (b) is based on 1981 MSAPA Section 2101(b) [first clause]. Publishers that administer the provisions of this subsection must also comply with the applicable provisions of the federal E-Sign Act (15 U.S.C. Section 7001 to 7031) and the Uniform Electronic Transactions Act (UETA). This section does not address records retention policies for agencies. That subject is governed by law of the state other than this act. In some states, the public records act prescribes the period of time that agencies have to retain filed documents, and other records. Subsection (c) requires that the [publisher] maintain the official record for adopted rules, including the text of the rules and any supporting documents, filed by the agency. Subsection (c) also requires that the agency adopting the rule maintain the rulemaking record for that rule. Section 302(b) provides the requirements for the rulemaking record. While the [publisher] is an agency, and the term “agency” is defined broadly in section 102(3), the term agency used in Article Two and Three means an agency other than the publisher except to the extent that the publisher has rulemaking authority and does adopt rules. In that case the publisher would have to comply with the requirements of section 202, as well as administer the requirements of this section. Subsection (d) requires the [publisher] to 1) maintain an Internet web site, and 2) publish

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the [administrative bulletin], the [administrative code] and any guidance document filed with the [publisher] by an agency on the Internet web site. The term “Internet web site” is defined in Section 102(17) and includes successor technology. The term “guidance document” is defined in Section 102(14), is excluded from the term rule in section 102(30)(F), and is governed by the provisions of section 311. Most states have internet web sites for state agencies. The provisions of subsection (d) can be implemented with existing internet technology. Subsection (d) does not address issues related to authentication, preservation and archival storage of electronic documents published on an Internet website. Subsection (d) does not address the principles for deciding what rules are in effect and enforceable at a specific point in time. Providing a hypertext link on an Internet website will satisfy the publication requirements for agencies and publishers. Subsection (e) requires the publisher to publish the [administrative bulletin] at least once [each month]. The term [each month] is bracketed to give states the option of adapting this requirement to existing laws governing frequency of publication of the [administrative bulletin] in each state. Subsection (f) requires the publisher to provide the administrative bulletin in written form on request, for which the publisher may charge a reasonable fee. This requirement can be satisfied by states making the administrative bulletin available on the Internet, searchable, and printable. Subsection (g) requires the [administrative bulletin] to contain notices of proposed adoption of a rule, newly filed rules, other notices and materials, and an index of the contents of the bulletin. The text of subsection (g)(1) and (g)(2) requires an agency to utilize redlining or underlining and striking of the text of the proposed or adopted rules so that changes from the existing text of the rule are clearly delineated. Subsection (h) requires the publisher to compile, index by subject, and publish the administrative code which must include the publication and indexing of the rules of an agency States can satisfy this requirement by providing an administrative code that is searchable by word on the Internet. Subsection (i) requires the publisher to make the [administrative bulletin] and the [administrative code] available for public inspection and, for a reasonable charge, copying. Subsection (j) provides for a limited non substantive power of the publisher to make corrections in spelling, grammar, and format in proposed or adopted rules of the agency provided that the agency is notified by the rules [publisher] of the changes. The [publisher] must make a record of the corrections. Subsection (j) is based on the Maine Administrative Procedure Act, 5 M.R.S.A. Section 8056(10). Subsection (k) is drawn from the Washington Administrative Procedure Act. See WA ST 34.05.260.

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SECTION 202. PUBLICATION; AGENCY DUTIES. (a) Unless the record is exempt from disclosure under law of this state other than this [act], an agency shall publish on its Internet website and, on request and for a reasonable charge, make available through the regular mail: (1) each notice of a proposed rule under Section 304; (2) each rule filed under Section 316; (3) each summary of regulatory analysis required by Section 305; (4) each declaratory order issued under Section 204; (5) the index of declaratory orders prepared under Section 204(g); (6) each guidance document issued under Section 311; (7) the index of currently effective guidance documents prepared under Section 311(e); (8) each final order in a contested case issued under Section 413, 414, or 415; and (9) the index of final orders in contested cases prepared under Section 418(a). (b) An agency may provide for electronic distribution to a person that requests electronic distribution of notices related to rulemaking or guidance documents. If a notice is distributed electronically, the agency need not transmit the actual notice but must send all the information contained in the notice. (c) An agency shall file with the [publisher] in an electronic format acceptable to the [publisher]: (1) notice of the adoption of a final rule; (2) a summary of the regulatory analysis required by Section 305 for each proposed rule; (3) each final rule;

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(4) an index of currently effective guidance documents under Section 311(f); and (5) any other notice or matter that an agency is required to publish under this [act]. Legislative Note: Agencies have statutory authority under subsection (a) to provide written materials for a reasonable charge. In many states, agencies have statutory authority under a public records act to adopt regulations setting reasonable charges for providing written copies of documents under this section. Comment This Section provides for the publication duties of agencies. See Section 201 for publication duties of the [publisher]. The term “agency” is broadly defined in Section 102(3). The term “agency”, as used in Section 202, does not include the publisher unless the publisher has rulemaking authority in which case the publisher will have to comply with the publication responsibilities of Section 202 when it engages in rulemaking a well as the Section 201 publication responsibilities. In states in which the publisher is responsible for all publication duties, particularly the maintenance of Internet web sites, the agency can carry out its responsibilities under Section 202 by providing the required information to the publisher. Subsection (a) requires agencies to publish on the agency Internet web site the following: notice of proposed rulemaking, filed rules, summary of regulatory analysis, declaratory order and index of declaratory orders, guidance documents and index of currently effective guidance documents, final order and index of final orders. These documents are also to be made available by the agency thorough the regular mail on request and for a reasonable charge. In states where the publisher has the sole responsibility for publishing agency rules and other documents, including guidance documents, an agency may satisfy the publication requirement of subsection (a) by filing the listed documents with the publisher. The term “Internet web site” is defined in Section 102(17) and includes successor technology. The term “guidance document” is defined in Section 102(14), is excluded from the term rule in section 102(30)(F), and is governed by the provisions of section 311. Subsection (b) is drawn from the Washington Administrative Procedure Act. See WA ST 34.05.260. Subsection (b) authorizes agencies to utilize electronic distribution of notices or guidance documents. The term “electronic” is defined in Section 102(8) , and the term “electronic record” is defined in Section 102(9). Subsection (c) requires an agency to file with the [publisher] in an electronic format acceptable to the publisher (1) notice of the adoption of a rule, (2) summary of the regulatory analysis, (3) each adopted rule, (4) an index of currently effective guidance documents, and (5) any other notice or matter that an agency is required to publish under this act. Subsection (c)(5) would require the agency to file with the publisher the list of documents stated in subsection (a).

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SECTION 203. REQUIRED AGENCY PUBLICATION AND RECORDKEEPING. An agency shall: (1) publish a description of its organization, stating the general course and method of its operations and the methods by which the public may obtain information or make submissions or requests; (2) publish a description of all formal and informal procedures available, including a description of all forms and instructions used by the agency; (3) publish a description of the process for application for a license, available benefits, or other matters for which an application is appropriate, unless the process is prescribed by law other than this [act]; (4) adopt rules for the conduct of public hearings [if the standard procedural rules adopted under Section 205 do not include provisions for the conduct of public hearings]; (5) maintain the agency’s current rulemaking docket required by Section 301(b); and (6) maintain a separate, official, current, and dated index and compilation of all final rules filed with the [publisher], make the index and compilation available for public inspection and, for a reasonable charge, copying at the principal office of the agency [and online on the [publisher]’s Internet website], update the index and compilation at least [monthly], and file the index and the compilation and all changes to both with the [publisher]. Comment One object of this section is to make available to the public all procedures followed by the agency, including especially how to file for a license or benefit. It is modeled on the 1961 Model State Administrative Procedure Act, Sections 2(a) (1) & (2), the 1981 Model State APA Sections 2-104(1), (2), and the Kentucky Administrative Procedure Act, KRS Section 13A.100. Persons seeking licenses or benefits should have a readily available and understandable reference sources from the agency. Subsections (1), (2), and (3), require the agency to publish the description of the organization of the agency and the procedures followed by the agency. This is a modified version of the provisions in the 1961 and 1981 MSAPA’s which required the agency to adopt rules providing this information. Some states provide more detail in subsection (1) including contact information for agency officials, organizational charts, and hours of operations

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for agency offices. The term methods of operation in subsection (1) refers to information about how the agency carries out its responsibilities that would be helpful to the public Subsection (2) is not intended to require publication of internal procedures available to and applicable to employees only, and that are of no real interest to the public. Subsection (3) requires publication of a description of application processes that are appropriate to the agency. For social welfare agencies, the publication would include available benefits administered by that agency. Subsection (4) requires that agencies adopt rules for the conduct of public hearings. An agency may use a guidance document to elaborate on issues not squarely addressed by these rules. Subsection (5) requires the agency to maintain custody of the agency’s current rulemaking docket required by Section 302(b). Subsection (6) requires an agency to maintain the official version of the index and rules compilation and to make that available to the public for inspection and for a reasonable charge copying at the principal office of the agency. An agency must also make the index and compilation available online on the publisher’s internet web site, must update the index and compilation at least monthly, and must file the index and compilation and all changes to both with the publisher. The publisher is the repository of the official language of the rules. If questions arise about authentication of agency rules, the publisher is the source for the official version of the rule in question.

SECTION 204. DECLARATORY ORDER. (a) A person may petition an agency for a declaratory order that interprets or applies a statute administered by the agency or states whether or in what manner a rule, guidance document, or order issued by the agency applies to the petitioner. (b) An agency shall adopt rules prescribing the form of a petition under subsection (a) and the procedure for its submission, consideration, and prompt disposition. The provisions of this [act] concerning formal, informal, or other applicable hearing procedure do not apply to an agency proceeding for a declaratory order, except to the extent provided in this [article] or to the extent the agency provides by rule or order. (c) Not later than 60 days [or at the next regularly scheduled meeting of the agency, whichever is later,] after receipt of a petition under subsection (a), an agency shall issue a declaratory order in response to the petition, decline to issue the order, or schedule the matter for

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further consideration. (d) If an agency declines to issue a declaratory order requested under subsection (a), it shall notify promptly the petitioner of its decision. The decision must be in a record and must include a brief statement of the reasons for declining. An agency decision to decline to issue a declaratory order is subject to judicial review for abuse of discretion. An agency failure to act within the applicable time under subsection (c) is subject to judicial action under Section 501(d). (e) If an agency issues a declaratory order, the order must contain the names of all parties to the proceeding, the facts on which it is based, and the reasons for the agency’s conclusion. If an agency is authorized not to disclose certain information in its records to protect confidentiality, the agency may redact confidential information in the order. The order has the same status and binding effect as an order issued in an adjudication and is subject to judicial review under Section 501. (f) An agency shall publish each currently effective declaratory order. (g) An agency shall maintain an index of all of its currently effective declaratory orders, file the index [annually] with the [publisher], make the index readily available for public inspection, and make available for public inspection and, for a reasonable charge, copying the full text of all declaratory orders to the extent inspection is permitted by law of this state other than this [act]. Comment This section is a revised version of 1961 MSAPA Section 8, and 1981 MSAPA Section 2-103 and Hawaii Revised Statutes, Section 91-8. This section embodies a policy of creating a convenient procedural device that will enable parties to obtain reliable advice from an agency. Such guidance is valuable to enable citizens to conform with agency standards as well as to reduce litigation. The term “person” in Subsection (a) is broader than the term aggrieved person for judicial review in Article 5, and is also broader than the term person toward whom agency action is directed in adjudication under Article 4. Ripeness and standing requirements that restrict court issued declaratory judgments do not apply to declaratory orders issued by administrative agencies. Subsection (a) refers to declaratory orders that interpret or apply the statue administered by the agency. In states that have constitutional agencies, the term statute

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would include the entire body of law, including constitutional provisions, that the agency is responsible for enforcing. Subsection (d) provides that agency decisions to decline to issue a declaratory order are reviewable for abuse of discretion (See Massachusetts v. EPA 549 U.S. 497(2007) (EPA decision to reject rulemaking petition and therefore not to regulate greenhouse gases associated with global warming was judicially reviewable and decision was arbitrary and capricious.). Limited agency resources may provide a valid basis for an agency to decline to issue a declaratory order. The term notify in subsection (d) incorporates the definition of notify in section 102(22) (reasonable steps to inform a person). Mailing [or e-mailing] a copy of the notice to the petitioner at the address last known to the agency would satisfy the requirement to notify the person. Agency failures to act are subject to judicial action under section 501(d). Subsection (e) is based on the Washington APA, West=s RCWA 34.05.240. A declaratory decision issued by an agency is judicially reviewable; is binding on the applicant, other parties to that declaratory proceeding, and the agency, unless reversed or modified on judicial review; and has the same precedential effect as other agency adjudications. A declaratory decision, like other decisions, only determines the legal rights of the particular parties to the proceeding in which it was issued. The requirement in subdivision (e) that each declaratory decision issued contains the facts on which it is based and the reasons for its conclusion will facilitate any subsequent judicial review of the decision=s legality. It also ensures a clear record of what occurred for the parties and for persons interested in the decision because of its possible precedential effect. Subsections (f), and (g) require that an agency publish and index all current declaratory orders. Subsection (f) requires publication of currently effective declaratory orders. This would include all declaratory orders issued by the agency that is currently being relied on by the agency, and this would exclude declaratory orders that have been amended, repealed, or replaced by later orders.

SECTION 205. STANDARD PROCEDURAL RULES. (a) The [Governor] [Attorney General] [designated state agency] shall adopt standard procedural rules for use by agencies. The standard rules must provide for the procedural functions and duties of as many agencies as is practicable. (b) Except as otherwise provided in subsection (c), an agency shall use the standard procedural rules adopted under subsection (a). (c) An agency may adopt a rule of procedure that differs from the standard procedural rules adopted under subsection (a) if it explains with particularity the reasons for the variation. Comment

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This Section is based on Section 2-105 of the 1981 MSAPA. One purpose of this provision is to provide agencies with a set of standard procedural rules. This is especially important for smaller agencies. Another purpose of this section is to create as uniform a set of procedures for all agencies as is realistic, but to preserve the power of agencies to deviate from the common model where necessary because the use of the standard rules is demonstrated to be impractical for that particular agency. This section requires all agencies to use the standard rules as the basis for the rules that they are required to adopt under Section 203(4). An agency may deviate from the standard rules only for impracticability. Agency procedural rules must be consistent with the statutory requirements of this Act. An agency may adopt a procedural rule that is more protective of the rights of parties to a contested case under Section 403(k) provided that the agency satisfies the requirements of Section 205(c). Procedural rules adopted under Section 205 have the force of law and must be adopted consistent with the requirements of Sections 304 to 308 of Article Three of the Act.

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[ARTICLE] 3 RULEMAKING; PROCEDURAL REQUIREMENTS AND EFFECTIVENESS OF RULES SECTION 301. RULEMAKING DOCKET. (a) In this section, “rule” does not include an emergency rule adopted under Section 309 or a direct final rule adopted under Section 310. (b) An agency shall maintain a rulemaking docket for all pending rulemaking proceedings that is indexed. (c) The agency shall maintain a rulemaking docket under subsection (b) that must for each pending rulemaking proceeding state or contain: (1) the subject matter of the proposed rule; (2) notices related to the proposed rule; (3) how comments on the proposed rule may be submitted; (4) the time within which comments may be submitted; (5) where comments may be inspected; (6) requests for a public hearing; (7) appropriate information concerning a public hearing, if any; and (8) the timetable for action on the proposed rule. (d) On request, the agency shall provide, for a reasonable charge, a written rulemaking docket maintained under subsection (c). Comment This article should be read in conjunctions with the definitions of “Rule”, Section 102(30), and “Rulemaking”, Section 102(31). This section is modeled on Minn. M.S.A. Section 14.366, and is similar to 1981 MSAPA Section 3-102. This section and the following section, Section 302, state the minimum docketing and rulemaking record keeping requirements for all agencies. This section also recognizes that many agencies use electronic recording and maintenance of dockets and records. Electronic recording and docket maintenance has become

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the standard practice for state agencies. However, under subsection (d), a state agency is required to provide a written rulemaking docket on request and for a reasonable charge. The current rulemaking docket is a summary list of pending rulemaking proceedings or an agenda referring to pending rulemaking. . The requirements of this section do not apply to emergency rules under Section 309, and direct final rules under Section 310.

SECTION 302. RULEMAKING RECORD. (a) An agency shall maintain a rulemaking record for each proposed rule. Unless the record and any materials incorporated by reference are privileged or exempt from disclosure under law of this state other than this [act], the record and materials must be readily available for public inspection in the principal office of the agency and available for public display on the Internet website maintained by the [publisher]. If an agency determines that any part of the rulemaking record cannot be displayed practicably or is inappropriate for public display on the Internet website, the agency shall describe the part and note that the part is not displayed. (b) A rulemaking record must contain: (1) a copy of all publications in the [administrative bulletin] relating to the rule and the proceeding on which the rule is based; (2) a copy of any part of the rulemaking docket containing entries relating to the rule and the proceeding on which the rule is based; (3) a copy and, if prepared, an index, of all factual material, studies, and reports agency personnel relied on or consulted in formulating the proposed or final rule; (4) any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any audio recording or verbatim transcript of the presentations, and any memorandum summarizing the contents of the presentations prepared by the agency official who presided over the hearing; (5) a copy of all comments received by the agency under Section 306(a) in response to the notice of proposed rulemaking;

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(6) a copy of the rule and explanatory statement filed with the [publisher]; and (7) any petition for agency action on the rule, except a petition governed by Section 204. Comment Several states have adopted this type of agency rule-making record provisions: Az., A.R.S. Section 41-1029; Colo., C.R.S.A. Section 24-4-103; Minn., M.S.A. Section 14.365; Miss., Miss. Code Ann. Section 25-43-3.110; Mont., MCA 2-4-402; Okla., 75 Okl.St.Ann. Section 302; and Wash., RCWA 34.05.370. The language of subsection (a) is based on Section 3-112(a) of the 1981 Model Act. Similar language is found in the Washington Administrative Procedures Act, RCWA Section 34.05.370. The requirement of an official agency rulemaking record in subsection (a) should facilitate a more structured and rational agency and public consideration of proposed rules. It will also aid the process of judicial review of the validity of rules. The requirement of an official agency rulemaking record was suggested for the Federal Act in S. 1291, the “Administrative Practice and Regulatory Control Act of 1979,” title I, Section 102(d), [5 U.S.C. 553(d) ], 96 Cong.Rec. S7126 at S7129 (daily ed. Jun. 6, 1979) (Sen. Kennedy). The second sentence of subsection (a) is intended to exclude privileged material from disclosure and display. Privileged material includes confidential business information and trade secrets, as well as internal advice memoranda. Procedures that an agency may use in dealing with confidential communications and materials in rulemaking are discussed in Jeffrey Lubbers, Federal Agency Rulemaking Guide (4th ed., 2006), pp 331-333. The exemptions in the state open records laws would be examples of records and materials that are exempt from disclosure and display under law other than this act. The third sentence in subsection (a) is intended to enable an agency to decide, for example, that a blueprint that may not be practically displayed on the internet, indecent material, or copyrighted material should be available for inspection in hard copy but not posted on the Internet. It is not intended to authorize exclusion from the Internet record of, for example, information that reflects adversely on the government. The language of subsection (b) is based on 1981 MSAPA Section 3-112(b). Subsection (b) requires all written submissions made to an agency and all written materials considered by an agency in connection with a rulemaking proceeding to be included in the record. It also requires a copy of any existing record of oral presentations made in the proceeding to be included in the rulemaking record. The language in Subsection (b) (3) is based on language endorsed by the ABA Section of Administrative Law & Regulatory Practice. See ABA Section of Administrative Law and Regulatory Practice, “A Blackletter Statement of Federal Administrative Law,” 54 Admin. L. Rev. 1, 34 (2002). Section 310 provides that the agency must comply with Section 313(1) (concise explanatory statement) when it issues a direct final rule. In the case of direct final rules, the agency is expected to publish the rule in the administrative bulletin along with a statement that it does not expect the rule to be controversial. This would then trigger Section 302(1) (“all publications in the [administrative bulletin] relating to the rule”).

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Section 309 doesn’t expressly require this, but neither is the agency exempted from Section 313. This statement would be incorporated into the agency record under Section 302(6). To issue an emergency rule, the agency has to determine that some imminent peril requires immediate action, and this finding must be memorialized in a record. This “record” (meaning stored information) needs to be included in the Section 302 “agency record,” so that a court can potentially review it. Section 302 includes this concept. Under Section 312(3), any adopted rule must be filed with the publisher and be accompanied by “any finding required by law as a prerequisite to adoption or effectiveness of the adoption.” And Section 302(6) says the agency record must include “a copy of the rule and explanatory statement filed with the [publisher].” Reading the two together, the finding will have to be part of the agency record.

SECTION 303. ADVANCE NOTICE OF PROPOSED RULEMAKING; NEGOTIATED RULEMAKING. (a) An agency may gather information relevant to the subject matter of a potential rulemaking proceeding and may solicit comments and recommendations from the public by publishing an advance notice of proposed rulemaking in the [administrative bulletin] and indicating where, when, and how persons may comment. (b) An agency may engage in negotiated rulemaking by appointing a committee to comment or make recommendations on the subject matter of a proposed rulemaking under active consideration within the agency. In making appointments to the committee, the agency shall make reasonable efforts to establish a balance in representation among members of the public known to have an interest in the subject matter of the proposed rulemaking. At least annually, the agency shall publish in the [administrative bulletin] a list of all committees with their membership. Notice of a meeting of the committee must be published in the [administrative bulletin] at least [15 days] before the meeting. A meeting of the committee is open to the public. (c) A committee appointed under subsection (b), in consultation with one or more agency representatives, shall attempt to reach a consensus on the terms or substance of a proposed rule. The committee shall present the consensus recommendation, if any, to the agency.

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The agency shall consider whether to use it as the basis for a proposed rule under Section 304, but the agency is not required to propose or adopt the recommendation. (d) This section does not prohibit an agency from obtaining information and opinions from members of the public on the subject of a proposed rule by any other method or procedure. Comment This section is based on the provisions of Section 3-101 of the 1981 MSAPA. Seeking advice before proposing a rule frequently alerts the agency to potential serious problems that will change the notice of proposed rulemaking and the rule ultimately adopted. This section is designed to encourage gathering information. This device is commonly used in federal administrative law. See William Funk, “Public Participation and Transparency in Administrative Law--Three Examples and an Object Lesson,” 61 Admin. L. Rev. 171, 191 -197 (2009). It is not intended to prohibit any type of reasonable agency information gathering activities; however, the section seeks to enable agencies to act in a fashion that will result in a balance among interested groups from whom information is received. The advanced notice of proposed rulemaking under subsection (a) is a preliminary step for seeking information and is not the same as the notice of proposed rulemaking under Section 304, which begins the rulemaking process. Several states have enacted provisions of this type in their APAs. Some of them merely authorize agencies to seek informal input before proposing a rule; several of them indicate that the purpose of this type of provision is to promote negotiated rulemaking. Those states are Idaho, I.C. ‘ 67-5220; Minnesota, M.S.A. § 14.101; Montana, MCA 2-4-304; and Wisconsin, W.S.A. 227.13. Subsection (b) is intended to authorize negotiated rulemaking. Subsection (c) provides that the committee may seek to reach a consensus on the terms or substance of a proposed rule but the agency is not required to propose or adopt the consensus recommendation only to consider it. Subsection (d) authorizes agencies to use other methods to obtain information and opinions. Under subsection (d), agencies may meet informally with specific stakeholders to discuss issues raised in the negotiated rulemaking process. Negotiated rulemaking under subsection (b) is an option for agency use but is not required to be used prior to starting a rulemaking proceeding. Negotiated rulemaking committees are also used in federal administrative law. See the federal Negotiating Rulemaking Act, 5 U.S.C. Sections 561 to 570.

SECTION 304. NOTICE OF PROPOSED RULE. (a) At least [30] days before the adoption of a rule, an agency shall file notice of the proposed rulemaking with the [publisher] for publication in the [administrative bulletin]. The notice must include:

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(1) a short explanation of the purpose of the proposed rule; (2) a citation or reference to the specific legal authority authorizing the proposed rule; (3) the text of the proposed rule; (4) how a copy of the full text of any regulatory analysis of the proposed rule may be obtained; (5) where, when, and how a person may comment on the proposed rule and request a hearing; (6) a citation to and summary of each scientific or statistical study, report, or analysis that served as a basis for the proposed rule, together with an indication of how the full text of the study, report, or analysis may be obtained; and (7) any summary of a regulatory analysis prepared under Section 305(d). (b) Not later than three days after publication of the notice of the proposed rulemaking in the [administrative bulletin], the agency shall mail the notice or send it electronically to each person that has made a timely request to the agency for a mailed or electronic copy of the notice. An agency may charge a reasonable fee for a mailed copy requested by a person. Comment Many states have similar provisions to provide notice of proposed rulemaking to the public. Most states have an administrative bulletin that is published regularly. If a state does not have an administrative bulletin, it will still have to comply with the publication requirement. This section is based on the provisions of Section 3-103 of the 1981 MSAPA. Rule is defined in Section 102(30). Rulemaking is defined in Section 102(31). The publisher has the responsibility to publish a notice of proposed rulemaking under Section 201(g)(1). Subsection (b) requires that individual notice of the proposed rulemaking be provided in written or electronic form to each individual who has made a timely request to the agency. To be timely under this subsection, the request would have to be made prior to the publication of the notice of proposed rulemaking. Subsection (a)(6) This language is adapted from N.Y. APA § 202-a. This language also codifies requirements used in federal administrative law. In the federal cases, disclosure of technical information underlying a rule has been deemed essential to effective use of the opportunity to comment. See American Radio Relay League v. FCC, 524 F.3d 227(D.C. Cir.,

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2008); Portland Cement Ass=n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973). Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this article. Section 304(a) provides for a minimum of 30 days prior to the adoption of a rule for the notice of proposed adoption of a rule to be filed by the agency with the publisher. Section 304(b) provides for a three day deadline for the agency to send notice by mail or electronically to persons who have made a timely request for notice of the proposed adoption of a rule. Other timing requirements are found in Sections 306, 307, 309 [emergency rules], 310 [direct final rules], 316, and 317.

SECTION 305. REGULATORY ANALYSIS. (a) An agency shall prepare a regulatory analysis for a proposed rule that has an estimated economic impact of more than $[

]. The analysis must be completed before

notice of the proposed rulemaking is published. The summary of the analysis prepared under subsection (d) must be published with the notice of proposed rulemaking. (b) If a proposed rule has an economic impact of less than $[

], the agency shall

prepare a statement of minimal estimated economic impact. (c) A regulatory analysis must contain: (1) an analysis of the benefits and costs of a reasonable range of regulatory alternatives reflecting the scope of discretion provided by the statute authorizing the proposed rule; and (2) a determination whether: (A) the benefits of the proposed rule justify the costs of the proposed rule; and (B) the proposed rule will achieve the objectives of the authorizing statute in a more cost-effective manner, or with greater net benefits, than other regulatory alternatives. (d) An agency preparing a regulatory analysis under this section shall prepare a concise summary of the analysis. (e) An agency preparing a regulatory analysis under this section shall submit the analysis

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to the [appropriate state agency]. (f) If an agency has made a good faith effort to comply with this section, a rule is not invalid solely because the regulatory analysis for the proposed rule is insufficient or inaccurate. Legislative Note: State laws vary as to which state agency or body an agency preparing the regulatory analysis should submit the analysis. In some states, it is the department of finance or revenue; in others it is a regulatory review agency or regulatory review committee. The appropriate state agency in each state should be inserted into the brackets. Comment Regulatory analyses are widely used as part of the rulemaking process in the states. See Robert W. Hahn, “State and Federal Regulatory Reform: A Comparative Analysis,” 29 J. Legal Stud. 873, 875-78 (2000); Richard Wisnant & Diane De Witt Cherry, “Economic Analysis of Rules: Devolution, Evolution, and Realism,” 31 Wake Forest L.Rev. 693, 694 n.2 (1996). States should set the dollar amount of estimated economic impact for triggering the regulatory analysis requirement of this section at a dollar amount so that as they deem appropriate or by other approach make the choice to prepare regulatory analyses carefully so that the number of regulatory analyses prepared by any agency are proportionate to the resources that are available . The subsection also provides for submission to the rules review entity in the state, if the state has one. States that already have regulatory analysis laws can utilize the provisions of Section 305 to the extent that this section is not inconsistent with existing law other than this act. Agencies may rely on agency staff expertise and information provided by interested stakeholders and participants in the rulemaking process. Agencies are not required by this act to hire and pay for private consultants to complete regulatory impact analysis. The concise summary of the regulatory analysis required by subsection (d) means a short statement that contains the major conclusions reached in the regulatory analysis. Subsection (f) is based on 1981 MSAPA Section 3-105(f).

SECTION 306. PUBLIC PARTICIPATION. (a) An agency proposing a rule shall specify a public comment period of at least [30] days after publication of notice of the proposed rulemaking during which a person may submit information and comment on the proposed rule. The information or comment may be submitted in an electronic or written format. The agency shall consider all information and comment on a proposed rule which is submitted pursuant to this subsection within the comment period. (b) An agency may consider any other information it receives concerning a proposed rule during the rulemaking. Any information considered by the agency must be incorporated into the

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record under Section 302(b)(3). The information need not be submitted in an electronic or written format. Nothing in this section prohibits an agency from discussing with any person at any time the subject of a proposed rule. (c) Unless a hearing is required by law of this state other than this [act], an agency is not required to hold a hearing on a proposed rule but may do so. A hearing must be open to the public, recorded, and held at least [10] days before the end of the public comment period. (d) A hearing on a proposed rule may not be held earlier than [20] days after notice of its location, date, and time is published in the [administrative bulletin]. (e) An agency representative shall preside over a hearing on a proposed rule. If the representative is not the agency head, the representative shall prepare a memorandum summarizing the contents of the presentations made at the hearing for consideration by the agency head. Legislative Note: State laws vary on the length of public comment periods and on whether a rulemaking hearing is required. The bracketed number of days in subsections (a) and (d) should be interpreted to require that if a rulemaking hearing is held, it will be held before the end of the public comment period. In that case, the minimum time period would be 50 days rather than 30 days. Comment This section gives discretion to the agency about whether to hold an oral hearing on proposed rules in the absence of a statutory or constitutional requirement that an oral hearing be held. The first sentence of subsection (a) is based on 1981 MSAPA Section 3-104(a). Subsection (b) is based on 1981 MSAPA Section 3-104(b)(2). Under subsection (c), the agency may extend the comment period for 10 days after the hearing in cases in which the agency holds a rule making hearing under this subsection. Subsection (e) is based on 1981 MSAPA Section 3104(b)(3). The agency representative described in subsection (e) need not be an officer or employee of the agency unless that is required by law other than this [act]. In some states, an employee of the state attorney general’s office will serve as the agency representative presiding on a hearing related to rulemaking. Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this Article. Section 306(a) provides for a minimum of 30 days for a public comment period after publication of the notice of proposed adoption of a rule under Section 304(a). Under Section 306(c), an agency rulemaking public hearing may not be held later than 10 days before the end of the public comment period. Under Section 306(d) an agency rulemaking

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hearing may not be held earlier than 20 days after notice of the location, date, and time is published in the administrative bulletin. Other timing requirements are found in Sections 304, 307, 309 [emergency rules], 310 [direct final rules], 316, and 317. The agency representative appointed under Section 306(e) to preside over a public hearing under Section 306(c) has the authority to manage the hearing and to set reasonable limits on public participation at the public hearing.

SECTION 307. TIME LIMIT ON ADOPTION OF RULE. (a) An agency may not adopt a rule until the public comment period has ended. (b) Not later than [two years] after a notice of proposed rulemaking is published, the agency shall adopt the rule or terminate the rulemaking by publication of a notice of termination in the [administrative bulletin]. [The agency may extend the time for adopting the rule once for an additional [two years] by publishing a statement of good cause for the extension but must provide for additional public participation as provided in Section 306 before adopting the rule.] (c) An agency shall file an adopted rule with the [publisher] not later than [

] days

after the adoption of the rule. (d) A rule is void unless it is adopted and filed within the time limits in this section. Comment This section codifies the final adoption and filing for publication requirements for rulemaking that is subject to the procedures provided in Sections 304 through 308 of this Act. Subsection (a) is based on 1981 MSAPA Section 3-106 (a). Section 702(a) of this act requires that the agency shall file a copy of the adopted amended or repealed rule with the rules review committee at the same time it is filed with the publisher. Subsection (d) provides that a rule that is not properly adopted and filed for publication has no legal effect. Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this Article. Section 307(a) provides that the agency may not adopt a rule until the public comment period has ended. Section 307(b) provides that an agency shall adopt proposed rule or terminate proceeding by publishing notice of termination in the [administrative bulletin] not later than two years after the notice of proposed adoption of a rule. Section 307(b) also provides that an agency may extend the time for adopting a rule for an additional two years by filing a statement of good cause for the extension in the rulemaking record, but must provide for additional public participation as provided in Section 306 prior to adopting the rule. Other timing requirements are found in Sections 304, 306, 309 [emergency rules], 310 [direct final rules], 316, and 317.

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SECTION 308. VARIANCE BETWEEN PROPOSED AND FINAL RULE. An agency may not adopt a rule that differs from the rule proposed in the notice of proposed rulemaking unless the final rule is a logical outgrowth of the rule proposed in the notice. Comment This section draws on provisions from several states. See Mississippi Administrative Procedure Act, Miss. Code Ann. Section 25-43-3.107 and the Minn. Administrative Procedure Act, M.S.A. Section 14.05. The variance test adopted by state and federal courts is the logical outgrowth test. If the adopted rule is a logical outgrowth of the proposed rule, no further comment period is required. If it is not a logical outgrowth, then a further comment period is required. At a minimum, the logical outgrowth test is designed to ensure fair notice to affected persons. Long Island Care at Home Ltd. v. Coke 551 U.S. 158 (2007). Fair notice is met when changes between the adopted rule and the proposed rule are reasonable foreseeable from the proposed rule. Courts utilize several factors to apply the logical outgrowth test including: (1) any person affected by the adopted rule should have reasonably expected that the change from the published proposed rule would affect the person’s interest; (2) the subject matter of the adopted rule or the issues determined by that rule are different from the subject matter or issues involved in the published rule proposed to be adopted; and (3) the effect of the adopted rule differs from the effect of the rule proposed to be adopted or amended. 1981 MSAPA Section 3107 dealt with variance by using the language “substantially different” as the test for improper variance. The “logical outgrowth” language used in Section 308 is based on the case law set forth below. The following cases discuss and analyze the logical outgrowth test and these factors. These judicial opinions also convey the wide acceptance and use of the logical outgrowth test in the states. First Am. Discount Corp. v. Commodity Futures Trading Comm=n, 222 F.3d 1008, 1015 (D.C.Cir.2000); Arizona Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1300 (D.C.Cir.2000); American Water Works Ass=n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994); Trustees for Alaska v. Dept. Nat. Resources, 795 P.2d 805 (1990); Sullivan v. Evergreen Health Care, 678 N.E.2d 129 (Ind. App. 1997); Iowa Citizen Energy Coalition v. Iowa St. Commerce Comm. ___IA___, 335 N.W.2d 178 (1983); Motor Veh. Mfrs. Ass=n v. Jorling, 152 Misc.2d 405, 577 N.Y.S.2d 346 (N.Y.Sup.,1991); Tennessee Envir. Coun. v. Solid Waste Control Bd., 852 S.W.2d 893 (Tenn. App. 1992); Workers= Comp. Comm. v. Patients Advocate, 47 Tex. 607, 136 S.W.3d 643 (2004); Dept. Of Pub. Svc. re Small Power Projects, 161 Vt. 97, 632 A.2d 13 73 (1993); Amer. Bankers Life Ins. Co. v. Div. of Consumer Counsel, 220 Va. 773, 263 S.E.2d 867 (1980).

SECTION 309. EMERGENCY RULE. If an agency finds that an imminent peril to the public health, safety, or welfare or the loss of federal funding for an agency program requires the immediate adoption of an emergency rule and publishes in a record its reasons for that

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finding, the agency, without prior notice or hearing or on any abbreviated notice and hearing that it finds practicable, may adopt an emergency rule without complying with Sections 304 through 307. The emergency rule may be effective for not longer than [180] days [renewable once for no more than [180] days]. The adoption of an emergency rule does not preclude the adoption of a rule under Sections 304 through 307. The agency shall file with the [publisher] a rule adopted under this section as soon as practicable given the nature of the emergency, publish the rule on its Internet website, and notify persons that have requested notice of rules related to that subject matter. This section does not prohibit the adoption of a new emergency rule if, at the end of the effective period of the original emergency rule, the agency finds that the imminent peril to the public health, safety, or welfare or the loss of federal funding for an agency program still exists. Comment This section is taken from the 1961 MSAPA, Section 3(2)(b), and the Virginia Administrative Procedure Act, Va. Code Ann. Section 2.2-4012.1. Many states have emergency rulemaking provisions that are based on these provisions of the 1961 MSAPA. See N.Y.S. A. Section 202(6); F.S.A. Section 120.54(4)(a); 29 Del. Stats. Ch. 101, Section 10119; Utah Stats.Ch 63G-3-304; and Wash. Stats.RCW 34.05.350. Some state courts will invalidate an emergency rule when the agency has not established that there is an emergency that justifies the use of emergency rulemaking procedures. Citizens for a Better Environment v. Illinois Pollution Control Bd. 152 Ill.App.3d 105, 504 N.E.2d 166 (Ill.App. 1 Dist.,1987). Both the 1981 MSAPA Section 3-108(a) and the federal Administrative Procedure Act, 5 U.S.C. Section 553(b)(B) use the “unnecessary, impracticable or contrary to the public interest” good cause standard for the same purposes as the imminent peril standard used in this section and in the 1961 MSAPA Section (3)(2)(b). For scholarly commentary, See Michael Asimow, “Interim Final Rules: Making Haste Slowly, “51 Admin. L. Rev. 703, 712-15 (1999); Ellen R. Jordan, “The Administrative Procedure Acts Good Cause Exemption,” 36 Admin. L. Rev. 113, 132-33(1984). This Section can be used to adopt program requirements necessary to comply with federal funding requirements, or to avoid suspension of federal funds for noncompliance with program requirements. When an emergency rule has the effect of repealing an existing rule, the impact of the end of the emergency on the repealed rule, whether the repealed rule comes back into existence, is not governed by the provisions of Section 309 but would be governed by law of this state other than this act, such as the governing statute that delegates rulemaking authority to the agency that issued the emergency rule. Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this Article. Section 309 provides that emergency rules are effective for not longer than [180] days [renewable once up to an additional [180] days]. Section 317(d) provides that emergency rules adopted under Section 309 become effective upon adoption by the agency.

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SECTION 310. DIRECT FINAL RULE. If an agency proposes to adopt a rule which is expected to be noncontroversial, it may use direct final rulemaking authorized by this section and must comply with Section 304(a)(1), (2), (3), and (5), Section 304(b), and Section 313(1). The proposed rule must be published in the [administrative bulletin] with a statement by the agency that it does not expect the adoption of the rule to be controversial and that the proposed rule takes effect 30 days after publication if no objection is received. If no objection is received, the rule becomes final under Section 317(e). If an objection to the rule is received from any person not later than [ ] days after publication of the notice of the proposed rule, the proposed rule does not become final. The agency shall file notice of the objection with the [publisher] for publication in the [administrative bulletin], and may proceed with rulemaking under Sections 304 through 307. Comment Section 310 Direct final rulemaking has been recommended by the Administrative Conference of the United States [ACUS Recommendation 95-4, 60 Fed. Reg. 43110 (1995)]. The study that provided the basis for the recommendation was prepared by Professor Ronald M. Levin and has been published [Ronald M. Levin, “Direct Final Rulemaking” 64 George Washington Law Review 1 (1995)]. Section 310 provides a procedure for direct final rulemaking that applies to noncontroversial rules. Under this rule when the agency is merely making a stylistic correction or correcting an error that the agency believes is noncontroversial, the rule may be adopted without full rulemaking procedures. See the VA Fast-Track Rule provision at Va. Code Ann. Section 2.2-4012.1.] In order to prevent misuse of this procedural device, noncontroversial rule promulgation may be prevented by the objection of any person . The public comment period provides notice of the noncontroversial rule and the opportunity to object to the adoption of the rule. If an objection to the direct final rulemaking process is received within the public comment period, the agency must give notice of the objection and then the agency may proceed with the normal rulemaking process, including the public comment provisions of Section 306. Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this Article. Section 310 provides that direct final rules are effective 30 days after publication if no objection is received. Section 317(e) provides that direct final rules to which no objection is received become effective 30 days after publication unless a later date is specified.

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SECTION 311. GUIDANCE DOCUMENT. (a) An agency may issue a guidance document without following the procedures set forth in Sections 304 through 307. (b) An agency that proposes to rely on a guidance document to the detriment of a person in any administrative proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the document. The agency may not use a guidance document to foreclose consideration of issues raised in the document. (c) A guidance document may contain binding instructions to agency staff members if, at an appropriate stage in the administrative process, the agency’s procedures provide an affected person an adequate opportunity to contest the legality or wisdom of a position taken in the document. (d) If an agency proposes to act in an adjudication at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in an adjudication may have relied reasonably on the agency’s position, the explanation must include a reasonable justification for the agency’s conclusion that the need for the variance outweighs the affected person’s reliance interest. (e) An agency shall maintain an index of all of its effective guidance documents, publish the index on its Internet website, make all guidance documents available to the public, and file the index [annually] with the [publisher]. The agency may not rely on a guidance document, or cite it as precedent against any party to a proceeding, unless the guidance document is published on its Internet website. (f) A guidance document may be considered by a presiding officer or final decision maker in an agency adjudication, but it does not bind the presiding officer or the final decision

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maker in the exercise of discretion. (g) A person may petition an agency under Section 318 to adopt a rule in place of a guidance document. (h) A person may petition an agency to revise or repeal a guidance document. Not later than [60] days after submission of the petition, the agency shall: (1) revise or repeal the guidance document; (2) initiate a proceeding to consider a revision or repeal; or (3) deny the petition in a record and state its reasons for the denial. Comment This section seeks to encourage an agency to advise the public of its current opinions, approaches, and likely courses of action by using guidance documents (also commonly known as interpretive rules and policy statements). The section also recognizes agencies’ need to promulgate such documents for the guidance of both its employees and the public. Agency law often needs interpretation, and agency discretion needs some channeling. The public needs to know the agency’s opinion about the meaning of the law and rules that it administers. Increasing public knowledge and understanding reduces unintentional violations and lowers transaction costs. See Michael Asimow, “California Underground Regulations,” 44 Admin. L. Rev. 43 (1992); Peter L. Strauss, “Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element,” 53 Admin. L. Rev. 803 (2001). This section strengthens agencies’ ability to fulfill these legitimate objectives by excusing them from having to comply with the full range of rulemaking procedures before they may issue these nonbinding statements. At the same time, the section incorporates safeguards to ensure that agencies will not use guidance documents in a manner that would undermine the public’s interest in administrative openness and accountability. Four states have adopted detailed provisions regulating guidance documents in their administrative procedure acts. See Ariz. Rev. Stat. Ann. §§ 41-1001, 41-1091; Mich. Comp. Laws §§ 24.203, 24.224; Va. Code Ann. § 2.2-4008; Wash. Rev. Code Ann. § 34.05.230. This section draws on those provisions, and also on requirements and recommendations issued by federal authorities and the American Bar Association. The term guidance document is defined in section 102(14) and is excluded from the definition of rule in section 102(30)(F). Subsection (a) exempts guidance documents from the procedures that are required for issuance of rules. Many states have recognized the need for this type of exemption in their administrative procedure statutes. These states have defined guidance documents—or interpretive rules and policy statements—differently from rules, and have also excused agencies creating them from some or all of the procedural requirements for rulemaking. See Ala. Code § 41-22-3(9)(c) (“memoranda, directives, manuals, or other communications which do not substantially affect the legal rights of, or procedures available to, the public”);

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Colo. Rev. Stat. § 24-4-102(15), 24-4-103(1) (exception for interpretive rules or policy statements “which are not meant to be binding as rules”); AMAX, Inc. v. Grand County Bd. of Equalization, 892 P.2d 409, 417 (Colo. Ct. App. 1994) (assessors’ manual is interpretive rule); Ga. Code Ann. § 50-13-4 (“Prior to the adoption, amendment, or repeal of any rule, other than interpretive rules or general statements of policy, the agency shall [follow notice-and-comment procedure]”) (emphasis added); Mich. Comp. Laws § 24.207(h) (defining “rule” to exclude “[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory”); Wyo. Stat. Ann. § 16-3-103 (“Prior to an agency’s adoption, amendment or repeal of all rules other than interpretative rules or statements of general policy, the agency shall . . .”) (emphasis added); In re GP, 679 P.2d 976, 996-97 (Wyo. 1984). See also Michael Asimow, “Guidance Documents in the States: Toward a Safe Harbor,” 54 Admin. L. Rev. 631 (2002) (estimating that more than thirty states have relaxed rulemaking requirements for agency guidance documents such as interpretive and policy statements). The federal Administrative Procedure Act draws a similar distinction. See 5 U.S.C. § 553(b)(A) (exempting “interpretative rules [and] general statements of policy” from notice-and-comment procedural requirements). A guidance document, in contrast to a rule, lacks the force of law. Many state and federal decisions recognize the distinction. See, e.g., Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986); District of Columbia v. Craig, 930 A.2d 946, 968-69 (D.C. 2007); Clonlara v. State Bd. of Educ., 501 N.W.2d 88, 94 (Mich. 1993); Penn. Human Relations Comm’n v. Norristown Area School Dist., 374 A.2d 671, 678 (Pa. 1977). Subsection (b) requires an agency to allow affected persons to challenge the legality or wisdom of guidance documents when it seeks to rely on these documents to their detriment. In effect, this subsection prohibits an agency from treating guidance documents as though they were rules. Because rules have the force of law (i.e., are binding), an agency need not respond to criticisms of their legality or wisdom during an adjudicative proceeding; the agency would be obliged in any event to adhere to them until such time as they have been lawfully rescinded or invalidated. In contrast, a guidance document is not binding. Therefore, when affected persons seek to contest a position expressed in a guidance document, the agency may not treat the document as determinative of the issues raised. See Recommendation 120C of the American Bar Association, 118-2 A.B.A. Rep. 57, 380 (August 1993) (“When an agency proposes to apply a nonlegislative rule . . . , it [should] provide affected private parties an opportunity to challenge the wisdom or legality of the rule [and] not allow the fact that a rule has already been made available to the public to foreclose consideration of [their] positions”); Robert A. Anthony, “Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like – Should Federal Agencies Use Them to Bind the Public?,” 41 Duke L.J. 1311 (1992). An integral aspect of an adequate opportunity to challenge a guidance document is the agency’s responsibility to respond reasonably to arguments made against the document. Thus, when affected persons take issue with propositions expressed in a guidance document, the agency “must be prepared to support the policy just as if the [guidance document] had never been issued.” Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974); see Center for Auto Safety v. NHTSA, 452 F.3d 798, 807 (D.C. Cir. 2006); Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995); American Mining Cong. v. MSHA, 995 F.2d 1106, 1111 (D.C. Cir. 1993); Anthony, supra. An agency may not, therefore, treat its prior promulgation of a guidance document as a justification for not responding to

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arguments against the legality or wisdom of the positions expressed in such a document. Flagstaff Broadcasting Found. v. FCC, 979 F.2d 1566 (D.C. Cir. 1992); Bechtel v. FCC, 957 F.2d 873 (D.C. Cir. 1992); Giant Food Stores, Inc. v. Commonwealth, 713 A.2d 177, 180 (Pa. Cmwlth. 1998); Agency Policy Statements, Recommendation 92-2 of the Admin. Conf. of the U.S. (ACUS), 57 Fed. Reg. 30,103 (1992), ¶ II.B. An agency may, however, refer to a guidance document during a subsequent administrative proceeding and rely on its reasoning, if it also recognizes that it has leeway to depart from the positions expressed in the document. See, e.g., Steeltech, Ltd. v. USEPA, 273 F.3d 652, 655-56 (6th Cir. 2001) (upholding decision of ALJ who “expressly stated that the [guidance document] was not a rule and that she had the discretion to depart from [it], if appropriate,” but who adhered to the document on determining “that the present case does not present circumstances that raise policy issues not accounted for in the [document]”); Panhandle Producers & Royalty Owners Ass’n v. Econ. Reg. Admin., 847 F.2d 1168, 1175 (5th Cir. 1988) (agency “responded fully to each argument made by opponents of the order, without merely relying on the force of the policy statement,” but was not “bound to ignore [it] altogether”); American Cyanamid Co. v. State Dep’t of Envir. Protection, 555 A.2d 684, 693 (N.J. Super. 1989) (rejecting contention that agency had treated a computer model as a rule, because agency afforded opposing party a meaningful opportunity to challenge the model’s basis and did not apply the model uniformly in every case). See generally John F. Manning, “Nonlegislative Rules,” 72 Geo. Wash. L. Rev. 893, 933-34 (2004); Ronald M. Levin, “Nonlegislative Rules and the Administrative Open Mind,” 41 Duke L.J. 1497 (1992). The relevance of a guidance document to subsequent administrative proceedings has been compared with that of the agency’s adjudicative precedents. See subsection (d) infra. What constitutes an adequate opportunity to contest a policy statement within an agency will depend on the circumstances. See ACUS Recommendation 92-2, supra, ¶ II.B. (“[A]ffected persons should be afforded a fair opportunity to challenge the legality or wisdom of [a policy statement] and suggest alternative choices in an agency forum that assures adequate consideration by responsible agency officials,” preferably “at or before the time the policy statement is applied to [them]”). Affected persons’ right to a meaningful opportunity to be heard on the issues addressed in guidance documents must be reconciled with the agency’s interest in being able to set forth its interpretations and policies for the guidance of agency personnel and the public without undue impediment. An agency may use its rulemaking authority to set forth procedures that it believes will provide affected persons with the requisite opportunity to be heard. To the extent that these procedures survive judicial scrutiny for compliance with the purposes of this subsection (b), the agency will thereafter be able to rely on established practice and precedent in determining what hearing rights to afford to persons who may be affected by its guidance documents. As new fact situations arise, however, courts should be prepared to entertain contentions that procedures that have been upheld in past cases did not, or will not, afford a meaningful opportunity to be heard to some persons who may wish to challenge the legality or wisdom of a particular guidance document. Subsection (c) permits an agency to issue mandatory instructions to agency staff members, typically those who deal with members of the public at an early stage of the administrative process, provided that affected persons will have an adequate to contest the positions taken in the guidance document at a later stage. See Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (2007), §

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II(2)(h) (significant guidance documents shall not “contain mandatory language . . . unless . . . the language is addressed to agency staff and will not foreclose agency consideration of positions advanced by affected private parties”); ACUS Recommendation 92-2, supra, ¶ III (an agency should be able to “mak[e] a policy statement which is authoritative for staff officials in the interest of administrative uniformity or policy coherence”). For example, an agency manual might prescribe requirements that are mandatory for low-level staff, leaving to higher-ranking officials the discretion to depart from the interpretation or policy stated in the manual. The question of what constitutes an adequate opportunity to be heard may vary among agencies or programs. In some programs, centralization of discretionary authority may be a necessary concession to “administrative uniformity or policy coherence”; in other programs, the obligation to proceed through multiple stages of review might be considered so burdensome as to deprive members of the public of a meaningful opportunity to obtain agency consideration of whether the guidance document should apply to their particular situations. The touchstone in every case is whether the opportunity to be heard prescribed by subsection (b) remains realistically available to affected persons. Subsection (d) is based on a similar provision in ABA Recommendation No. 120C, supra. It is in accord with general principles of administrative law, under which an agency’s failure to reasonably explain its departure from established policies or interpretations renders its action arbitrary and capricious on judicial review. See 1981 MSAPA § 5-116(c)(8)(iii) (court may grant relief against agency action other than a rule if it is “inconsistent with the agency’s prior practice or precedent, unless the agency has stated credible reasons sufficient to indicate a fair and rational basis for the inconsistency”); Yale-New Haven Hospital v. Leavitt, 470 F.3d 71, 7980 (2d Cir. 2006). It has been said that a guidance document should constrain subsequent agency action in the same manner that the agency’s adjudicative precedents do. See Peter L. Strauss, “The Rulemaking Continuum,” 41 Duke L.J. 1463, 1472-73, 1486 (1992) (cited with approval on this point in United States v. Mead Corp., 533 U.S. 218, 232 (2001)); see also Manning, supra, at 934-37. Subsection (d) refers only to official acts of the agency (compare the definition of “agency action” in Section 102(3)), not to informal acts of agency staff, such as inspections. The latter types of conduct are frequently not accompanied by a written statement at all, so it would be outside the scope of requirements imposed by subsection (d) to require these government personnel to “explain’ a departure from the position taken in a guidance document. One purpose of this subsection is to protect the interests of persons who may have reasonably relied on a guidance document. An agency that acts at variance with its past practices may be held to have acted in an arbitrary and capricious manner if the unfairness to regulated persons outweighs the government’s interest in applying its new view to those persons. Heckler v. Community Health Servs., 467 U.S. 51, 61 (1984) (“an administrative agency may not apply a new [case law] rule retroactively when to do so would unduly intrude upon reasonable reliance interests”); Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir. 2007); Epilepsy Found. v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir. 2001); Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050 (5th Cir. 1998). Accordingly, where persons may have justifiably relied on a guidance document, the agency’s explanation for departing from the position taken in that document should ordinarily include a reasonable justification for the decision to override their reliance interests. The first two sentences of subsection (e) are based directly on Va. Code Ann. § 2.2-4008. Similar provisions have been adopted in Arizona and Washington. See Ariz. Rev. Stat. Ann. §

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41-1091; Wash. Rev. Code Ann. § 34.05.230(3)-(4). The last sentence of the subsection is based on the federal APA. See 5 U.S.C. § 552(a)(2); Smith v. NTSB, 981 F.2d 1326 (D.C. Cir. 1993). Subject to harmless error principles, see Section 508(b), a court may invoke the sanction prescribed in this section without necessarily concluding that the party against whom the document is cited has valid objections to the substance of the document. Subsection (g) is based on Wash. Rev. Code Ann. § 34.05.230(2), which provides for petitions “requesting the conversion of interpretive and policy statements into rules.” However, it is phrased more generally than the Washington provision, because an agency that receives a rulemaking petition will not necessarily wish to “convert” the existing guidance document into a rule without any revision. Knowing that it will now be speaking with the force of law, in a format that would be more difficult to alter than a guidance document is, the agency might prefer to adopt a rule that is narrower than, or otherwise differently phrased than, the guidance document that it would replace. In any event, the agency will, as provided in section 318, need to explain any rejection of the petition, whether in whole or in part, and such a rejection will be judicially reviewable to the same extent as other actions taken under that section. Subsection (h) extends the principles of section 318 by allowing interested persons to petition an agency to revise or repeal an existing guidance document. Thus, while this Act does not require an agency to obtain the views of the public before issuing a guidance document, this subsection provides a procedure by which members of the public may bring their views regarding an existing guidance document to the agency’s attention and request that the agency take account of those views. This process may be of particular importance to persons who are indirectly affected by a guidance document (such as persons who stand to benefit from the underlying regulatory program) but are unlikely to be the targets of an enforcement action in which they could challenge the legality or wisdom of the document under subsection (b). See Nina A. Mendelson, “Regulatory Beneficiaries and Informal Agency Policymaking,” 92 Cornell L. Rev. 397, 438-44 (2007); see also ACUS Recommendation No. 76-5, 41 Fed. Reg. 56,769 (1976) (noting that section 553(e) of the federal APA “allow[s] any person to petition at any time for the amendment or repeal of . . . an interpretive rule or statement of general policy”). The subsection requires an agency to respond to the petition in [sixty] or fewer days. An agency that is not prepared to revise or repeal the guidance document within that time period may initiate a proceeding for the purpose of giving the matter further consideration. This proceeding can be informal; the notice and comment requirements of Sections 304 through 308 are inapplicable to it, because those sections deal with rules rather than guidance documents. The agency may, however, voluntarily solicit public comments on issues raised by the petition. Cf. ACUS Recommendation 76-5, supra, ¶ 2. This section does not prescribe a time period within which the agency must complete the proceeding, but judicial intervention to compel agency action “unlawfully withheld or unreasonably delayed” may be sought in an appropriate case. § 501(b). If the agency declines to revise or repeal the guidance document, within the [sixty] day period or otherwise, it must explain its decision. Denials of petitions under this subsection, like denials of petitions for rulemaking under section 318, are reviewable for abuse of discretion, and the agency’s explanation will provide a basis for any judicial review of the denial.

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When an agency grants a petition to revise or repeal a guidance document in part, and denies the petition in part, the agency should explain the partial denial to comply with the requirements of Section 311(h)(3).

SECTION 312. REQUIRED INFORMATION FOR RULE. A final rule filed by an agency with the [publisher] under Section 316 must contain the text of the rule and be accompanied by a record that contains: (1) the date the final rule was adopted by the agency; (2) a reference to the specific statutory or other authority authorizing the rule; (3) any finding required by law as a prerequisite to adoption or effectiveness of the rule; (4) the effective date of the rule; and (5) the concise explanatory statement required by Section 313. Comment This section is based on 1981 MSAPA Section 3-111 (a). Agency action is defined in section 102(3) to include an agency rule or order [(subsection (3)(a)], and the failure to issue a rule or order [(subsection (3)(b)]. The term adoption in this section should be read with the definition of the terms “adopt” in Section 102(2), “rule in Section 102(30), and “rulemaking” in Section102 (31). The term rulemaking includes the adoption of a new rule and the amendment or repeal of an existing rule.

SECTION 313. CONCISE EXPLANATORY STATEMENT. When an agency adopts a final rule, the agency shall issue a concise explanatory statement that contains: (1) the agency’s reasons for adopting the rule, including the agency’s reasons for not accepting substantial arguments made in testimony and comments; (2) subject to Section 308, the reasons for any change between the text of the proposed rule contained in the notice of proposed rulemaking and the text of the final rule; and (3) the summary of any regulatory analysis prepared under Section 305(d). Comment This section is based on 1981 MSAPA Section 3-110(a). Many states have adopted the

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requirement of a concise explanatory statement. Arkansas (A.C.A. Section 25-15-204) and Colorado (C.R.S.A. Section 24-4-103) have similar provisions. The federal Administrative Procedure Act uses equivalent terms in Section 553 (c) (5 U.S.C.A. Section 553). This provision also requires the agency to explain why it rejected substantial arguments made in comments. Such explanation helps to encourage agency consideration of all substantial arguments and fosters perception of agency action as not arbitrary. Subsection (2) requires a statement of reasons for any substantial change between the text of the proposed rule, and the text of the adopted rule. Section 308 prohibits adoption of a rule that differs from the proposed rule unless the adopted rule is the logical outgrowth of the proposed rule. An adopted rule that contains a substantial change from the proposed rule can be adopted under Section 308 if the logical outgrowth test is satisfied but the agency will have to provide a statement of reasons under Section 313(2). If the logical outgrowth test is not met, then the rule cannot be adopted under Section 308, and section 313(2) does not apply. Agency action is defined in section 102(4) to include an agency rule or order [(subsection (4)(a)], and the failure to issue a rule or order [(subsection (4)(b)]. The term adoption in this section should be read with the definition of the terms “adopt” in Section 102(2), “rule in Section 102(30), and “rulemaking” in Section102 (31). The term rulemaking includes the adoption of a new rule and the amendment or repeal of an existing rule.

SECTION 314. INCORPORATION BY REFERENCE. A rule may incorporate by reference all or any part of a code, standard, or rule that has been adopted by an agency of the United States, this state, or another state, or by a nationally recognized organization or association, if: (1) repeating verbatim the text of the code, standard, or rule in the rule would be unduly cumbersome, expensive, or otherwise inexpedient; (2) the reference in the rule fully identifies the incorporated code, standard, or rule by citation, place of inspection, and date[, and states whether the rule includes any later amendments or editions of the incorporated code, standard, or rule]; (3) the code, standard, or rule is readily available to the public in written or electronic form at no charge or for a reasonable charge; (4) the rule states where copies of the code, standard, or rule are available from the agency adopting the rule for a reasonable charge, if any, or where copies are available from the agency of the United States, this state, another state, or the organization or association originally

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issuing the code, standard, or rule; and (5) the agency maintains a copy of the code, standard, or rule readily available for public inspection at the principal office of the agency. Comment Several states have provisions that require the agencies to retain the voluminous technical codes. See, Alabama, Ala.Code 1975 Section 41-22-9; Michigan, M.C.L.A. 24.232; and North Carolina, N.C.G.S.A. § 150B-21.6. To avoid the problems created by those retention provisions, but to assure that these technical codes are available to the public, this section adopts several specific procedures. One protection is to permit incorporating by reference only codes that are readily available from the outside promulgator, and that are of limited public interest as determined by a source outside the agency. See Wisconsin, W.S.A. 227.21. These provisions will guarantee that important material drawn from other sources is available to the public, but that less important material that is freely available elsewhere does not have to be retained. The bracketed language in subsection (2) is based on variations in state law as to whether later amendments to codes are automatically incorporated into the rule, or whether a new rulemaking proceeding would be required to include code amendments. This issue is discussed in Jim Rossi, “Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards,” 46 W&M L.Rev. 1343 (2005).

SECTION 315. COMPLIANCE. An action taken under this [article] is not valid unless taken in substantial compliance with this [article]. Comment This section is a slightly modified form of the 1961 Model State Administrative Procedure Act, Section (3)(c). See also 1981 MSAPA Section 3-113(a). Section 503(a) governs the timing of judicial review proceedings to contest any rule on the ground of noncompliance with the procedural requirements of this [act]. The scope of challenges permitted under Section 503(a) includes all applicable requirements of article 3 for the type of rule being challenged.

SECTION 316. FILING OF RULE. An agency shall file in written and electronic form with the [publisher] each final rule. In filing a final rule, an agency shall use a standard form prescribed by the [publisher]. The agency shall file the rule not later than [ ] days after adoption. The [publisher] shall maintain a permanent register of all filed rules and concise explanatory statements for the rules. The [publisher] shall affix to each final rule a certification of the time and date of filing. The [publisher] shall publish the notice of each final rule in the

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[administrative bulletin]. Comment This section is based on the 1961 Model State Administrative Procedure Act, Section 4(a) and its expansion in the 1981 MSAPA, Section 3-114(a). Section 201(g)(2) provides that the administrative bulletin must contain newly filed adopted rules. This section provides that the publisher is responsible for publishing the notice of adopted rules in the administrative bulletin. Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this Article. Section 316 provides that the agency shall file an adopted rule with the [publisher] not later than [ ] days after adoption. The publisher shall publish the notice of each adopted rule in the [administrative bulletin].

SECTION 317. EFFECTIVE DATE OF RULE. (a) Except as otherwise provided in this section, [unless disapproved by the [rules review committee][,] [or] [withdrawn by the agency under Section 703,] a rule becomes effective [30] days after publication of the rule [in the administrative bulletin] [on the [publisher=s] Internet website]. (b) A rule may become effective on a date later than that established by subsection (a) if that date is specified in the rule or required by law other than this [act]. (c) A rule becomes effective immediately on its filing with the [publisher] or on any subsequent date earlier than that established by subsection (a) if it is required to be implemented by a certain date by law other than this [act]. (d) An emergency rule under Section 309 becomes effective on adoption by the agency. (e) A direct final rule under Section 310 to which no objection is made becomes effective [30] days after publication, unless the agency specifies a later effective date. Comment This is a substantially revised version of the 1961 Model State Administrative Procedure Act, Section 4 (b) & (c) and 1981 Model State Administrative Procedure Act, Section 3-115. Most of the states have adopted provisions similar to both the 1961 Model State Administrative Procedure Act and the 1981 Model State Administrative Procedure Act, although they may differ on specific time periods. Some rules may have retroactive application or effect provided that

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there is express statutory authority for the agency to adopt retroactive rules. See Bowen v. Georgetown University Hospital 488 U.S. 204 (1988). Article 3 has a number of timing requirements for rulemaking proceedings governed by the provisions of this Article. Section 317(a) provides that an adopted rule becomes effective 30 days after publication of the adopted rule in the [administrative bulletin] [on the publisher’s Interne web site], unless one of several exceptions apply, These exceptions include: a) other subsections of Section 317; b) disapproval by rules review committee; and 3) withdrawal by agency under Section 703. Section 317(b) provides that a later effective date than 30 days in subsection (a) is applicable if required by law other than this [act] or specified in the rule. Section 317(c) provides that an adopted rule becomes effective immediately upon filing with the [publisher] or any subsequent date earlier than that established by subsection (a) (30 days after publication). Section 317(d) provides that Emergency rules (Section 309) become effective upon adoption by the agency. Section 317(e) provides that direct final rules to which no objection is made become effective 30 days after publication unless a later date is specified.

SECTION 318. PETITION FOR ADOPTION OF RULE. Any person may petition an agency to adopt a rule. An agency shall prescribe by rule the form of the petition and the procedure for its submission, consideration, and disposition. Not later than [60] days after submission of a petition, the agency shall: (1) deny the petition in a record and state its reasons for the denial; or (2) initiate rulemaking. Comment This section is substantially similar to the 1961 MSAPA Section 6.. See also Section 3117 of the 1981 MSAPA. Agency decisions that decline to adopt a rule are judicially reviewable for abuse of discretion (See Massachusetts v. EPA 127 S. Ct. 1438 (2007) (EPA decision to reject rulemaking petition and therefore not to regulate greenhouse gases associated with global warming was judicially reviewable and decision was arbitrary and capricious.). When an agency grants a rulemaking petition in part, and denies the petition in part, the agency should explain the partial denial to comply with the requirements of Section 318(1).

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[ARTICLE] 4 ADJUDICATION IN CONTESTED CASE SECTION 401. CONTESTED CASE. This [article] applies to an adjudication made by an agency in a contested case. Comment Article 4 of this Act does not apply to all adjudications but only to those adjudications, defined in Section 102(7) as a “contested case.” An adjudication that is not made in a contested case is not subject to this article but is subject to Sections 311(d) and (f), and Article 5. For a statute to create a right to an evidentiary hearing, express use of the term “evidentiary hearing” is not necessary in the statute. Statutes often use terms like “appeal” or “proceeding” or “hearing”, but in context it is clear that they mean an evidentiary hearing. An evidentiary hearing is one in which the resolution of the dispute involves particular facts and the presiding officer’s decision is based on the hearing record. Hearing rights are created by statutes that establish an agency and delegate powers to the agency (agency enabling acts). The provisions of this [act] do not create hearing rights. Article Four does not apply to adjudications that are not a contested case. See Goss v. Lopez 419 U.S. 565 (1975) for an example of informal adjudication procedures required when a public school district suspends students for ten days or less. In those circumstances the constitution does not require an opportunity for an evidentiary hearing. The term “contested case” used in this section is similar to the “contested case” definition in Section 1(2) of the 1961 MSAPA. Like the 1961 MSAPA Section 9, this Act looks to external sources such as statutes and constitutions to determine when a party is entitled to a hearing. However, this term differs from the 1961 MSAPA=s term “contested case” because it also includes hearings required by the constitution, federal or state, and makes provision in Article 4 for the type of hearing to be held in a case where a constitution creates the right to a hearing. Including constitutionally created rights to a hearing within the provisions of this Act eliminates the problem of looking outside the Act to determine the type of hearing required in cases where the right to the hearing is created by a constitution. Hearing rights created by judicial decisions mean a constitutional decision by a court in that state. See Goldberg v. Kelley, 397 U.S. 254 (1970). The definition of “contested case” should be read in conjunction with the definitions of “adjudication” under Section 102(1), “evidentiary hearing” under Section 102(11), and of “order”, Section 102(23), infra. Article Four procedures apply to adjudications that are contested cases, Section 401, and that result in a final order of the agency, Section 413. This section is subject to the exception in Section 407 for an emergency hearing if the requirements for that exception under this Article apply. If the requirements for an emergency adjudication under Section 407 are met, a hearing in a contested case may be conducted following the procedures in that section. This is an external hearing rights approach that is consistent with the 1961 MSAPA Section 9. Hearings that are required by procedural due process guarantees serve to protect life, liberty and property interests, which arise where a statute creates a justified expectation or legitimate entitlement. This section includes more than what were described as “rights” under older common law.

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Section 401 does not apply to adjudications that are not a contested case. However, these types of adjudications are subject to the provisions of Article 5 governing judicial review, and they are subject to the provisions of Section 311(d), and (f), governing variance by the agency from a position supported by a guidance documents and use of guidance documents in agency adjudication, respectively. Those requirements apply to all adjudications, including informal adjudications, and not just to contested cases. Section 401, governing contested case hearings, does not apply to investigatory hearings, a hearing that merely seeks public input or comment, pure administrative process proceedings such as tests, elections, or inspections, and situations in which a party has a right to a de novo administrative or judicial hearing. An agency may by rule make all or part of article 4 applicable to adjudication that does not fall within the requirements of Section 401, including hearing rights conferred by agency regulations, or on the record appeals. This section draws on the Minnesota, (see Minnesota Statutes Annotated, Section 14.02, subd. 3); Washington (see Revised Code of Washington, 34.05.413(2)) and Kansas (see Kansas Stat. Ann., KS ST Section 77-502(d) & Kansas Stat. Ann., KS ST Section 77-503) Administrative Procedure Acts.

SECTION 402. PRESIDING OFFICER. (a) A presiding officer must be an administrative law judge assigned in accordance with Section 604(2), the individual who is the agency head, a member of a multi-member body of individuals that is the agency head, or, unless prohibited by law of this state other than this [act], an individual designated by the agency head. (b) An individual who has served as investigator, prosecutor, or advocate at any stage in a contested case or who is subject to the authority, direction, or discretion of an individual who has served as investigator, prosecutor, or advocate at any stage in a contested case may not serve as the presiding officer in the same case. An agency head that has participated in a determination of probable cause or other preliminary determination in an adjudication may serve as the presiding officer or final decision maker in the adjudication unless a party demonstrates grounds for disqualification under subsection (c). (c) A presiding officer or agency head acting as a final decision maker is subject to disqualification for bias, prejudice, financial interest, ex parte communications as provided in Section 408, or any other factor that would cause a reasonable person to question the impartiality

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of the presiding officer or agency head. A presiding officer or agency head, after making a reasonable inquiry, shall disclose to the parties any known facts related to grounds for disqualification which are material to the impartiality of the presiding officer or agency head in the proceeding. (d) A party may petition for the disqualification of a presiding officer or agency head promptly after notice that the person will preside or, if later, promptly on discovering facts establishing a ground for disqualification. The petition must state with particularity the ground on which it is claimed that a fair and impartial hearing cannot be accorded or the applicable rule or canon of practice or ethics that requires disqualification. The petition may be denied if the party fails to exercise due diligence in requesting disqualification after discovering a ground for disqualification. (e) A presiding officer or agency head whose disqualification is requested shall decide whether to grant the petition and state in a record facts and reasons for the decision. The decision to deny disqualification is not subject to interlocutory judicial review. (f) If a substitute presiding officer is required, the substitute must be appointed [as required by law, or if no law governs,] by: (1) the Governor, if the original presiding officer is an elected official; or (2) the appointing authority, if the original presiding officer is an appointed official. (g) If participation of the agency head is necessary to enable the agency to take action, the agency head may continue to participate notwithstanding a ground for disqualification or exclusion. Legislative Note: The first alternative under subsection (a) would be applicable in states that have adopted central panel hearing offices but would not apply to states that do not have central panel hearing offices. Article 6 governs central panel hearing offices under this act. If a state does not have a central panel hearing agency, presiding officers would include administrative

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law judges who are employees of the agency with final decision authority. States vary in the terms used to describe agency employees who are presiding officers. The term includes administrative judges, hearing officers, and hearing examiners. Administrative law judges can be employees of the central panel hearing office or of the agency with final decision authority. Comment Section 402(a) is based on 1981 MSAPA Section 4-202(a). Subsection (a) governs who may be appointed to serve as a presiding officer in a contested case. If the case is heard by a multimember body of individuals as the agency head, , one member of the agency head may serve as chair, but all of the persons sitting as judge in the case are collectively the presiding officer. Otherwise, the presiding officer will be a single individual, either the agency head, or an individual designated by the agency head, or one or more administrative law judges assigned by the Office of Administrative Hearings in accordance with Section 604(2). The term presiding officer is defined in Section 102(26) , and the term agency head is defined in Section 102(5). Subsection (a) confers a limited amount of discretion on the agency head to determine who will preside. This discretion is also limited by the phrase “unless prohibited by law of this state other than this act,” which prevents the use of “other persons” as presiding officers to the extent that the other state law prohibits their use. Thus, if this language is adopted by a state that has an existing central panel of administrative law judges whose use is mandatory in enumerated types of proceedings, the agencies must continue to use the central panel for those proceedings, but may exercise their option to use “other persons” for other types of proceedings. Subsection (a) provides for states that have created a central panel of administrative law judges, and have made the use of administrative law judges from the central panel mandatory unless the agency head or one or more members of the agency head presides. In some states, however, the use of central panel administrative law judges is mandatory only in certain enumerated agencies or types of proceedings. Half of the states have central panels. For those states with central panels, the first clause in subsection (a) would harmonize Section 401 with the existing central panel legislation. For states that do not have a central panel agency, this first clause would not apply. Subsection (b) is based on 1981 MSAPA Section 4-214. Subsection (b) prohibits agency employees from serving as presiding officers in a specific contested case if they have served in the same case as a staff adversary or advocate, or of they are subject to supervision by a staff advocate or adversary in the same case. These employees are subject to the ex parte communication prohibitions contained in section 408 and to disqualification under subsection (c). Subsection (c) is based in part on 1981 MSAPA Section 4-202(b). A final decision maker is the agency official with the legal authority to issue a final order. The agency head has this authority. An agency head may also delegate the legal authority to issue a final order to another agency official including a presiding officer or in states with a central panel (See Article 6) to the administrative law judge that presides over the contested case proceeding. Subsection (d) is based on 1981 MSAPA Section 4-202(c). Subsection (e) is based in part on 1981 MSAPA Section 4-202(d). Disclosure duties

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under subsection (e) are based on state ethics codes governing ethical standards for judges in the judicial branch of the government, Section 12 of the 2000 Uniform Arbitration Act, and on state law governing the ethical responsibilities of government officials and employees. Subsection (f) is based on 1981 MSAPA Section 4-202(e). Subsection (g) adopts the rule of necessity for agency decision makers. See California Government Code Section 11512(c) (agency member not disqualified if loss of a quorum would result); United States v. Will (1980) 449 U.S. 200 (common law rule of necessity applied to U.S. Supreme Court to decide issues before the court relating to compensation of all Article III judges).

SECTION 403. CONTESTED CASE PROCEDURE. (a) This section does not apply to an emergency adjudication under Section 407. (b) An agency shall give notice of the agency decision to a person when the agency takes an action as to which the person has a right to a contested case hearing. The notice must be in writing, set forth the agency action, inform the person of the right, procedure, and time limit to file a contested-case petition, and provide a copy of the agency procedures governing the contested case. (c) In a contested case, the presiding officer shall give all parties a timely opportunity to file pleadings, motions, and objections. The presiding officer may give all parties the opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed recommended, initial, or final orders. The presiding officer, with the consent of all parties, may refer the parties in a contested case to mediation or other dispute resolution procedure. (d) In a contested case, to the extent necessary for full disclosure of all relevant facts and issues, the presiding officer shall give all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence. (e) Except as otherwise provided by law other than this [act], the presiding officer may conduct all or part of an evidentiary hearing or a prehearing conference by telephone, television, video conference, or other electronic means. The hearing may be conducted by telephone or

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other method by which the witnesses may not be seen only if all parties consent [or the presiding officer finds that this method will not impair reliable determination of the credibility of testimony]. Each party must be given an opportunity to attend, hear, and be heard at the proceeding as it occurs. This subsection does not prevent an agency from providing by rule for electronic hearings. (f) Except as otherwise provided in subsection (g), a hearing in a contested case must be open to the public. A hearing conducted by telephone, television, video conference, or other electronic means is open to the public if members of the public have an opportunity to attend the hearing at the place where the presiding officer is located or to hear or see the proceeding as it occurs. (g) A presiding officer may close a hearing to the public on a ground on which a court of this state may close a judicial proceeding to the public or pursuant to law of this state other than this [act]. (h) Unless prohibited by law of this state other than this [act], a party, at the party’s expense, may be represented by counsel or may be advised, accompanied, or represented by another individual. (i) A presiding officer shall ensure that a hearing record is created that complies with Section 406. (j) The decision in a contested case must be based on the hearing record and contain a statement of the factual and legal bases of the decision. If a finding of fact is set forth in language of a statute of this state other than this [act], it must be accompanied by a concise and explicit statement of the underlying facts supporting the finding of fact. The decision must be prepared electronically and, on request, made available in writing. (k) Subject to Section 205, the rules by which an agency conducts a contested case may

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include provisions more protective than the requirements of this section of the rights of parties other than the agency. (l) Unless prohibited by law of this state other than this [act], an agency may dispose of a contested case without a hearing by stipulation, agreed settlement, consent order, or default. Comment This section specifies the minimum hearing procedure requirements that must be met in contested cases under this act. This section applies to all agencies whether or not an agency rule provides for a different procedure; this procedure is excused only if a statute expressly provides otherwise. This section does not prevent an agency from adopting more stringent procedures than those in this section. This section does not supersede conflicting state or federal statutes. There are several interrelated purposes for this procedural provision: 1) to create a minimum fair hearing procedure; and 2) to attempt to make that minimum procedure applicable to all agencies. In many states, individual agencies have lobbied the legislature to remove various requirements of the state Administrative Procedure Act from them. The result in a considerable number of states is a multitude of divergent agency procedures. This lack of procedural uniformity creates problems for litigants, the bar and the reviewing courts. This section attempts to provide a minimum, universally applicable procedure in all disputed cases. The important goal of this section is to protect citizens by a guarantee of minimum fair procedural protections. The procedures required here are only for actions that fit the definition of a contested case and fall within the provisions of Section 401. Thus, they do not spread quasi judicial procedures widely, and do not create any significant agency loss of efficiency or increased cost. This section is modeled in part on the Arizona Regulatory Bill of Rights, see A.R.S. Section 41-1001.01 and the California Administrative Adjudication Bill of Rights, see West Ann. Cal. Gov. Code Section 11425.10. Subsection (a) excludes emergency adjudications from the requirements of this Section. Section 407 provides for the procedures to be used in emergency adjudications. Subsection (b) requires the agency to make available to a person to which an agency action is directed a copy of the agency procedures governing the contested case. Those agency procedures would include applicable procedures published by the agency under Section 203(2), procedures required under the agency governing statute, and procedural rules adopted under Section 205(a), or (c). The second sentence of subsection (b) requires that the agency give notice to a person when the agency takes an action and the person has a right to a contested case hearing to challenge the agency action. This notice would precede the filing of a contested case proceeding. The notice requirements in Section 405 would apply when the contested case proceeding has commenced. The third sentence of subsection (b) is based on provisions of the North Carolina Administrative Procedure Act. N.C. stats. § 150B-23(f). Subsection (c) is based in part on 1981 MSAPA Section 4-207. The first sentence of subsection (c) is based on 1981 MSAPA Section 4-207(a). The second sentence of subsection (c)

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is based on 1981 MSAPA Section 4-207(b). The third sentence of subsection (c) is new, and authorizes the use of mediation and other alternative dispute resolution procedures to resolve or settle contested cases. Since the 1981 MSAPA was adopted, the use of mediation and other alternative dispute resolution procedures has become widespread not only in civil litigation but also in administrative adjudication. See the Administrative Dispute Resolution Act, 5 U.S.C. Sections 571 to 583 (1990). Subsection (d) is based on 1981 MSAPA Section 4-211(2). Subsection (e) is based on 1981 MSAPA Section 4-211(4). Under subsection (e) hearings in contested cases can be conducted using the telephone, television, video conferences, or other electronic means. Due process of law may require live in person hearings when there are disputed issues of material fact that require the fact finder to make credibility determinations. See Whiteside v. State, (2001) 20 P. 3d 1130 (Supreme Court of Alaska) (due process of law violated with telephone hearing in driver’s license revocation hearing when driver’s credibility was material to the hearing, and the driver was not offered an in person hearing); But see Babcock v. Employment Division (1985) 72 Or. App. 486, 696 P. 2d 19, 21 (telephone hearings do not violate due process of law in hearings in which the credibility of a party is at issue because audible indicia of a witness’s demeanor are sufficient for credibility). Telephone hearings are widely used in high volume short hearing dockets such as unemployment compensation hearings. Subsection (f) is based on the second sentence of 1981 MSAPA Section 4-211(6). Subsection (g) is based on the first sentence of 1981 MSAPA Section 4-211(6). Subsection (h) is based on 1981 MSAPA Section 4-203(b). This Act does not expressly confer a right to self-representation in contested cases. The absence of such a provision reflects a belief that a broad right to self-representation is inappropriate for an APA that will apply globally to all contested cases, ranging from the simplest proceedings to very complex ones. States have the option to provide a right to self-representation in particular statutes that require evidentiary hearings, and the absence of a corresponding right in this Act should not be interpreted as discouraging such legislation. Subsection (i) is based on the first sentence of 1981 MSAPSA Section 4-211(5). Subsection (j) is based on 1961 MSAPA Section 12, and on 1981 MSAPA Section 4211(5). See also Section 202(a) requiring an agency to publish on its Internet web site each final order in a contested case. , and the provisions of 15 U.S.C. Section 7004. Subsection (k) is new, and permits an agency to adopt procedural rules that are more protective of the rights of parties other than the agency to an agency adjudication than the requirements of this section, subject to the provisions of Section 205(a) which provide for the adoption of procedural rules which must be used by all agencies in the state under Section 205(b) unless the agency adopts their own rules under Section 205(c). Subsection (l) is based on 1961 MSAPA Section 9(d).

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SECTION 404. EVIDENCE IN CONTESTED CASE. The following rules apply in a contested case: (1) Except as otherwise provided in paragraph (2), all relevant evidence is admissible, including hearsay evidence, if it is of a type commonly relied on by a reasonably prudent individual in the conduct of the affairs of the individual. (2) The presiding officer may exclude evidence in the absence of an objection if the evidence is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of an evidentiary privilege recognized in the courts of this state. The presiding officer shall exclude the evidence if objection is made at the time the evidence is offered. (3) If the presiding officer excludes evidence with or without objection, the offering party may make an offer of proof before further evidence is presented or at a later time determined by the presiding officer. (4) Evidence may be received in a record if doing so will expedite the hearing without substantial prejudice to a party. Documentary evidence may be received in the form of a copy if the original is not readily available or by incorporation by reference. On request, parties must be given an opportunity to compare the copy with the original. (5) Testimony must be made under oath or affirmation. (6) Evidence must be made part of the hearing record of the case. Information or evidence may not be considered in determining the case unless it is part of the hearing record. If the hearing record contains information that is confidential, the presiding officer may conduct a closed hearing to discuss the information, issue necessary protective orders, and seal all or part of the hearing record. (7) The presiding officer may take official notice of all facts of which judicial notice may

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be taken and of scientific, technical, or other facts within the specialized knowledge of the agency. A party must be notified at the earliest practicable time of the facts proposed to be noticed and their source, including any staff memoranda or data. The party must be afforded an opportunity to contest any officially noticed fact before the decision becomes final. (8) The experience, technical competence, and specialized knowledge of the presiding officer or members of an agency head that is a multi-member body that is hearing the case may be used in evaluating the evidence in the hearing record. Comment Subsection (1) is based upon the second sentence of 1981 MSAPA Section 4-215(d) Subsection (2) is based upon 1981 MSAPA Section 4-212(a), and upon 1961 MSAPA Section 10(1). Subsection (1) codifies the rule that hearsay evidence is admissible in contested case hearings whether or not a hearsay exception applies. This is a relaxed standard for admissibility in contrast to the evidence rules in civil jury proceedings in which hearsay evidence would not be admissible unless a hearsay exception applied. See Section 413(f) for the legal residuum rule and the reliability alternatives. Under subsection (2) evidence is unduly repetitious if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. In most states a presiding officer=s determination that evidence is unduly repetitious may be overturned only for abuse of discretion. The term statutory in subsection (2) refers to evidence rules that are codified by statute in some states with an evidence code (See California Evidence code). Subsection (3) is new but codifies generally accepted practices for evidentiary objections. The first sentence of subsection (4) is based upon 1961 MSAPA Section 10 (1) and 1981 MSAPA Section 4-212(d). The second and third sentences of subsection (4) is based upon 1961 MSAPA Section 10 (2), and 1981 MSAPA section 4-212(e). Subsection (5) is based on 1981 MSAPA Section 4-212(b), Government Code Section 11515, and 1961 MSAPA Section 10(4). The first and third sentences of subsection (6) are new. The second sentence of subsection (6) is based on 1981 MSAPA Section 4-215(d), first sentence. Subsection (7) is based generally on 1961 MSAPA Section 10 (4), and on 1981 MSAPA Section 4-212(f). Subsection (8) is based upon 1961 MSAPA Section 10(4), fourth sentence, and 1981 MSAPA Section 4-215(d), third sentence.

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SECTION 405. NOTICE IN CONTESTED CASE. (a) Except as otherwise provided in an emergency adjudication under Section 407, an agency shall give notice in a contested case that complies with this section. (b) In a contested case initiated by a person other than an agency, not later than [five] days after filing, the agency shall give notice to all parties that the case has been commenced. The notice must contain: (1) the official file or other reference number, the name of the proceeding, and a general description of the subject matter; (2) contact information for communicating with the agency, including the agency mailing address [, electronic mail address,] [,] [facsimile number,] and telephone number; (3) a statement of the date, time, place, and nature of the prehearing conference or hearing, if any; (4) the name, official title, mailing address, [electronic mail address,] [facsimile number,] and telephone number of any attorney or employee who has been designated to represent the agency; and (5) the names and last known addresses of all parties and other persons to which notice is being given by the agency. (c) In a contested case initiated by an agency, the agency shall give notice to the party against which the action is brought. The notice must contain: (1) a statement that a case that may result in an order has been commenced against the party; (2) a short and plain statement of the matters asserted, including the issues involved;

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(3) a statement of the legal authority under which the hearing will be held citing the statutes and any rules involved; (4) the official file or other reference number and the name of the proceeding; (5) the name, official title, mailing address, [and] [electronic mail address,] [and] [facsimile number,] [and] [telephone number] of the presiding officer and the name, official title, mailing address, [electronic mail address,] [facsimile number,] and telephone number of the agency’s representative; (6) a statement that a party that fails to attend or participate in any subsequent proceeding in the case may be held in default; (7) a statement that the party served may request a hearing and includes instructions in plain English about how to request a hearing; and (8) the names and last known addresses of all parties and other persons to which notice is being given by the agency. (d) When a hearing or a prehearing conference is scheduled, the agency shall give parties notice that contains the information required by subsection (c) at least [30] days before the hearing or prehearing conference. (e) A notice under this section may include other matters that the presiding officer considers desirable to expedite the proceedings. Comment Section 405 is based generally on 1961 MSAPA Section 9 (a), and (b), and 1981 MSAPA Section 4-206. See also; Oregon, O.R.S. Section 183.415; Kansas, K.S.A. Section 77-518; Iowa, I.C.A. Section 17A.12; Montana, MCA 2-4-601; and Michigan, M.C.L.A. 24.271. Subsection (a) is new and provides that notice requirements in this section apply to contested case proceedings but do not apply to emergency adjudications which are governed by Section 407. Notice is defined in Section 102 (21). Notify is defined in Section 102(22). Subsection (b) is also new and codifies a timing requirement for notice (within 5 days) and separate notice requirements for an agency when a person other than an agency initiates a

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contested case proceeding. This subsection would apply when a person other than an agency applies for a license or for governmental benefits, and the agency denies the application. The person may commence a contested case proceeding to challenge the denial of the application. When a contested case proceeding is commenced, subsection (b) requires the agency to give notice to all parties that the proceeding has been commenced. The notice must contain the matters listed in subsection (b)(1) to (b)(4). Subsection (b)(1) is based upon 1981 MSAPA Section 4-206(c)(3). Subsection (b)(2) is new, and requires notice of agency contact information including the agency mailing address and telephone number. Subsection (b)(3) is based upon 1961 MSAPA Section 9(b)(1), and 1981 MSAPA Section 4-206(c)(4). Subsection (b)(4) is based upon 1981 MSAPA Section 4-206(c)(2). Subsection (c) is new and applies when the agency initiates a contested case proceeding against a person other than the agency. This subsection applies when the agency seeks the revocation of an existing professional license or seeks to terminate a recipient’s governmental benefits. When the agency is required to provide the licensee or recipient with the opportunity for a contested case hearing, the notice requirements of this subsection apply. Subsection (c)(1) is new and requires notice that an action that may result in an order has been commenced against the party notified. Subsection (c)(2) is based on 1961 MSAPA Section 9(b)(4), and 1981 MSAPA Section 4-206(c)(7). Subsection (c)(3) is based upon 1961 MSAPA Section 9 (b)(2), and 1981 MSAPA Section 4-206(c)(5). Subsection (c)(4) is based upon 1981 MSAPA Section 4-206(c)(3). Subsection (c)(5) is a modified version of 1981 MSAPA Section 4-206(c)(2),(6) with electronic mail and facsimile information requested. Subsection (c)(6) is based upon 1981 MSAPA Section 4-206(c)(8). Subsection (c)(7) is new and provides for plain language instructions on how to request a hearing. Subsection (c)(8) is based upon 1981 MSAPA Section 4-206(c)(1). Subsection (d) is a modified version of 1981 MSAPA Section 4-206(a), with a minimum time limit of 30 days notice before the hearing. Subsection (e) is based upon 1981 MSAPA section 4-206(d).

SECTION 406. HEARING RECORD IN CONTESTED CASE. (a) An agency shall maintain the hearing record created under Section 403(i) in each contested case. (b) The hearing record must contain: (1) a recording of each proceeding; (2) notice of each proceeding; (3) any prehearing order; (4) any motion, pleading, brief, petition, request, and intermediate ruling;

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(5) evidence admitted; (6) a statement of any matter officially noticed; (7) any proffer of proof and objection and ruling thereon; (8) any proposed finding, requested order, and exception; (9) any transcript of the proceeding prepared at the direction of the agency; (10) any recommended order, final order, or order on reconsideration; and (11) any matter placed on the record after an ex parte communication under Section 408(f). (c) The hearing record constitutes the exclusive basis for agency action in a contested case. Comment Section 406 is based generally on 1961 MSAPA Section 9(e) and 1981 MSAPA Section 4-221. Subsection (a) is a modified version of 1981 MSAPA Section 4-221(a). Subsection (b)(1) is a modified version of 1981 MSAPA Section 4-221(b)(8). Subsections (b)(2) to (8) are based upon 1981 MSAPA Section 4-221(b)(1) to (7). Subsection (b)(9) is a modified version of 1981 MSAPA Section 4-221(b)(8). Subsection (b)(10) is a modified version of 1981 MSAPA Section 4-221(b)(9). Subsection (b)(11) is based upon 1981 MSAPA Section 4-221(b)(11). Subsection (c) is a revised version of 1981 MSAPA Section 4-221(c). The recording of an agency hearing can be made by certified shorthand reporter, video or audio recording, or other electronic means. Judicial review under Section 507 is limited to matters in the agency hearing record. Subsection (b)(9) refers to the official governmental transcript prepared at the direction of the agency.

SECTION 407. EMERGENCY ADJUDICATION PROCEDURE. (a) Unless prohibited by law of this state other than this [act], an agency may conduct an emergency adjudication in a contested case under this section. (b) An agency may take action and issue an order under this section only to deal with an imminent peril to the public health, safety, or welfare. (c) Before issuing an order under this section, an agency, if practicable, shall give notice and an opportunity to be heard to the person to which the agency action is directed. The notice

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of the hearing and the hearing may be oral or written and may be by telephone, facsimile, or other electronic means. (d) An order issued under this section must briefly explain the factual and legal reasons for using emergency adjudication procedures. (e) To the extent practicable, an agency shall give notice to the person to which the agency action is directed that an order has been issued. The order is effective when signed by the agency head or the designee of the agency head. (f) After issuing an order pursuant to this section, an agency shall proceed as soon as practicable to provide notice and an opportunity for a hearing following the procedure under Section 403 to determine the issues underlying the order. (g) An order issued under this section may be effective for not longer than [180] days or until the effective date of any order issued under subsection (f), whichever is shorter. Comment Section 407 is based generally on the 1961 Model State Administrative Procedure Act, section 14(c) and the 1981 Model State Administrative Procedure Act, Section 4-501. Subsection (a) is new and authorizes emergency adjudication in a contested case following the requirements of this section unless law other than this act prohibits such action. Subsection (b) is a revised version of 1961 MSAPA Section 14(c), and 1981 MSAPA Section 4-501(b). Subsection (b) uses the terms “imminent peril to the public health, safety or welfare, rather than the 1981 MSAPA terms “immediate danger to the public health, safety, or welfare” but no operative difference in emergency adjudication standards is intended. Subsection (c) is new, and requires the agency, if practicable, to give advance notice and opportunity to be heard to the person to whom the agency action is directed. The means of notice and hearing are also specified. Subsection (d) is a revised version of 1981 MSAPA Section 4-501(c). Subsection (e) is a revised version of 1981 MSAPA Section 4-501(d). Subsection (f) is a revised version of 1981 MSAPA Section 4-501(e). Subsection (g) is new, and provides for a time limit for the effectiveness of the emergency order either 180 days, or the effective date of an order in a contested case proceeding governed by Section 403 procedures, whichever is shorter. The procedure of this section is intended permit immediate agency emergency adjudication, but also to provide minimal protections to parties against whom such action is taken. Emergencies regularly occur that immediately threaten public health, safety or welfare: licensed health professionals may endanger the public; developers may act rapidly in violation of law; or restaurants may create a public health hazard. In these cases the agencies must possess the power to act rapidly to curb the threat to the public. On the other hand, when the agency acts

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in such a situation, there should be some modicum of fairness, and the standards for invoking this remedy must be clear, so that the emergency label may be used only in situations where it fairly can be asserted that rapid action is necessary to protect the public. Federal and state case law have held that in an emergency situation an agency may act rapidly and postpone any formal hearing without violation, respectively, of federal or state constitutional law. FDIC v. Mallen, 486 U.S. 230 (1988); Gilbert v. Homar (1997) 520 U.S. 924; Dep=t of Agric. v. Yanes, 755 P.2d 611 (OK. 1987). The generic provision in this section has several advantages over the present divergent approaches to emergency agency action. First, all agencies have the needed power to act without delay, but there is provision for some type of brief hearing, if feasible. Second, this article limits the agency to action of this type only in a genuine, defined emergency. Third, there are pre and post deprivation protections. This section seeks to strike an appropriate balance between public need and private fairness. This section does not apply to an emergency adjudication, cease and desist order, or other action in the nature of emergency relief issued pursuant to express statutory authority arising outside of this act.

SECTION 408. EX PARTE COMMUNICATIONS. (a) In this section, “final decision maker” means the person with the power to issue a final order in a contested case. (b) Except as otherwise provided in subsection (c), (d), (e), or (h), while a contested case is pending, the presiding officer and the final decision maker may not make to or receive from any person any communication concerning the case without notice and opportunity for all parties to participate in the communication. For the purpose of this section, a contested case is pending from the issuance of the agency’s pleading or from an application for an agency decision, whichever is earlier. (c) A presiding officer or final decision maker may communicate about a pending contested case with any person if the communication is required for the disposition of ex parte matters authorized by statute or concerns an uncontested procedural issue. (d) A presiding officer or final decision maker may communicate about a pending contested case with an individual authorized by law to provide legal advice to the presiding

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officer or final decision maker and may communicate on ministerial matters with an individual who serves on the [administrative] [personal] staff of the presiding officer or final decision maker if the individual providing legal advice or ministerial information has not served as investigator, prosecutor, or advocate at any stage of the case, and if the communication does not augment, diminish, or modify the evidence in the record. (e) An agency head that is the presiding officer or final decision maker in a pending contested case may communicate about that case with an employee or representative of the agency if: (1) the employee or representative: (A) has not served as investigator, prosecutor, or advocate at any stage of the case; (B) has not otherwise had a communication with any person about the case other than a communication a presiding officer or final decision maker is permitted to make or receive under subsection (c) or (d) or a communication permitted by paragraph (2); and (2) the communication does not augment, diminish, or modify the evidence in the agency hearing record and is: (A) an explanation of the technical or scientific basis of, or technical or scientific terms in, the evidence in the agency hearing record; (B) an explanation of the precedent, policies, or procedures of the agency; or (C) any other communication that does not address the quality or sufficiency of, or the weight that should be given to, evidence in the agency hearing record or the credibility of witnesses. (f) If a presiding officer or final decision maker makes or receives a communication in

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violation of this section, the presiding officer or final decision maker: (1) if the communication is in a record, shall make the record of the communication a part of the hearing record and prepare and make part of the hearing record a memorandum that contains the response of the presiding officer or final decision maker to the communication and the identity of the person that communicated; or (2) if the communication is oral, shall prepare a memorandum that contains the substance of the verbal communication, the response of the presiding officer or final decision maker to the communication, and the identity of the person that communicated. (g) If a communication prohibited by this section is made, the presiding officer or final decision maker shall notify all parties of the prohibited communication and permit parties to respond in a record not later than 15 days after the notice is given. For good cause, the presiding officer or final decision maker may permit additional testimony in response to the prohibited communication. (h) If a presiding officer is a member of a multi-member body of individuals that is the agency head, the presiding officer may communicate with the other members of the body when sitting as the presiding officer and final decision maker. Otherwise, while a contested case is pending, no communication, direct or indirect, regarding any issue in the case may be made between the presiding officer and the final decision maker. Notwithstanding any provision of [state open meetings law], a communication permitted by this subsection is not a meeting. (i) If necessary to eliminate the effect of a communication received in violation of this section, a presiding officer or final decision maker may be disqualified under Section 402(d) and (e), the parts of the record pertaining to the communication may be sealed by protective order, or other appropriate relief may be granted, including an adverse ruling on the merits of the case or dismissal of the application.

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Comment Section 408 governs ex parte communications. Many of the provisions in this section are new, but some are based upon 1961 MSAPA Section 13, and 1981 MSAPA Section 4-213. Ex parte communication provisions are also contained in the federal Administrative Procedure Act, 5 U.S.C. Section 557(d). Subsection (a) is new and provides a definition of “final decision maker” for purposes of this section. The first sentence of subsection (b) is a revised version of 1981 MSAPA Section 4213(a),(c). One major difference between the two provisions is that the 1981 MSAPA limited the prohibition on types of ex parte communications to those relating to any issues in the proceeding, and subsection (b) is broader and prohibits any communication concerning a pending contested case. Another difference is that there are four exceptions to the prohibition that are referenced in current subsection (b), whereas 1981 MSAPA Section 4-213(b) had three exceptions. The second sentence of subsection (b) is new and provides a specific definition of when a proceeding is pending for purposes of subsection (b). Subsection (b) prohibits ex parte communications but recognizes four exceptions to the prohibition that are codified in subsections (c), (d), (e), and (h). Subsection (c) contains two exceptions. The first exception is for disposition of ex parte matters authorized by statute, and this exception is based upon 1961 MSAPA Section 13, and 1981 MSAPA Section 4-213(a),(c). The second exception is new and applies to communications related to uncontested procedural issues. This exception does not apply to contested procedural issues nor does it apply to issues that do not easily fall into the procedural category. For example, other communications not on the merits but are related to security or to the credibility of a party or witness are prohibited by subsection (b). See Matthew Zaheri Corp., Inc. v. New Motor Vehicle Board (1997) 55 Cal. App. 4th 1305. Subsection (d) contains two exceptions. The first exception is new and allows communications by a presiding officer or final decision maker with an individual authorized by law to provide legal advice to the presiding officer or final decision maker. This recognizes the role of agency counsel in advising agency officials in adjudication. The second exception for communications on ministerial matters with staff who work for the presiding officer or final decision maker is based upon 1961 MSAPA Section 13(2), and 1981 MSAPA Section 4-213(b). Both exceptions require that the communicating individual that provides legal advice or ministerial information to the presiding officer or final decision maker must not have served as an investigator, prosecutor or advocate in the same contested case and that the communication must not augment diminish or modify the evidence in the record. The first requirement of separation of functions is similar to the requirements of Section 402(b) for presiding officers. The second requirement, relating to augmenting, diminishing, or modifying the evidence in the record, is based upon 1981 MSAPA Section 4-213(b)(ii). Subsection (e) is new and provides an exception for communications about a pending contested case between an agency employee or representative and the agency head acting as a presiding officer or final decisions maker in that case. The exception is limited by the conditions stated in subsections (e)(1), and (2). Subsection (e)(1) requires that the employee or representative (a) not have served as an investigator, prosecutor or advocate in the contested

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case, and (b) not have had an ex parte communication that would be improper for the agency head acting as presiding officer or final decision maker to make or receive. Subsection (e)(1)(A)is based upon 1981 MSAPA Section 4-214(a). Subsection (e)(1)(B) is based upon 1981 MSAPA Section 4-213(b)(i). Subsection (e)(2) is based upon 1981 MSAPA Section 4-213(b)(ii). Subsections (e)(2)(A)(B) and (C) are new and provide alternative descriptions of types of communications that are allowed under this exception. Subsections (e)(2)(A)(B)(C) were added based on a compromise reached by the drafting committee after lengthy discussion. The opposing positions on the issue of whether there should be an ex parte communications exception for agency head communications with employees are 1) no exception for agency head communications with employees, and thus no subsection (e); and 2) an exception for agency head communications with employees with subsection (e)(2) but not subsections (e)(2) (A),(B), or (C). The first alternative was supported by the National Conference of Administrative Law Judges, a section of the Judicial Division of the American Bar association. The second alternative was supported by the Section on Administrative Law and Regulatory Practice of the American Bar Association. The current compromise is more restrictive than (e)(2) because a communication has to satisfy one of the alternatives under (e)(2)(A)(B)(C) in addition to meeting the (e)(2) requirements of not augmenting, diminishing, or modifying the evidence in the agency hearing record. Subsection (f) is based upon 1981 MSAPA Section 4-213(e). Subsection (g) is a revised version of 1981 MSAPA Section 4-213(e). The major differences are that subsection (g) provides for a 15 day time period after notice for a party to respond in writing to the prohibited communication and under subsection (g) the presiding officer must find that there is good cause shown to permit additional testimony in response to the prohibited communication. The first sentence of subsection (h) is a revised version of 1961 MSAPA Section 13(1) and of the first clause of 1981 MSAPA Section 4-213(b). The second sentence of subsection (h) is new and prohibits ex parte communications between the presiding officer and the agency head or other person or body to whom the power to hear or decide is delegated. This sentence is based upon California Govt. Code Section 11430.80. The third sentence of subsection (h) is new. Subsection (i) is a revised version of 1981 MSAPA Section 4-213(f).

SECTION 409. INTERVENTION. (a) A presiding officer shall grant a timely petition for intervention in a contested case, with notice to all parties, if: (1) the petitioner has a statutory right under law of this state other than this [act] to initiate or to intervene in the case; or (2) the petitioner has an interest that may be adversely affected by the outcome of

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the case and that interest is not adequately represented by existing parties. (b) A presiding officer may grant a timely petition for intervention in a contested case, with notice to all parties, if the petitioner has a permissive statutory right to intervene under law of this state other than this [act] or if the petitioner’s claim or defense is based on the same transaction or occurrence as the case. (c) A presiding officer may impose conditions at any time on an intervener’s participation in the contested case. (d) A presiding officer may permit intervention provisionally and, at any time later in the contested case or at the end of the case, may revoke the provisional intervention. (e) On request by the petitioners or a party or by action of the presiding officer, the presiding officer may hold a hearing on the intervention petition. (f) A presiding officer shall promptly give notice of an order granting, denying, or revoking intervention to the petitioner for intervention and to the parties. The notice must allow parties a reasonable time to prepare for the hearing on the merits. Comment Section 409 is based on 1981 MSAPA Section 4-209, and on Federal Rule of Civil Procedure Rule 24 (intervention of right under Rule 24(a), and permissive intervention under Rule 24(b)). Subsection (a) is a revised version of 1918 MSAPA Section 4-209(a). Subsections (a) (1),(2) are adapted from Rule 24(a), intervention of right in the Federal Rules of Civil Procedure. Under subsection (a) a petition for intervention must be timely. Under ordinary circumstances a timely petition would be filed far enough in advance of the contested case hearing so that the intervener would be able to prepare for that hearing, and the existing parties would have time to respond to the intervener’s petition. Subsection (b) is a revised version of 1981 MSAPA Section 4-209(b). Subsection (b) is also based upon Rule 24(b), permissive intervention in the Federal Rules of Civil Procedure. Subsection (c) is a revised version of the first sentence of1981 MSAPA Section 4-209(c). Subsection (d) is new and allows for provisional intervention. Subsection (e) is new and allows the presiding officer to schedule a hearing on the intervention petition on request of the interveners, or existing parties, or the presiding officer’s

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decision. Subsection (f) is a revised version of 1981 MSAPA Section 4-209(d). Subsection (f) provides for notice suitable under the circumstances to enable parties to anticipate and prepare for changes that may be caused by the intervention.

SECTION 410. SUBPOENAS. (a) On a request in a record by a party in a contested case, the presiding officer or any other officer to whom the power to issue a subpoena is delegated pursuant to law, on a showing of general relevance and reasonable scope of the evidence sought for use at the hearing, shall issue a subpoena for the attendance of a witness and the production of books, records, and other evidence. (b) Unless otherwise provided by law or agency rule, a subpoena issued under subsection (a) shall be served and, on application to the court by a party or the agency, enforced in the manner provided by law for the service and enforcement of a subpoena in a civil action. (c) Witness fees shall be paid by the party requesting a subpoena in the manner provided by law for witness fees in a civil action. Comment Section 410 is similar to 1981 MSAPA Section 4-210. Subsection (a) authorizes the presiding officer upon request by a party to issue subpoenas for the attendance of witnesses and the production of books, records, and other evidence for use at the contested case hearing upon a showing of general relevance and reasonable scope of evidence. This provides a stricter standard for subpoena issuance than the provisions of 1981 MSAPA Section 4-210(a) which authorizes the presiding officer to issue subpoenas and other orders based on a request by a party or based on the presiding officer’s own motion. Subsection (b) is based on Arizona administrative procedure act Section 41-1062A.4. Subsection (c) is based upon California Government Code Section 11450.40.

SECTION 411. DISCOVERY. (a) In this section, “statement” includes a record of a person’s written statement signed

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by the person and a record that summarizes an oral statement made by the person. (b) Except in an emergency hearing under Section 407, a party, on written notice to another party at least [30] days before an evidentiary hearing, unless otherwise provided by agency rule under subsection (g), may: (1) obtain the names and addresses of witnesses the other party will present at the hearing to the extent known to the other party; and (2) inspect and copy any of the following material in the possession, custody, or control of the other party: (A) statements of parties and witnesses proposed to be called by the other party; (B) all records, including reports of mental, physical, and blood examinations, and other evidence the other party proposes to offer; (C) investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the adjudication; (D) statements of expert witnesses proposed to be called by the other party; (E) any exculpatory material in the possession of the agency; and (F) other materials for good cause. (c) Parties to a contested case have a duty to supplement responses provided under subsection (b) to include information thereafter acquired, to the extent that the information will be relied on in the hearing. (d) On petition, the presiding officer may issue a protective order for any material for which discovery is sought under this section which is exempt, privileged, or otherwise made confidential or protected from disclosure by law of this state other than this [act] and material the

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disclosure of which would result in annoyance, embarrassment, oppression, or undue burden or expense to any person. (e) On petition, the presiding officer shall issue an order compelling discovery for refusal to comply with a discovery request unless good cause exists for refusal. Failure to comply with the order may be enforced according to the rules of civil procedure. (f) On petition and for good cause, the presiding officer shall issue an order authorizing discovery in accordance with the rules of civil procedure. (g) An agency may provide by rule that some or all discovery procedures under this section do not apply to a specified program or category of cases if it finds that: (1) the availability of discovery would unduly complicate or interfere with the hearing process in the program or cases, because of the volume of the applicable caseload and the need for expedition and informality in that process; and (2) alternative procedures for the sharing of relevant information are sufficient to ensure the fundamental fairness of the proceedings. Comment 1981 MSAPA Section 4-210(a) authorized the presiding officer to issue discovery orders and protective orders in accordance with the rules of civil procedure. Presiding officers were required to follow and apply the discovery rules used in the civil courts in the state in which the contested case proceeding was held. Section 411 does not follow that approach. Under Section 411, mandatory disclosure of party and witness statements and documents is provided for in subsection (b), with protective orders and orders compelling discovery provided for in subsections (c), and (d). Under subsection (e), a presiding officer can issue an order, for good cause shown, authorizing discovery in accordance with the rules of civil procedure. This order could authorize taking of depositions, interrogatories, medical examinations, production of documents, and requests for admissions. Finally, in subsection (f), an agency can provide by rule for good cause that specific programs or a category of cases are exempt from some or all of the discovery procedures provided in Section 411. Contested case proceedings can vary widely in the length and complexity of the issues to be decided. Providing a range of options for discovery procedures will allow for flexibility. Under subsection (f), presiding officers in high volume short duration cases would not use discovery procedures if their agency exempted those cases by rule. . In contrast, presiding officers in complex and lengthy contested case proceedings could authorize more extensive discovery than provided in subsection (b). Presiding officers in contested case proceedings that do not fit either of the above categories could rely upon the

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discovery requirements provided for in subsection (b). Subsection (a) provides a definition of the term statement for purposes of subsection (b) (2). Subsection (a) is a revised version of the definition of statements taken from California Government Code Section 11507.6. Subsection (b) is new and provides for disclosure by a party to a contested case of the items listed in subsections (b) (1), and (2) upon written notice of another party unless the contested case proceeding is an emergency hearing under Section 407, or unless the proceeding has been exempted from discovery by agency rule under subsection (f). Subsection (b) (1) is based upon California Government Code Section 11507.6(1). Subsection (b)(2) is based upon California Government Code Section 11507.6(2). Subsections (b)(2)(A) to (F) are a revised version of California Government Code Section 11507.6(2) (a)to (f). Subsection (b)(3) is new and requires parties to contested case proceedings to supplement responses to include after acquired information relied on at the hearing. Subsection (c) is new and authorizes the presiding officer to issue protective orders for material sought to be discovered that is protected by confidentiality laws, recognized privileges, or material the disclosure of which would result in annoyance, embarrassment, oppression or undue burden or expense. Subsection (d) is new and authorizes the presiding officer to issue orders compelling discovery for refusal to comply with a discovery request unless good cause for refusal exists. Failure to comply with the discovery order is enforceable under the rules of civil procedure. The presiding officer has the authority to apply the discovery sanctions rules in the state in which the contested case proceeding is held. Subsection (e) is new and authorizes the presiding officer, for good cause shown, to issue an order authorizing discovery in accordance with the rules of civil procedure. Subsection (f) provides that an agency can provide by rule that some or all of the discovery procedures authorized in section 411 do not apply to a specified program or a category of cases when the agency finds for good cause that the provisions of subsection 9f)(1) and (2) are satisfied.

SECTION 412. DEFAULT. (a) Unless otherwise provided by law of this state other than this [act], if a party without good cause fails to attend or participate in a prehearing conference or hearing in a contested case, the presiding officer may issue a default order. (b) If a default order is issued, the presiding officer may conduct any further proceedings necessary to complete the adjudication without the defaulting party and shall determine all issues

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in the adjudication, including those affecting the defaulting party. (c) A recommended, initial, or final order issued against a defaulting party may be based on the defaulting party’s admissions or other evidence that may be used without notice to the defaulting party. If the burden of proof is on the defaulting party to establish that the party is entitled to the agency action sought, the presiding officer may issue a recommended, initial, or final order without taking evidence. (d) Not later than [15] days after notice to a party subject to a default order that a recommended, initial, or final order has been rendered against the party, the party may petition the presiding officer to vacate the recommended, initial, or final order. If good cause is shown for the party’s failure to appear, the presiding officer shall vacate the decision and, after proper service of notice, conduct another evidentiary hearing. If good cause is not shown for the party’s failure to appear, the presiding officer shall deny the motion to vacate. Comment Section 412 is based upon 1981 MSAPA Section 4-208. Under this section, the presiding officer has the power to enter a default order against a party to a contested case proceeding. Subsection (a) is a revised version of 1981 MSAPA Section 4-208(a).The major difference is that the presiding officer may issue a default order for the parties’ failure to attend or participate in a hearing or prehearing conference unless good cause is shown. This simplifies the procedures for determining a default compared to the 1981 MSAPA Section 4-208(a) requirement of a written notice of a proposed default order. Subsection (b) is a revised version of the second sentence of 1981 MSAPA Section 4208(b). Subsection (c) is a revised version of California Government Code Section 11520(a). Subsection (d) is a revised version of California Government Code Section 11520(c).

SECTION 413. ORDERS: RECOMMENDED, INITIAL, OR FINAL. (a) If the presiding officer is the agency head, the presiding officer shall issue a final order.

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(b) Except as otherwise provided by law of this state other than this [act], if the presiding officer is not the agency head and has not been delegated final decisional authority, the presiding officer shall issue a recommended order. If the presiding officer is not the agency head and has been delegated final decisional authority, the presiding officer shall issue an initial order that becomes a final order [30] days after issuance, unless reviewed by the agency head on its own initiative or on petition of a party. (c) A recommended, initial, or final order must be served in a record on each party and the agency head not later than [90] days after the hearing ends, the record closes, or memoranda, briefs, or proposed findings are submitted, whichever is latest. The presiding officer may extend the time by stipulation, waiver, or for good cause. (d) A recommended, initial, or final order must separately state findings of fact and conclusions of law on all material issues of fact, law, or discretion, the remedy prescribed, and, if applicable, the action taken on a petition for a stay. The presiding officer may permit a party to submit proposed findings of fact and conclusions of law. The order must state the available procedures and time limits for seeking reconsideration or other administrative relief and must state the time limits for seeking judicial review of the agency order. A recommended or initial order must state any circumstances under which the order, without further notice, may become a final order. (e) Findings of fact must be based exclusively on the evidence and matters officially noticed in the hearing record in the contested case. Alternative A (f) Hearsay evidence may be used to supplement or explain other evidence, but on timely objection, is not sufficient by itself to support a finding of fact unless it would be admissible over objection in a civil action.

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Alternative B (f) Hearsay evidence is sufficient to support a finding of fact if it constitutes reliable, probative, and substantial evidence. End of Alternatives (g) An order is issued under this section when it is signed by the agency head, presiding officer, or an individual authorized by law of this state other than this [act] to sign the order. (h) A final order is effective [30] days after all parties are notified of the order unless reconsideration is granted under Section 416 or a stay is granted under Section 417. Comment This section is based upon 1981 MSAPA Section 4-215. This section also draws on useful provisions from several states. E.g. see: Alabama, Ala.Code 1975 Section 41-22-16; Iowa, I.C.A. Section 17A.15; Kansas, K.S.A. Section 77-526; Michigan, M.C.L.A. 24.281; Montana, MCA 2-4-623; Washington, RCWA 34.05.461. See Section 102(12) for the definition of “final order” Section 102(16) for the definition of initial order, and section 102 (28) of this act for the definition of “recommended order”. Emergency orders are issued under the provisions of Section 408, not this section. Subsection (a) is based on 1981 MSAPA Section 4-215 (a), and provides that if the presiding officer is the agency head, the presiding office shall render a final order. Subsection (b) is new and varies from the provisions of 1981 MSAPA Section 4-215(b). Subsection (b) provides for both recommended orders, and initial orders. Initial orders are issued by presiding officers who are not the agency head but who have been delegated final decisional authority. Recommended orders are issued by presiding officers who are not the agency head but who have not been delegated final decisional authority. The three types of orders are recognized in this section, but which type of order, initial, final, or recommended, will apply to which type of decision is based on law other than this act, usually the organic statute that the agency is responsible for administering or enforcing. Subsection (c) is a revised version of 1981 MSAPA Section 4-215(g),(h). Subsection (d) is a revised version of 1981 MSAPA Section 4-215(c). Subsection (e) is based on the first sentence of 1981 MSAPA Section 4-215(d). Subsection (f), Alternative A, adopts the legal residuum rule, and provides that hearsay evidence may be used to supplement or explain other evidence but would not be sufficient to support a fact finding unless admissible over objection in a civil action. The legal residuum rule is followed in many states. States that follow the legal residuum rule include California

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(California Government Code Section 11513(d)), Wisconsin (Gehin v. Wisconsin Group Insurance Board 278 Wisc.2d 111, 692 N.W.2d 572 (Wisc. 2005)), Utah, (McMillen v. Matheson 741 P.2d 960 (Utah, 1987)) , and New Mexico (Trujillo v. Employment Sec. Commission of New Mexico 94 N.M. 343, 610 P. 2d 747 (N.M., 1981)). Subsection (f), Alternative B is based on the second sentence of 1981 MSAPA Section 4-215(d). Alternative B provides that hearsay evidence can be sufficient to support fact findings if the hearsay evidence is sufficiently reliable. This provision is based on the federal A.P.A. provision, 5 U.S.C. Section 556 (d), Richardson v. Perales, (1971) 402 U.S. 389, and the 1981 MSAPA Section 4-215(d). (reasonably prudent person standard for reliability). States that follow the reliability standard include Oregon (Reguero v. Teacher Standards and Practices Commission 822 P. 2d 1171 (Ore.1991)), Pennsylvania (Commonwealth, Unemployment Compensation Board of Review v. Ceja 493 Pa. 588, 427 A. 3d 631 (Pa. 1981),Vermont (Watker v. Vermont Parole Board, 157 Vt. 72, 596 A.2d 1277 (Vt., 1991), and New York (300 Gramaton Avenue Associates v. State Division of Human Rights 45 N.Y.2d 156, 379 N.E.2d 1183. Subsection (g) is new and defines when an order is issued under this section as the time when an order is signed by the agency head, presiding officer, or other authorized individual. Subsection (h) is new and provides for the effective date of a final order.

SECTION 414. AGENCY REVIEW OF INITIAL ORDER. (a) An agency head may review an initial order on its own initiative. (b) A party may petition an agency head to review an initial order. On petition by a party, the agency head may review an initial order. (c) A petition for review of an initial order must be filed with the agency head or with any person designated for this purpose by agency rule not later than [15] days after notice to the parties of the order. If the agency head decides to review an initial order on its own initiative, the agency head shall give notice in a record to the parties that it intends to review the order. The notice must be given not later than [15] days after the parties are notified of the order. If a petition for review is not filed or the agency head does not elect to review the initial order within the prescribed time limit, the initial order becomes a final order. (d) The period in subsection (c) for a party to file a petition or for the agency head to notify the parties of its intention to review an initial order is tolled by the submission of a timely

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petition under Section 416 for reconsideration of the order. A new [15]-day period begins on disposition of the petition for reconsideration. If an order is subject both to a timely petition for reconsideration and a petition for review by the agency head, the petition for reconsideration must be disposed of first, unless the agency head determines that action on the petition for reconsideration has been unreasonably delayed. (e) When reviewing an initial order, the agency head shall exercise the decision-making power that the agency head would have had if the agency head had conducted the hearing that produced the order, except to the extent that the issues subject to review are limited by law of this state other than this [act] or by order of the agency head on notice to the parties. In reviewing findings of fact in an initial order, the agency head shall consider the presiding officer’s opportunity to observe the witnesses and to determine the credibility of witnesses. The agency head shall consider the hearing record or parts of the record designated by the parties. (f) If an agency head reviews an initial order, the agency head shall issue a final order disposing of the proceeding not later than 120 days after the decision to review the initial order or remand the matter for further proceedings with instructions to the presiding officer who issued the initial order. On remanding a matter, the agency head may order such temporary relief as is authorized and appropriate. (g) A final order or an order remanding the matter for further proceedings must identify any difference between the order and the initial order and must state the facts of record that support any difference in findings of fact, the law that supports any difference in legal conclusions, and the policy reasons that support any difference in the exercise of discretion. Findings of fact must be based exclusively on the evidence and matters officially noticed in the hearing record in the contested case. A final order under this section must include, or incorporate by express reference to the initial order, the matters required by Section 413(d). The

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agency head shall deliver the order to the presiding officer and notify the parties of the order. Comment Subsection (a) is a revised version of 1981 MSAPA Section 4-216(a). Subsection (b) is a revised version of 1981 MSAPA Section 4-216(a). Subsection (c) is a revised version of the first two sentences of 1981 MSAPA Section 4216(b). Subsection (d) is a revised version of the last two sentences of 1981 MSAPA Section 4216(b). The first sentence of subsection (e) is based on the 1981 MSAPA Section 4-216(d). the second sentence of subsection (e) is based upon provisions of the Washington Administrative Procedure Act (R.C.W. Section 34.05.464(4)). The third sentence of subsection (e) is new and requires the agency head to consider the hearing record or parts of the record designated by the parties. Subsection (f) is based upon 1981 MSAPA Section 4-216(g). Subsection (g) is a revised version of 1981 MSAPA Section 4-216(i),(j).

SECTION 415. AGENCY REVIEW OF RECOMMENDED ORDER. (a) An agency head shall review a recommended order pursuant to this section. (b) When reviewing a recommended order, the agency head shall exercise the decisionmaking power that the agency head would have had if the agency head had conducted the hearing that produced the order, except to the extent that the issues subject to review are limited by law of this state other than this [act] or by order of the agency head on notice to the parties. In reviewing findings of fact in a recommended order, the agency head shall consider the presiding officer’s opportunity to observe the witnesses and to determine the credibility of witnesses. The agency head shall consider the hearing record or parts that are designated by the parties. (c) An agency head may render a final order disposing of the proceeding or remand the matter for further proceedings with instructions to the presiding officer who rendered the

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recommended order. On remanding a matter, the agency head may order such temporary relief as is authorized and appropriate. (d) A final order or an order remanding the matter for further proceedings must identify any difference between the order and the recommended order and must state the facts of record that support any difference in findings of fact, the law that supports any difference in legal conclusions, and the policy reasons that support any difference in the exercise of discretion. Findings of fact must be based exclusively on the evidence and matters officially noticed in the hearing record in the contested case. A final order under this section must include, or incorporate by express reference to the recommended order, the matters required by Section 413(d). The agency head shall deliver the order to the presiding officer and notify the parties of the order. Comment Section 415 provides for a review procedure for recommended orders. The agency is required to review a recommended order. Subsection (a) is new and provides for mandatory review of a recommended order by an agency head. The first sentence of subsection (b) is based on the 1981 MSAPA Section 4-216(d). the second sentence of subsection (b) is based upon provisions of the Washington Administrative Procedure Act (R.C.W. Section 34.05.464(4)). The third sentence of subsection (b) is new and requires the agency head to consider the hearing record or parts of the record designated by the parties. Subsection (c) is based upon 1981 MSAPA Section 4-216(g). Subsection (d) is a revised version of 1981 MSAPA Section 4-216(i),(j).

SECTION 416. RECONSIDERATION. (a) A party, not later than [15] days after notice to the parties that a final order has been issued, may file a petition for reconsideration that states the specific grounds on which relief is requested. The place of filing and other procedures, if any, must be specified by agency rule and

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must be stated in the final order. (b) If a petition for reconsideration is timely filed, and if the petitioner has complied with the agency’s procedural rules for reconsideration, if any, the time for filing a petition for judicial review does not begin until the agency disposes of the petition for reconsideration as provided in Section 503(d). (c) Not later than [20] days after a petition is filed under subsection (a), the decision maker shall issue a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further proceedings. If the decision maker fails to respond to the petition not later than [30] days after filing, or a longer period agreed to by the parties, the petition is deemed denied. The petition may be granted only if the decision maker states findings of facts, conclusions of law, and the reasons for granting the petition. Comment This section provides a right to seek reconsideration of a final order of an agency. This section is based in part on the Washington APA, West’s RCWA 34.05.470, and in part on 1981 MSAPA Section 4-218. Subsection (a) is based upon the Washington APA, R.C.W. 34.05.470(1). Subsection (b) is based upon the Washington APA, R.C.W. 34.05.470(3). Subsection (c) is based upon the 1981 MSAPA Section 4-218(3).

SECTION 417. STAY. Except as otherwise provided by law of this state other than this [act], a party, not later than [seven] days after the parties are notified of the order, may request the agency to stay a final order pending judicial review. The agency may grant the request for a stay pending judicial review if the agency finds that justice requires. The agency may grant or deny the request for stay of the order before, on, or after the effective date of the order. Comment

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This section is based upon 1961 MSAPA Section 15(c), and on 1981 MSAPA Section 4217. The first and third sentences of this section are based upon 1981 MSAPA Section 4-217. The second sentence of this section is based on the first sentence of Section 705 of the federal administrative procedure act, 5 U.S.C. Section 705.

SECTION 418. AVAILABILITY OF ORDERS; INDEX. (a) Except as otherwise provided in subsections (b) and (c), an agency shall create an index of all final orders in contested cases and make the index and all final orders available for public inspection and copying, at cost, in its principal offices. (b) Except as otherwise provided in subsection (c), final orders that are exempt, privileged, or otherwise made confidential or protected from disclosure by [the public records law of this state] are not public records and may not be indexed. The final order may be excluded from an index and disclosed only by order of the presiding officer with a written statement of reasons attached to the order. (c) If the presiding officer determines it is possible to redact a final order that is exempt, privileged, or otherwise made confidential or protected from disclosure by law of this state other than this [act] so that it complies with the requirements of that law, the redacted order may be placed in the index and published. (d) An agency may not rely on a final order adverse to a party other than the agency as precedent in future adjudications unless the agency designates the order as a precedent, and the order has been published, placed in an index, and made available for public inspection. Comment This section is entirely new. This section continues the concept, seen earlier in connection with rules, of preventing earlier decisional law known only to agency personnel from constituting the basis for decision in a disputed case. Subsection (d) is based in part on the provisions of California Government Code Section 11425.60. If the agency wishes to use a case as precedent in the future, it must make the order and decision in that case available to the public. The only situations in which an agency may rely on a contested case as precedent without indexing and making that decision and order available to the public are described in subsection (c) of this section.

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In some states there have been attacks on agency adjudications on the basis that the proceeding should be conducted under the provisions for rulemaking. In the case of SEC v. Chenery Corp., 332 U.S. 194 (1947) the United States Supreme Court held that the choice of whether to proceed by rulemaking or adjudication is left entirely to the discretion of the agency, because not every principle can be immediately promulgated in the form of a rule. In the words of the Supreme Court “Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations.” Most states follow Chenery. See Illuminating a Bureaucratic Shadow World: Precedent Decisions under California=s Revised Administrative Procedure Act, 21 J. Nat=l A. Admin. L. Judges 247 (2001) at n. 68. This section makes clear that the choice between rulemaking and adjudication is entirely in the discretion of the agency. However, in order to prevent law to which the public does not have access from constituting the basis for decision, final orders must be indexed and available to the public. See also the California administrative procedure act at West’s Ann. Cal. Gov. Code, § 11425.60. Most states have public records act that require disclosure of government documents and records to the public unless particular documents are exempt from disclosure under that act. Subsection (b) refers to those acts, and to exempt decisions under those acts. Subsection (c) is broader than subsection (b) and refers to law of this state other than this act. Law is defined in section 102(18).

SECTION 419. LICENSES. (a) If a licensee has made timely and sufficient application for the renewal of a license or a new license for any activity of a continuing nature, the existing license does not expire until the agency takes final action on the application and, if the application is denied or the terms of the new license are limited, until the last day for seeking review of the agency order or a later date fixed by the reviewing court. (b) A revocation, suspension, annulment, or withdrawal of a license is not lawful unless, before the institution of agency proceedings, the agency notifies the licensee of facts or conduct that warrants the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that imminent peril to public health, safety, or welfare requires emergency action and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for

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revocation or other action. These proceedings must be promptly instituted and concluded. Comment Section 419 is based on Section 14 of the 1961 MSAPA. Subsection (a) is based on Section 14(b), 1961 MSAPA. Subsection (b) is based on Section 14(c), 1961 MSAPA. Section 401 of this [act] governs licensing proceedings when the licensee has a right to notice and an opportunity to be heard before the agency action granting, denying, or renewing a license becomes final agency action. More specific provisions of organic statutes governing specific types of licenses are controlling over the general provisions of this section.

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[ARTICLE] 5 JUDICIAL REVIEW SECTION 501. RIGHT TO JUDICIAL REVIEW; FINAL AGENCY ACTION REVIEWABLE. (a) In this [article], “final agency action” means an act of an agency which imposes an obligation, grants or denies a right, confers a benefit, or determines a legal relationship as a result of an administrative proceeding. The term does not include agency action that is a failure to act. (b) Except to the extent that a statute of this state other than this [act] limits or precludes judicial review, a person that meets the requirements of this [article] is entitled to judicial review of a final agency action. (c) A person entitled to judicial review under subsection (b) of a final agency action is entitled to judicial review of an agency action that is not final if postponement of judicial review would result in an inadequate remedy or irreparable harm that outweighs the public benefit derived from postponing judicial review. (d) A court may compel an agency to take action that is unlawfully withheld or unreasonably delayed. Comment Section 501 is similar to the judicial review provisions of Florida (West’s F.S.A. Section 120.68), Iowa (I.C.A. Section17A.19), Virginia (Va. Code Ann. Section 2.2-4026) and Wyoming (W.S.1977 Section 16-3-114). Under this section, the person seeking review must meet all of the requirements of this article, which include standing (Section 505), exhaustion of remedies (Section 506), and time for filing (Section 503). The definition of “agency action” is found in Section 102(4). Subsection (a) defines “final agency action” for purposes of Article 5. This definition is based on state and federal cases. See State Bd. Of Tax Comm’rs v. Ispat Inland, 784 N.E.2D 477 (Ind., 2003); District Intown Properties v. D.C. Dept. Consumer and Regulatory Affairs, 680 A.2d 1373 (Ct. Apps. D.C. 1996); Texas Utilities Co. v. Public Citizen, Inc, 897 S.W.2d 443 (Tex. App. 1995); Bennet v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997); Mobil Exploration and Producing Inc. v. Dept. Interior, 180 F.3d 1192, 1197 (10th Cir. 1999). The last sentence of subsection (a) is new. Agency action that is a failure to act is not final agency action for purposes

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of Section 501. See subsection (d) which recognizes a reviewing court’s authority to compel agency action that is unlawfully withheld or unreasonably delayed. Subsection (b) of this section provides a right of judicial review of final agency action by appropriate parties. Under subsection (b), final agency action includes a final order in a contested case and a final rule. The exception in subsection (b) for statutes that limit or preclude judicial review applies to limit or preclude judicial review of final agency action when a statute of the state other than this Act limits or precludes judicial review of that type of action. See the laws of the following states: Wyoming (W.S.A. Section 16-3-114(a)); New York (McKinney’s’ Civil Service law Section 76.3; New York City Dept. of Environmental Protection v. New York City Civil Service Com'n, 78 N.Y.2d 318, 579 N.E.2d 1385 (N.Y., 1991); and the District of Columbia (District of Columbia v. Sierra Club, 670 A2d. 354 (D.C., 1996). Subsection (c) is based on 1981 MSAPA Section 5-103 and it creates a limited right to review of non-final agency action. Subsection (d) is based on the federal A.P.A., 5 U.S.C. Section 706(1). Agency failure to act is not judicially reviewable unless agency action is unlawfully withheld or unreasonably delayed. Agency action is defined in section 102(4), and includes in subsection (4)(B), the failure to issue an order or rule, and in subsection (4)(C), failure to perform, duties, functions, activities, or determinations required by law.

SECTION 502. RELATION TO OTHER JUDICIAL REVIEW LAW AND RULES. (a) Except as otherwise provided by law of this state other than this [act], judicial review of final agency action may be taken only as provided by rules of [appellate] [civil] procedure [of this state]. The court may grant any type of legal and equitable remedies that are appropriate. (b) This [article] does not limit use of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law of this state other than this [act]. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is available under this [article] or under law of this state other than this [act], final agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement. Comment This section places appeals from final agency action within the existing state rules of appellate procedure. Such action may be preferred by some states because of constitutional provisions or because of the existence of rules of appellate procedure that the legislature may not

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wish to change. This practice was followed under the 1961 MSAPA, and is followed in a number of states today. See e.g.: Alaska (AS 44.62.560), California (West=s Ann. Cal. Gov. Code Section 11523), Delaware (29 Del. C. Section 10143), Florida (West=s F.S.A. Section 120.68), Iowa (I.C.A. § 17A.20), Michigan (M.C.L.A. 24.302), Minnesota (M.S.A. § 14.63) (Appeal integrated with state appellate rules), Virginia (Va. Code Ann. Section 2.2-4026), Wyoming (W.S.1977 § 16-3-114). The first sentence of subsection (b) is based on the second sentence of Section 15a of the 1961 MSAPA. The second sentence of (b) is based on the last sentence of Section 703, federal Administrative Procedure Act, 5 U.S.C. Section 703.

SECTION 503. TIME TO SEEK JUDICIAL REVIEW OF AGENCY ACTION; LIMITATIONS. (a) Judicial review of a rule on the ground of noncompliance with the procedural requirements of this [act] must be commenced not later than [two] years after the effective date of the rule. Judicial review of a rule or guidance document on other grounds may be sought at any time. (b) Judicial review of an order or other final agency action other than a rule or guidance document must be commenced not later than [30] days after the date the parties are notified of the order or other agency action. (c) The time for seeking judicial review under this section is tolled during any time a party pursues an administrative remedy before the agency which must be exhausted as a condition of judicial review. (d) A party may not petition for judicial review while seeking reconsideration under Section 416. During the time a petition for reconsideration is pending before an agency, the time for seeking judicial review in subsection (b) is tolled. Comment The first sentence of subsection (a) is based on 1961 Model State Administrative Procedure Act, section (3)(c), and on Section 3-113(b) of the 1981 Model State Administrative Procedures Act. The scope of challenges permitted for noncompliance with procedural requirements under Section 314 includes all applicable requirements of article 3 for the type of

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rule being challenged. Subsection (b) is based on 1981 MSAPA Section 5-108(2). Subsection (c) is based on 1981 MSAPA Section 5-108(3). Subsection (d) is new and provide for tolling of the time to seek judicial review while a reconsideration petition is pending before an agency. Tolling in subsections (c) and (d) suspends the running of the 30 day time limit under subsection (b) but does not start a new 30 day time period after completion of administrative remedies in subsection (b), or denial of the petition for reconsideration in subsection (c).

SECTION 504. STAYS PENDING APPEAL. A petition for judicial review does not automatically stay an agency decision. A challenging party may request the reviewing court for a stay on the same basis as stays are granted under the rules of [appellate] [civil] procedure [of this state], and the reviewing court may grant a stay regardless of whether the challenging party first sought a stay from the agency. Comment This provision for stay permits a party appealing agency final action to seek a stay of the agency decision in the court. The first sentence of this section is based upon 1961 MSAPA Section 15(c). See also 1981 MSAPA Section 5-111 which governs stays. Unlike the 1981 MSAPA Section 5-111, this section authorizes the granting of a stay by the reviewing court but not by the agency.

SECTION 505. STANDING. The following persons have standing to obtain judicial review of a final agency action: (1) a person aggrieved or adversely affected by the agency action; and (2) a person that has standing under law of this state other than this [act]. Comment Standing requirements are contained in the first sentence of 1961 MSAPA Section 15(a), and 1981 MSAPA Section 5-106. Subsection (1) is a revised version of 1981 MSAPA Section 5-106(a)(5), and is also based on the first sentence of Section 702 of the federal Administrative Procedure Act, 5 U.S.C. Section 702.

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Subsection (2) is a revised version of 1981 MSAPA Section 5-106(a)(4). This subsection confers standing that arises under any other provision of law. Examples of this type of standing are statutes that expressly confer standing in general language such as, for example, Aany person may commence a civil suit in his own behalf... to enjoin... an agency... alleged to be in violation of this chapter. . . .” 16 U.S.C.A. § 1540, explained in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154(1997). Another example is standing recognized in judicial decision or common law. Most states have established case law detailing the standing requirements for that particular jurisdiction. Section 505 is drafted broadly but generically so that existing state law on standing will be compatible with this section.

SECTION 506. EXHAUSTION OF ADMINISTRATIVE REMEDIES. (a) Subject to subsection (d) or law of this state other than this [act] which provides that a person need not exhaust administrative remedies, a person may file a petition for judicial review under this [act] only after exhausting all administrative remedies available within the agency the action of which is being challenged and within any other agency authorized to exercise administrative review. (b) Filing a petition for reconsideration or a stay of proceedings is not a prerequisite for seeking judicial review. (c) A petitioner for judicial review of a rule need not have participated in the rulemaking proceeding on which the rule is based or have filed a petition to adopt a rule under Section 318. (d) The court may relieve a petitioner of the requirement to exhaust any or all administrative remedies to the extent the administrative remedies are inadequate or the requirement would result in irreparable harm. Comment The first clause of the first sentence of subsection (a) is based upon 1981 MSAPA Section 5-107(2). The remaining language in subsection (a) is based upon the first sentence of 1981 MSAPA Section 5-107. Subsection (b) is based upon the second sentence of 1981 MSAPA Section 4-218(1). Subsection (c) is based upon 1981 MSAPA Section 5-107(1).

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Subsection (d) is a revised version of 1981 MSAPA Section 5-107(3).

SECTION 507. AGENCY RECORD ON JUDICIAL REVIEW; EXCEPTIONS. (a) If an agency was required by [Article] 3 or 4, or by law of this state other than this [act], to maintain an agency record during the proceeding that gave rise to the action under review, the court review is confined to that record and to matters arising from that record. (b) In any case to which subsection (a) does not apply, the record for review consists of the unprivileged materials that agency decision makers directly or indirectly considered, or which were submitted for consideration by any person, in connection with the action under review, including information that is adverse to the agency’s position. If the agency action was ministerial or was taken on the basis of a minimal or no administrative record, the court may receive evidence relating to the agency’s basis for taking the action. (c) The court may supervise an agency’s compilation of the agency record. If a challenging party makes a substantial showing of need, the court may allow discovery or other evidentiary proceedings and consider evidence outside the agency record to: (1) ensure that the agency record is complete as required by this [act] and other applicable law; (2) adjudicate allegations of procedural error not disclosed by the record; or (3) prevent manifest injustice. Comment This section establishes a default closed record for judicial review of adjudication and rulemaking. It is well established in most states and in federal administrative procedure that, in case of adjudication, judicial review is based on that evidence which was before the agency on the record. Otherwise, the standards of judicial review could be subverted by the introduction of additional evidence to the court that was not before the agency. See Western States Petroleum Ass=n v. Superior Court, 888 P.2d 1268 (Cal. 1995). For rulemaking, the record for judicial review is defined in Section 302 of this Act. The section contains an exception to the closed record on review where petitioner alleges error, such as ex parte contacts, that does not appear in

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or is not evident from the record. Other examples of error that do not appear or are not evident from the record are: improper constitution of the decision making body, grounds for disqualification of a decision maker, or unlawful procedure. However, the standard for opening the record on appeal is high. Subsection (a) is a revised version of 1961 MSAPA Section 15(f). Subsection (b) is new and defines the record for review in any case that is not a contested case.

SECTION 508. SCOPE OF REVIEW. (a) Except as provided by law of this state other than this [act], in judicial review of an agency action, the following rules apply: (1) The burden of demonstrating the invalidity of agency action is on the party asserting invalidity. (2) The court shall make a ruling on each material issue on which the court’s decision is based. (3) The court may grant relief only if it determines that a person seeking judicial review has been prejudiced by one or more of the following: (A) the agency erroneously interpreted the law; (B) the agency committed an error of procedure; (C) the agency action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (D) an agency determination of fact in a contested case is not supported by substantial evidence in the record as a whole; or (E) to the extent that the facts are subject to a trial de novo by the reviewing court, the action was unwarranted by the facts. (b) In making a determination under this section, the court shall review the agency record or the parts designated by the parties and shall apply the rule of harmless error.

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Comment Subsection (a) (1) is based upon 1981 MSAPA Section 5-116(a)(1). Subsection (a)(2) is based upon 1981 MSAPA Section 5-116(b). They are substantially similar to the general scope of review provisions of the Federal APA, 5 U.S.C. Section 706. Judicial review is essential and exists in all states. Section 508 follows the approach that scope of review is notoriously difficult to capture in verbal formulas, and its application varies depending on context. For that reason, Section 508(3) follows the shorter, skeletal formulations of the scope of review, similar to the 1961 MSAPA Section 15(g), and the Federal APA, 5 U.S.C. Section 706(2). See Ronald M. Levin, Scope of Review Legislation, 31 Wake Forest L. Rev. 647 (1996) at 664-66. William D. Araiza, In Praise of a Skeletal APA, 56 Admin. L. Rev. 979 (2004). (Judiciary, not legislature, appropriate body to evolve specific standards for review, because of great variety of agency action and contexts, and inability to describe how general standards of review should apply to many of them). Most states have established bodies of law governing judicial review of agency rules and orders. Section 508(a)(3) has been drafted generally to make it easier for states to adopt Article Five because state specific understandings of the scope of review of agency action can be more easily accommodated with general standards of review. The first clause of subsection (a)(3) is based on 1981 MSAPA Section 5-116(c). Subsection (a)(3) (A) includes, but is not limited to, violations of constitutional or statutory provisions and actions that are in excess of statutory authority from Section 15(g)(1), and (2) of the 1961 MSAPA, and includes 1981 MSAPA Section 5-116 subsections (c) (1), (2) and (4). The subsection includes challenges to the facial or applied constitutionality of a statute, challenges to the jurisdiction of the agency, erroneous interpretation of the law, and may include erroneous application of the law. This section is not intended to preclude courts from according deference to agency interpretations of law, where such deference is appropriate. Subsection (a)(3)(B) includes violations of procedures required by law from 1961 MSAPA Section 15(g)(3) and includes 1981 MSAPA Section 5-116 subsections (c)(5) and (6). Subsection (a)(3)(C) includes discretionary decisions of agencies that are judicially reviewable from 1961 MSAPA Section 15(g)(6) and 1981 MSAPA Section 5-116(8), and federal A.P.A. Section 706 (2)(A). Section (a)(3)(D) includes the fact determinations in contested cases form 1981 MSAPA Section 5-116(c)(7) and the federal APA Section 706(2)(E). Section (a)(3)(E) includes fact determinations that are not made in contested cases and is based upon the Federal APA Section 706(2)(F). Subsection (b) is based upon the federal APA section 706, last sentence.

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[ARTICLE] 6 OFFICE OF ADMININISTRATIVE HEARINGS SECTION 601. CREATION OF OFFICE OF ADMINISTRATIVE HEARINGS. (a) In this [article], “office” means the [Office of Administrative Hearings]. (b) The [Office of Administrative Hearings] is created in the executive branch of state government [within the [

] agency]. Comment

Section 601 is based on Section 1-2(a) of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997). Twenty five states (including the District of Columbia) have established central panel agencies. Representative state statutes creating a central panel include Alaska statutes, section 44.64.010, California Government Code Section 11370.2, Louisiana: statutes, Section 49.991, and Washington Administrative Procedure Act, Section 34.12.010. Article Six has been drafted to include the necessary minimum provisions for a state that wants to adopt a central panel hearing agency. For states that adopt this act, Article Four procedures for contested cases would be followed by administrative law judges who work for the Office of Administrative Hearings. States that adopt Article Six would provide for a separate hearing agency and would ensure impartiality and fairness in contested cases by separating the adjudication function from the prosecution and investigative functions. Administrative law judges that work for the Office of Administrative Hearings would not be subject to command influence from the agency head whose contested cases the administrative law judge is presiding over.

SECTION 602. CHIEF ADMINISTRATIVE LAW JUDGE; APPOINTMENT; QUALIFICATIONS; TERM; REMOVAL. (a) The office is headed by a chief administrative law judge appointed by [the Governor] [with the advice and consent of the Senate]. (b) A chief administrative law judge serves a term of [five] years and until a successor is appointed and qualifies for office, is entitled to the salary provided by law, and may be reappointed. (c) At the time of appointment, the chief administrative law judge must have been admitted to the practice of law in this state for at least five years and have substantial experience

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in administrative law. (d) A chief administrative law judge: (1) must take the oath of office required by law before beginning the duties of the office; (2) shall devote full time to the duties of the office and may not engage in the private practice of law; and (3) is subject to the code of conduct for administrative law judges adopted pursuant to Section 604(7). (e) A chief administrative law judge may be removed from office only for cause and only after notice and an opportunity for a contested case hearing. Comment Section 602 is based on Section 1-4 of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997).

SECTION 603. ADMININSTRATIVE LAW JUDGES; APPOINTMENT; QUALIFICATIONS; DISCIPLINE. (a) The chief administrative law judge shall appoint administrative law judges pursuant to the [state merit system]. (b) In addition to meeting other requirements of the [state merit system], to be eligible for appointment as an administrative law judge, an individual must have been admitted to the practice of law in this state for at least [three] years. (c) An administrative law judge: (1) shall take the oath of office required by law before beginning duties as an administrative law judge; (2) is subject to the code of conduct for administrative law judges adopted

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pursuant to Section 604(7); (3) is entitled to the compensation provided by law; and (4) may not perform any act inconsistent with the duties and responsibilities of an administrative law judge. (d) An administrative law judge: (1) is subject to the administrative supervision of the chief administrative law judge; (2) may be disciplined pursuant to the [state merit system law]; (3) except as otherwise provided in paragraph (4), may be removed from office only for cause and only after notice and an opportunity for a contested case hearing; and (4) is subject to a reduction in force in accordance with the [state merit system law]. (e) On [the effective date of this [act]], administrative law judges employed by agencies to which this [article] applies are transferred to the office and, regardless of the minimum qualifications imposed by this [article], are administrative law judges in the office. Comment Section 603 is based on Sections 1-2(b), and 1-6 of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997).

SECTION 604. CHIEF ADMINISTRATIVE LAW JUDGE; POWERS; DUTIES. The chief administrative law judge has the powers and duties specified in this section. The chief administrative law judge: (1) shall supervise and manage the office; (2) shall assign administrative law judges in a case referred to the office; (3) shall assure the decisional independence of each administrative law judge;

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(4) shall establish and implement standards for equipment, supplies, and technology for administrative law judges; (5) shall provide and coordinate continuing education programs and services for administrative law judges and advise them of changes in the law concerning their duties; (6) shall adopt rules pursuant to this [act] to implement [Article] 4 and this [article]; (7) shall adopt a code of conduct for administrative law judges; (8) shall monitor the quality of adjudications conducted by administrative law judges; (9) shall discipline [pursuant to the state merit system law] administrative law judges who do not meet appropriate standards of conduct and competence; (10) may accept grants and gifts for the benefit of the office; and (11) may contract with other public agencies for services provided by the office. Comment Section 604 is based on Section 1-5 of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997).

SECTION 605. COOPERATION OF AGENCIES. (a) Every agency shall cooperate with the chief administrative law judge in the discharge of the duties of the office. (b) Subject to Section 402, an agency may not reject a particular administrative law judge for a particular hearing. Comment Section 605 is based on Section 1-7(a) of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997). There are similar provisions in Alaska statutes, Section 44.64.080. Agencies should cooperate with the office of administrative hearings by providing information and coordinating schedules for contested case hearings.

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SECTION 606. ADMINISTRATIVE LAW JUDGES; POWERS; DUTIES; DECISION MAKING AUTHORITY. (a) In a contested case, unless the hearing is conducted by a presiding officer assigned under Section 402(a) other than an administrative law judge, an administrative law judge must be assigned to be the presiding officer. If the administrative law judge is delegated final decisional authority, the administrative law judge shall issue a final order. If the administrative law judge is not delegated final decisional authority, the administrative law judge shall issue to the agency head a recommended order in the contested case. (b) Except as otherwise provided by law of this state other than this [act], if a contested case is referred to the office by an agency, the agency may not take further action with respect to the proceeding, except as a party, until a recommended, initial, or final order is issued. [This subsection does not prevent an appropriate interlocutory review by the agency or an appropriate termination or modification of the proceeding by the agency when authorized by law of this state other than this [act].] (c) In addition to acting as the presiding officer in contested cases under this [act], subject to the direction of the chief administrative law judge, an administrative law judge may perform duties authorized by law of this state other than this [act]. Comment Section 606 is based generally on Section 1-10(c) of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997). Subsection (a) is new. The first sentence of subsection (a) provides for the assignment of an administrative law judge from the Office of Administrative Hearings to be the presiding officer in a contested case for agencies that are not exempt from Article 6 in states that have an Office of Administrative Hearings unless the agency head assigns another presiding officer under Section 402(a). The second sentence of subsection (a) recognizes that agency heads may delegate final order authority to an administrative law judge from the Office of Administrative Hearings, and the administrative law judge shall issue a final order. The third sentence of subsection (a)

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provides that the administrative law judge shall issue a recommended order in cases in which final decisional authority has not been delegated by the agency head. The provisions of Article 4 governing contested cases are applicable to administrative law judges working for the Office of Administrative Hearings who are assigned to be presiding officer in a contested case. See Section 413 for Orders: Recommended, Initial, or Final. Section 606(b) is based on Section 1-10(c) of the Model Act Creating a State Central Hearing Agency (Office of Administrative Hearings) adopted by the house of delegates of the American Bar Association (February 2, 1997). Subsection (c) authorizes administrative law judges to perform other authorized duties subject to the direction of the chief Administrative Law Judge.

SECTION 607. AGENCIES EXCLUDED. [This [article] does not apply to the following agencies: [list agencies exempted]]. Comment This section lists the agencies that are exempted from the State Administrative Procedure act.

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[[ARTICLE] 7 RULES REVIEW SECTION 701. [LEGISLATIVE RULES REVIEW COMMITTEE]. There is created a standing committee of the [Legislature] designated the [rules review committee]. Legislative Note: States that have existing rules review committees can incorporate the provisions of Sections 701 and 702, using the existing number of members of their current rules review committee. Because state practice varies as to how these committees are structured, and how many members of the legislative body serve on this committee, as well as how they are selected, the act does not specify the details of the legislative review committee selection process. Details of the committee staff and adoption of rules to govern the rules review committee staff and organization are governed by law other than this act including the existing law in each state. Comment This section is based on the first sentence of 1981 MSAPA Section 3-203.

SECTION 702. REVIEW BY [RULES REVIEW COMMITTEE]. (a) An agency shall file a copy of an adopted rule with the [rules review committee] at the same time it is filed with the [publisher]. An agency is not required to file an emergency rule adopted under Section 309 with the [rules review committee]. (b) The [rules review committee] may examine each rule in effect and each newly adopted rule to determine whether the: (1) rule is a valid exercise of delegated legislative authority; (2) statutory authority for the rule has expired or been repealed; (3) rule is necessary to accomplish the apparent or expressed intent of the specific statute that the rule implements; (4) rule is a reasonable implementation of the law as it applies to any affected class of persons; and (5) agency complied with the regulatory analysis requirements of Section 305 and the analysis properly reflects the effect of the rule.

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(c) The [rules review committee] may request from an agency information necessary to exercise its powers under subsection (b). The [rules review committee] shall consult with standing committees of the [Legislature] with subject matter jurisdiction over the subjects of the rule under examination. (d) The [rules review committee] shall: (1) maintain oversight over agency rulemaking; and (2) exercise other duties assigned to it under this [article]. Comment This section adopts a rules review committee process that is widely followed in state administrative law as a method for legislative review of agency rules. States that have rules review committees include Texas, TX GOVT § 2001.032, Iowa, I.C.A. § 17A.8, Utah, U.C.A. 1953 § 63G-3-501, Wisconsin, W.S.A. 227.26 and Montana, MCA § 2-4-402. The first sentence of subsection (a) requires the agency to file a copy of an adopted rule with the [rules review committee] at the same time it is filed with the publisher. Section 316 requires the agency to file adopted rules with the publisher. The second sentence of subsection (a) exempts emergency rules adopted under Section 309 from the rules review process. Emergency rules take effect upon adoption and are effective for a short period of time. Subsection (b) allows the legislative rules review committee to review currently effective rules and newly adopted rules. The rules review committee may establish priorities for rules review including review of newly adopted or amended rules, and may manage the rules review process consistent with committee staff and budgetary resources. If the content of the rule changes because of legislative amendments, the agency will be required to file the amended rule with the publisher, and the amended rule will replace the original rule that was filed with the publisher. The rules review process applies to rules adopted following the requirements of Sections 304 to 307. This process does not apply to emergency rules adopted under Section 309 nor to direct final rules adopted under Section 310. Subsection (b)(1) requires the [rules review committee] to determine whether the rule is a valid exercise of delegated legislative authority. Subsection (b)(2) requires the [rules review committee] to determine whether the statutory authority for the rule has expired or been repealed Subsection (b)(3) requires the [rules review committee] to determine whether the rule is necessary to accomplish the apparent or expressed intent of the specific statute that the rule implements. Subsection (b)(4) requires the [rules review committee] to determine whether the rule is a reasonable implementation of the law as it applies to any affected class of persons. Subsection (b)(5) requires the [rules review committee] to determine whether the agency complied with the regulatory analysis requirements of Section 305and the analysis properly reflects the effect of the rule. See section 305 for the regulatory analysis requirements agencies are required to undertake as part of the rulemaking process.

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The first sentence of subsection (c) permits the [rules review committee] to request from the adopting agency information necessary to make the determinations under subsection (2). The second sentence of subsection (c) directs the [rules review committee] to consult with the standing committees of the legislature with subject matter authority over the subjects of the rule in question.

SECTION 703. [RULES REVIEW COMMITTEE] PROCEDURE AND POWERS. (a) Not later than [30] days after receiving a copy of an adopted rule from an agency under Section 702, the [rules review committee] may: (1) approve the adopted rule; (2) disapprove the rule and propose an amendment to the adopted rule; or (3) disapprove the adopted rule. (b) If the [rules review committee] approves an adopted rule or does not disapprove and propose an amendment under subsection (a)(2) or disapprove under subsection (a)(3), the adopted rule becomes effective on the date specified in Section 317. (c) If the [rules review committee] proposes an amendment to an adopted rule under subsection (a)(2), the agency may make the amendment and resubmit the rule, as amended, to the [rules review committee]. The amended rule must be one that the agency could have adopted on the basis of the record in the rulemaking proceeding and the legal authority granted to the agency. The agency shall provide an explanation for the amended rule as provided in Section 313. An agency is not required to hold a hearing on an amendment made under this subsection. If the agency makes the amendment, it shall give notice to the [publisher] for publication of the rule, as amended, in the [administrative bulletin]. The notice must include the text of the rule as amended. If the [rules review committee] does not disapprove the rule, as amended, or propose a further amendment, the rule becomes effective on the date specified under Section 317. (d) If the [rules review committee] disapproves the adoption of a rule under subsection

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(a)(3), the adopted rule becomes effective on adjournment of the next regular session of the [Legislature] unless before adjournment the [Legislature] [adopts a [joint] [concurrent] resolution] [enacts a bill] sustaining the action of the committee. (e) Before the effective date specified in Section 317, the agency may withdraw the adoption of a rule by giving notice of the withdrawal to the [rules review committee] and to the [publisher] for publication in the [administrative bulletin]. A withdrawal under this subsection terminates the rulemaking with respect to the adoption but does not prevent the agency from initiating new rulemaking for the same or substantially similar adoption.] Legislative Note: The 30-day time period in subsection (a) is the same as the 30-day period in Section 317. State constitutions vary as to whether or not a joint resolution is a valid way of disapproving an agency rule. In some states, the Legislature must use the bill process with approval by the Governor. In other states, the joint resolution process is proper. States should use the alternative that complies with their state constitution. State constitutions vary on the federal constitutional issue decided by the U.S. Supreme Court in I.N.S. v. Chadha (1983) 462 U.S. 919, 103 S.Ct. 2764. The U.S. Supreme Court held that the one house legislative veto provided for in Section 244(c)(2) violated the Article I requirement that legislative action requires passage of a law by both Houses of Congress (bicameralism) and presentation to the President for signing or veto (presentation requirement). Those state constitutions that require presentation to the Governor need an additional step, presentation of the joint resolution to the Governor for approval or disapproval. With state constitutions that do not require presentation of a resolution to the Governor, the rules review process can be completed with legislative adoption of a joint resolution. Comment This is a type of veto that provides for cooperation between the Legislature and the Governor, and attempts to avoid the I.N.S. v. Chadha (1983) 462 U.S. 919, 103 S.Ct. 2764. problem of unconstitutionality by delaying the effective date of the rule until the legislature has the opportunity to enact legislation to annul or modify it. The governor may veto the act by which the legislature seeks to annul or modify the rule. This type of veto provision is widely used in the states. For example the following states have legislative review statutes as part of their state administrative procedures act: Texas, TX GOVT § 2001.032, Iowa, I.C.A. § 17A.8, Utah, U.C.A. 1953 § 63G-3-501, Wisconsin, W.S.A. 227.26 and Montana, MCA § 2-4-402. For disapproval of a rule to be effective, the legislature as a whole must adopt a joint resolution, and in many states the governor must by presented with the joint resolution for approval or disapproval. While the rules review committee can recommend disapproval, the committee recommendation must be approved by the legislature by joint resolution. In some states, the legislature must comply with the legislative process for enacting a bill including presentation to the governor to exercise the power of legislative veto over an agency regulation.

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In at least one state use of a joint resolution without the governor’s participation violates the state constitution. State v. A.L.I.V.E. Voluntary (Alaska, 1980) 606 P.2d 769. The rules review committee has the power to temporarily suspend an agency rule pending enactment of a permanent suspension by action of both houses of the state legislature, and presentation to the governor. Martinez v. Department of Industry, Labor, & Human Relations (Wisconsin, 1992) 165 W.2d 687, 478 N.W.2d 582 (temporary suspension statute held not to violate state constitution separation of powers doctrine).

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[ARTICLE] 8 MISCELLANEOUS PROVISIONS SECTION 801. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b). Comment The federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et. seq., was enacted in summer of the year 2000. It precludes States from denying enforceability to an electronic record or an electronic signature solely because the record or signature is electronic, rather than in writing. The Electronic Signatures Act applies to cases where a state (or federal) law requires a writing or a written signature in order to have a particular effect. The Electronic Signatures Act allows state law to modify, limit or supersede its effect by laws consistent with it that are technologically neutral and that refer specifically to the Electronic Signatures Act.

SECTION 802. REPEALS. [The State Administrative Procedure Act] is repealed. SECTION 803. EFFECTIVE DATE. This [act] takes effect [ ]… .

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ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY

The Model Code of Professional Responsibility was adopted by the House of Delegates of the American Bar Association on August 12, 1969 and was amended by the House of Delegates in February 1970, February 1974, February 1975, August 1976, August 1977, August 1978, February 1979, February 1980, and August 1980.

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Contents PREFACE PREAMBLE AND PRELIMINARY STATEMENT CANON 1. A LAWYER SHOULD ASSIST IN MAINTAINING THE INTEGRITY AND COMPETENCE OF THE LEGAL PROFESSION Ethical Considerations Disciplinary Rules DR1-101 Maintaining Integrity and Competence of the Legal Profession DR 1-102 Misconduct DR 1-103 Disclosure of Information to Authorities CANON 2. A LAWYER SHOULD ASSIST THE LEGAL PROFESSION IN FULFILLING ITS DUTY TO MAKE LEGAL COUNSEL AVAILABLE Ethical Considerations Recognition of Legal Problems Selection of a Lawyer Selection of a Lawyer: Lawyer Advertising Financial Ability to Employ Counsel: Generally Financial Ability to Employ Counsel: Persons Able to Pay Reasonable Fees Financial Ability to Employ Counsel: Persons Unable to Pay Reasonable Fees Acceptance and Retention of Employment Disciplinary Rules DR 2-101 Publicity in General DR 2-102 Professional Notices, Letterheads, Offices DR 2-103 Recommendation of Professional Employment DR 2-104 Suggestion of Need of Legal Services DR 2-105 Limitation of Practice DR 2-106 Fees for Legal Services DR 2-107 Division of Fees Among Lawyers DR 2-108 Agreements Restricting the Practice of a Lawyer DR 2-109 Acceptance of Employment DR 2-110 Withdrawal from Employment CANON 3. A LAWYER SHOULD ASSIST IN PREVENTING THE UNAUTHORIZED PRACTICE OF LAW. Ethical Considerations Disciplinary Rules DR 3-101 Aiding Unauthorized Practice of Law DR 3-102 Dividing Legal Fees with a Nonlawyer DR 3-103 Forming a Partnership with a Nonlawyer CANON 4. A LAWYER SHOULD PRESERVE THE CONFIDENCES AND SECRETS OF A CLIENT Ethical Considerations Disciplinary Rules DR 4-101 Preservation of Confidences and Secrets of a Client....... CANON 5. A LAWYER SHOULD EXERCISE INDEPENDENT PROFESSIONAL JUDGMENT ON BEHALF OF A CLIENT Ethical Considerations Interests of a Lawyer That May Affect His Judgment Interests of Multiple Clients

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Desires of Third Persons Disciplinary Rules DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness DR 5-103 Avoiding Acquisition of Interest in Litigation DR 5-104 Limiting Business Relations with a Client DR 5-105 -Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer DR 5-106 Settling Similar Claims of Clients DR 5-107 Avoiding Influence by Others Than the Client CANON 6. A LAWYER SHOULD REPRESENT A CLIENT COMPETENTLY Ethical Considerations Disciplinary Rules DR 6-101 Failing to Act Competently DR 6-102 Limiting Liability to Client CANON 7. A LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY WITHIN THE BOUNDS OF THE LAW Ethical Considerations Duty of the Lawyer to a Client Duty of the Lawyer to the Adversary System of Justice Disciplinary Rules DR 7-101 Representing a Client Zealously DR 7-102 Representing a Client Within the Bounds of the Law DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer DR 7-104 Communicating with One of Adverse Interest DR 7-105 Threatening Criminal Prosecution DR 7-106 Trial Conduct DR 7-107 Trial Publicity DR 7-108 Communication with or Investigation of Jurors DR 7-109 Contact with Witnesses DR 7-110 Contact with Officials CANON 8. A LAWYER SHOULD ASSIST IN IMPROVING THE LEGAL SYSTEM Ethical Considerations Disciplinary Rules DR 8-101 Action as a Public Official DR 8-102 -Statements Concerning Judges and Other Adjudicatory Officers DR 8-103 Lawyer Candidate for Judicial Office CANON 9. A LAWYER SHOULD AVOID EVEN THE APPEARANCE OF PROFESSIONAL IMPROPRIETY Ethical Considerations Disciplinary Rules DR 9-101 Avoiding Even the Appearance of Impropriety DR 9-102 Preserving Identity of Funds and Property of a Client DEFINITIONS SUBJECT MATTER INDEX

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Preface On August 14, 1964, at the request of President Lewis F. Powell, Jr., the House of Delegates of the American Bar Association created a Special Committee on Evaluation of Ethical Standards to examine the then current Canons of Professional Ethics and to make recommendations for changes. That committee produced the Model Code of Professional Responsibility which was adopted by the House of Delegates in 1969 and became effective January 1, 1970. The new Model Code revised the previous Canons in four principal particulars: (1) there were important areas involving the conduct of lawyers that were either only partially covered in or totally omitted from the Canons; (2) many Canons that were sound in substance were in need of editorial revision; (3) most of the Canons did not lend themselves to practical sanctions for violations; and (4) changed and changing conditions in our legal system and urbanized society required new statements of professional principles. The original 32 Canons of Professional Ethics were adopted by the American Bar Association in 1908. They were based principally on the Code of Ethics adopted by the Alabama State Bar Association in 1887, which in turn has been borrowed largely from the lectures of Judge George Sharswood, published in 1854 under the title of Professional Ethics, and from the fifty resolutions included in David Hoffman’s A Course of Legal Study (2d ed. 1836). Since then a limited number of amendments have been adopted on a piecemeal basis. As far back as 1934 Mr. Justice (later Chief Justice) Harlan Fiske Stone, in his memorable address entitled The Public Influence of the Bar, made this observation: Before the Bar can function at all as a guardian of the public interests committed to its care, there must be appraisal and comprehension of the new conditions, and the chained relationship of the lawyer to his clients, to his professional brethren and to the public. That appraisal must pass beyond the petty details of form and manners which have been so largely the subject of our Codes of Ethics, to more fundamental consideration of the way in which our professional activities affect the welfare of society as a whole. Our canons of ethics for the most part are generalizations designed for an earlier era. Largely in that spirit, the committee appointed by President Powell in 1964 reached unanimous conclusion that further piecemeal amendment of the original Canons would not suffice. It proceeded to compose the Model Code of Professional Responsibility in response to the perceived need for change in the statement of professional principles for lawyers. While the opinions of the Committee on Professional Ethics of the American Bar Association had been published and given fairly wide distribution with resulting value to the bench and bar, they certainly were not conclusive as to the adequacy of the previous Canons. Because the opinions were necessarily interpretations of the existing Canons, they tended to support the Canons and were critical of them only in the most unusual case. Since a large number of requests for opinions from the Committee on Professional Ethics dealt with the etiquette of law practice, advertising, partnership names, announcements and the like, there had been a tendency for many lawyers to assume that this was the exclusive field of interest of the Committee and that it was not concerned with the more serious questions of professional standards and obligations. The previous Canons were not an effective teaching instrument and failed to give guidance to young lawyers beyond the language of the Canons themselves. There was no organized interrelationship between the Canons and they often overlapped. They were not cast in language designed for disciplinary enforcement and many abounded with quaint expressions of the past. Those Canons contained, nevertheless, many provisions that were sound in substance, and all of these were retained in the Model Code adopted in 1969. In the studies and meetings conducted by the Committee which developed the present Model Code, the Committee relied heavily upon the monumental Legal Ethics (1953) of Henry S. Drinker, who served with great distinction for nine years as Chairman of the Committee on Professional Ethics (known in his day as the Committee on Professional Ethics and Grievances) of the American Bar Association. The Formal Opinions of the Committee on Ethics and Professional Responsibility were collected and published in a single volume in 1967, and since that time have been published continuously in loose-leaf form. (The name was changed in 1971 to the Standing Committee on Ethics and

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Professional Responsibility.) The Informal Opinions of the Committee on Ethics and Professional Responsibility were collected and published in a two-volume set in 1975, and since that time new opinions have been published continuously in loose-leaf form. Since the adoption of the Model Code of Professional Responsibility in 1969 a number of amendments have been required due to decisions of the Supreme Court of the United States and lower courts relating to the provision of group legal services and the provision of additional legal services on a wide scale not only to indigents but also to persons of moderate means. Furthermore, recent decisions of the Supreme Court of the United States on the subject of the constitutionality of restrictive provisions in the Code relating to lawyer advertising have required a substantial revision of Canon 2 and of other portions of the present Model Code. These modifications in the Code are included in the present printing, up to and including the action taken by the House of Delegates in August of 1978. The Committee on Ethics and Professional Responsibility is mandated under the Bylaws of the American Bar Association (Article 30.7) to recommend appropriate amendments to or clarification of the Model Code. Additional changes are under consideration by the Committee with particular cognizance of recent Court decisions.

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Preamble1 The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.2 Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system.3 A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. In fulfilling his professional responsibilities, a lawyer necessarily assumes various roles that require the performance of many difficult tasks. Not every situation which he may encounter can be foreseen,4 but fundamental ethical principles are always present to guide him. Within the framework of these principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society.5 The Model Code of Professional Responsibility points the way to the aspiring and provides standards by which to judge the transgressor. Each lawyer must find within his own conscience the touchstone against which to test the extent to which his actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of his profession and of the society which he serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

Preliminary Statement In furtherance of the principles stated in the Preamble, the American Bar Association has promulgated this Model Code of Professional Responsibility, consisting of three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules.6 The Code is designed to be adopted by appropriate agencies both as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules. Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot apply to nonlawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their non-professional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of his employees and associates in the course of the professional representation of the client. The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived. The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations.7 The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of fair trial,8 the Disciplinary Rules should be uniformly applied to all lawyers,9 regardless of the nature of their professional activities.10 The Model Code makes no attempt to prescribe either disciplinary procedures or penalties11 for violation of a

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Disciplinary Rule,12 nor does it undertake to define standards for civil liability of lawyers for professional conduct. The severity of judgment against one found guilty of violating a Disciplinary Rule should be determined by the character of the offense and the attendant circumstances.13 An enforcing agency, in applying the Disciplinary Rules, may find interpretive guidance in the basic principles embodied in the Canons and in the objectives reflected in the Ethical Considerations.

NOTES 1. The footnotes are intended merely to enable the reader to relate the provisions of this Model Code to the ABA Canons of Professional Ethics adopted in 1908, as amended, the Opinions of the ABA Committee on Professional Ethics, and a limited number of other sources; they are not intended to be an annotation of the views taken by the ABA Special Committee on Evaluation of Ethical Standards. Footnotes citing ABA Canons refer to the ABA Canons of Professional Ethics, adopted in 1908, as amended. 2. Cf. ABA CANONS OF PROFESSIONAL ETHICS, Preamble (1908) 3. “[T]he lawyer stands today in special need of a clear understanding of his obligations and of the vital connection between these obligations and the role his profession plays in society.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160 (1958). 4. “No general statement of the responsibilities of the legal profession can encompass all the situations in which the lawyer may be placed. Each position held by him makes its own peculiar demands. These demands the lawyer must clarify for himself in the light of the particular role in which he serves.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1218 (1958). 5. “The law and its institutions change as social conditions change. They must change if they are to preserve, much less advance, the political and social values from which they derive their purpose and their life. This is true of the most important of legal institutions, the profession of law. The profession, too, must change when conditions change in order to preserve and advance the social values that are its reasons for being.” Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and the Organized Bar. 12 U.C.L.A. L. REV. 438, 440 (1965). 6. The Supreme Court of Wisconsin adopted a Code of Judicial Ethics in 1967. “The code is divided into standards and rules, the standards being statements of what the general desirable level of conduct should be, the rules being particular canons, the violation of which shall subject an individual judge to sanctions.” In re Promulgation of a Code of Judicial Ethics, 36 Wis. 2d 252, 255, 153 N.W.2d 873, 874 (1967). The portion of the Wisconsin Code of Judicial Ethics entitled “Standards” states that “[t]he following standards set forth the significant qualities of the ideal judge . . . .” Id., 36 Wis. 2d at 256, 153 N.W. 2d at 875. The portion entitled “Rules” states that [t]he court promulgates the following rules because the requirements of judicial conduct embodied therein are of sufficient gravity to warrant sanctions if they are not obeyed . . . .” Id., 36 Wis. 2d at 259, 153 N.W.2d at 876. 7. “Under the conditions of modern practice it is peculiarly necessary that the lawyer should understand, not merely the established standards of professional conduct, but the reasons underlying these standards. Today the lawyer plays a changing and increasingly varied role. In many developing fields the precise contribution of the legal profession is as yet undefined.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159 (1958). “A true sense of professional responsibility must derive from an understanding of the reasons that lie back of specific restraints, such as those embodied in the Canons. The grounds for the lawyer’s peculiar obligations are to be found in the nature of his calling. The lawyer who seeks a clear understanding of his duties will be led to reflect on the special services his profession renders to society and the services it might render if its full capacities were realized. When the lawyer fully understands the nature of his office, he will then discern what restraints are necessary to keep that office wholesome and effective.” Id. 8. “Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer . . . . He is accordingly entitled to procedural due process, which includes fair notice of charge.” In re Ruffalo, 390 U.S. 544, 550, 20 L. Ed.2d 117, 122, 88S. Ct. 1222, 1226 (1968), rehearing denied, 391 U.S. 961, 20 L. Ed. 2d 874, 88 S. Ct. 1933(1968). “A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment . . . . A State can require high standards of qualification . . . but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239, 1 L. Ed. 2d 796, 801-02, 77 S. Ct. 752, 756 (1957). “[A]n accused lawyer may expect that he will not be condemned out of a capricious self-righteousness or denied the essentials of a fair hearing.” Kingsland v. Dorsey, 338 U.S. 318, 320, 94 L. Ed. 123, 126, 70 S. Ct. 123, 124-25 (1949). “The attorney and counselor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court for moral or professional delinquency.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-79,18 L. Ed. 366, 370 (1866). See generally Comment, Procedural Due Process and Character Hearings for Bar Applicants, 15 STAN. L. REV. 500 (1963) 9. “The canons of professional ethics must be enforced by the Courts and must be respected by members of the Bar if we are to maintain public confidence in the integrity and impartiality of the administration of justice.” In re Meeker, 76 N. M. 354, 357, 414 P.2d 862, 864 (1966), appeal dismissed 385 U.S. 449 (1967). 10. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 45 (1908). 11. “Other than serving as a model or derivative source, the American Bar Association Model Code of Professional Responsibility plays no part in the disciplinary proceeding, except as a guide for consideration in adoption of local applicable rules for the regulation of conduct on the part of legal practitioners.” ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINION NO. 1420 (1978) [hereinafter each Formal Opinion is cited as “ABA Opinion”]. For the purposes and intended effect of the

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American Bar Association Model Code of Professional Responsibility and of the opinions of the Standing Committee on Ethics and Professional Responsibility, see Informal Opinion No. 1420. “There is generally no prescribed discipline for any particular type of improper conduct. The disciplinary measures taken are discretionary with the courts, which may disbar, suspend, or merely censure the attorney as the nature of the offense and past indicia of character may warrant.” Note, 43 CORNELL L.Q. 489, 495 (1958). 12. The Model Code seeks only to specify conduct for which a lawyer should be disciplined by courts and governmental agencies which have adopted it. Recommendations as to the procedures to be used in disciplinary actions are within the jurisdiction of the American Bar Association Standing Committee on Professional Discipline. 13. “The severity of the judgment of this court should be in proportion to the gravity of the offenses, the moral turpitude involved, and the extent that the defendant’s acts and conduct affect his professional qualifications to practice law.” Louisiana State Bar Ass’n v. Steiner, 204 La. 1073, 1092-93, 16 So. 2d 843, 850 (1944) (Higgins, J., concurring in decree). “Certainly an erring lawyer who has been disciplined and who having paid the penalty has given satisfactory evidence of repentance and has been rehabilitated and restored to his place at the bar by the court which knows him best ought not to have what amounts to an order of permanent disbarment entered against him by a federal court solely on the basis of an earlier criminal record and without regard to his subsequent rehabilitation and present good character . . . . We think, therefore, that the district court should reconsider the appellant’s application for admission and grant it unless the court finds it to be a fact that the appellant is not presently of good moral or professional character.” In re Dreier, 258 F.2d 68, 69-70 (3d Cir. 1958).

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CANON 1 A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession ETHICAL CONSIDERATIONS EC 1-1 A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer. EC 1-2 The public should be protected from those who are not qualified to be lawyers by reason of a deficiency in education1 or moral standards2 or of other relevant factors3 but who nevertheless seek to practice law. To assure the maintenance of high moral and educational standards of the legal profession, lawyers should affirmatively assist courts and other appropriate bodies in promulgating, enforcing, and improving requirements for admission to the bar.4 In like manner, the bar has a positive obligation to aid in the continued improvement of all phases of pre-admission and post-admission legal education. EC 1-3 Before recommending an applicant for admission, a lawyer should satisfy himself that the applicant is of good moral character. Although a lawyer should not become a self-appointed investigator or judge of applicants for admission, he should report to proper officials all unfavorable information he possesses relating to the character or other qualifications of an applicant.5 EC 1-4 The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules.6 A lawyer should, upon request, serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules.7 EC 1-5 A lawyer should maintain high standards of professional conduct and should encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct.8 Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude. EC 1-6 An applicant for admission to the bar or a lawyer may be unqualified, temporarily or permanently, for other than moral and educational reasons, such as mental or emotional instability. Lawyers should be diligent in taking steps to see that during a period of disqualification such person is not granted a license or, if licensed, is not permitted to practice.9 In like manner, when the disqualification has terminated, members of the bar should assist such person in being licensed, or, if licensed, in being restored to his full right to practice.

DISCIPLINARY RULES DR 1-101

-Maintaining Integrity and Competence of the Legal Profession.

(A) -A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for

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admission to the bar.10 (B) -A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute.11 DR 1-102

-Misconduct.

(A) -A lawyer shall not: (1) -Violate a Disciplinary Rule. (2) -Circumvent a Disciplinary Rule through actions of another.12 (3) -Engage in illegal conduct involving moral turpitude.13 (4) -Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) -Engage in conduct that is prejudicial to the administration of justice. (6) -Engage in any other conduct that adversely reflects on his fitness to practice law. DR 1-103

-Disclosure of Information to Authorities.

(A) -A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. (B) -A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.

NOTES 1. “[W]e cannot conclude that all educational restrictions [on bar admission] are unlawful. We assume that few would deny that a grammar school education requirement before taking the bar examination was reasonable. Or that an applicant had to be able to read or write. Once we conclude that some restriction is proper, then it becomes a matter of degree—the problem of drawing the line. .... “We conclude the fundamental question here is whether Rule IV, Section 6 of the Rules pertaining to Admission of Applicants to the State Bar of Arizona is ‘arbitrary, capricious and unreasonable.’ We conclude an educational requirement of graduation from an accredited law school is not.” Hackin v. Lockwood, 361 F.2d 499, 503-4(9th Cir. 1966), cert. denied, 385 U.S. 960, 17 L. Ed.2d 305, 87 S. Ct. 396 (1966). 2. “Every state in the United States, as a prerequisite for admission to the practice of law, requires that applicants possess ‘good moral character.’ Although the requirement is of judicial origin, it is now embodied in legislation in most states.” Comment, Procedural Due Process and Character Hearings for Bar Applicants. 15 STAN. L. REV. 500 (1963). “Good character in the member of the bar is essential to the preservation of the courts. The duty and power of the court to guard its portals against intrusion by men and women who are mentally and morally dishonest, unfit because of bad character, evidenced by their course of conduct, to participate in the administrative law, would seem to be unquestioned in the matter of preservation of judicial dignity and integrity.” In re Monaghan, 126 Vt. 53, 222 A.2d 665, 670 (1966). “Fundamentally, the question involved in both situations [i.e. admission and disciplinary proceedings] is the same—is the applicant for admission or the attorney sought to be disciplined a fit and proper person to be permitted to practice law, and that usually turns upon whether he has committed or is likely to continue to commit acts of moral turpitude. At the time of oral argument the attorney for respondent frankly conceded that the test for admission and for discipline is and should be the same. We agree with this concession.” Hallinan v. Comm. of Bar Examiners, 65 Cal.2d 447, 453, 421, P.2d 76, 81, 55 Cal.Rptr. 228, 233 (1966). 3. “Proceedings to gain admission to the bar are for the purpose of protecting the public and the courts from the ministrations of persons unfit to practice the profession. Attorneys are officers of the court appointed to assist the court in the administration of justice. Into their hands are committed the property, the liberty and sometimes the lives of their clients. This commitment demands a high degree of intelligence, knowledge of the law, respect for its function in society, sound and faithful judgment and, above all else, integrity of character in private and professional conduct.” In re Monaghan, 126 Vt. 53, 222 A.2d 665, 676 (1966) (Holden, C.J., dissenting). 4. “A bar composed of lawyers of good moral character is objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. lt is also important both to society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar.” Konigsberg v. State Bar, 353 U.S. 252, 273, 1 L. Ed. 2d 810, 825, 77 S. Ct. 722, 733 (1957). 5. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 29 (1908). 6. ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908) designates certain conduct as unprofessional and then states that: “A duty to the public and to the profession devolves upon every member of the Bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof, to the end that the offender may be disbarred.” ABA CANON 29 states a broader admonition: “Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession.” 7. “It is the obligation of the organized Bar and the individual lawyer to give unstinted cooperation and assistance to the highest court of the state in discharging its function and duty with respect to discipline and in purging the profession of the unworthy.” Report of the Special Committee on Disciplinary Procedures, 80 A.B.A. REP. 463, 470 (1955).

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8. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 32 (1908). 9. “We decline, on the present record, to disbar Mr. Sherman or to reprimand him — not because we condone his actions, but because, as heretofore indicated, we are concerned with whether he is mentally responsible for what he has done. “The logic of the situation would seem to dictate the conclusion that, if he was mentally responsible for the conduct we have outlined, he should be disbarred; and, if he was not mentally responsible, he should not be permitted to practice law. “However, the flaw in the logic is that he may have been mentally irresponsible [at the time of his offensive conduct] . . . , and, yet, have sufficiently improved in the almost two and one-half years intervening to be able to capably and competently represent his clients. .... “We would make clear that we are satisfied that a case has been made against Mr. Sherman, warranting a refusal to permit him to further practice law in this state unless he can establish his mental irresponsibility at the time of the offenses charged. The burden of proof is upon him. “If he establishes such mental irresponsibility, the burden is then upon him to establish his present capability to practice law.” In re Sherman, 58 Wash. 2d 1, 6-7, 354 P.2d 888, 890 (1960), cert. denied, 371 U.S. 951, 9 L. Ed. 2d 499, 83 S. Ct. 506 (1963). 10. “This Court has the inherent power to revoke a license to practice law in this State, where such license was issued by this Court, and its issuance was procured by the fraudulent concealment, or by the false and fraudulent representation by the applicant of a fact which was manifestly material to the issuance of the license.” North Carolina ex rel. Attorney General v. Gorson, 209 N.C. 320, 326, 183 S.E. 392, 395 (1936), cert. denied, 298 U.S. 662, 80 L.Ed. 1387, 56 S. Ct. 752 (1936). 11. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 29 (1908). 12. In ABA Opinion 95 (1933), which held that a municipal attorney could not permit police officers to interview persons with claims against the municipality when the attorney knew the claimants to be represented by counsel, the Committee on Professional Ethics said: “The law officer is, of course, responsible for the acts of those in his department who are under his supervision and control. Opinion 85. In re Robinson, 136 N.Y.S. 548 (affirmed 209 N.Y. 354-1912) held that it was a matter of disbarment for an attorney to adopt a general course of approving the unethical conduct of employees of his client, even though he did not actively participate therein. “ ‘. . . The attorney should not advise or sanction acts by his client which he himself should not do.’ Opinion 75.” 13. “The most obvious non-professional ground for disbarment is conviction for a felony. Most states make conviction for a felony grounds for automatic disbarment. Some of these states, including New York, make disbarment mandatory upon conviction for any felony, while others require disbarment only for those felonies which involve moral turpitude. There are strong arguments that some felonies, such as involuntary manslaughter, reflect neither on an attorney’s fitness, trustworthiness, nor competence and, therefore, should not be grounds for disbarment but most states tend to disregard these arguments and, following the common law rule, make disbarment mandatory on conviction for any felony.” Note, 43 CORNELL L.Q. 489, 490 (1958). “Some states treat conviction for misdemeanors as grounds for automatic disbarment . . . . However, the vast majority, accepting the common law rule, require that the misdemeanor involve moral turpitude. While the definition of moral turpitude may prove difficult, it seems only proper that those minor offenses which do not affect the attorney’s fitness to continue in the profession should not be grounds for disbarment. A good example is an assault and battery conviction which would not involve moral turpitude unless done with malice and deliberation.” Id. at 491. “The term ‘moral turpitude’ has been used in the law for centuries. It has been the subject of many decisions by the courts but has never been clearly defined because of the nature of the term. Perhaps the best general definition of the term ‘moral turpitude’ is that it imparts an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general, which is contrary to the usual, accepted and customary rule of right and duty which a person should follow. 58 C.J.S. at page 1201. Although offenses against revenue laws have been held to be crimes of moral turpitude, it has also been held that the attempt to evade the payment of taxes due to the government or any subdivision thereof, while wrong and unlawful, does not involve moral turpitude. 58 C.J.S. at page 1205.” Comm. on Legal Ethics v. Scheer, 149 W. Va. 721, 72627, 143 S.E.2d 141, 145 (1965). “The right and power to discipline an attorney, as one of its officers, is inherent in the court . . . . This power is not limited to those instances of misconduct wherein he has been employed, or has acted, in a professional capacity; but, on the contrary, this power may be exercised where his misconduct outside the scope of his professional relations shows him to be an unfit person to practice law.” In re Wilson, 391 S.W.2d 914, 917-18 (Mo. 1965). 14. “It is a fair characterization of the lawyer’s responsibility in our society that he stands ‘as a shield,’ to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with these responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’” Schware v. Bd. of Bar Examiners, 353 U.S. 232, 247, 1 L. Ed. 2d 796, 806, 77 S. Ct. 752, 761 (1957) (Frankfurter, J., concurring). “Particularly applicable here is Rule 4.47 providing that ‘A lawyer should always maintain his integrity; and shall not willfully commit any act against the interest of the public; nor shall he violate his duty to the courts or his clients; nor shall he, by any misconduct, commit any offense against the laws of Missouri or the United States of America, which amounts to a crime involving acts done by him contrary to justice, honesty, modesty or good morals; nor shall he be guilty of any other misconduct whereby, for the protection of the public and those charged with the administration of justice, he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney.’” In re Wilson, 391 S.W.2d 914, 917 (Mo. 1965). 15. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 29 (1908); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908). 16. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANONS 28 and 29 (1908).

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CANON 2 A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Available ETHICAL CONSIDERATIONS EC 2-1 The need of members of the public for legal services1 is met only if they recognize their legal problems, appreciate the importance of seeking assistance,2 and are able to obtain the services of acceptable legal counsel.3 Hence, important functions of the legal profession are to educate laymen to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.4 Recognition of Legal Problems EC 2-2 The legal profession should assist laypersons to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Preparation of advertisements and professional articles for lay publications5 and participation in seminars, lectures, and civic programs should be motivated by a desire to educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel rather than to obtain publicity for particular lawyers. The problems of advertising on television require special consideration, due to the style, cost, and transitory nature of such media. If the interests of laypersons in receiving relevant lawyer advertising are not adequately served by print media and radio advertising, and if adequate safeguards to protect the public can reasonably be formulated, television advertising may serve a public interest. EC 2-3 Whether a lawyer acts properly in volunteering in-person advice to a layperson to seek legal services depends upon the circumstances.6 The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist laypersons in recognizing legal problems.7 The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. It is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. A lawyer should not initiate an in-person contact with a non-client, personally or through a representative, for the purpose of being retained to represent him for compensation. EC 2-4 Since motivation is subjective and often difficult to judge, the motives of a lawyer who volunteers in-person advice likely to produce legal controversy may well be suspect if he receives professional employment or other benefits as a result.8 A lawyer who volunteers in-person advice that one should obtain the services of a lawyer generally should not himself accept employment, compensation, or other benefit in connection with that matter. However, it is not improper for a lawyer to volunteer such advice and render resulting legal services to close friends, relatives, former clients (in regard to matters germane to former employment), and regular clients.9 EC 2-5 A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems,10 since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein.11

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Selection of a Lawyer EC 2-6 Formerly a potential client usually knew the reputations of local lawyers for competency and integrity and therefore could select a practitioner in whom he had confidence. This traditional selection process worked well because it was initiated by the client and the choice was an informed one. EC 2-7 Changed conditions, however, have seriously restricted the effectiveness of the traditional selection process. Often the reputations of lawyers are not sufficiently known to enable laymen to make intelligent choices.12 The law has become increasingly complex and specialized. Few lawyers are willing and competent to deal with every kind of legal matter, and many laymen have difficulty in determining the competence of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new areas, persons of limited education or means, and others who have little or no contact with lawyers. 13 Lack of information about the availability of lawyers, the qualifications of particular lawyers, and the expense of legal representation leads laypersons to avoid seeking legal advice. EC 2-8 Selection of a lawyer by a layperson should be made on an informed basis. Advice and recommendation of third parties—relatives, friends, acquaintances, business associates, or other lawyers—and disclosure of relevant information about the lawyer and his practice may be helpful. A layperson is best served if the recommendation is disinterested and informed. In order that the recommendation be disinterested, a lawyer should not seek to influence another to recommend his employment. A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations.14 Advertisements and public communications, whether in law lists, telephone directories, newspapers, other forms of print media, television or radio, should be formulated to convey only information that is necessary to make an appropriate selection. Such information includes: (1) office information, such as name, including name of law firm and names of professional associates; addresses; telephone numbers; credit card acceptability; fluency in foreign languages; and office hours; (2) relevant biographical information; (3) description of the practice, but only by using designations and definitions authorized by [the agency having jurisdiction of the subject under state law], for example, one or more fields of law in which the lawyer or law firm practices; a statement that practice is limited to one or more fields of law; and/or a statement that the lawyer or law firm specializes in a particular field of law practice, but only by using designations, definitions and standards authorized by [the agency having jurisdiction of the subject under state law]; and (4) permitted fee information. Self-laudation should be avoided.15 Selection of a Lawyer: Lawyer Advertising EC 2-9 The lack of sophistication on the part of many members of the public concerning legal services, the importance of the interests affected by the choice of a lawyer and prior experience with unrestricted lawyer advertising, require that special care be taken by lawyers to avoid misleading the public and to assure that the information set forth in any advertising is relevant to the selection of a lawyer. The lawyer must be mindful that the benefits of lawyer advertising depend upon its reliability and accuracy. Examples of information in lawyer advertising that would be deceptive include misstatements of fact, suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result, inclusion of information irrelevant to selecting a lawyer, and representations concerning the quality of service, which cannot be measured or verified. Since lawyer advertising is calculated and not spontaneous, reasonable regulation of lawyer advertising designed to foster compliance with appropriate standards serves the public interest without impeding the flow of useful, meaningful, and relevant information to the public. EC 2-10 A lawyer should ensure that the information contained in any advertising which the lawyer publishes, broadcasts or causes to be published or broadcast is relevant, is disseminated in an objective and understandable fashion, and would facilitate the prospective client’s ability to compare the qualifications of the lawyers available to represent him. A lawyer should strive to communicate such information without undue emphasis upon style and advertising stratagems which serve to

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hinder rather than to facilitate intelligent selection of counsel. Because technological change is a recurrent feature of communications forms, and because perceptions of what is relevant in lawyer selection may change, lawyer advertising regulations should not be cast in rigid, unchangeable terms. Machinery is therefore available to advertisers and consumers for prompt consideration of proposals to change the rules governing lawyer advertising. The determination of any request for such change should depend upon whether the proposal is necessary in light of existing Code provisions, whether the proposal accords with standards of accuracy, reliability and truthfulness, and whether the proposal would facilitate informed selection of lawyers by potential consumers of legal services. Representatives of lawyers and consumers should be heard in addition to the applicant concerning any proposed change. Any change which is approved should be promulgated in the form of an amendment to the Code so that all lawyers practicing in the jurisdiction may avail themselves of its provisions. EC 2-11 The name under which a lawyer conducts his practice may be a factor in the selection process.16 The use of a trade name or an assumed name could mislead laymen concerning the identity, responsibility, and status of those practicing thereunder. 17 Accordingly, a lawyer in private practice should practice only under his own name, the name of a lawyer employing him, a designation containing the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, the name of a professional legal corporation, which should be clearly designated as such. For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby.18 However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public. EC 2-12 A lawyer occupying a judicial, legislative, or public executive or administrative position who has the right to practice law concurrently may allow his name to remain in the name of the firm if he actively continues to practice law as a member thereof. Otherwise, his name should be removed from the firm name,19 and he should not be identified as a past or present member of the firm; and he should not hold himself out as being a practicing lawyer. EC 2-13 In order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status.20 He should not hold himself out as being a partner or associate of a law firm if he is not one in fact, 21 and thus should not hold himself out as a partner or associate if he only shares offices with another lawyer.22 EC 2-14 In some instances a lawyer confines his practice to a particular field of law.23 In the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist or as having official recognition as a specialist, other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted. A lawyer may, however, indicate in permitted advertising, if it is factual, a limitation of his practice or one or more particular areas or fields of law in which he practices using designations and definitions authorized for that purpose by [the state agency having jurisdiction]. A lawyer practicing in a jurisdiction which certifies specialists must also be careful not to confuse laypersons as to his status. If a lawyer discloses areas of law in which he practices or to which he limits his practice, but is not certified in [the jurisdiction], he, and the designation authorized in [the jurisdiction], should avoid any implication that he is in fact certified. EC 2-15 The legal profession has developed lawyer referral systems designed to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their particular problems. Use of a lawyer referral system enables a layman to avoid an uninformed selection of a lawyer because such a system makes possible the employment of competent lawyers who have indicated an interest in the subject matter involved. Lawyers should support the principle of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel.

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Financial Ability to Employ Counsel: Generally EC 2-16 The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees24 should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services,25 and lawyers should support and participate in ethical activities designed to achieve that objective.26 Financial Ability to Employ Counsel: Persons Able to Pay Reasonable Fees EC 2-17 The determination of a proper fee requires consideration of the interests of both client and lawyer.27 A lawyer should not charge more than a reasonable fee,28 for excessive cost of legal service would deter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession.29 EC 2-18 The determination of the reasonableness of a fee requires consideration of all relevant circumstances,30 including those stated in the Disciplinary Rules. The fees of a lawyer will vary according to many factors, including the time required, his experience, ability, and reputation, the nature of the employment, the responsibility involved, and the results obtained. It is a commendable and long-standing tradition of the bar that special consideration is given in the fixing of any fee for services rendered a brother lawyer or a member of his immediate family. EC 2-19 As soon as feasible after a lawyer has been employed, it is desirable that he reach a clear agreement with his client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly when it is contingent. A lawyer should be mindful that many persons who desire to employ him may have had little or no experience with fee charges of lawyers, and for this reason he should explain fully to such persons the reasons for the particular fee arrangement he proposes. EC 2-20 Contingent fee arrangements31 in civil cases have long been commonly accepted in the United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute his claim, and (2) a successful prosecution of the claim produces a res out of which the fee can be paid.32 Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified. In administrative agency proceedings contingent fee contracts should be governed by the same consideration as in other civil cases. Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee. EC 2-21 A lawyer should not accept compensation or any thing of value incident to his employment or services from one other than his client without the knowledge and consent of his client after full disclosure.33 EC 2-22 Without the consent of his client, a lawyer should not associate in a particular matter another lawyer outside his firm. A fee may properly be divided between lawyers 34 properly associated if the division is in proportion to the services performed and the responsibility assumed by each lawyer35 and if the total fee is reasonable. EC 2-23

A lawyer should be zealous in his efforts to avoid controversies over fees with clients 36

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and should attempt to resolve amicably any differences on the subject.37 He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.38 Financial Ability to Employ Counsel: Persons Unable to Pay Reasonable Fees EC 2-24 A layman whose financial ability is not sufficient to permit payment of any fee cannot obtain legal services, other than in cases where a contingent fee is appropriate, unless the services are provided for him. Even a person of moderate means may be unable to pay a reasonable fee which is large because of the complexity, novelty, or difficulty of the problem or similar factors.39 EC 2-25 Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need.40 Thus it has been necessary for the profession to institute additional programs to provide legal services.41 Accordingly, legal aid offices,42 lawyer referral services, and other related programs have been developed, and others will be developed, by the profession.43 Every lawyer should support all proper efforts to meet this need for legal services.44 Acceptance and Retention of Employment EC 2-26 A lawyer is under no obligation to act as adviser or advocate for every person who may wish to become his client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to him and the bar generally.45 EC 2-27 History is replete with instances of distinguished and sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse.46 EC 2-28 The personal preference of a lawyer to avoid adversary alignment against judges, other lawyers,47 public officials, or influential members of the community does not justify his rejection of tendered employment. EC 2-29 When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons.48 Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity49 or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty,50 or the belief of the lawyer regarding the merits of the civil case.51 EC 2-30 Employment should not be accepted by a lawyer when he is unable to render competent service52 or when he knows or it is obvious that the person seeking to employ him desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another. 53 Likewise, a lawyer should decline employment if the intensity of his personal feeling, as distinguished from a community attitude, may impair his effective representation of a prospective client. If a lawyer knows a client has previously obtained counsel, he should not accept employment in the matter unless the other counsel approves54 or withdraws, or the client terminates the prior employment.55 EC 2-31 Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal and, if the

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appeal is prosecuted, by representing him through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court. EC 2-32 A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances,56 and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client57 as a result of his withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawal, 58 suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. Further, he should refund to the client any compensation not earned during the employment.59 EC 2-33 As a part of the legal profession’s commitment to the principle that high quality legal services should be available to all, attorneys are encouraged to cooperate with qualified legal assistance organizations providing prepaid legal services. Such participation should at all times be in accordance with the basic tenets of the profession: independence, integrity, competence and devotion to the interests of individual clients. An attorney so participating should make certain that his relationship with a qualified legal assistance organization in no way interferes with his independent, professional representation of the interests of the individual client. An attorney should avoid situations in which officials of the organization who are not lawyers attempt to direct attorneys concerning the manner in which legal services are performed for individual members, and should also avoid situations in which considerations of economy are given undue weight in determining the attorneys employed by an organization or the legal services to be performed for the member or beneficiary rather than competence and quality of service. An attorney interested in maintaining the historic traditions of the profession and preserving the function of a lawyer as a trusted and independent advisor to individual members of society should carefully assess such factors when accepting employment by, or otherwise participating in, a particular qualified legal assistance organization, and while so participating should adhere to the highest professional standards of effort and competence.60

DISCIPLINARY RULES DR 2-101

-Publicity in General.

(A) -A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim. (B) -In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-103, the following information in print media distributed or over television or radio broadcast in the geographic area or areas in which the lawyer resides or maintains offices of in which a significant part of the lawyer’s clientele resides, provided that the information disclosed by the lawyer in such publication or broadcast complies with DR 2-101(A), and is presented in a dignified manner.61 (1) -Name, including name of law firm and names of professional associates; addresses and telephone numbers; (2) -One or more fields of law in which the lawyer or law firm practices, a statement that practice is limited to one or more fields of law, or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR 2-105; (3) -Date and place of birth; (4) -Date and place of admission to the bar of state and federal courts; (5) -Schools attended, with dates of graduation, degrees and other scholastic distinctions; (6) -Public or quasi-public offices; (7) -Military service;

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(8) -Legal authorships; (9) -Legal teaching positions; (10) -Memberships, offices, and committee assignments, in bar associations; (11) -Membership and offices in legal fraternities and legal societies; (12) -Technical and professional licenses; (13) -Memberships in scientific, technical and professional associations and societies; (14) -Foreign language ability; (15) -Names and addresses of bank references; (16) -With their written consent, names of clients regularly represented; (17) -Prepaid or group legal services programs in which the lawyer participates; (18) -Whether credit cards or other credit arrangements are accepted; (19) -Office and telephone answering service hours; (20) -Fee for an initial consultation; (21) -Availability upon request of a written schedule of fees and/or estimate of the fee to be charged for specific services; (22) -Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs; (23) -Range of fees for services, provided that the statement discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee within the range likely to be charged, in print size equivalent to the largest print used in setting forth the fee information; (24) -Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled to without obligation an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information; (25) -Fixed fees for specific legal services,* the description of which would not be misunderstood or be deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific estimate of the fee likely to be charged in print size at least equivalent to the largest print used in setting forth the fee information. (C) -Any person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to [the agency having jurisdiction under state law]. Any such application shall be served upon [the agencies having jurisdiction under state law over the regulation of the legal profession and consumer matters] who shall be heard, together with the applicant, on the issue of whether the proposal is necessary in light of the existing provisions of the Code, accords with standards of accuracy, reliability and truthfulness, and would facilitate the process of informed selection of lawyers by potential consumers of legal services. The relief granted in response to any such application shall be promulgated as an amendment to DR 2101(B), universally applicable to all lawyers.** (D) -If the advertisement is communicated to the public over television or radio, it shall be prerecorded, approved for broadcast by the lawyer, and a recording of the actual transmission shall be retained by the lawyer.62 (E) -If a lawyer advertises a fee for a service, the lawyer must render that service for no more than the fee advertised. (F) -Unless otherwise specified in the advertisement if a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published more frequently than one time per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published once a month or less frequently, he shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication but in no event less than one year. (G) -Unless otherwise specified, if a lawyer broadcasts any fee information authorized under DR 2-101(B), the lawyer shall be bound by any representation made therein for a period of not less than

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30 days after such broadcast. (H) -This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name: (1) -In political advertisements when his professional status is germane to the political campaign or to a political issue. (2) -In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients. (3) -In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer. (4) -In and on legal documents prepared by him. (5) -In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof. (I) -A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. DR 2-102

-Professional Notices, Letterheads and Offices

(A) -A lawyer or law firm shall not use or participate in the use of63 professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form: (1) -A professional card of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, and any information permitted under DR 2-105. A professional card of a law firm may also give the names of members and associates. Such cards may be used for identification. (2) -A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives. 64 It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. 65 It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the nature of the practice except as permitted under DR 2-105.66 (3) -A sign on or near the door of the office and in the building directory identifying the law office. The sign shall not state the nature of the practice, except as permitted under DR 2-105. (4) -A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under DR 2-105. A letterhead of a law firm may also give the names of members and associates,67 and names and dates relating to deceased and retired members.68 A lawyer may be designated “Of Counsel” on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as “General Counsel” or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client.69 The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession. (B) -A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain “P.C.” or “P.A.” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. 70 A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm,71 and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.72 (C) -A lawyer shall not hold himself out as having a partnership with one or more other lawyers

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or professional corporations73 unless they are in fact partners.74 (D) -A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; 75 however, the same firm name may be used in each jurisdiction. (E) -Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name, an earned degree or title derived therefrom indicating his training in the law.76 DR 2-103

-Recommendation of Professional Employment.77

(A) -A lawyer shall not, except as authorized in DR 2-101(B), recommend employment, as a private practitioner,78 of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.79 (B) -A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment80 by a client, or as a reward for having made a recommendation resulting in his employment81 by a client, except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).82 (C) -A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner,83 except as authorized in DR 2-101, and except that (1) -He may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association and may pay its fees incident thereto.84 (2) -He may cooperate with the legal service activities of any of the offices or organizations enumerated in DR 2-103(D)(1) through (4) and may perform legal services for those to whom he was recommended by it to do such work if: (a) -The person to whom the recommendation is made is a member or beneficiary of such office or organizations; and (b) -The lawyer remains free to exercise his independent professional judgment on behalf of his client.85 (D) -A lawyer or his partner or associate or any other lawyer affiliated with him or his firm may be recommended, employed or paid by, or may cooperate with, one of the following offices or organizations that promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm if there is no interference with the exercise of independent professional judgment in behalf of his client: (1) -A legal aid office or public defender office: (a) -Operated or sponsored by a duly accredited law school. (b) -Operated or sponsored by a bona fide nonprofit community organization. (c) -Operated or sponsored by a governmental agency. (d) -Operated, sponsored, or approved by a bar association.86 (2) -A military legal assistance office. (3) -A lawyer referral service operated, sponsored, or approved by a bar association. (4) -Any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries87 provided the following conditions are satisfied: (a) -Such organization, including any affiliate, is so organized and operated that no profit is derived by it from the rendition of legal services by lawyers, and that, if the organization is organized for profit, the legal services are not rendered by lawyers employed, directed, supervised or selected by it except in connection with matters where such organization bears ultimate liability of its member or beneficiary. (b) -Neither the lawyer, nor his partner, nor associate, nor any other lawyer affiliated with him or his firm, nor any non-lawyer, shall have initiated or promoted such organization for the primary purpose of providing financial or other benefit to such lawyer, partner, associate or affiliated lawyer. (c) -Such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the

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organization. (d) -The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter. (e) -Any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, select counsel other than that furnished, selected or approved by the organization for the particular matter involved; and the legal service plan of such organization provides appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved would be unethical, improper or inadequate under the circumstances of the matter involved and the plan provides an appropriate procedure for seeking such relief. (f) -The lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court and other legal requirements that govern its legal service operations. (g) -Such organization has filed with the appropriate disciplinary authority at least annually a report with respect to its legal service plan, if any, showing its terms, its schedule of benefits, its subscription charges, agreements with counsel, and financial results of its legal service activities or, if it has failed to do so, the lawyer does not know or have case to know of such failure.88 (E) -A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule. DR 2-104

-Suggestion of Need of Legal Services.89, 90

(A) -A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice,91 except that: (1) -A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.92 (2) -A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a qualified legal assistance organization.93 (3) -A lawyer who is recommended, furnished or paid by any of the offices or organizations enumerated in DR 2-103(D)(1) through (4)94 may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein. (4) -Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics95 so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice. (5) -If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.96 DR 2-105

-Limitation of Practice.97

(A) -A lawyer shall not hold himself out publicly as a specialist, as practicing in certain areas of law or as limiting his practice permitted under DR 2-101(B), except as follows: (1) -A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation “Patents,” “Patent Attorney,” or “Patent Lawyer,” or “Registered Patent Attorney” or any combination of those terms, on his letterhead and office sign. (2) -A lawyer who publicly discloses fields of law in which the lawyer or the law firm practices or states that his practice is limited to one or more fields of law shall do so by using designations and definitions authorized and approved by [the agency having jurisdiction of the subject under state law]. (3) -A lawyer who is certified as a specialist in a particular field of law or law practice by [the authority having jurisdiction under state law over the subject of specialization by lawyers] may hold himself out as such, but only in accordance with the rules prescribed by that authority.98 DR 2-106

-Fees for Legal Services.99

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(A) -A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.100 (B) -A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) -The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) -The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) -The fee customarily charged in the locality for similar legal services. (4) -The amount involved and the results obtained. (5) -The time limitations imposed by the client or by the circumstances. (6) -The nature and length of the professional relationship with the client. (7) -The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) -Whether the fee is fixed or contingent.101 (C) -A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.102 DR 2-107

-Division of Fees Among Lawyers.

(A) -A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless: (1) -The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made. (2) -The division is made in proportion to the services performed and responsibility assumed by each.103 (3) -The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.104 (B) -This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement. DR 2-108

-Agreements Restricting the Practice of a Lawyer.

(A) -A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.105 (B) -|In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law. DR 2-109

-Acceptance of Employment.

(A) -A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to: (1) -Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person.106 (2) -Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law. DR 2-110

Withdrawal from Employment.107

(A) -In general. (1) -If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission. (2) -In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

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(3) -A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned. (B) -Mandatory withdrawal. -A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if: (1) -He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person. (2) -He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.108 (3) -His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively. (4) -He is discharged by his client. (C) -Permissive withdrawal.109 -If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because: (1) -His client: (a) -Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.110 (b) -Personally seeks to pursue an illegal course of conduct. (c) -Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules. (d) -By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively. (e) -Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules. (f) -Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees. (2) -His continued employment is likely to result in a violation of a Disciplinary Rule. (3) -His inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal. (4) -His mental or physical condition renders it difficult for him to carry out the employment effectively. (5) -His client knowingly and freely assents to termination of his employment. (6) -He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

NOTES 1. “Men have need for more than a system of law; they have need for a system of law which functions, and that means they have need for lawyers.” Cheatham, The Lawyer’s Role and Surroundings, 25 ROCKY MT. L. REV. 405 (1953). 2. “Law is not self-applying; men must apply and utilize it in concrete cases. But the ordinary man is incapable. He cannot know the principles of law or the rules guiding the machinery of law administration; he does not know how to formulate his desires with precision and to put them into writing, he is ineffective in the presentation of his claims.” Id. 3. “This need [to provide legal services] was recognized by . . . Mr. [Lewis F.] Powell [Jr., President, American Bar Association, 1963-64], who said: ‘Looking at contemporary America realistically, we must admit that despite all our efforts to date (and these have not been insignificant), far too many persons are not able to obtain equal justice under law. This usually results because their poverty or their ignorance has prevented them from obtaining legal counsel.’ ” Address by E. Clinton Bamberger, Association of American Law Schools 1965 Annual Meeting, Dec. 28, 1965, in PROCEEDINGS, PART II, 1965, 61, 6364 (1965). “A wide gap separates the need for legal services and its satisfaction, as numerous studies reveal. Looked at from the side of the layman, one reason for the gap is poverty and the consequent inability to pay legal fees. Another set of reasons is ignorance of the need for and the value of legal services, and ignorance of where to find a dependable lawyer. There is fear of the mysterious processes and delays of the law, and there is fear of overreaching and overcharging by lawyers, a fear

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stimulated by the occasional exposure of shysters.” Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438 (1965). 4. “It is not only the right but the duty of the profession as a whole to utilize such methods as may be developed to bring the services of its members to those who need them, so long as this can be done ethically and with dignity.” ABA Opinion 320 (1968). “[T]here is a responsibility on the bar to make legal services available to those who need them. The maxim, ‘privilege brings responsibilities,’ can be expanded to read, exclusive privilege to render public service brings responsibility to assure that the service is available to those in need of it.” Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438, 443 (1965). “The obligation to provide legal services for those actually caught up in litigation carries with it the obligation to make preventive legal advice accessible to all. It is among those unaccustomed to business affairs and fearful of the ways of the law that such advice is often most needed. If it is not received in time, the most valiant and skillful representation in court may come too late.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958). 5. “A lawyer may with propriety write articles for publications in which he gives information upon the law . . . .” ABA CANONS OF PROFESSIONAL ETHICS, CANON 40 (1908). 6. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908). 7. This question can assume constitutional dimensions: “We meet at the outset the contention that ‘solicitation’ is wholly outside the area of freedoms protected by the First Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion . . . . .... “However valid may be Virginia’s interest in regulating the traditionally illegal practice of barratry, maintenance and champerty, that interest does not justify the prohibition of the NAACP activities disclosed by this record. Malicious intent was of the essence of the common-law offenses of fomenting or stirring up litigation. And whatever may be or may have been true of suits against governments in other countries, the exercise in our own, as in this case of First Amendment rights to enforce Constitutional rights through litigation, as a matter of law, cannot be deemed malicious.” NAACP v. Button, 371 U.S. 415, 429, 439-40, 9 L. Ed. 2d 405, 415-16, 422, 83 S. Ct. 328, 336, 341 (1963). 8. It is disreputable for an attorney to breed litigation by seeking out those who have claims for personal injuries or other grounds of action in order to secure them as clients. or to employ agents or runners, or to reward those who bring or influence the bringing of business to his office . . . . Moreover, it tends quite easily to the institution of baseless litigation and the manufacture of perjured testimony. From early times, this danger has been recognized in the law by the condemnation of the crime of common barratry, or the stirring up of suits or quarrels between individuals at law or otherwise.” In re Ades, 6 F.Supp. 467, 474-75 (D. Mary. 1934). 9. “Rule 2. “§a . . . . “[A] member of the State Bar shall not solicit professional employment by “(1) Volunteering counsel or advice except where ties of blood relationship or trust make it appropriate.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). 10. “Rule 18 . . . A member of the State Bar shall not advise inquirers or render opinions to them through or in connection with a newspaper, radio or other publicity medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated for his service.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). 11. “In any case where a member might well apply the advice given in the opinion to his individual affairs, the lawyer rendering the opinion [concerning problems common to members of an association and distributed to the members through a periodic bulletin] should specifically state that this opinion should not be relied on by any member as a basis for handling his individual affairs, but that in every case he should consult his counsel. In the publication of the opinion the association should make a similar statement.” ABA Opinion 273 (1946). 12. “A group of recent interrelated changes bears directly on the availability of legal services . . . . [One] change is the constantly accelerating urbanization of the country and the decline of personal and neighborhood knowledge of whom to retain as a professional man.” Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438, 440 (1965). 13. Cf. Cheatham, A Lawyer When Needed: Legal Services for the Middle Classes, 63 COLUM. L. REV. 973, 974 (1963). 14. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908). 15. Amended, August 1978, House Informational Report No. 118. 16. Cf. ABA Opinion 303 (1961). 17. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908). 18. Id. “The continued use of a firm name by one or more surviving partners after the death of a member of the firm whose name is in the firm title is expressly permitted by the Canons of Ethics. The reason for this is that all of the partners have by their joint and several efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbed by a change in firm name every time a name partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. To avoid this loss the firm name is continued, and to meet the requirements of the Canon the individuals constituting the firm from time to time are listed.” ABA Opinion 267 (1945). “Accepted local custom in New York recognizes that the name of a law firm does not necessarily identify the individual member of the firm, and hence the continued use of a firm name after the death of one or more partners is not a deception and is permissible . . . . The continued use of a deceased partner’s name in the firm title is not affected by the fact that another partner withdraws from the firm and his name is dropped, or the name of the new partner is added to the firm name.” Opinion No. 45, Committee on Professional Ethics, New York State Bar Ass’n, 39 N.Y.St.B.J. 455 (1967). Cf. ABA Opinion 258 (1943).

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19. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 ( 1908) and ABA Opinion 315 (1965). 20. Cf. ABA Opinions 283 (1950) and 81 (1932). 21. See ABA Opinion 316 (1967). 22. “The word ‘associates’ has a variety of meanings. Principally through custom the word when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of the law the use of the word to describe lawyer relationships other than employer-employee is likely to be misleading.” In re Sussman and Tanner, 241 Ore. 246, 248, 405 P.2d 355, 356 (1965). According to ABA Opinion 310 (1963), use of the term “associates” would be misleading in two situations: ( I ) where two lawyers are partners and they share both responsibility and liability for the partnership; and (2) where two lawyers practice separately, sharing no responsibility or liability, and only share a suite of offices and some costs. 23. “For a long time, many lawyers have, of necessity, limited their practice to certain branches of law. The increasing complexity of the law and the demand of the public for more expertness on the part of the lawyer has, in the past few years— particularly in the last ten years—brought about specialization on an increasing scale.” Report of the Special Committee on Specialization and Specialized Legal Services, 79 A.B.A. REP. 582, 584 (1954). 24. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 12 (1908). 25. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 12 (1908). 26. “If there is any fundamental proposition of government on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless the legal profession is ready to provide adequate representation for those unable to pay the usual fees.” Professional Representation: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958). 27. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 12 (1908). 28. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 12 (1908). 29. “When members of the Bar are induced to render legal services for inadequate compensation, as a consequence the quality of the service rendered may be lowered, the welfare of the profession injured and the administration of justice made less efficient.” ABA Opinion 302 (1961). Cf. ABA Opinion 307 (1962). 30. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 12 (1908). 31. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 13; see also MACKINNON, CONTINGENT FEES FOR LEGAL SERVICES (1964) (A report of the American Bar Foundation). “A contract for a reasonable contingent fee where sanctioned by law is permitted by Canon 13, but the client must remain responsible to the lawyer for expenses advanced by the latter. ‘There is to be no barter of the privilege of prosecuting a cause for gain in exchange for the promise of the attorney to prosecute at his own expense.’ (Cardozo, C. J. in Matter of Gilman, 251 N.Y. 265, 270-271.)” ABA Opinion 246 (1942). 32. See Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem, the Duty and a Solution. 26 U. PITT. L. REV. 811, 829 (1965). 33. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 38 (1908). “Of course, as . . . [Informal Opinion 679] points out, there must be full disclosure of the arrangement [that an entity other than the client pays the attorney’s fee] by the attorney to the client . . . .” ABA Opinion 320 (1968). 34. “Only lawyers may share in . . . a division of fees, but . . . it is not necessary that both lawyers be admitted to practice in the same state, so long as the division was based on the division of services or responsibility.” ABA Opinion 316 (1967) 35. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 34 (1908). “We adhere to our previous rulings that where a lawyer merely brings about the employment of another lawyer but renders no service and assumes no responsibility in the matter, a division of the latter’s fee is improper. (Opinions 18 and 153). “It is assumed that the bar, generally, understands what acts or conduct of a lawyer may constitute ‘services’ to a client within the intendment of Canon 12. Such acts or conduct invariably, if not always, involve ‘responsibility’ on the part of the lawyer, whether the word ‘responsibility’ be construed to denote the possible resultant legal or moral liability on the part of the lawyer to the client or to others, or the onus of deciding what should or should not be done in behalf of the client. The word ‘services’ in Canon 12 must be construed in this broad sense and may apply to the selection and retainer of associate counsel as well as to other acts or conduct in the client’s behalf.” ABA Opinion 204 (1940). 36. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 14 (1908). 37. Cf ABA Opinion 320 (1968). 38. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 14 (1908). “Ours is a learned profession, not a mere money-getting trade . . . . Suits to collect fees should be avoided. Only where the circumstances imperatively require, should resort be had to a suit to compel payment. And where a lawyer does resort to a suit to enforce payment of fees which involves a disclosure, he should carefully avoid any disclosure not clearly necessary to obtaining or defending his rights.” ABA Opinion 250 (1943). But cf. ABA Opinion 320 (1968). 39. “As a society increases in size, sophistication and technology, the body of laws which is required to control that society also increases in size, scope and complexity. With this growth, the law directly affects more and more facets of individual behavior, creating an expanding need for legal services on the part of the individual members of the society . . . . As legal guidance in social and commercial behavior increasingly becomes necessary, there will come a concurrent demand from the layman that such guidance be made available to him. This demand will not come from those who are able to employ the best legal talent, nor from those who can obtain legal assistance at little or no cost. It will come from the large ‘forgotten middle income class,’ who can neither afford to pay proportionately large fees nor qualify for ultra-low-cost services. The legal profession must recognize this inevitable demand and consider methods whereby it can be satisfied. If the profession fails to provide such methods, the laity will.” Comment, Providing Legal Services for the Middle Class in Civil Matters: The Problem, the Duty and a Solution, 26 U. PITT. L REV. 811, 811-12 (1965). “The issue is not whether we shall do something or do nothing. The demand for ordinary everyday legal justice is so great and the moral nature of the demand is so strong that the issue has become whether we devise, maintain, and support suitable agencies able to satisfy the demand or, by our own default, force the government to take over the job, supplant us, and

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ultimately dominate us.” Smith, Legal Service Offices for Persons of Moderate Means, 1949 WIS. L REV. 416, 418 (1949). 40. “Lawyers have peculiar responsibilities for the just administration of the law and these responsibilities include providing advice and representation for needy persons. To a degree not always appreciated by the public at large, the bar has performed these obligations with zeal and devotion. The Committee is persuaded, however, that a system of justice that attempts, in mid-twentieth century America, to meet the needs of the financially incapacitated accused through primary or exclusive reliance on the uncompensated services of counsel will prove unsuccessful and inadequate . . . . A system of adequate representation, therefore, should be structured and financed in a manner reflecting its public importance . . . . We believe that fees for private appointed counsel should be set by the court within maximum limits established by the statute.” REPORT OF THE ATT’Y GEN’S COMM. ON POVERTY AND THE ADMINISTRATION OF CRIMINAL JUSTICE 41-43 (1963). 41. “At present this representation [of those unable to pay usual fees] is being supplied in some measure through the spontaneous generosity of individual lawyers, through legal aid societies, and—increasingly—through the organized efforts of the Bar. If those who stand in need of this service know of its availability and their need is in fact adequately met, the precise mechanism by which this service is provided becomes of secondary importance. It is of great importance, however, that both the impulse to render this service, and the plan for making that impulse effective, should arise within the legal profession itself.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958). 42. “Free legal clinics carried on by the organized bar are not ethically objectionable. On the contrary, they serve a very worthwhile purpose and should be encouraged.” ABA Opinion 191 (1939). 43. “Whereas the American Bar Association believes that it is a fundamental duty of the bar to see to it that all persons requiring legal advice be able to attain it, irrespective of their economic status . . . . “Resolved, that the Association approves and sponsors the setting up by state and local bar associations of lawyer referral plans and low-cost legal service methods for the purpose of dealing with cases of persons who might not otherwise have the benefit of legal advice . . . .” Proceedings of the House of Delegates of the American Bar Association, Oct. 30, 1946, 71 A.B.A. REP. 103, 109-10(1946). 44. “The defense of indigent citizens, without compensation, is carried on throughout the country by lawyers representing legal aid societies, not only with the approval, but with the commendation of those acquainted with the work. Not infrequently services are rendered out of sympathy or for other philanthropic reasons, by individual lawyers who do not represent legal aid societies. There is nothing whatever in the Canons to prevent a lawyer from performing such an act, nor should there be.” ABA Opinion 148 (1935). 45. But cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 31 (1908). 46. “One of the highest services the lawyer can render to society is to appear in court on behalf of clients whose causes are in disfavor with the general public.” Professional Responsibility: Report of the Joint Conference. 44 A.B.A.J. 1159, 1216 (1958). One author proposes the following proposition to be included in “A Proper Oath for Advocates”: “I recognize that it is sometimes difficult for clients with unpopular causes to obtain proper legal representation. I will do all that I can to assure that the client with the unpopular cause is properly represented, and that the lawyer representing such a client receives credit from and support of the bar for handling such a matter.” Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 592 (1961). §6068 . . . . It is the duty of an attorney: .... “(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed.” CAL. BUSINESS AND PROFESSIONS CODE §6068 (West 1962). Virtually the same language is found in the Oregon statutes at ORE. REV. STATS. Ch. 9 §9.460(8). See Rostow, The Lawyer and His Client. 48 A.B.A.J. 25 and 146 (1962). 47. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 7 and 29 (1908). “We are of the opinion that it is not professionally improper for a lawyer to accept employment to compel another lawyer to honor the just claim of a layman. On the contrary, it is highly proper that he do so. Unfortunately, there appears to be a widespread feeling among laymen that it is difficult, if not impossible, to obtain justice when they have claims against members of the Bar because other lawyers will not accept employment to proceed against them. The honor of the profession, whose members proudly style themselves officers of the court, must surely be sullied if its members bind themselves by custom to refrain from enforcing just claims of laymen against lawyers.” ABA Opinion 144 (1935). 48. ABA CANONS OF PROFESSIONAL ETHICS, CANON 4 (1908) uses a slightly different test, saying, “A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason . . . .” 49. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 7 (1908). 50. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908). 51. Dr. Johnson’s reply to Boswell upon being asked what he thought of “supporting a cause which you know to be bad” was: “Sir, you do not know it to be good or bad till the Judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad, must be from reasoning, must be from supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why, then, Sir, you are wrong, and he is right.” 2 BOSWELL, THE LIFE OF JOHNSON 47-48 (Hill ed. 1887). 52. “The lawyer deciding whether to undertake a case must be able to judge objectively whether he is capable of handling it and whether he can assume its burdens without prejudice to previous commitments . . . .” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1158, 1218 (1958). 53. “The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong.” ABA CANONS OF PROFESSIONAL ETHICS, CANON 30 (1908). 54. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 7 (1908). 55. Id. “From the facts stated we assume that the client has discharged the first attorney and given notice of the discharge. Such being the case, the second attorney may properly accept employment. Canon 7; Opinions 10, 130, 149.”ABA Opinion 209 (1941).

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56. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 44 (1908). “I will carefully consider, before taking a case, whether it appears that I can fully represent the client within the framework of law. If the decision is in the affirmative then it will take extreme circumstances to cause me to decide later that I cannot so represent him.” Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 592 (1961) (from “A Proper Oath for Advocates”). 57. ABA Opinion 314 (l965) held that a lawyer should not disassociate himself from a cause when “it is obvious that the very act of disassociation would have the effect of violating Canon 37.” 58. ABA CANON 44 enumerates instances in which “ . . . the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer.” 59. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 44 ( 1908). 60. Amended, February 1975, House Informational Report No. 110. 61. Amended, August 1978, House Informational Report No. 130. 62. Id. 63. Amended, February 1976, House Informational Report No. 100. 64. See ABA Opinion 301 (1961). 65. “[I]t has become commonplace for many lawyers to participate in government service; to deny them the right, upon their return to private practice, to refer to their prior employment in a brief and dignified manner, would place an undue limitation upon a large element of our profession. It is entirely proper for a member of the profession to explain his absence from private practice, where such is the primary purpose of the announcement, by a brief and dignified reference to the prior employment. “. . . [A]ny such announcement should be limited to the immediate past connection of the lawyer with the government, made upon his leaving that position to enter private practice.” ABA Opinion 301 (1961). 66. See ABA Opinion 251 (1943). 67. “Those lawyers who are working for an individual lawyer or a law firm may be designated on the letterhead and in other appropriate places as ‘associates.’ ” ABA Opinion 310 (1963). 68. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908). 69. But see ABA Opinion 285 (1951). 70. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908); cf. ABA Opinions 318 (1967), 267 (1945), 219 (1941), 208 (1940). 192 (1939), 97 (1933), and 6 (1925). 71. ABA Opinion 318 (1967) held, “anything to the contrary in Formal Opinion 315 or in the other opinions cited notwithstanding that: ‘Where a partner whose name appears in the name of a law firm is elected or appointed to high local, state or federal office, which office he intends to occupy only temporarily, at the end of which time he intends to return to his position with the firm, and provided that he is not precluded by holding such office from engaging in the practice of law and does not in fact sever his relationship with the firm but only takes a leave of absence, and provided that there is no local law, statute or custom to the contrary, his name may be retained in the firm name during his term or terms of office, but only if proper precautions are taken not to mislead the public as to his degree of participation in the firm’s affairs.’ ” Cf. ABA Opinion 143 (1935), New York County Opinion 67, and New York City Opinions 36 and 798; but cf. ABA Opinion 192 (1939) and Michigan Opinion 164. 72. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908). 73. Amended, February 1979, House Informational Report No. 123. 74. See ABA Opinion 277 (1948); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908) and ABA Opinions 318 (1967), 126 (1935), 115 (1934), 106 (1934), and 1383 (1977). 75. See ABA Opinions 318 (1967) and 316 (1967); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908). 76. DR 2-102(E) was deleted and DR 2-102(F) was redesignated as DR 2-102(E) in February 1980, House Informational Report No. 107. 77. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908). 78. “We think it clear that a lawyer’s seeking employment in an ordinary law office, or appointment to a civil service position, is not prohibited by . . . [Canon 27].” ABA Opinion 197 (1939). 79. “[A] lawyer may not seek from persons not his clients the opportunity to perform . . . a [legal] check-up.” ABA Opinion 307 (1962). 80. Cf. ABA Opinion 78 (1932). 81. “No financial connection of any kind between the Brotherhood and any lawyer is permissible. No lawyer can properly pay any amount whatsoever to the Brotherhood or any of its departments, officers or members as compensation, reimbursement of expenses or gratuity in connection with the procurement of a case.’” In re Brotherhood of R. R. Trainmen, 13 I11. 2d 391, 398, 150 N. E. 2d 163, 167 (1958), quoted in In re Ratner, 194 Kan. 362, 372, 399 P.2d 865, 873 (1965). See ABA Opinion 147 (1935). 82. Amended, February 1975, House Informational Report No. 110. 83. “This Court has condemned the practice of ambulance chasing through the media of runners and touters. In similar fashion we have with equal emphasis condemned the practice of direct solicitation by a lawyer. We have classified both offenses as serious breaches of the Canons of Ethics demanding severe treatment of the offending lawyer.” State v. Dawson, 111 So. 2d 427, 431 (Fla. 1959). 84. “Registrants [of a lawyer referral plan] may be required to contribute to the expense of operating it by a reasonable registration charge or by a reasonable percentage of fees collected by them.” ABA Opinion 291 (1956). Cf. ABA Opinion 227 (1941). 85. Amended, February 1975, House Informational Report No. 110. 86. Cf. ABA Opinion 148 (1935). 87. United Mine Workers v. Ill. State Bar Ass’n, 389 U.S. 217, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967); Brotherhood of R.R. Trainmen v. Virginia, 371 U.S. 1, 12 L. Ed. 2d 89, 84 S. Ct. 1113 (1964); NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Also see ABA Opinions 332 (1973) and 333 (1973). 88. Amended, February 1975, House Informational Report No. 110.

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89. “If a bar association has embarked on a program of institutional advertising for an annual legal check-up and provides brochures and reprints, it is not improper to have these available in the lawyer’s office for persons to read and take.” ABA Opinion 307 (1962). Cf. ABA Opinion 121 (1934). 90. ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908). 91. Cf. ABA Opinions 229 (1941) and 173 (1937). 92. “It certainly is not improper for a lawyer to advise his regular clients of new statutes, court decisions, and administrative rulings, which may affect the client’s interests, provided the communication is strictly limited to such information . . . . “When such communications go to concerns or individuals other than regular clients of the lawyer, they are thinly disguised advertisements for professional employment, and are obviously improper.” ABA Opinion 213 (1941). “It is our opinion that where the lawyer has no reason to believe that he has been supplanted by another lawyer, it is not only his right, but it might even be his duty to advise his client of any change of fact or law which might defeat the client’s testamentary purpose as expressed in the will. “Periodic notices might be sent to the client for whom a lawyer has drawn a will, suggesting that it might be wise for the client to reexamine his will to determine whether or not there has been any change in his situation requiring a modification of his will.” ABA Opinion 210 (1941). Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 28 (1908). 93. Amended, March 1974, House Informational Report No. 127. 94. Amended, February 1975, House Informational Report No. 110. 95. Cf. ABA Opinion 168 (1937). 96. But cf. ABA Opinion 111 (1934). 97. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 45 (1908); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANONS 43, and 46 (1908). 98. This provision is included to conform to action taken by the ABA House of Delegates at the Mid-Winter Meeting, January, 1969. 99. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 12 (1908). 100. The charging of a “clearly excessive fee” is a ground for discipline. State ex rel. Nebraska State Bar Ass’n v. Richards, 165 Neb. 80, 90, 84 N.W.2d 136, 143 (1957). “An attorney has the right to contract for any fee he chooses so long as it is not excessive (see Opinion 190), and this Committee is not concerned with the amount of such fees unless so excessive as to constitute a misappropriation of the client’s funds (see Opinion 27).” ABA Opinion 320 (1968). Cf. ABA Opinions 209 (1940), 190 (1939), and 27 (1930) and State ex rel. Lee v. Buchanan, 191 So. 2d 33 (Fla. 1966). 101. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 13 (1908); see generally MACKINNON, CONTINGENT FEES FOR LEGAL SERVICES (1964) (A Report of the American Bar Foundation). 102. “Contingent fees, whether in civil or criminal cases, are a special concern of the law . . . . “In criminal cases, the rule is stricter because of the danger of corrupting justice. The second part of Section 542 of the Restatement [of Contracts] reads: ‘A bargain to conduct a criminal case . . . in consideration of a promise of a fee contingent on success is illegal . . . .’ ” Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 967 (1959). “The third area of practice in which the use of the contingent fee is generally considered to be prohibited is the prosecution and defense of criminal cases. However, there are so few cases, and these are predominantly old, that it is doubtful that there can be said to be any current law on the subject . . . . In the absence of cases on the validity of contingent fees for defense attorneys, it is necessary to rely on the consensus among commentators that such a fee is void as against public policy. The nature of criminal practice itself makes unlikely the use of contingent fee contracts.” MACKINNON, CONTINGENT FEES FOR LEGAL SERVICES 52 (1964) (A Report of the American Bar Foundation). 103. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 34 (1908) and ABA Opinions 316 (1967) and 294 (1958); see generally ABA Opinions 265 (1945), 204 (1940), 190 (1939), 171 (1937), 153 (1936), 97 (1933), 63 (1932), 28 (1930), 27 (1930), and 18 (1930). 104. “Canon 12 contemplates that a lawyer’s fee should not exceed the value of the services rendered . . . . “Canon 12 applies, whether joint or separate fees are charged [by associate attorneys] . . . .” ABA Opinion 204 (1940). 105. “[A] general covenant restricting an employed lawyer, after leaving the employment, from practicing in the community for a stated period, appears to this Committee to be an unwarranted restriction on the right of a lawyer to choose where he will practice and inconsistent with our professional status. Accordingly, the Committee is of the opinion it would be improper for the employing lawyer to require the covenant and likewise for the employed lawyer to agree to it.” ABA Opinion 300 (1961). 106. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 30 (1908). “Rule 13 . . . . A member of the State Bar shall not accept employment to prosecute or defend a case solely out of spite, or solely for the purpose of harassing or delaying another . . . .” CAL. BUSINESS AND PROFESSIONS CODE §6067 (West 1962). 107. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 44 (1908). 108. See also MODEL CODE OF PROFESSIONAL RESPONSIBILITY, DR 5-102 and DR 5-105. 109. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 4 (1908). 110. Cf. Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967).

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CANON 3 A Lawyer Should Assist In Preventing the Unauthorized Practice of Law ETHICAL CONSIDERATIONS EC 3-1 The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession. EC 3-2 The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment. EC 3-3 A non-lawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of a lawyer. A lawyer is not only subject to that regulation but also is committed to high standards of ethical conduct. The public interest is best served in legal matters by a regulated profession committed to such standards. 1 The Disciplinary Rules protect the public in that they prohibit a lawyer from seeking employment by improper overtures, from acting in cases of divided loyalties, and from submitting to the control of others in the exercise of his judgment. Moreover, a person who entrusts legal matters to a lawyer is protected by the attorney-client privilege and by the duty of the lawyer to hold inviolate the confidences and secrets of his client. EC 3-4 A layman who seeks legal services often is not in a position to judge whether he will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless he is subject to the regulations of the legal profession. EC 3-5 It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law.2 Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required. EC 3-6 A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. 3 This delegation enables a lawyer to render legal service more economically and efficiently. EC 3-7 The prohibition against a non-lawyer practicing law does not prevent a layman from representing himself, for then he is ordinarily exposing only himself to possible injury. The purpose

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of the legal profession is to make educated legal representation available to the public; but anyone who does not wish to avail himself of such representation is not required to do so. Even so, the legal profession should help members of the public to recognize legal problems and to understand why it may be unwise for them to act for themselves in matters having legal consequences. EC 3-8 Since a lawyer should not aid or encourage a layman to practice law, he should not practice law in association with a layman or otherwise share legal fees with a layman.4 This does not mean, however, that the pecuniary value of the interest of a deceased lawyer in his firm or practice may not be paid to his estate or specified persons such as his widow or heirs.5 In like manner, profitsharing retirement plans of a lawyer or law firm which include non-lawyer office employees are not improper.6 These limited exceptions to the rule against sharing legal fees with laymen are permissible since they do not aid or encourage laymen to practice law. EC 3-9 Regulation of the practice of law is accomplished principally by the respective states.7 Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so. However, the demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. 8 In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice.9

DISCIPLINARY RULES DR 3-101

-Aiding Unauthorized Practice of Law.10

(A) -A lawyer shall not aid a non-lawyer in the unauthorized practice of law.11 (B) -A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.12 DR 3-102

-Dividing Legal Fees with a Non-Lawyer.

(A) -A lawyer or law firm shall not share legal fees with a non-lawyer,13 except that: (1) -An agreement by a lawyer with his firm, partner, or associate may provide for the payment of money, over a reasonable period of time after his death, to his estate or to one or more specified persons.14 (2) -A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer. (3) -A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement,15 providing such plan does not circumvent another Disciplinary Rule.16, 17 DR 3-103

-Forming a Partnership with a Non-Lawyer.

(A) -A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.18

NOTES 1. “The condemnation of the unauthorized practice of law is designed to protect the public from legal services by persons unskilled in the law. The prohibition of lay intermediaries is intended to insure the loyalty of the lawyer to the client unimpaired by intervening and possibly conflicting interests.” Cheatham, Availability of Legal Services: The Responsibility of

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the Individual Lawyer and of the Organized Bar, 12 U.C.L.A. L. REV. 438, 439 (1965). 2. “What constitutes unauthorized practice of the law in a particular jurisdiction is a matter for determination by the courts of that jurisdiction.” ABA Opinion 198 (1939). “In the light of the historical development of the lawyer’s functions, it is impossible to lay down an exhaustive definition of ‘the practice of law’ by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work.” State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz., 76, 87, 366 P.2d 1, 8-9 (1961), modified, 91 Ariz. 293, 371 P.2d 1020 (1962). 3. “A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draftsmen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings that are a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client.” ABA Opinion 316 (1967). ABA Opinion 316 (1967) also stated that if a lawyer practices law as part of a law firm which includes lawyers from several states, he may delegate tasks to firm members in other states so long as he “is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law.” “A lawyer cannot delegate his professional responsibility to a law student employed in his office. He may avail himself of the assistance of the student in many of the fields of the lawyer’s work, such as examination of case law, finding and interviewing witnesses, making collections of claims, examining court records, delivering papers, conveying important messages, and other similar matters. But the student is not permitted, until he is admitted to the Bar, to perform the professional functions of a lawyer, such as conducting court trials, giving professional advice to clients or drawing legal documents for them. The student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct.” ABA Opinion 85 (1932). 4. “No division of fees for legal services is proper, except with another lawyer . . . .” ABA CANONS OF PROFESSIONAL ETHICS, CANON 34 (1908). Otherwise, according to ABA Opinion 316 (1967), “[t]he Canons of Ethics do not examine into the method by which such persons are remunerated by the lawyer . . . . They may be paid a salary, a per diem charge, a flat fee, a contract price, etc.” See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 33 and 47 (1908). 5. “Many partnership agreements provide that the active partners, on the death of any one of them, are to make payments to the estate or to the nominee of a deceased partner on a pre-determined formula. It is only where the effect of such an arrangement is to make the estate or nominee a member of the partnership along with the surviving partners that it is prohibited by Canon 34. Where the payments are made in accordance with a pre-existing agreement entered into by the deceased partner during his lifetime and providing for a fixed method for determining their amount based upon the value of services rendered during the partner’s lifetime and providing for a fixed period over which the payments are to be made, this is not the case. Under these circumstances, whether the payments are considered to be delayed payment of compensation earned but withheld during the partner’s lifetime, or whether they are considered to be an approximation of his interest in matters pending at the time of his death, is immaterial. In either event, as Henry S. Drinker says in his book, LEGAL ETHICS, at page 189: ‘It would seem, however, that a reasonable agreement to pay the estate a proportion of the receipts for a reasonable period is a proper practical settlement for the lawyer’s services to his retirement or death.’ ” ABA Opinion 308 (1963). 6. Cf. ABA Opinion 311 (1964). 7. “That the States have broad power to regulate the practice of law is, of course, beyond question.” United Mine Workers v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967). “It is a matter of law, not of ethics, as to where an individual may practice law. Each state has its own rules.” ABA Opinion 316 (1967). 8. “Much of clients’ business crosses state lines. People are mobile, moving from state to state. Many metropolitan areas cross state lines. It is common today to have a single economic and social community involving more than one state. The business of a single client may involve legal problems in several states.” ABA Opinion 316 (1967). 9. “[W]e reaffirmed the general principle that legal services to New Jersey residents with respect to New Jersey matters may ordinarily be furnished only by New Jersey counsel; but we pointed out that there may be multistate transactions where strict adherence to this thesis would not be in the public interest and that, under the circumstances, it would have been not only more costly to the client but also ‘grossly impractical and inefficient’ to have had the settlement negotiations conducted by separate lawyers from different states.” In re Estate of Waring, 47 N.J. 367, 376, 221 A.2d 193, 197 (1966). Cf. ABA Opinion 316 (1967). 10. Conduct permitted by Disciplinary Rules of Canons 2 and 5 does not violate DR 3-101. 11. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 47 (1908). 12. It should be noted, however, that a lawyer may engage in conduct, otherwise prohibited by this Disciplinary Rule, where such conduct is authorized by preemptive federal legislation. See Sperry v. Florida, 373 U.S. 379, 10 L. Ed. 2d 428, 83 S. Ct. 1322 (1963). 13. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 34 (1908) and ABA Opinions 316 (1967), 180 (1938), and 48 (1931). “The receiving attorney shall not under any guise or form share his fee for legal services with a lay agency, personal or corporate, without prejudice, however, to the right of the lay forwarder to charge and collect from the creditor proper compensation for non-legal services rendered by the law [sic] forwarder which are separate and apart from the services performed by the receiving attorney.” ABA Opinion 294 (1958). 14. See ABA Opinion 266 (1945). 15. Cf. ABA Opinion 311 (1964). 16. See ABA Opinion l440 17. Amended, February 1980, House Informational Report No. 107. 18. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 33 (1908); cf. ABA Opinions 239 (1942) and 201 (1940) ABA Opinion 316 (1967) states that lawyers licensed in different jurisdictions may, under certain conditions, enter “into an arrangement for the practice of law” and that a lawyer licensed in State A is not, for such purpose, a layman in State B.

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CANON 4 A Lawyer Should Preserve the Confidences and Secrets of a Client ETHICAL CONSIDERATIONS EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. 1 A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client.2 A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance. EC 4-2 The obligation to protect confidences and secrets obviously does not preclude a lawyer from revealing information when his client consents after full disclosure, 3 when necessary to perform his professional employment, when permitted by a Disciplinary Rule, or when required by law. Unless the client otherwise directs, a lawyer may disclose the affairs of his client to partners or associates of his firm. It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files; and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his clients may be preserved. If the obligation extends to two or more clients as to the same information, a lawyer should obtain the permission of all before revealing the information. A lawyer must always be sensitive to the rights and wishes of his client and act scrupulously in the making of decisions which may involve the disclosure of information obtained in his professional relationship. 4 Thus, in the absence of consent of his client after full disclosure, a lawyer should not associate another lawyer in the handling of a matter; nor should he, in the absence of consent, seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or his confidences or secrets would be revealed to such lawyer. Both social amenities and professional duty should cause a lawyer to shun indiscreet conversations concerning his clients. EC 4-3 Unless the client otherwise directs, it is not improper for a lawyer to give limited information from his files to an outside agency necessary for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes, provided he exercises due care in the selection of the agency and warns the agency that the information must be kept confidential. EC 4-4 The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, he should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client. EC 4-5 A lawyer should not client to the disadvantage of the client after full disclosure, such diligent in his efforts to prevent

use information acquired in the course of the representation of a client and a lawyer should not use, except with the consent of his information for his own purposes.5 Likewise, a lawyer should be the misuse of such information by his employees and associates.6

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Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another,7 and no employment should be accepted that might require such disclosure. EC 4-6 The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment.8 Thus a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets.9 A lawyer should also provide for the protection of the confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.

DISCIPLINARY RULES DR 4-101

-Preservation of Confidences and Secrets of a Client.10

(A) -”Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (B) -Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) -Reveal a confidence or secret of his client.11 (2) -Use a confidence or secret of his client to the disadvantage of the client. (3) -Use a confidence or secret of his client for the advantage of himself 12 or of a third person,13 unless the client consents after full disclosure. (C) -A lawyer may reveal: (1) -Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.14 (2) -Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.15 (3) -The intention of his client to commit a crime16 and the information necessary to prevent the crime.17 (4) -Confidences or secrets necessary to establish or collect his fee18 or to defend himself or his employees or associates against an accusation of wrongful conduct.19 (D) -A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.

NOTES 1. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 6 and 37 (1908) and ABA Opinion 287 (1953). “The reason underlying the rule with respect to confidential communications between attorney and client is well stated in MECHEM ON AGENCY, 2d Ed., Vol. 2, §2297, as follows: ‘The purposes and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosures to the attorney of the client’s objects, motives and acts. This disclosure is made in the strictest confidence, relying upon the attorney’s honor and fidelity. To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance. Based upon considerations of public policy, therefore, the law wisely declares that all confidential communications and disclosures, made by a client to his legal adviser for the purpose of obtaining his professional aid or advice shall be strictly privileged;—that the attorney shall not be permitted, without the consent of his client,—and much less will he be compelled—to reveal or disclose communications made to him under such circumstances.’ ABA Opinion 250(1943). “While it is true that complete revelation of relevant facts should be encouraged for trial purposes, nevertheless an attorney’s dealings with his client, if both are sincere, and if the dealings involve more than mere technical matters, should be immune to discovery proceedings. There must be freedom from fear of revealment of matters disclosed to an attorney because of the peculiarly intimate relationship existing.” Ellis-Foster Co. v. Union Carbide & Carbon Corp., 159 F. Supp. 917, 919 (D.N.J. 1958).

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Cf. ABA Opinions 314 (1965), 274 (1946) and 268 (1945). 2. “While it is the great purpose of law to ascertain the truth, there is the countervailing necessity of insuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. This assistance can be made safely and readily available only when the client is free from the consequences of apprehension of disclosure by reason of the subsequent statements of the skilled lawyer.” Baird v. Koemer, 279 F.2d 623, 629-30 (9th Cir. 1960). Cf. ABA Opinion 150 (1936). 3. “Where . . . [a client] knowingly and after full disclosure participates in a [legal fee] financing plan which requires the furnishing of certain information to the bank, clearly by his conduct he has waived any privilege as to that information.” ABA Opinion 320 (1968) 4. “The lawyer must decide when he takes a case whether it is a suitable one for him to undertake and after this decision is made, he is not justified in turning against his client by exposing injurious evidence entrusted to him . . . . [D]oing something intrinsically regrettable, because the only alternative involves worse consequences, is a necessity in every profession.” WILLISTON, LIFE AND LAW 271 (1940). Cf. ABA Opinions 177 (1938) and 83 (1932). 5. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 11 ( 1908). 6. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 37 (1908). 7. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 6 and 37 (1908). “[A]n attorney must not accept professional employment against a client or a former client which will, or even may require him to use confidential information obtained by the attorney in the course of his professional relations with such client regarding the subject matter of the employment . . . .” ABA Opinion 165 (1936). 8. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 37 (1908). “Confidential communications between an attorney and his client, made because of the relationship and concerning the subject-matter of the attorney’s employment, are generally privileged from disclosure without the consent of the client, and this privilege outlasts the attorney’s employment. Canon 37.” ABA Opinion 154 (1936). 9. Cf. ABA Opinion 266 (1945). 10. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 37 (1908); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908). 11. “§6068 . . . It is the duty of an attorney: .... “(e) To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client. CAL. BUSINESS AND PROFESSIONS CODE §6068 (West 1962). Virtually the same provision is found in the Oregon statutes. ORE. REV. STATS. ch. 9 §9.460(5). “Communication between lawyer and client are privileged (WIGMORE ON EVIDENCE, 3d Ed., Vol. 8,§§2290-2329). The modem theory underlying the privilege is subjective and is to give the client freedom of apprehension in consulting his legal adviser (ibid., §2290, p. 548). The privilege applies to communications made in seeking legal advice for any purpose (ibid., §2294, p.563). The mere circumstance that the advice is given without charge therefor does not nullify the privilege (ibid.,§2303).” ABA Opinion 216 (1941). “It is the duty of an attorney to maintain the confidence and preserve inviolate the secrets of his client . . . .” ABA Opinion 155 (1936). 12. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 11 (1908). “The provision respecting employment is in accord with the general rule announced in the adjudicated cases that a lawyer may not make use of knowledge or information acquired by him through his professional relations with his client, or in the conduct of his client’s business, to his own advantage or profit (7 C.J.S., § 125, p. 958, Healy v. Gray, 184 Iowa 111, 168 N.W 222; Baumgardner v. Hudson, D.C. App., 277 F. 552; Goodrum v. Clement, D.C App., 277 F. 586)” ABA Opinion 250 (1943). 13. See ABA Opinion 177 (1938). 14. “[A lawyer] may not divulge confidential communications, information, and secrets imparted to him by the client or acquired during their professional relations unless he is authorized to do so by the client (People v. Gerold, 265 Ill. 448, 107 N.E. 165, 178; Murphy v. Riggs, 238 Mich. 151, 213 N.W. 110, 112; 0pinion of this Committee, No. 91).” ABA Opinion 202 (1940). Cf. ABA Opinion 91 (1933). 15. “A defendant in a criminal case when admitted to bail is not only regarded as in the custody of his bail, but he is also in the custody of the law, and admission to bail does not deprive the court of its inherent power to deal with the person of the prisoner. Being in lawful custody, the defendant is guilty of an escape when he gains his liberty before he is delivered in due process of law, and is guilty of a separate offense for which he may be punished. In failing to disclose his client’s whereabouts as a fugitive under these circumstances the attorney would not only be aiding his client to escape trial on the charge for which he was indicted, but would likewise be aiding him in evading prosecution for the additional offense of escape. “It is the opinion of the committee that under such circumstances the attorney’s knowledge of his client’s whereabouts is not privileged, and that he may be disciplined for failing to disclose that information to the proper authorities . . . .” ABA Opinion 155 (1936). “We held in Opinion 155 that a communication by a client to his attorney in respect to the future commission of an unlawful act or to a continuing wrong is not privileged from disclosure. Public policy forbids that the relation of attorney and client should be used to conceal wrongdoing on the part of the client. .... “When an attorney representing a defendant in a criminal case applies on his behalf for probation or suspension of sentence, he represents to the court, by implication at least, that his client will abide by the terms and conditions of the court’s order. When that attorney is later advised of a violation of that order, it is his duty to advise his client of the consequences of his act, and endeavor to prevent a continuance of the wrongdoing. If his client thereafter persists in violating the terms and conditions of his probation, it is the duty of the attorney as an officer of the court to advise the proper authorities concerning his client’s conduct. Such information, even though coming to the attorney from the client in the course of his professional relations with respect to other matters in which he represents the defendant, is not privileged from disclosure . . . .”

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See ABA Opinion 156 (1936). 16. ABA Opinion 314 (1965) indicates that a lawyer must disclose even the confidences of his clients if “the facts in the attorney’s possession indicate beyond reasonable doubt that a crime will be committed.” See ABA Opinion 155 (1936). 17. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 37 (1908) and ABA Opinion (1940). 18. Cf. ABA Opinion 250 (1943) 19. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 37 (1908) and ABA Opinions 202 (1940) and 19 (1930). “[T]he adjudicated cases recognize an exception to the rule [that a lawyer shall not reveal the confidences of his client], where disclosure is necessary to protect the attorney’s interests arising out of the relation of attorney and client in which disclosure was made. “The exception is stated in MECHEM ON AGENCY, 2d Ed., Vol. 2, §2313, as follows: ‘But the attorney may disclose information received from the client when it becomes necessary for his own protection, as if the client should bring an action against the attorney for negligence or misconduct, and it became necessary for the attorney to show what his instructions were, or what was the nature of the duty which the client expected him to perform. So if it became necessary for the attorney to bring an action against the client, the client’s privilege could not prevent the attorney from disclosing what was essential as a means of obtaining or defending his own rights.’ “Mr Jones, in his COMMENTARIES ON EVIDENCE, 2d Ed., Vol. 5, §2165, states the exception thus: ‘It has frequently been held that the rule as to privileged communications does not apply when litigation arises between attorney and client to the extent that their communications are relevant to the issue. In such cases, if the disclosure of privileged communications becomes necessary to protect the attorney’s rights, he is released from those obligations of secrecy which the law places upon him. He should not, however, disclose more than is necessary for his own protection. It would be a manifest injustice to allow the client to take advantage of the rule of exclusion as to professional confidence to the prejudice of his attorney, or that it should be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights. In such cases the attorney is exempted from the obligations of secrecy.’ ” ABA Opinion 250 (1943).

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CANON 5 A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client ETHICAL CONSIDERATIONS EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties.1 Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client. Interests of a Lawyer That May Affect His Judgment EC 5-2 A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.2 After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interests of his client. EC 5-3 The self-interest of a lawyer resulting from his ownership of property in which his client also has an interest or which may affect property of his client may interfere with the exercise of free judgment on behalf of his client. If such interference would occur with respect to a prospective client, a lawyer should decline employment proffered by him. After accepting employment, a lawyer should not acquire property rights that would adversely affect his professional judgment in the representation of his client. Even if the property interests of a lawyer do not presently interfere with the exercise of his independent judgment, but the likelihood of interference can reasonably be foreseen by him, a lawyer should explain the situation to his client and should decline employment or withdraw unless the client consents to the continuance of the relationship after full disclosure. A lawyer should not seek to persuade his client to permit him to invest in an undertaking of his client nor make improper use of his professional relationship to influence his client to invest in an enterprise in which the lawyer is interested. EC 5-4 If, in the course of his representation of a client, a lawyer is permitted to receive from his client a beneficial ownership in publication rights relating to the subject matter of the employment, he may be tempted to subordinate the interests of his client to his own anticipated pecuniary gain. For example, a lawyer in a criminal case who obtains from his client television, radio, motion picture, newspaper, magazine, book, or other publication rights with respect to the case may be influenced, consciously or unconsciously, to a course of conduct that will enhance the value of his publication rights to the prejudice of his client. To prevent these potentially differing interests, such arrangements should be scrupulously avoided prior to the termination of all aspects of the matter giving rise to the employment, even though his employment has previously ended. EC 5-5 A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. 3 Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client.4 EC 5-6 A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety.5

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EC 5-7 The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the cause of his client or otherwise to become financially interested in the outcome of the litigation.6 However, it is not improper for a lawyer to protect his right to collect a fee for his services by the assertion of legally permissible liens, even though by doing so he may acquire an interest in the outcome of litigation. Although a contingent fee arrangement7 gives a lawyer a financial interest in the outcome of litigation, a reasonable contingent fee is permissible in civil cases because it may be the only means by which a layman can obtain the services of a lawyer of his choice. But a lawyer, because he is in a better position to evaluate a cause of action, should enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client. EC 5-8 A financial interest in the outcome of litigation also results if monetary advances are made by the lawyer to his client.8 Although this assistance generally is not encouraged, there are instances when it is not improper to make loans to a client. For example, the advancing or guaranteeing of payment of the costs and expenses of litigation by a lawyer may be the only way a client can enforce his cause of action,9 but the ultimate liability for such costs and expenses must be that of the client. EC 5-9 Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively. EC 5-10 Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment.10 Regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue.11 In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness.12 In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment.13 Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.14 EC 5-11 A lawyer should not permit his personal interests to influence his advice relative to a suggestion by his client that additional counsel be employed.15 In like manner, his personal interests should not deter him from suggesting that additional counsel be employed; on the contrary, he should be alert to the desirability of recommending additional counsel when, in his judgment, the proper representation of his client requires it. However, a lawyer should advise his client not to employ additional counsel suggested by the client if the lawyer believes that such employment would be a disservice to the client, and he should disclose the reasons for his belief. EC 5-12 Inability of co-counsel to agree on a matter vital to the representation of their client requires that their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken.16 EC 5-13 A lawyer should not maintain membership in or be influenced by any organization of employees that undertakes to prescribe, direct, or suggest when or how he should fulfill his professional obligations to a person or organization that employs him as a lawyer. Although it is not necessarily improper for a lawyer employed by a corporation or similar entity to be a member of an

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organization of employees, he should be vigilant to safeguard his fidelity as a lawyer to his employer, free from outside influences. Interests of Multiple Clients EC 5-14 Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client.17 This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.18 EC 5-15 If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests;19 and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially. On the other hand, there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse influence and that he can retain his independent judgment on behalf of each client; and if the interests become differing, withdrawal is less likely to have a disruptive effect upon the causes of his clients. EC 5-16 In those instances in which a lawyer is justified in representing two or more clients having differing interests, it is nevertheless essential that each client be given the opportunity to evaluate his need for representation free of any potential conflict and to obtain other counsel if he so desires. 20 Thus before a lawyer may represent multiple clients, he should explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent.21 If there are present other circumstances that might cause any of the multiple clients to question the undivided loyalty of the lawyer, he should also advise all of the clients of those circumstances.22 EC 5-17 Typically recurring situations involving potentially differing interests are those in which a lawyer is asked to represent co-defendants in a criminal case, co-plaintiffs in a personal injury case, an insured and his insurer,23 and beneficiaries of the estate of a decedent. Whether a lawyer can fairly and adequately protect the interests of multiple clients in these and similar situations depends upon an analysis of each case. In certain circumstances, there may exist little chance of the judgment of the lawyer being adversely affected by the slight possibility that the interests will become actually differing; in other circumstances, the chance of adverse effect upon his judgment is not unlikely. EC 5-18 A lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. In advising the entity, a lawyer should keep paramount its interests and his professional judgment should not be influenced by the personal desires of any person or organization. Occasionally a lawyer for an entity is requested by a stockholder, director, officer, employee, representative, or other person connected with the entity to represent him in an individual capacity; in such case the lawyer may serve the individual only if the lawyer is convinced that differing interests are not present. EC 5–19 A lawyer may represent several clients whose interests are not actually or potentially differing. Nevertheless, he should explain any circumstances that might cause a client to question his undivided loyalty.24 Regardless of the belief of a lawyer that he may properly represent multiple clients, he must defer to a client who holds the contrary belief and withdraw from representation of that client.

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EC 5–20 A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved. Desires of Third Persons EC 5-21 The obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment.25 The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economic, political, or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside pressures should make full disclosure of them to his client;26 and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of his client. EC 5-22 Economic, political, or social pressures by third persons are less likely to impinge upon the independent judgment of a lawyer in a matter in which he is compensated directly by his client and his professional work is exclusively with his client. On the other hand, if a lawyer is compensated from a source other than his client, he may feel a sense of responsibility to someone other than his client. EC 5-23 A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer’s individual client. On some occasions, decisions on priority of work may be made by the employer rather than the lawyer with the result that prosecution of work already undertaken for clients is postponed to their detriment. Similarly, an employer may seek, consciously or unconsciously, to further its own economic interests through the action of the lawyers employed by it. Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom.27 EC 5-24 To assist a lawyer in preserving his professional independence, a number of courses are available to him. For example, a lawyer should not practice with or in the form of a professional legal corporation, even though the corporate form is permitted by law,28 if any director, officer, or stockholder of it is a non-lawyer. Although a lawyer may be employed by a business corporation with non-lawyers serving as directors or officers, and they necessarily have the right to make decisions of business policy, a lawyer must decline to accept direction of his professional judgment from any layman. Various types of legal aid offices are administered by boards of directors composed of lawyers and laymen. A lawyer should not accept employment from such an organization unless the board sets only broad policies and there is no interference in the relationship of the lawyer and the individual client he serves. Where a lawyer is employed by an organization, a written agreement that defines the relationship between him and the organization and provides for his independence is desirable since it may serve to prevent misunderstanding as to their respective roles. Although other innovations in the means of supplying legal counsel may develop, the responsibility of the lawyer to maintain his professional independence remains constant, and the legal profession must insure that changing circumstances do not result in loss of the professional independence of the lawyer.

DISCIPLINARY RULES DR 5-101 -Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

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(A) -Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.29 (B) -A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify: (1) -If the testimony will relate solely to an uncontested matter. (2) -If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. (3) -If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. (4) -As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case. DR 5-102

-Withdrawal as Counsel When the Lawyer Becomes a Witness.30

(A) -If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue the representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B) (1) through (4). (B) -If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.31 DR 5-103

-Avoiding Acquisition of Interest in Litigation.

(A) -A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client,32 except that he may: (1) -Acquire a lien granted by law to secure his fee or expenses. (2) -Contract with a client for a reasonable contingent fee in a civil case.33 (B) -While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, 34 except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses. DR 5-104

-Limiting Business Relations with a Client.

(A) -A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure. (B) -Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment. DR 5-105 -Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. (A) -A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment,35 or if it would be likely to involve him in representing differing interests,36 except to the extent permitted under DR 5-105(C).37 (B) -A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests,38 except to the extent permitted under DR 5-105(C).39

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(C) -In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. (D) -If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him40 or his firm, may accept or continue such employment. DR 5-106

-Settling Similar Claims of Clients.41

(A) -A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement. DR 5-107

-Avoiding Influence by Others Than the Client.

(A) -Except with the consent of his client after full disclosure, a lawyer shall not: (1) -Accept compensation for his legal services from one other than his client. (2) -Accept from one other than his client any thing of value related to his representation of or his employment by his client.42 (B) -A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.43 (C) -A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) -A non-lawyer owns any interest therein,44 except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) -A non-lawyer is a corporate director or officer thereof;45 or (3) -A non-lawyer has the right to direct or control the professional judgment of a lawyer.46

NOTES 1. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1908). “[A lawyer’s] fiduciary duty is of the highest order and he must not represent interests adverse to those of the client. It is true that because of his professional responsibility and the confidence and trust which his client may legitimately repose in him, he must adhere to a high standard of honesty, integrity and good faith in dealing with his client. He is not permitted to take advantage of his position or superior knowledge to impose upon the client; nor to conceal facts or law, nor in any way deceive him without being held responsible therefor.” Smoot v. Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962). “When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and champion. If, as in this case, he is sued and his home attached by his own attorney, who is representing him in another matter, all feeling of loyalty is necessarily destroyed, and the profession is exposed to the charge that it is interested only in money.” Grievance Comm. v. Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964). “One of the cardinal principles confronting every attorney in the representation of a client is the requirement of complete loyalty and service in good faith to the best of his ability. In a criminal case the client is entitled to a fair trail, but not a perfect one. These are fundamental requirements of due process under the Fourteenth Amendment . . . . The same principles are applicable in Sixth Amendment cases (not pertinent herein) and suggest that an attorney should have no conflict of interest and that he must devote his full and faithful efforts toward the defense of his client.” Johns v. Smyth, 176 F. Supp. 949, 952 (E.D. Va. 1959), modified, United States ex rel. Wilkins v. Banmiller, 205 F. Supp. 123, 128 n.5 (E.D. Pa. 1962), aff’d, 325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 13 L. Ed. 2d 51, 85 S.Ct. 87 (1964). 2. “Attorneys must not allow their private interests to conflict with those of their clients . . . . They owe their entire devotion to the interests of their client.” United States v. Anonymous, 215 F. Supp. 111, 113 (E.D. Tenn. 1963). “[T]he court [below] concluded that a firm may not accept any action against a person whom they are presently representing even though there is no relationship between the two cases. In arriving at this conclusion, the court cites an opinion of the Committee on Professional Ethics of the New York County Lawyers’ Association which stated in part: ‘While under the circumstances . . . there may be no actual conflict of interest . . . “maintenance of public confidence in the Bar requires an attorney who has accepted representation of a client to decline, while representing such client, any employment from an adverse party in any matter even though wholly unrelated to the original retainer.” See Question and Answer No. 350, N.Y. County L. Ass’n, Question and Answer No. 450 (June 21, 1956).’ ” Grievance Comm. v. Rattner, 152 Conn. 59, 65, 203 A.2d 82, 84 (1964).

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3. “Courts of equity will scrutinize with jealous vigilance transactions between parties occupying fiduciary relations toward each other . . . . A deed will not be held invalid, however, if made by the grantor with full knowledge of its nature and effect, and because of the deliberate voluntary and intelligent desire of the grantor . . . . Where a fiduciary relation exists, the burden of proof is on the grantee of beneficiary of an instrument executed during the existence of such relationship to show the fairness of the transaction, that it was equitable and just and that it did not proceed from undue influence . . . . The same rule has application where an attorney engages in a transaction with a client during the existence of the relation and is benefited thereby . . . . Conversely, an attorney is not prohibited from dealing with his client or buying his property, and such contracts, if open, fair and honest, when deliberately made, are as valid as contracts between other parties . . . . [I]mportant factors in determining whether a transaction is fair include a showing by the fiduciary (1) that he made a full and frank disclosure of all the relevant information that he had; (2) that the consideration was adequate; and (3) that the principal had independent advice before completing the transaction.” McFail v. Braden, 19 Ill. 2d 108, 117-18, 166 N.E.2d 46, 52(1960). 4. See State ex rel. Nebraska State Bar Ass’n v. Richards, 165 Neb. 80, 94-95, 84 N.W.2d 136, 146 (1957). 5. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 9(1908). 6. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 10(1908). 7. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY, EC 2-20. 8. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 42 (1908). 9. “Rule 3a . . . . A member of the State Bar shall not directly or indirectly pay or agree to pay, or represent or sanction the representation that he will pay, medical hospital or nursing bills or other personal expenses incurred by or for a client, prospective or existing; provided this rule shall not prohibit a member: “(1) with the consent of the client, from paying or agreeing to pay to third persons such expenses from funds collected or to be collected for the client; or (2) after he has been employed, from lending money to his client upon the client’s promise in writing to repay such loan; or (3) from advancing the costs of prosecuting or defending a claim or action. Such costs within the meaning of this subparagraph (3) include all taxable costs or disbursements, costs of investigation and costs of obtaining and presenting evidence.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West Supp. 1967). 10. “When a lawyer knows, prior to trial, that he will be a necessary witness, except as to merely formal matters such as identification or custody of a document or the like, neither he nor his firm or associates should conduct the trial. If, during the trial, he discovers that the ends of justice require his testimony, he should, from that point on, if feasible and not prejudicial to his client’s case, leave further conduct of the trial to other counsel. If circumstances do not permit withdrawal from the conduct of the trial, the lawyer should not argue the credibility of his own testimony.” A Code of Trial Conduct: Promulgated by the American College of Trial Lawyers, 43 A.B.A.J. 223, 224-25 (1957). 11. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 19 (1908); “When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel.” 12. “It is the general rule that a lawyer may not testify in ligation in which he is an advocate unless circumstances arise which could not be anticipated and it is necessary to prevent a miscarriage of justice. In those rare cases where the testimony of an attorney is needed to protect his client’s interests, it is not only proper but mandatory that it be forthcoming.” Schwartz v. Wenger, 267 Minn. 40, 43-44, 124 N.W.2d 489, 492 (1963). 13. “The great weight of authority in this country holds that the attorney who acts as counsel and witness, in behalf of his client, in the same cause on a material matter, not of merely formal character, and not in an emergency, but having knowledge that he would be required to be a witness in ample time to have secured other counsel and given up his service in the case, violates a highly important provision of the Code of Ethics and a rule of professional conduct, but does not commit a legal error in so testifying, as a result of which a new trial will be granted.” Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 869 (1928). 14. “[C]ases may arise, and in practice often do arise, in which there would be a failure of justice should the attorney withhold his testimony. In such a case it would be a vicious professional sentiment which would deprive the client of the benefit of his attorney’s testimony.” Connoly v. Straw, 53 Wis. 645, 649, 11 N.W. 17, 19 (1881). But see ABA CANONS OF PROFESSIONAL ETHICS, CANON 19 (1908): “Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.” 15. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 7 (1908). 16. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 7 (1908). 17. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908); cf. ABA Opinions 261 (1944), 242 (1942), 142 (1935), and 30 (1931). 18. The ABA Canons speak of “conflicting interests” rather than “differing interests” but make no attempt to define such other than the statement in Canon 6: “Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.” 19. “Canon 6 of the Canons of Professional Ethics, adopted by the American Bar Association on September 30, 1937, and by the Pennsylvania Bar Association on January 7, 1938, provides in part that ‘It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.’ The full disclosure required by this canon contemplates that the possible adverse effect of the conflict be fully explained by the attorney to the client to be affected and by him thoroughly understood . . . . “The foregoing canon applies to cases where the circumstances are such that possibly conflicting interests may permissibly be represented by the same attorney. But manifestly, there are instances where the conflicts of interest are so critically adverse as not to admit of one attorney’s representing both sides. Such is the situation which this record presents. No one could conscionably contend that the same attorney may represent both the plaintiff and defendant in an adversary action. Yet, that is what is being done in this case.” Jedwabny v. Philadelphia Transportation Co., 390 Pa. 231, 235, 135 A.2d 252, 254 (1957), cert. denied, 355 U.S. 966, 2 L. Ed. 2d 541, 78 S. Ct. 557 (1958). 20. “Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected. Irrespective of any conflict of interest, the additional burden of representing another

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party may conceivably impair counsel’s effectiveness. “To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations and to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 75-76, 86 L. Ed. 680, 702 S. Ct. 457, 467 (1942). 21. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908). 22. Id. 23. Cf. ABA Opinion 282 (1950). “When counsel, although paid by the casualty company, undertakes to represent the policyholder and files his notice of appearance, he owes to his client, the assured, an undeviating and single allegiance. His fealty embraces the requirement to produce in court all witnesses, fact and expert, who are available and necessary for the proper protection of the rights of his client . . . . “. . . The Canons of Professional Ethics make it pellucid that there are not two standards, one applying to counsel privately retained by a client, and the other to counsel paid by an insurance carrier.” American Employers Ins. Co. v. Goble Aircraft Specialties, 205 Misc. 1066, 1075, 131 N.Y.S.2d 393, 401 (1954), motion to withdraw appeal granted, 1 App. Div. 2d 1008, 154 N.Y.S.2d 835 (1956). “[C]ounsel, selected by State Farm to defend Dorothy Walker’s suit for $50,000 damages, was apprised by Walker that his earlier version of the accident was untrue and that actually the accident occurred because he lost control of his car in passing a Cadillac just ahead. At that point, Walker’s counsel should have refused to participate further in view of the conflict of interest between Walker and State Farm . . . . Instead he participated in the ensuing deposition of the Walkers, even took an ex parte sworn statement from Mr. Walker in order to advise State Farm what action it should take, and later used the statement against Walker in the District Court. This action appears to contravene an Indiana attorney’s duty ‘at every peril to himself, to preserve the secrets of his client’. . . .” State Farm Mut. Auto Ins. Co. v. Walker, 382 F.2d 548, 552 (1967), cert. denied, 389 U.S. 1045, 19 L. Ed. 2d 837, 88 S. Ct. 789 (1968). 24. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908). 25. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1908). “Objection to the intervention of a lay intermediary, who may control litigation or otherwise interfere with the rendering of legal services in a confidential relationship, . . . derives from the element of pecuniary gain. Fearful of dangers thought to arise from that element, the courts of several States have sustained regulations aimed at these activities. We intimate no view one way or the other as to the merits of those decisions with respect to the particular arrangements against which they are directed. It is enough that the superficial resemblance in form between those arrangements and that at bar cannot obscure the vital fact that here the entire arrangement employs constitutionally privileged means of expression to secure constitutionally guaranteed civil rights.” NAACP v. Button, 371 U.S. 415, 441-42, 9 L. Ed. 2d 405, 423-24, 83 S. Ct. 328, 342-43 (1963). 26. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 38 (1908). 27. “Certainly it is true that ‘the professional relationship between an attorney and his client is highly personal, involving an intimate appreciation of each individual client’s particular problem.’ And this Committee does not condone practices which interfere with that relationship. However, the mere fact the lawyer is actually paid by some entity other than the client does not affect that relationship, so long as the lawyer is selected by and is directly responsible to the client. See Informal Opinions 469 and 679. Of course, as the latter decision points out, there must be full disclosure of the arrangement by the attorney to the client . . . .” ABA Opinion 320 (1968). “[A] third party may pay the cost of legal services as long as control remains in the client and the responsibility of the lawyer is solely to the client. Informal Opinions 469 ad [sic] 679. See also Opinion 237.” Id. 28. ABA Opinion 303 (1961) recognized that “[s]tatutory provisions now exist in several states which are designed to make [the practice of law in a form that will be classified as a corporation for federal income tax purpose] legally possible, either as a result of lawyers incorporating or forming associations with various corporate characteristics.” 29. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908) and ABA Opinions 181 (1938), 104 (1934), 103 (1933), 72 (1932), 50 (1931), 49 (1931), and 33 (1931). “New York County [Opinion] 203 . . . . [A lawyer] should not advise a client to employ an investment company in which he is interested, without informing him of this.” DRINKER, LEGAL ETHICS 956 (1953). “In Opinions 72 and 49 this Committee held: The relations of partners in a law firm are such that neither the firm nor any member or associate thereof, may accept any professional employment which any member of the firm cannot properly accept. “In Opinion 16 this Committee held that a member of a law firm could not represent a defendant in a criminal case while was being prosecuted by another member of the firm who was public prosecuting attorney. The Opinion stated that it was clearly unethical for one member of the firm to oppose the interest of the state which another member represented those interests . . . . Since the prosecutor himself could not represent both the public and the defendant, no member of his law firm could either.” ABA Opinion 296 (1959). 30. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 19 (1908) and ABA Opinions 220 (1941), 185 (1938), 50 (1931), and 33 (1931); but cf. Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 498-99, 141 A. 866, 868 (1928). 31. This Canon [19] of Ethics needs no elaboration to be applied to the facts here. Apparently, the object of this precept is to avoid putting a lawyer in the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony. It was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.” Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d 576, 580 (1951). 32. ABA CANONS OF PROFESSIONAL ETHICS, CANON 10 (1908) and ABA Opinions 279 (1949), 246 (1942), and 176 (1938). 33. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY, DR 2-106(C). 34. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 42 (1908); cf. ABA Opinion 288 (1954). 35. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 6 (1908); cf. ABA Opinions 167 (1937), 60 (1931), and 40 (1931). 36. Amended, March 1974, House Informational Report No. 127. 37. ABA Opinion 247 (1942) held that an attorney could not investigate a night club shooting on behalf of one of the owner’s liability insurers, obtaining the cooperation of the owner, and later represent the injured patron in an action against the owner and a different insurance company unless the attorney obtain the “express consent of all concerned given after a full

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disclosure of the facts,” since to do so would be to represent conflicting interests. See ABA Opinions 247 (1942), 224 (1941), 222 (1941), 218 (1941), 112 (1934), 86 (1932), and 83 (1932). 38. Amended, March 1974, House Information Report No. 127. 39. Cf. ABA Opinions 231 (1941) and 160 (1936). 40. Amended, March 1974, House Informational Report No. 127. 41. Cf. ABA Opinion 235 (1941). 42. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 38 (1908). “A lawyer who receives a commission (whether delayed or not) from a title insurance company or guaranty fund for recommending or selling the insurance to his client, or for work done for the client or the company, without either fully disclosing to the client his financial interest in the transaction, or crediting the client’s bill with the amount thus received, is guilty of unethical conduct.” ABA Opinion 304 (1962). 43. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1908); cf. ABA Opinion 237 (1941). “When the lay forwarder, as agent for the creditor, forwards a claim to an attorney, the direct relationship of attorney and client shall then exist between the attorney and the creditor, and the forwarder shall not interpose itself as an intermediary to control the activities of the attorney.” ABA Opinion 294 (1958). 44. “Permanent beneficial and voting rights in the organization set up to practice law, whatever its form, must be restricted to lawyers while the organization is engaged in the practice of law.” ABA Opinion 303 (1961). 45. “Canon 33 . . . promulgates underlying principles that must be observed no matter in what form of organization lawyers practice law. Its requirement that no person shall be admitted or held out as a practitioner or member who is not a member of the legal profession duly authorized to practice, and amenable to professional discipline, makes it clear that any centralized management must be in lawyers to avoid a violation of this Canon.” ABA Opinion 303 (1961). 46. “There is no intervention of any lay agency between lawyer and client when centralized management provided only by lawyers may give guidance or direction to the services being rendered by a lawyer-member of the organization to a client. The language in Canon 35 that a lawyer should avoid all relations which direct the performance of his duties by or in the interest of an intermediary refers to lay intermediaries and not lawyer intermediaries with whom he is associated in the practice of law.” ABA Opinion 303 (1961).

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CANON 6 A Lawyer Should Represent a Client Competently ETHICAL CONSIDERATIONS EC 6-1 Because of his vital role in the legal process, a lawyer should act with competence and proper care in representing clients. He should strive to become and remain proficient in his practice1 and should accept employment only in matters which he is or intends to become competent to handle. EC 6-2 A lawyer is aided in attaining and maintaining his competence by keeping abreast of current legal literature and developments, participating in continuing legal education programs,2 concentrating in particular areas of the law, and by utilizing other available means. He has the additional ethical obligation to assist in improving the legal profession, and he may do so by participating in bar activities intended to advance the quality and standards of members of the profession. Of particular importance is the careful training of his younger associates and the giving of sound guidance to all lawyers who consult him. In short, a lawyer should strive at all levels to aid the legal profession in advancing the highest possible standards of integrity and competence and to meet those standards himself. EC 6-3 While the licensing of a lawyer is evidence that he has met the standards then prevailing for admission to the bar, a lawyer generally should not accept employment in any area of the law in which he is not qualified.3 However, he may accept such employment if in good faith he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client. Proper preparation and representation may require the association by the lawyer of professionals in other disciplines. A lawyer offered employment in a matter in which he is not and does not expect to become so qualified should either decline the employment or, with the consent of his client, accept the employment and associate a lawyer who is competent in the matter. EC 6-4 Having undertaken representation, a lawyer should use proper care to safeguard the interests of his client. If a lawyer has accepted employment in a matter beyond his competence but in which he expected to become competent, he should diligently undertake the work and study necessary to qualify himself. In addition to being qualified to handle a particular matter, his obligation to his client requires him to prepare adequately for and give appropriate attention to his legal work. EC 6-5 A lawyer should have pride in his professional endeavors. His obligation to act competently calls for higher motivation than that arising from fear of civil liability or disciplinary penalty. EC 6-6 A lawyer should not seek, by contract or other means, to limit his individual liability to his client for his malpractice. A lawyer who handles the affairs of his client properly has no need to attempt to limit his liability for his professional activities and one who does not handle the affairs of his client properly should not be permitted to do so. A lawyer who is a stockholder in or is associated with a professional legal corporation may, however, limit his liability for malpractice of his associates in the corporation, but only to the extent permitted by law.4

DISCIPLINARY RULES DR 6-101

-Failing to Act Competently.

(A) -A lawyer shall not: (1) -Handle a legal matter which he knows or should know that he is not competent to

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handle, without associating with him a lawyer who is competent to handle it. (2) -Handle a legal matter without preparation adequate in the circumstances. (3) -Neglect a legal matter entrusted to him.5 DR 6-102

-Limiting Liability to Client.

(A) -A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.

NOTES 1. “[W]hen a citizen is faced with the need for a lawyer, he wants, and is entitled to, the best informed counsel he can obtain. Changing times produce changes in our laws and legal procedures. The natural complexities of law require continuing intensive study by a lawyer if he is to render his clients a maximum of efficient service. And, in so doing, he maintains the high standards of the legal profession; and he also increases respect and confidence by the general public.” Rochelle & Payne, The Struggle of Public Understanding, 25 TEXAS B.J. 109, 160 (1962). “We have undergone enormous changes in the last fifty years within the lives of most of the adults living today who may be seeking advice. Most of these changes have been accompanied by changes and developments in the law . . . . Every practicing lawyer encounters these problems and is often perplexed with his own inability to keep up, not only with changes in the law, but also with changes in the lives of his clients and their legal problems. “To be sure, no client has a right to expect that his lawyer will have all of the answers at the end of his tongue or even in the back of his head at all times. But the client does have the right to expect that the lawyer will have devoted his time and energies to maintaining and improving his competence to know where to look for the answers to know how to deal with the problems, and to know how to advise to the best of his legal talents and abilities.” Levy & Sprague, Accounting and Law: Is Dual Practice in the Public Interest?, 52 A.B.A.J. 1110, 1112 (1966). 2. “The whole purpose of continuing legal education, so enthusiastically supported by the ABA, is to make it possible for lawyers to make themselves better lawyers. But there are no nostrums for proficiency in the law; it must come through the hard work of the lawyer himself. To the extent that work, whether it be in attending institutes or lecture courses, in studying after hours or in the actual day in and day out practice of his profession, can be concentrated within a limited field, the greater the proficiency and expertness that can developed.” Report of the Special Committee on Specialization and Specialized Legal Education, 79 A.B.A. REP. 582, 588 (1954). 3. “If the attorney is not competent to skillfully and properly perform the work, he should not undertake the service.” Design v. Steinbrink, 202 App. Div. 477, 481, 195 N.Y.S. 810, 814 (1922), aff’d mem., 236 N.Y. 669, 142 N.E. 328 (1923). 4. See ABA Opinion 303 (1961); cf. CODE OF PROFESSIONAL RESPONSIBILITY, EC 2-11. 5. The annual report for 1967-1968 of the Committee on Grievances of the Association of the Bar of the City of New York showed a receipt of 2,232 complaints; of the 828 offenses against clients, 76 involved conversion, 49 involved “overreaching,” and 452, or more than half of all such offenses, involved neglect. Annual Report of the Committee on Grievances of the Association of the Bar of the City of New York, N.Y.L.J., Sept. 12, 1968, at 4, col. 5.

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CANON 7 A Lawyer Should Represent a Client Zealously Within the Bounds of the Law ETHICAL CONSIDERATIONS EC 7-1 The duty of a lawyer, both to his client1 and to the legal system, is to represent his client 2 zealously within the bounds of the law,3 which includes Disciplinary Rules and enforceable professional regulations.4 The professional responsibility of a lawyer derives from his membership in a profession which has the duty of assisting members of the public to secure and protect available legal rights and benefits. In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law;5 to seek any lawful objective6 through legally permissible means;7 and to present for adjudication any lawful claim, issue, or defense. EC 7-2 The bounds of the law in a given case are often difficult to ascertain. 8 The language of legislative enactments and judicial opinions may be uncertain as applied to varying factual situations. The limits and specific meaning of apparently relevant law may be made doubtful by changing or developing constitutional interpretations, inadequately expressed statutes or judicial opinions, and changing public and judicial attitudes. Certainty of law ranges from well-settled rules through areas of conflicting authority to areas without precedent. EC 7-3 Where the bounds of law are uncertain, the action of a lawyer may depend on whether he is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different.9 In asserting a position on behalf of his client, an advocate for the most part deals with past conduct and must take the facts as he finds them. By contrast, a lawyer serving as adviser primarily assists his client in determining the course of future conduct and relationships. While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law.10 In serving a client as adviser, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law. Duty of the Lawyer to a Client EC 7-4 The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail.11 His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.12 EC 7-5 A lawyer as adviser furthers the interest of his client by giving his professional opinion as to what he believes would likely be the ultimate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision.13 He may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.14 EC 7-6 Whether the proposed action of a lawyer is within the bounds of the law may be a perplexing question when his client is contemplating a course of conduct having legal consequences that vary according to the client’s intent, motive, or desires at the time of the action. Often a lawyer is asked to assist his client in developing evidence relevant to the state of mind of the client at a particular time. He may properly assist his client in the development and preservation of evidence of

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existing motive, intent, or desire; obviously, he may not do anything furthering the creation or preservation of false evidence. In many cases a lawyer may not be certain as to the state of mind of his client, and in those situations he should resolve reasonable doubts in favor of his client. EC 7-7 In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. As typical examples in civil cases, it is for the client to decide whether he will accept a settlement offer or whether he will waive his right to plead an affirmative defense. A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.15 EC 7-8 A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decisionmaking process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations.16 A lawyer should advise his client of the possible effect of each legal alternative.17 A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint.18 In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible.19 He may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for himself. In the event that the client in a non-adjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment.20 EC 7-9 In the exercise of his professional judgment on those decisions which are for his determination in the handling of a legal matter,21 a lawyer should always act in a manner consistent with the best interests of his client.22 However, when an action in the best interest of his client seems to him to be unjust, he may ask his client for permission to forego such action. EC 7-10 The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm. EC 7-11 The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of a particular proceeding. Examples include the representation of an illiterate or an incompetent, service as a public prosecutor or other government lawyer, and appearances before administrative and legislative bodies. EC 7-12 Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent. EC 7-13

The responsibility of a public prosecutor differs from that of the usual advocate; his duty

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is to seek justice, not merely to convict. 23 This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor’s case or aid the accused. EC 7-14 A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise his superiors and recommend the avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results. EC 7-15 The nature and purpose of proceedings before administrative agencies vary widely. The proceedings may be legislative or quasi-judicial, or a combination of both. They may be ex parte in character, in which event they may originate either at the instance of the agency or upon motion of an interested party. The scope of an inquiry may be purely investigative or it may be truly adversary looking toward the adjudication of specific rights of a party or of classes of parties. The foregoing are but examples of some of the types of proceedings conducted by administrative agencies. A lawyer appearing before an administrative agency,24 regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law.25 Where the applicable rules of the agency impose specific obligations upon a lawyer, it is his duty to comply therewith, unless the lawyer has a legitimate basis for challenging the validity thereof. In all appearances before administrative agencies, a lawyer should identify himself, his client if identity of his client is not privileged26 and the representative nature of his appearance. It is not improper, however, for a lawyer to seek from an agency information available to the public without identifying his client. EC 7-16 The primary business of a legislative body is to enact laws rather than to adjudicate controversies, although on occasion the activities of a legislative body may take on the characteristics of an adversary proceeding, particularly in investigative and impeachment matters. The role of a lawyer supporting or opposing proposed legislation normally is quite different from his role in representing a person under investigation or on trial by a legislative body. When a lawyer appears in connection with proposed legislation, he seeks to affect the lawmaking process, but when he appears on behalf of a client in investigatory or impeachment proceedings, he is concerned with the protection of the rights of his client. In either event, he should identify himself and his client, if identity of his client is not privileged, and should comply with applicable laws and legislative rules.27 EC 7-17 The obligation of loyalty to his client applies only to a lawyer in the discharge of his professional duties and implies no obligation to adopt a personal viewpoint favorable to the interests or desires of his client.28 While a lawyer must act always with circumspection in order that his conduct will not adversely affect the rights of a client in a matter he is then handling, he may take positions on public issues and espouse legal reforms he favors without regard to the individual views of any client. EC 7-18 The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.29 If one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person; in such an instance, a lawyer should not undertake to

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give advice to the person who is attempting to represent himself,30 except that he may advise him to obtain a lawyer. Duty of the Lawyer to the Adversary System of Justice EC 7-19 Our legal system provides for the adjudication of disputes governed by the rules of substantive, evidentiary, and procedural law. An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; 31 the advocate, by his zealous preparation and presentation of fact and law, enables the tribunal to come to the hearing with an open and neutral mind and to render impartial judgments.32 The duty of a lawyer to his client and his duty to the legal system are the same; to represent his client zealously within the bounds of the law.33 EC 7-20 In order to function properly, our adjudicative process requires an informed, impartial tribunal capable of administering justice promptly and efficiently34 according to procedures that command public confidence and respect.35 Not only must there be competent, adverse presentation of evidence and issues, but a tribunal must be aided by rules appropriate to an effective and dignified process. The procedures under which tribunals operate in our adversary system have been prescribed largely by legislative enactments, court rules and decisions, and administrative rules. Through the years certain concepts of proper professional conduct have become rules of law applicable to the adversary adjudicative process. Many of these concepts are the bases for standards of professional conduct set forth in the Disciplinary Rules. EC 7-21 The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process;36 further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system. EC 7-22 Respect for judicial rulings is essential to the proper administration of justice; however, a litigant or his lawyer may, in good faith and within the framework of the law, take steps to test the correctness of a ruling of a tribunal.37 EC 7-23 The complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The adversary system contemplates that each lawyer will present and argue the existing law in the light most favorable to his client.38 Where a lawyer knows of legal authority in the controlling jurisdiction directly adverse to the position of his client, he should inform the tribunal of its existence unless his adversary has done so; but, having made such disclosure, he may challenge its soundness in whole or in part.39 EC 7-24 In order to bring about just and informed decisions, evidentiary and procedural rules have been established by tribunals to permit the inclusion of relevant evidence and argument and the exclusion of all other considerations. The expression by a lawyer of his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused is not a proper subject for argument to the trier of fact. 40 It is improper as to factual matters because admissible evidence possessed by a lawyer should be presented only as sworn testimony. It is improper as to all other matters because, were the rule otherwise, the silence of a lawyer on a given occasion could be construed unfavorably to his client. However, a lawyer may argue, on his analysis of the evidence, for any position or conclusion with respect to any of the foregoing matters. EC 7-25 Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Thus while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, he is not justified in consciously violating such rules and he

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should be diligent in his efforts to guard against his unintentional violation of them. 41 As examples, a lawyer should subscribe to or verify only those pleadings that he believes are in compliance with applicable law and rules; a lawyer should not make any prefatory statement before a tribunal in regard to the purported facts of the case on trial unless he believes that his statement will be supported by admissible evidence; a lawyer should not ask a witness a question solely for the purpose of harassing or embarrassing him; and a lawyer should not by subterfuge put before a jury matters which it cannot properly consider. EC 7-26 The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence.42 A lawyer who knowingly43 participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.46 EC 7-27 Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce. In like manner, a lawyer should not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.47 EC 7-28 Witnesses should always testify truthfully46 and should be free from any financial inducements that might tempt them to do otherwise.47 A lawyer should not pay or agree to pay a nonexpert witness an amount in excess of reimbursement for expenses and financial loss incident to his being a witness; however, a lawyer may pay or agree to pay an expert witness a reasonable fee for his services as an expert. But in no event should a lawyer pay or agree to pay a contingent fee to any witness. A lawyer should exercise reasonable diligence to see that his client and lay associates conform to these standards.48 EC 7-29 To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences.49 When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or a juror about the case. After the trial, communication by a lawyer with jurors is permitted so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror50 or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected.51 When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror. EC 7-30 Vexatious or harassing investigations of veniremen or jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on his behalf who conducts an investigation of veniremen or jurors should act with circumspection and restraint. EC 7-31 Communications with or investigations of members of families of veniremen or jurors by a lawyer or by anyone on his behalf are subject to the restrictions imposed upon the lawyer with respect to his communications with or investigations of veniremen and jurors. EC 7-32 Because of his duty to aid in preserving the integrity of the jury system, a lawyer who learns of improper conduct by or towards a venireman, a juror, or a member of the family of either should make a prompt report to the court regarding such conduct. EC 7-33 A goal of our legal system is that each party shall have his case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury.52 Such news or comments may prevent prospective jurors from being impartial at the outset of the trial53 and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial. 54 The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal.55 For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.

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EC 7-34 The impartiality of a public servant in our legal system may be impaired by the receipt of gifts or loans. A lawyer,56 therefore, is never justified in making a gift or a loan to a judge, a hearing officer, or an official or employee of a tribunal except as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with Section B(2) under Canon 7 of the Code of Judicial Conduct.57, 58 EC 7-35 All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which he presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party.59 For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or, if there is none, to the opposing party. A lawyer should not condone or lend himself to private importunities by another with a judge or hearing officer on behalf of himself or his client. EC 7-36 Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings.60 While maintaining his independence, a lawyer should be respectful, courteous, and above-board in his relations with a judge or hearing officer before whom he appears.61 He should avoid undue solicitude for the comfort or convenience of judge or jury and should avoid any other conduct calculated to gain special consideration. EC 7-37 In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor towards opposing lawyers.62 A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system. EC 7-38 A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client.63 He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so. 64 A lawyer should be punctual in fulfilling all professional commitments.65 EC 7-39 In the final analysis, proper functioning of the adversary system depends upon cooperation between lawyers and tribunals in utilizing procedures which will preserve the impartiality of tribunals and make their decisional processes prompt and just, without impinging upon the obligation of lawyers to represent their clients zealously within the framework of the law.

DISCIPLINARY RULES DR 7-101

Representing a Client Zealously.

(A) -A lawyer shall not intentionally:66 (1) -Fail to seek the lawful objectives of his client through reasonably available means67 permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (2) -Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105. (3) -Prejudice or damage his client during the course of the professional relationship, 68 except as required under DR 7-102(B).

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(B) -In his representation of a client, a lawyer may: (1) -Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client. (2) -Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal. DR 7-102

Representing a Client Within the Bounds of the Law.

(A) -In his representation of a client, a lawyer shall not: (1) -File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.69 (2) -Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law. (3) -Conceal or knowingly fail to disclose that which he is required by law to reveal. (4) -Knowingly use perjured testimony or false evidence.70 (5) -Knowingly make a false statement of law or fact. (6) -Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false. (7) -Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. (8) -Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule. (B) -A lawyer who receives information clearly establishing that: (1) -His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.71, 72 (2) -A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.73 DR 7-103

-Performing the Duty of Public Prosecutor or Other Government Lawyer.74

(A) -A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause. (B) -A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. DR 7-104

-Communicating With One of Adverse Interest.75

(A) -During the course of his representation of a client a lawyer shall not: (1) -Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party76 or is authorized by law to do so. (2) -Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel,77 if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.78 DR 7-105

Threatening Criminal Prosecution.

(A) -A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. DR 7-106

Trial Conduct.

(A) -A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.

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(B) -In presenting a matter to a tribunal, a lawyer shall disclose:79 (1) -Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.80 (2) -Unless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him.81 (C) -In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) -State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.82 (2) -Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.83 (3) -Assert his personal knowledge of the facts in issue, except when testifying as a witness. (4) -Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; 84 but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein. (5) -Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.85 (6) -Engage in undignified or discourteous conduct which is degrading to a tribunal. (7) -Intentionally or habitually violate any established rule of procedure or of evidence. DR 7-107

-Trial Publicity.86

(A) -A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that does more than state without elaboration: (1) -Information contained in a public record. (2) -That the investigation is in progress. (3) -The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim. (4) -A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto. (5) -A warning to the public of any dangers. (B) -A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to: (1) -The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. (2) -The possibility of a plea of guilty to the offense charged or to a lesser offense. (3) -The existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement. (4) -The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests. (5) -The identity, testimony, or credibility of a prospective witness. (6) -Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case. (C) -DR 7-107(B) does not preclude a lawyer during such period from announcing: (1) -The name, age, residence, occupation, and family status of the accused. (2) -If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he may present. (3) -A request for assistance in obtaining evidence. (4) -The identity of the victim of the crime. (5) -The fact, time, and place of arrest, resistance, pursuit, and use of weapons. (6) -The identity of investigating and arresting officers or agencies and the length of the investigation.

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(7) -At the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement. (8) -The nature, substance, or text of the charge. (9) -Quotations from or references to public records of the court in the case. (10) -The scheduling or result of any step in the judicial proceedings. (11) -That the accused denies the charges made against him. (D) -During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records of the court in the case. (E) -After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence. (F) -The foregoing provisions of DR 7-107 also apply to professional disciplinary proceedings and juvenile disciplinary proceedings when pertinent and consistent with other law applicable to such proceedings. (G) -A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication and that relates to: (1) -Evidence regarding the occurrence or transaction involved. (2) -The character, credibility, or criminal record of a party, witness, or prospective witness. (3) -The performance or results of any examinations or tests or the refusal or failure of a party to submit to such. (4) -His opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule. (5) -Any other matter reasonably likely to interfere with a fair trial of the action. (H) -During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of the proceeding and relates to: (1) -Evidence regarding the occurrence or transaction involved. (2) -The character, credibility, or criminal record of a party, witness, or prospective witness. (3) -Physical evidence or the performance or results of any examinations or tests or the refusal or failure of a party to submit to such. (4) -His opinion as to the merits of the claims, defenses, or positions of an interested person. (5) -Any other matter reasonably likely to interfere with a fair hearing. (I) -The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him or from participating in the proceedings of legislative, administrative, or other investigative bodies. (J) -A lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107. DR 7-108

Communication with or Investigation of Jurors.

(A) -Before the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected for the trial of the case. (B) -During the trial of a case: (1) -A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.87

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(2) -A lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case. (C) -DR 7-108(A) and (B) do not prohibit a lawyer from communicating with veniremen or jurors in the course of official proceedings. (D) -After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.88 (E) -A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a venireman or a juror. (F) -All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror. (G) -A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge. DR 7-109

Contact with Witnesses.

(A) -A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce.89 (B) -A lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.90 (C) -A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.91 But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) -Expenses reasonably incurred by a witness in attending or testifying. (2) -Reasonable compensation to a witness for his loss of time in attending or testifying. (3) -A reasonable fee for the professional services of an expert witness. DR 7-110

Contact with Officials.92

(A) -A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal except as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with Section B(2) under Canon 7 of the Code of Judicial Conduct.93 (B) -In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except: (1) -In the course of official proceedings in the cause. (2) -In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer. (3) -Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. (4) -As otherwise authorized by law, or by Section A(4) under Canon 3 of the Code of Judicial Conduct.94, 95

NOTES 1. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Powell v. Alabama, 287 U.S. 45, 68-69, 77 L. Ed. 158, 170, 53 S. Ct. 55, 64 (1932). 2. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 4 (1908). “At times . . . . [the tax lawyer] will be wise to discard some argument and he should exercise discretion to emphasize the arguments which in his judgment are most likely to be persuasive. But this process involves legal judgment rather than moral attitudes. The tax lawyer should put aside private disagreements with Congressional and Treasury policies. His own notions of policy, and his personal view of what the law should be, are irrelevant. The job entrusted to him by his client is to use all his learning and ability to protect his client’s rights, not to help in the process of promoting a better tax system. The tax lawyer need not accept his client’s economic and social opinions, but the client is paying for the technical attention and undivided concentration upon his affairs. He is equally entitled to performance unfettered by his attorney’s economic and social predilections.” Paul, The Lawyer as a Tax Adviser, 25 ROCKY MT. L. REV. 412, 418 (1953).

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3. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 15 and 32 (1908). ABA Canon 5, although only speaking of one accused of crime, imposes a similar obligation on the lawyer: “[T]he lawyer is bound, by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law. “Any persuasion of pressure on the advocate which deters him from planning and carrying out the litigation on the basis of ‘what, within the framework of the law, is best for my client’s interest?’ interferes with the obligation to represent the client fully within the law. “This obligation, in its fullest sense, is the heart of the adversary process. Each attorney, as an advocate, acts for and seeks that which in his judgment is best for his client, within the bounds authoritatively established. The advocate does not decide what is in this case—he would be usurping the function of the judge and jury—he acts for and seeks for his client that which he is entitled to under the law. He can do no less and properly represent the client.” Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 584 (1961). “The [Texas public opinion] survey indicates that distrust of the lawyer can be traced directly to certain factors. Foremost of these is a basic misunderstanding of the function of the lawyer as an advocate in an adversary system. “Lawyers are accused of taking advantage of ‘loopholes’ and ‘technicalities’ to win. Persons who make this charge are unaware, or do not understand, that the lawyer is hired to win, and if he does not exercise every legitimate effort in his client’s behalf, then he is betraying a sacred trust.” Rochelle & Payne, The Struggle of Public Understanding, 25 TEXAS B.J. 109, 159 (1962). “The importance of the attorney’s undivided allegiance and faithful service to one accused of crime, irrespective of the attorney’s personal opinion as to the guilt of his client, lies in Canon 5 of the American Bar Association Canon of Ethics. “The difficulty lies, of course, in ascertaining whether the attorney has been guilty of an error of judgment, such as an election with respect to trial tactics, or has otherwise been actuated by his conscience or belief that his client should be convicted in any event. All too frequently courts are called upon to review actions of defense counsel which are, at the most, errors of judgment, not properly reviewable on habeas corpus unless the trial is a farce and a mockery of justice which requires the court to intervene . . . . But when defense counsel, in a truly adverse proceeding, admits that his conscience would not permit him to adopt certain customary trial procedures, this extends beyond the realm of judgment and strongly suggests an invasion of constitutional rights.” Johns v. Smyth, 176 F. Supp. 949, 952 (E.D. Va. 1959), modified, United States ex rel. Wilkins v. Banmiller, 205 F. Supp. 123, 128, n. 5 (E.D. Pa. 1962), aff’d, 325 F.2d 514 (3d Cir. 1963), cert. denied, 279 U.S. 847, 13 L. Ed. 2d 51, 85 S. Ct. 87 (1964). “The adversary system in law administration bears a striking resemblance to the competitive economic system. In each we assume that the individual through partisanship or through self-interest will strive mightily for his side, and that kind of striving we must have. But neither system would be tolerable without restraints and modifications, and at times without outright departures from the system itself. Since the legal profession is entrusted with the system of law administration, a part of its task is to develop in its members appropriate restraints without impairing the values of partisan striving. An accompanying task is to aid in the modification of the adversary system or departure from it in areas to which the system is unsuited.” Cheatham, The Lawyer’s Role and Surroundings, 25 ROCKY MT. L. REV. 405, 410 (1953). 4. “Rule 4.15 prohibits, in the pursuit of a client’s cause, ‘any manner of fraud or chicane’; Rule 4.22 requires ‘candor and fairness’ in the conduct of the lawyer, and forbids the making of knowing misquotations; Rule 4.47 provides that a lawyer ‘should always maintain his integrity,’ and generally forbids all misconduct injurious to the interests of the public, the courts, or his clients, and acts contrary to ‘justice, honesty, modesty or good morals.’ Our Commissioner has accurately paraphrased these rules as follows: ‘An attorney does not have the duty to do all and whatever he can that may enable him to win his client’s cause or to further his client’s interest. His duty and efforts in these respects, although they should be prompted by his “entire devotion” to the interest of his client, must be within and not without the bounds of the law.’ ” In re Wines, 370 S.W.2d 328, 333 (Mo. 1963). See Note, 38 TEXAS L. REV. 107,110 (1959). 5. “Under our system of government the process of adjudication is surrounded by safeguards evolved from centuries of experience. These safeguards are not designed merely to lend formality and decorum to the trial of causes. They are predicated on the assumption that to secure for any controversy a truly informed and dispassionate decision is a difficult thing, requiring for its achievement a special summoning and organization of human effort and the adoption of measures to exclude the biases and prejudgments that have free play outside the courtroom. All of this goes for naught if the man with an unpopular cause is unable to find a competent lawyer courageous enough to represent him. His chance to have his day in court loses much of its meaning if his case is handicapped from the outset by the very kind of prejudgment our rules of evidence and procedure are intended to prevent.” Professional Responsibility: Report of the Joint Conference. 44 A.B.A.J. 1159, 1216 (1958). 6. “[I]t is . . . [the tax lawyer’s] positive duty to show the client how to avail himself to the full of what the law permits. He is not the keeper of the Congressional conscience.” Paul, The Lawyer as a Tax Adviser, 25 ROCKY MT. L. REV. 412, 418 (1953). 7. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 15 and 30 (1908). 8. “The fact that it desired to evade the law, as it is called, is immaterial, because the very meaning of a line in the law is that you intentionally may go as close to it as you can if you do not pass it . . . . It is a matter of proximity and degree as to which minds will differ . . . .” Justice Holmes, in Superior Oil Co. v. Mississippi, 280 U.S. 390, 395-96, 74 L. Ed. 504, 508, 50 S. Ct. 169, 170 (1930). 9. “Today’s lawyers perform two distinct types of functions, and our ethical standards should, but in the main do not, recognize these two functions. Judge Philbrick McCoy recently reported to the American Bar Association the need for a reappraisal of the Canons in light of the new and distinct function of counselor, as distinguished from advocate, which today predominates in the legal profession . . . . “. . . In the first place, any revision of the canons must take into account and speak to this new and now predominant function of the lawyer . . . . It is beyond the scope of this paper to discuss the ethical standards to be applied to the counselor except to state that in my opinion such standards should require a greater recognition and protection for the interest of the public generally than is presently expressed in the canons. Also, the counselor’s obligation should extend to requiring him to inform and to impress upon the client a just solution of the problem, considering all interests involved.” Thode, The Ethical

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Standard for the Advocate, 39 TEXAS L. REV. 575, 578-79 (1961). “The man who has been called into court to answer for his own actions is entitled to fair hearing. Partisan advocacy plays its essential part in such a hearing, and the lawyer pleading his client’s case may properly present it in the most favorable light. A similar resolution of doubts in one direction becomes inappropriate when the lawyer acts as counselor. The reasons that justify and even require partisan advocacy in the trial of a cause do not grant any license to the lawyer to participate as legal advisor in a line of conduct that is immoral, unfair, or of doubtful legality. In saving himself from this unworthy involvement, the lawyer cannot be guided solely by an unreflective inner sense of good faith; he must be at pains to preserve a sufficient detachment from his client’s interests so that he remains capable of a sound and objective appraisal of the propriety of what his client proposes to do.” Professional Responsibility: Report of the Joint Conference, 4 A.B.A.J. 1159, 1161 (1958). 10. “[A] lawyer who is asked to advise his client . . . may freely urge the statement of positions most favorable to the client just as long as there is reasonable basis for those positions.” ABA Opinion 314 (1965). 11. “The lawyer . . . is not an umpire, but an advocate. He is under no duty to refrain from making every proper argument in support of any legal point because he is not convinced of its inherent soundness . . . . His personal belief in the soundness of his cause or of the authorities supporting it, is irrelevant.” ABA Opinion 280 (1949). “Counsel apparently misconceived his role. lt was his duty to honorably present his client’s contentions in the light most favorable to his client. Instead he presumed to advise the court as to the validity and sufficiency of prisoner’s motion, by letter. We therefore conclude that prisoner had no effective assistance of counsel and remand this case to the District Court with instructions to set aside the Judgment, appoint new counsel to represent the prisoner if he makes no objection thereto, and proceed anew.” McCartney v. United States, 343 F. 2d 471, 472 (9th Cir. 1965). 12. “Here the court-appointed counsel had the transcript but refused to proceed with the appeal because he found no merit in it . . . . We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis, supra. Hence California’s procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in the capacity . . . . “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the rule of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision of the merits, if state law so requires. On the other hand, if it finds any of the legal points arguble on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1399-1400 (1967), rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967). See Paul, The Lawyer As a Tax Adviser, 25 ROCKY MT. L. REV. 412, 432 (1953). 13. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 32 (1908). 14. “For a lawyer to represent a syndicate notroriously engaged in the violation of the law for the purpose of advising the members how to break the law and at the same time escape it, is manifestly improper. While a lawyer may see to it that anyone accused of crime, no matter how serious and flagrant, has a fair trial, and present all available defenses, he may not co-operate in planning violations of the law. There is a sharp distinction, of course, between advising what can lawfully be done and advising how unlawful acts can be done in a way to avoid conviction. Where a lawyer accepts a retainer from an organization, known to be unlawful, and agrees in advance to defend its members when from time to time they are accused of crime arising out of its unlawful activities, this is equally improper.” “See also Opinion 155.” ABA Opinion 281 (1952). 15. See ABA Special Committee on Minimum Standards for the Administration of Criminal Justice, Standards Relating to Pleas of Guilty, pp. 69-70 (1968). 16. “First of all, a truly great lawyer is a wise counselor to all manner of men in the varied crises of their lives when they most need disinterested advice. Effective counseling necessarily involves a thoroughgoing knowledge of the principles of the law not merely as they appear in the books but as they actually operate in action.” Vanderbilt, The Five Functions of the Lawyer: Service to Client and the Public, 40 A.B.A.J. 31 (1954). 17. “A lawyer should endeavor to obtain full knowledge of his client’s cause before advising there on . . . .” ABA CANONS OF PROFESSIONAL ETHICS, CANON 8 (1908). 18. “[I]n devising charters of collaborative effort the lawyer often acts where all of the affected parties are present as participants. But the lawyer also performs a similar function in situations where this is not so, as, for example, in planning estates and drafting wills. Here the instrument defining the terms of collaborating may affect persons not present and often not born. Yet here, too, the good lawyer does not serve merely as a legal conduit for his client’s desires, but as a wise counselor, experienced in the art of devising arrangements that will put in workable order the entangled affairs and interests of human beings.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958). 19. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 8 (1908). “Vital as is the lawyer’s role in adjudication, it should not be thought that it is only as an advocate pleading in open court that he contributes to the administration of the law. The most effective realization of the law’s aims often takes place in the attorney’s office, where litigation is forestalled by anticipating its outcome, where the lawyer’s quiet counsel takes the place of public force. Contrary to popular belief, the compliance with the law thus brought about is not generally lip-serving and narrow, for by reminding him of its long-run costs the lawyer often deters his client from a course of conduct technically permissible under existing law, though inconsistent with its underlying spirit and purpose.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1161 (1958). 20. “My summation of Judge Sharswood’s view of the advocate’s duty to the client is that he owes to the client the duty to

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use all legal means in support of the client’s case. However, at the same time Judge Sharswood recognized that many advocates would find this obligation unbearable if applicable without exception. Therefore, the individual lawyer is given the choice of representing his client fully within the bounds set by the law or of telling his client that he cannot do so, so that the client may obtain another attorney if he wishes.” Thode, The Ethical Standard of the Advocate, 39 TEXAS L. REV. 575, 582 (1961). Cf. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, DR 2-110(C). 21. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 24 (1908). 22. Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575, 592 (1961). 23. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908) and Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). “The public prosecutor cannot take as a guide for the conduct of his office the standards of an attorney appearing on behalf of an individual client. The freedom elsewhere wisely granted to a partisan advocate must be severely curtailed if the prosector’s duties are to be properly discharged. The public prosecutor must recall that he occupies a dual role, being obligated, on the one hand, to furnish that adversary element essential to the informed decision of any controversy, but being possessed, on the other, of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice. Where the prosecutor is recreant to the trust implicit in his office, he undermines confidence, not only in his profession, but in government and the very ideal of justice itself.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159,1218 (1958). “The prosecuting attorney is the attorney of the state, and it is his primary duty not to convict but to see that justice is done.” ABA Opinion 150 (1936). 24. As to appearance before a department of government, ABA CANONS OF PROFESSIONAL ETHICS, CANON 26 (1908) provides: “A lawyer openly . . . may render professional services . . . in advocacy of claims before department of government upon the same principles of ethics which justify his appearance before the Courts . . . .” 25. “But as an advocate before a service which itself represents the adversary point of view, where his client’s case is fairly arguable, a lawyer is under no duty to disclose its weaknesses, any more than he would be to make such a disclosure to a brother lawyer. The limitations within which he must operate are best expressed in Canon 22 . . . .” ABA Opinion 314 (1965). 26. See Baird v. Koerner, 279 F.2d 623 (9th Cir.1960). 27. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 26 (1908). 28. “Law should be so practiced that the lawyer remains free to make up his own mind how he will vote, what causes he will support, what economic and political philosophy he will espouse. It is one of the glories of the profession that it admits of this freedom. Distinguished examples can be cited of lawyers whose views were at variance from those of their clients, lawyers whose skill and wisdom make them valued advisers to those who had little sympathy with their views as citizens.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958). “No doubt some tax lawyers feel constrained to abstain from activities on behalf of a better tax system because they think that their clients may object. Clients have no right to object if the tax adviser handles their affairs competently and faithfully and independently of his private views as to tax policy. They buy his expert services, not his private opinions or his silence on issues that gravely affect the public interest.” Paul, The Lawyer as a Tax Adviser, 25 ROCKY MT. L. REV. 412, 434 (1953). 29. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 9 (1908). 30. Id. 31. See Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160 (1958). 32. “Without the participation of someone who can act responsibly for each of the parties, this essential narrowing of the issues [by exchange of written pleading or stipulation of counsel] becomes impossible. But here again the true significance of partisan advocacy lies deeper, touching once more the integrity of the adjudicative process itself. It is only through the advocate’s participation that the hearing may remain in fact what it purports to be in theory: a public trial of the facts and issues. Each advocate comes to the hearing prepared to present his proofs and arguments, knowing at the same time that his arguments may fail to persuade and that his proof may be rejected as inadequate . . . . The deciding tribunal, on the other hand, comes to the hearing uncommitted. It has not represented to the public that any fact can be proved, that any argument is sound, or that any particular way of stating a litigant’s case is the most effective expression of its merits.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1160-61 (1958). 33. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANONS 15 and 32 (1908). 34. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 21 (1908). 35. See Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1216 (1958). 36. “We are of the opinion that the letter in question was improper, and that in writing and sending it respondent was guilty of unprofessional conduct. This court has heretofore expressed its disapproval of using threats of criminal prosecution as a means of forcing settlement of civil claims . . . . “Respondent has been guilty of a violation of a principle which condemns any confusion of threats of criminal prosecution with the enforcement of the civil claims. For this misconduct he should be severely censured.” Matter of Gelman, 230 App. Div. 524, 527, N.Y.S. 416, 419 (1930). 37. “An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling.” Gallagher v. Municpal Court, 31 Cal. 2d 784, 796, 192 P.2d 905, 913 (1948). “There must be protection, however, in the far more frequent case of the attorney who stands on his rights and combats the order in good faith and without disrespect believing with good cause that it is void, for it is here that the independence of the bar becomes valuable.” Note, 39 COLUM. L. REV. 433, 438 (1939). 38. “Too many do not understand that accomplishment of the layman’s abstract ideas of justice is the function of the judge and jury, and that it is the lawyer’s sworn duty to portray his client’s case in its most favorable light.” Rochelle & Payne, The Struggle for Public Understanding, 25 TEXAS B.J. 109, 159 (1962). 39. “We are of the opinion that this Canon requires the lawyer to disclose such decisions [that are adverse to his client’s contentions] to the court. He may, of course, after doing so, challenge the soundness of the decisions or present reasons which he believes would warrant the court in not following them in the pending case.” ABA Opinion 146 (1935). Cf. ABA Opinion 280 (1949) and Thode, The Ethical Standard for the Advocate, 39 TEXAS L. REV. 575. 585-86 (1961).

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40. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 15 (1908). “The traditional duty of an advocate is that he honorably uphold the contentions of his client. He should not voluntarily undermine them.” Harders v. State of California, 373 F.2d 839, 842 (9th Cir. 1967). 41. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 22 (1908). 42. Id.; cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 41 (1908). 43. See generally ABA Opinion 287 (1953) as to a lawyer’s duty when he unknowingly participates in introducing perjured testimony. 44. “Under any standard of proper ethical conduct an attorney would not sit by silently and permit his client to commit what may have been perjury, and which certainly would mislead the court and opposing party on a matter vital to the issue under consideration . . . . .... “Respondent next urges that it was his duty to observe the utmost good faith toward his client, and therefore he could not divulge any confidential information. This duty to the client of course does not extend to the point of authorizing collaboration with him in the commission of fraud.” In re Carrol, 244 S.W.2d 474,474-75 (Ky. 1951). 45. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908); cf. ABA Opinion 131 (1935). 46. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 39 (1908). 47. “The prevalence of perjury is a serious menace to the administration of justice, to prevent which no means have as yet been satisfactorily devised. But there certainly can be no greater incentive to perjury than to allow a party to make payments to its opponent’s witnesses under any guise or on any excuse, and at least attorneys who are officers of the court to aid it in the administration of justice, must keep themselves clear of any connection which in the slightest degree tends to induce witnesses to testify in favor of their clients.” In re Robinson, 151 App. Div. 589, 600, 136 N.Y.S. 548, 556-57 (1912), aff’d, 209 N.Y. 354, 103 N.E. 160 (1913). 48. “It will not do for an attorney who seeks to justify himself against charges of this kind to show that he has escaped criminal responsibility under the Penal Law, nor can he blindly shut his eyes to a system which tends to suborn witnesses, to produce perjured testimony, and to suppress the truth. He has an active affirmative duty to protect the administration of justice from perjury and fraud, and that duty is not performed by allowing his subordinates and assistants to attempt to subvert justice and procure results for his clients based upon false testimony and perjured witnesses.” Id., 151 App. Div. at 592, 136 N.Y.S. at 551. 49. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 23 (1908). 50. “[I]t is unfair to jurors to permit a disappointed litigant to pick over their private associations in search of something to discredit them and their verdict. And it would be unfair to the public too if jurors should understand that they cannot convict a man of means without risking an inquiry of that kind by paid investigators, with, to boot, the distortions an inquiry of that kind can produce.” State v. LaFera, 42 N.J. 97, 107, 199 A.2d 630, 636 (1964). 51. ABA Opinion 319 (1968) points out that “[m]any courts today, and the trend is in this direction, allow the testimony of jurors as to all irregularities in and out of the courtroom except those irregularities whose existence can be determined only by exploring the consciousness of a single particular juror, New Jersey v. Kociolek, 20 N.J. 92, 118 A.2d 812 (1955). Model Code of Evidence Rule 301. Certainly as to states in which the testimony and affidavits of jurors may be received in support of or against a motion for new trial, a lawyer, in his obligation to protect his client, must have the tools for ascertaining whether or not grounds for a new trial exist and it is not unethical for him to talk to and question jurors.” 52. Generally see ABA ADVISORY COMMITTEE ON FAIR TRIAL AND FREE PRESS, STANDARDS RELATING TO FAIR TRIAL AND FREE PRESS (1966). “[T]he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters . . . . See state v. Van Dwyne. 43 N.J. 369, 389, 204 A.2d 841, 852 (1964), in which the court interpreted Canon 20 of the American Bar Association’s Canons of Professional Ethics to prohibit such statements. Being advised of the great public interest in the case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could also have requested the appropriate city and county officials to promulgate a regulation with respect to dissemination of information about the case by their employees. In addition, reporters who wrote or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material not introduced in the proceedings . . . . In this manner, Sheppard’s right to a trial free from outside interference would have been given added protection without corresponding curtailment of the news media. Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom—not pieced together from extrajudicial statements.” Sheppard v. Maxwell, 384 U.S. 333, 361-62, 16 L. Ed. 2d 600, 619-20, 86 S. Ct. 1507, 1521-22 (1966). “Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function. As a result, at this time those safeguards do not permit the televising and photographing of a criminal trial, save in two States and there only under restrictions. The federal courts prohibit it by specific rule. This is weighty evidence that our concepts of a fair trial do not tolerate such an indulgence. We have always held that the atmosphere essential to the preservation of a fair trial—the most fundamental of all freedoms—must be maintained at all costs.” Estes v. State of Texas, 381 U.S. 532, 540, 14 L. Ed. 2d 543, 549, 85 S. Ct. 1628, 1631-32 (1965), rehearing denied, 382 U.S. 875, 15 L. Ed. 2d 118, 86 S. Ct. 18 (1965). 53. “Pretrial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence . . . . The trial witnesses present at the hearing, as well as the original jury panel, were undoubtedly made aware of the peculiar public importance of the case by the press and television coverage being provided, and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show.” Id., 381 U.S. at 536-37, 14 L. Ed. 2d at 546-47, 85 S. Ct. at 1629-30. 54. “The undeviating rule of this Court was expressed by Mr. Justice Holmes over half a century ago in Patterson v. Colorado, 205 U.S. 454, 462 (1907): -The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”

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Sheppard v. Maxwell, 384 U.S. 333, 351, 16 L. Ed. 2d 600, 614, 86 S. Ct. 1507, 1516 (1966). “The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial . . . . Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is part of the prosecution’s evidence . . . . It may indeed be greater for it is then not tempered by protective procedures.” Marshall v. United States, 360 U.S. 310, 312-13, 3 L. Ed. 2d 1252, 79 S. Ct. 1171, 1173 (1959). “The experienced trial lawyer knows that an adverse public opinion is a tremendous disadvantage to the defense of his client. Although grand jurors conduct their deliberations in secret, they are selected from the body of the public. They are likely to know what the general public knows and to reflect the public attitude. Trials are open to the public, and aroused pubic opinion respecting the merits of a legal controversy creates a court room atmosphere which, without any vocal expression in the presence of the petit jury, makes itself felt and has its effect upon the action of the petit jury. Our fundamental concepts of justice and our American sense of fair play require that the petit jury shall be composed of persons with fair and impartial minds and without preconceived views as to the merits of the controversy, and that it shall determine the issues presented to it solely upon the evidence adduced at the trial and according to the law given in the instructions of the trial judge. “While we may doubt that the effect of public opinion would sway or bias the judgment of the trial judge in an equity proceeding, the defendant should not be called upon to run that risk and the trial court should not have his work made more difficult by any dissemination of statements to the public that would be calculated to create a public demand for a particular judgment in a prospective or pending case.” ABA Opinion 199 (1940). Cf. Estes v. State of Texas, 381 U.S. 532, 544-45, 144 L. Ed. 2d 543, 551, 85 S. Ct. 1628, 1634 (1965), rehearing denied, 381 U.S. 875, 15 L. Ed. 2d 118, 86 S. Ct. 18 (1965). 55. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 20 (1908). 56. Canon 3 observes that a lawyer “deserves rebuke and denunciation for any device or attempt to gain from a Judge special personal consideration or favor.” See ABA CANONS OF PROFESSIONAL ETHICS, CANON 32 (1908). 57. “Judicial Canon 32 provides: “A judge should not accept any present or favors from litigants, or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment. “The language of this Canon is perhaps broad enough to prohibit campaign contributions by lawyers, practicing before the court upon which the candidate hopes to sit. However, we do not think it was intended to prohibit such contributions when the candidate is obligated, by force of circumstances over which he has no control, to conduct a campaign, the expense of which exceeds that which he should reasonably be expected to personally bear!” ABA Opinion 226 (1941). 58. Amended, March 1974, House Informational Report No. 127. 59. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 3 and 32 (1908). 60. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 18 (1908). 61. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 1 and 3 (1908). 62. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 17 (1908). 63. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 24 (1908). 64. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 25 (1908). 65. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 21 (1908). 66. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 15 (1908). 67. See ABA CANONS OF PROFESSIONAL ETHICS, CANONS 5 and 15 (1908); cf. ABA CANONS 4 and 32 (1908). 68. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 24 (1908). 69. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 30 (1908). 70. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANONS 22 and 29 (1908). 71. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 41 (1908); cf. Hinds v. State Bar, 19 Cal.2d 87, 92-93, 119 P.2d 134, 137 (1941); but see ABA Opinion 287 (1953) and TEXAS CANON 38. Also see MODEL CODE OF PROFESSIONAL RESPONSIBILITY, DR 4101(C)(2). 72. Amended, March 1974, House Informational Report No. 127. 73. See Precision Inst. Mfg. Co. v. Automotive M.M. Co., 324 U.S. 806, 89 L. Ed. 1381, 65 S. Ct. 993 (1945). 74. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908). 75. “Rule 12 . . . . A member of the State Bar shall not communicate with a party represented by counsel upon a subject of controversy, in the absence and without the consent of such counsel. This rule shall not apply to communications with a public officer, board committee or body.” CAL. BUSINESS AND PROFESSIONAL CODE §6076 (West 1962). 76. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 9 (1908); cf. ABA Opinions 124 (1934), 108 (1935), 95 (1933), and 75 (1932); also see In re Schwabe, 242 Or. 169, 174-75, 408 P.2d 922, 924 (1965). “It is clear from the earlier opinions of this committee that Canon 9 is to be construed literally and does not allow a communication with an opposing party, without the consent of his counsel, though the purpose merely be to investigate the facts. Opinions 117, 55, 66.” ABA Opinion 187 (1938). 77. Cf. ABA Opinion 102 (1933). 78. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 9 (1908) and ABA Opinion 58 (1931). 79. Cf. Note, 38 TEXAS L. REV. 107, 108-09 (1959). 80. “In the brief summary in the 1947 edition of the Committee’s decisions (p. 17), Opinion 146 was thus summarized: Opinion 146—A lawyer should disclose to the court a decision directly adverse to his client’s case that is unknown to his adversary. .... “We would not confine the Opinion to ‘controlling authorities’ — i.e., those decisive of the pending case—but, in accordance with the tests hereafter suggested, would apply it to a decision directly adverse to any proposition of law on which the lawyer expressly relies, which would reasonably be considered important by the judge sitting on the case.

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.... “. . . The test in every case should be: Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding the case? Would a reasonable judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision, was lacking in candor and fairness to him? Might the judge consider himself misled by an implied representation that the lawyer knew of no adverse authority” ABA Opinion 280 (1949). 81. “The authorities are substantially uniform against any privilege as applied to the fact of retainer or identity of the client. The privilege is limited to confidential communications, and a retainer is not a confidential communication, although it cannot come into existence without some communication between the attorney and the—at that stage prospective—client” United States v. Pape; 144 F.2d 778, 782 (2d Cir. 1944), cert. denied, 323 U.S. 752, 89 L. Ed. 2d 602, 65 S. Ct. 86 (1944). “To be sure, there may be circumstances under which the identification of a client may amount to the prejudicial disclosure of a confidential communication, as where the substance of a disclosure has already been revealed but not its source.” Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962). 82. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 22 (1908); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 17 (1908). “The rule allowing counsel when addressing the jury the widest latitude in discussing the evidence and presenting the client’s theories falls far short of authorizing the statement by counsel of matter not in evidence, or indulging in argument founded on no proof, or demanding verdicts for purposes other than the just settlement of the matters at issue between the litigants, or appealing to prejudice or passion. The rule confining counsel to legitimate argument is not based on etiquette, but on justice. Its violation is not merely an overstepping of the bounds of propriety, but a violation of a party’s rights. The jurors must determine the issues upon the evidence. Counsel’s address should help them do this, not tend to lead them astray.” Cherry Creek Nat’l Bank v. Fidelity & Cas. Co., 207 App. Div. 787, 790-91, 202 N.Y S. 611, 614 (1924). 83. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 18 (1908). “§6068 . . . . It is the duty of an attorney .... “(f) To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he is charged.” CAL. BUSINESS AND PROFESSIONS CODE §6068 (West 1962). 84. “The record in the case at bar was silent concerning the qualities and character of the deceased. It is especially improper, in addressing the jury in a murder case, for the prosecuting attorney to make reference to his knowledge of the good qualities of the deceased where there is no evidence in the record bearing upon his character . . . . A prosecutor should never inject into his argument evidence not introduced at the trial.” People v. Dukes, 12 Ill. 2d 334, 341, 146 N.E.2d 14, 17-18 (1957). 85. “A lawyer should not ignore known customs or practice of the Bar or of a particular Court, even when the law permits, without giving timely notice to the opposing counsel.” ABA CANONS OF PROFESSIONAL ETHICS, CANON 25 (1908). 86. The provisions of Sections (A), (B), (C), and (D) of this Disciplinary Rule incorporate the fair trial-free press standards which apply to lawyers as adopted by the ABA House of Delegates, Feb. 19, 1968, upon the recommendation of the Fair Trial and Free Press Advisory Committee of the ABA Special Committee on Minimum Standards for the Administration of Criminal Justice. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 20 (1908); see generally ABA ADVISORY COMMITTEE ON FAIR TRIAL AND FREE PRESS, STANDARDS RELATING TO FAIR TRIAL AND FREE PRESS (1966). “From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that prescribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity . . . . The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” Sheppard v. Maxwell, 384 U.S. 333, 362-63, 16 L. Ed. 2d 600, 620, 86 S. Ct. 1507, 1522 (1966). 87. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 23 (1908). 88. “[I]t would be unethical for a lawyer to harass, entice, induce or exert influence on a juror to obtain his testimony.” ABA Opinion 319 (1968). 89. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908). 90. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 5 (1908). “Rule 15 . . . . A member of the State Bar shall not advise a person, whose testimony could establish or tend to establish a material fact, to avoid service of process, or secrete himself, or otherwise to make his testimony unavailable.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). 91. See In re O’Keefe, 49 Mont. 369, 142 P. 638 (1914). 92. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 3 (1908). 93. Amended, March 1974, House Informational Report No. 127. 94. “Rule 16 . . . . A member of the State Bar shall not, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer except in open court upon the merits of a contested matter pending before such judge or judicial officer; nor shall he, without furnishing opposing counsel with a copy thereof, address a written communication to a judge or judicial officer concerning the merits of a contested matter pending before such judge or judicial officer. This rule shall not apply to ex parte matters.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). 95. Amended, March 1974, House Informational Report No. 127.

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CANON 8 A Lawyer Should Assist in Improving the Legal System ETHICAL CONSIDERATIONS EC 8-1 Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal system. 1 This system should function in a manner that commands public respect and fosters the use of legal remedies to achieve redress of grievances. By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system,2 without regard to the general interests or desires of clients or former clients.3 EC 8-2 Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the repeal or amendment of laws that are outmoded.4 Likewise, legal procedures should be improved whenever experience indicates a change is needed. EC 8-3 The fair administration of justice requires the availability of competent lawyers. Members of the public should be educated to recognize the existence of legal problems and the resultant need for legal services, and should be provided methods for intelligent selection of counsel. Those persons unable to pay for legal services should be provided needed services. Clients and lawyers should not be penalized by undue geographical restraints upon representation in legal matters, and the bar should address itself to improvements in licensing, reciprocity, and admission procedures consistent with the needs of modern commerce. EC 8-4 Whenever a lawyer seeks legislative or administrative changes, he should identify the capacity in which he appears, whether on behalf of himself, a client, or the public.5 A lawyer may advocate such changes on behalf of a client even though he does not agree with them. But when a lawyer purports to act on behalf of the public, he should espouse only those changes which he conscientiously believes to be in the public interest. EC 8-5 Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers. Unless constrained by his obligation to preserve the confidences and secrets of his client, a lawyer should reveal to appropriate authorities any knowledge he may have of such improper conduct. EC 8-6 Judges and administrative officials having adjudicatory powers ought to be persons of integrity, competence, and suitable temperament. Generally, lawyers are qualified, by personal observation or investigation, to evaluate the qualifications of persons seeking or being considered for such public offices, and for this reason they have a special responsibility to aid in the selection of only those who are qualified.6 It is the duty of lawyers to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges. Lawyers should protest earnestly against the appointment or election of those who are unsuited for the bench and should strive to have elected 7 or appointed thereto only those who are willing to forego pursuits, whether of a business, political, or other nature, that may interfere with the free and fair consideration of questions presented for adjudication. Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism.8 While a lawyer as a citizen has a right to criticize such officials publicly,9 he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen

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public confidence in our legal system.10 Criticisms motivated by reasons other than a desire to improve the legal system are not justified. EC 8-7 Since lawyers are a vital part of the legal system, they should be persons of integrity, of professional skill, and of dedication to the improvement of the system. Thus a lawyer should aid in establishing, as well as enforcing, standards of conduct adequate to protect the public by insuring that those who practice law are qualified to do so. EC 8-8 Lawyers often serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.11 EC 8-9 The advancement of our legal system is of vital importance in maintaining the rule of law and in facilitating orderly changes; therefore, lawyers should encourage, and should aid in making, needed changes and improvements.

DISCIPLINARY RULES DR 8-101

-Action as a Public Official.

(A) -A lawyer who holds public office shall not: (1) -Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest. (2) -Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client. (3) -Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official. DR 8-102

-Statements Concerning Judges and Other Adjudicatory Officers.12

(A) -A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office. (B) -A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer. DR 8-103 Lawyer Candidate for Judicial Office. (A) -A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Canon 7 of the Code of Judicial Conduct.13

NOTES 1. “. . . . [Another] task of the great lawyer is to do his part individually and as a member of the organized bar to improve his profession, the courts, and the law. As President Theodore Roosevelt aptly put it, ‘Every man owes some of his time to the upbuilding of the profession to which he belongs.’ Indeed, this obligation is one of the great things which distinguishes a profession from a business. The soundness and the necessity of President Roosevelt’s admonition insofar as it relates to the legal profession cannot be doubted. The advances in natural science and technology are so startling and the velocity of change in business and in social life is so great that the law along with the other social sciences, and even human life itself, is in grave danger of being extinguished by new gods of its own invention if it does not awake from its lethargy.” Vanderbilt, The Five Functions of the Lawyer: Service to Client and the Public, 40 A.B.A.J. 31, 31-32 2. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 29 (1908); cf. Cheatham, The Lawyer’s Role and Surroundings, 25 ROCKY MT. L. REV. 405, 406-07 (1953). “The lawyer tempted by repose should recall the heavy costs paid by his profession when needed legal reform has to be accomplished though the initiative of public-spirited laymen. Where change must be thrust from without upon an unwilling Bar, the public’s least flattering picture of the lawyer seems confirmed. The lawyer concerned for the standing of his profession will, therefore, interest himself actively in the improvement of the law. In doing so he will not only help to maintain confidence

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in the Bar, but will have the satisfaction of meeting a responsibility inhering in the nature of his calling.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. I 59, 1217 (1958). 3. See Stayton, Cum Honor Officium, 19 TEX B.J. 76S, 766 (1956); Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958); and Paul, The Lawyer as a Tax Adviser, 25 ROCKY MT. L. REV. 412, 433-34 (1953). 4. “There are few great figures in the history of the Bar who have not concerned themselves with the reform and improvement of the law. The special obligation of the profession with respect to legal reform rests on considerations too obvious to require enumeration. Certainly it is the lawyer who has both the best chance to know when the law is working badly and the special competence to put it in order.” Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958). 5. “Rule 14 . . . . A member of the State Bar shall not communicate with, or appear before, a public officer, board, committee or body, in his professional capacity, without first disclosing that he is an attorney representing interests that may be affected by action of such officer, board, committee or body.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). 6. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 2 (1908). “Lawyers are better able than laymen to appraise accurately the qualifications of candidates for judicial office. It is proper that they should make that appraisal known to the voters in a proper and dignified manner. A lawyer may with propriety endorse a candidate for judicial office and seek like endorsement from other lawyers. But the lawyer who endorses a judicial candidate or seeks that endorsement from other lawyers should be actuated by a sincere belief in the superior qualifications of the candidate for judicial service and not by personal or selfish motives; and a lawyer should not use or attempt to use the power or prestige of the judicial office to secure such endorsement. On the other hand, the lawyer whose endorsement is sought, if he believes the candidate lacks the essential qualifications for the office or believes the opposing candidate is better qualified, should have the courage and moral stamina to refuse the request for endorsement.” ABA Opinion 189 (1938). 7. “[W]e are of the opinion that, whenever a candidate for judicial office merits the endorsement and support of lawyers, the lawyers may make financial contributions toward the campaign if its cost, when reasonably conducted, exceeds that which the candidate would be expected to bear personally.” ABA Opinion 226 (1941). 8. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 1 (1908). 9. “Citizens have a right under our constitutional system to criticize governmental officials and agencies. Courts are not, and should not be, immune to such criticism.” Konigsberg v. State Bar of California, 353 U.S. 252, 269 (1957). 10. “[E]very lawyer, worthy of respect, realizes that public confidence in our courts is the cornerstone of our governmental structure, and will refrain from unjustified attack on the character of the judges, while recognizing the duty to denounce and expose a corrupt or dishonest judge.” Kentucky State Bar Ass’n v. Lewis, 282 S.W. 2d 321, 326 (Ky. 1955). “We should be the last to deny that Mr. Meeker has the right to uphold the honor of the profession and to expose without fear or favor corrupt or dishonest conduct in the profession, whether the conduct be that of a judge or not . . . . However, this Canon [29] does not permit one to make charges which are false and untrue and unfounded in fact. When one’s fancy leads him to make false charges, attacking the character and integrity of others, he does so at his peril. He should not do so without adequate proof of his charges and he is certainly not authorized to make careless, untruthful and vile charges against his professional brethren.” In re Meeker, 76 N.M. 354, 364-65, 414 P.2d 862, 869 (1966), appeal dismissed, 385 U.S. 449, 17 L. Ed. 2d 510, 87 S. Ct. 613 (1967). 11. “Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6, and pass on questions concerning the propriety of the conduct of an attorney who is a public officer, in representing private interests adverse to those of the public body which he represents. The principle applied in those opinions is that an attorney holding public office should avoid all conduct which might lead the layman to conclude that the attorney is utilizing his public position to further his professional success or personal interests.” ABA Opinion 192 (1939). “The next question is whether a lawyer-member of a legislative body may appear as counsel or co-counsel at hearings before a zoning board of appeals, or similar tribunal, created by the legislative group of which he is a member. We are of the opinion that he may practice before fact-finding officers, hearing bodies and commissioners, since under our views he may appear as counsel in the courts where his municipality is a party. Decisions made at such hearings are usually subject to administrative review by the courts upon the record there made. It would be inconsistent to say that a lawyer-member of a legislative body could not participate in a hearing at which the record is made, but could appear thereafter when the cause is heard by the court on administrative review. This is subject to an important exception. He should not appear as counsel where the matter is subject to review by the legislature body of which he is a member . . . . We are of the opinion that where a lawyer does so appear there would be conflict of interests between his duty as an advocate for his client on the one hand and the obligation to his governmental unit on the other hand.” In re Becker, 16 Ill. 2d 488, 494-95, 158 N.E. 2d 753, 756-57 (1959). Cf. ABA Opinions 186 (1938), 136 (1935), 118 (1934), and 77 (1932). 12. Cf. ABA CANONS OF PROFESSIONAL ETHICS, CANONS 1 and 2 (1908). 13. Amended, March 1974, House Informational Report No. 127.

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CANON 9 A Lawyer Should Avoid Even the Appearance of Professional Impropriety ETHICAL CONSIDERATIONS EC 9-1 Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system.1 A lawyer should promote public confidence in our system and in the legal profession.2 EC 9-2 Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.3 EC 9-3 After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.4 EC 9-4 Because the very essence of the legal system is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by a lawyer that he can or would attempt to circumvent those procedures is detrimental to the legal system and tends to undermine public confidence in it. EC 9-5 Separation of the funds of a client from those of his lawyer not only serves to protect the client but also avoids even the appearance of impropriety, and therefore commingling of such funds should be avoided. EC 9-6 Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.5 EC 9-7 A lawyer has an obligation to the public to participate in collective efforts of the bar to reimburse persons who have lost money or property as a result of the misappropriation or defalcation of another lawyer, and contribution to a client’s security fund is an acceptable method of meeting this obligation.6

DISCIPLINARY RULES DR 9-101

Avoiding Even the Appearance of Impropriety.7

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(A) -A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.8 (B) -A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.9 (C) -A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body,10 or public official. DR 9-102

Preserving Identity of Funds and Property of a Client.11

(A) -All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (1) -Funds reasonably sufficient to pay bank charges may be deposited therein. (2) -Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved. (B) -A lawyer shall: (1 -)Promptly notify a client of the receipt of his funds, securities, or other properties. (2) -Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable. (3) -Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them. (4) -Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

NOTES 1. “Integrity is the very breath of justice. Confidence in our law, our courts, and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites towards the administration of justice a doubt or distrust of its integrity.” Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 868 (1928). 2. “A lawyer should never be reluctant or too proud to answer unjustified criticism of his profession, of himself, or of his brother lawyer. He should guard the reputation of his profession and of his brother as zealously as he guards his own.” Rochelle & Payne, The Struggle for Public Understanding, 25 TEXAS B.J. 109, 162 (1962). 3. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 29 (1908). 4. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 36 (1908). 5. “As said in Opinion 49, of the Committee on Professional Ethics and Grievances of the American Bar Association, page 134: ‘An attorney should not only avoid impropriety but should avoid the appearance of impropriety.’ ” State ex rel. Nebraska State Bar Ass’n v. Richards, 165 Neb. 80, 93, 84 N.W.2d 136, 145 (1957). “It would also be preferable that such contribution [to the campaign of a candidate for judicial office] be made to a campaign committee rather than to the candidate personally. In so doing, possible appearances of impropriety would be reduced to a minimum” ABA Opinion 226 (1941). “The lawyer assumes high duties, and has imposed upon him grave responsibilities. He may be the means of much good or much mischief. Interests of vast magnitude are entrusted to him; confidence is reposed in him; life, liberty, character and property should be protected by him. He should guard, with zealous watchfulness, his own reputation, as well as that of his profession.” People ex rel. Cutler v. Ford, 54 III. 520, 522 (1870), and also quoted in State Board of Law Examiners v. Sheldon, 43 Wyo. 522, 526, 7 P.2d 226, 227 (1932). See ABA Opinion 150 (1936). 6. Amended, February 1980, House Informational Report No. 105. 7. Cf. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, EC 5-6. 8. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 36 (1908). “It is the duty of the judge to rule on questions of law and evidence in misdemeanor cases and examinations in felony cases. That duty calls for impartial and uninfluenced judgment, regardless of the effect on those immediately involved or others who may, directly or indirectly, be affected. Discharge of that duty might be greatly interfered with if the judge, in another capacity, were permitted to hold himself out to employment by those who are to be, or who may be, brought to trial in felony cases, even though he did not conduct the examination. His private interests as a lawyer in building up his clientele, his duty as such zealously to espouse the cause of his private clients and to defend against charges of crime brought by law enforcement agencies of which he is a part, might prevent, or even destroy, that unbiased judicial judgment which is so essential in the administration of justice. “In our opinion, acceptance of a judgeship with the duties of conducting misdemeanor trials, and examinations in felony

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cases to determine whether those accused should be bound over for trial in a higher court, ethically bars the judge from acting as attorney for the defendants upon such trial, whether they were examined by him or by some other judge. Such a practice would not only diminish public confidence in the administration of justice in both courts, but would produce serious conflict between the private interests of the judge as a lawyer, and of his clients, and his duties as a judge in adjudicating important phases of criminal processes in other cases. The public and private duties would be incompatible. The prestige of judicial office would be diverted to private benefit, and the judicial office would be demeaned thereby,” ABA Opinion 242 (1942). “A lawyer, who has previously occupied a judicial position or acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts.” ABA Opinion 49 (1931). See ABA Opinion 110 (1934). 9. See ABA Opinions 135 (1935) and 134 (1935); cf. ABA CANONS OF PROFESSIONAL ETHICS, CANON 36 (1980) and ABA Opinions 39 (1931) and 26 (1930). But see ABA Opinion 37 (1931). 10. “[A statement by a governmental department or agency with regard to a lawyer resigning from its staff that includes a laudation of his legal ability] carries implications, probably not founded in fact, that the lawyer’s acquaintance and previous relations with the personnel of the administrative agencies of the government place him in an advantageous position in practicing before such agencies. So to imply would not only represent what probably is untrue, but would be highly reprehensible.” ABA Opinion 184 (1938). 11. See ABA CANONS OF PROFESSIONAL ETHICS, CANON 11 (1908). “Rule 9 . . . . A member of the State Bar shall not commingle the money or other property of a client with his own; and he shall promptly report to the client the receipt by him of all money and other property belonging to such client. Unless the client otherwise directs in writing, he shall promptly deposit his client’s funds in a bank or trust company . . . in a bank account separate from his own account and clearly designated as ‘Clients’ Funds Account’ or ‘Trust Funds Account’ or words of similar import. Unless the client otherwise directs in writing, securities of a client in bearer form shall be kept by the attorney in a safe deposit box at a bank or trust company . . . which safe deposit box shall be clearly designated as ‘Clients’ Account’ or ‘Trust Account’ or words of similar import, and be separate from the attorney’s own safe deposit box.” CAL. BUSINESS AND PROFESSIONS CODE §6076 (West 1962). “[C]ommingling is committed when a client’s money is intermingled with that of his attorney and its separate identity lost so that it may be used for the attorney’s personal expenses or subjected to claims of his creditors . . . . The rule against commingling was adopted to provide against the probability in some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the loss of clients’ money. “ Black v State Bar, 57 Cal. 2d 219, 225-26, 368 P.2d 118, 122, 18 Cal. Rptr. 518, 522 (1962).

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DEFINITIONS* As used in the Disciplinary Rules of the Model Code of Professional Responsibility: (1) “Differing interests” include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest. (2) “Law firm” includes a professional legal corporation. (3) “Person” includes a corporation, an association, a trust, a partnership, and any other organization or legal entity. (4) “Professional legal corporation” means a corporation, or an association treated as a corporation, authorized by law to practice law for profit. (5) “State” includes the District of Columbia, Puerto Rico, and other federal territories and possessions. (6) “Tribunal” includes all courts and all other adjudicatory bodies. (7) “A Bar association” includes a bar association of specialists as referred to in DR 2105(A)(1) or (4).1 (8) “Qualified legal assistance organization” means an office or organization of one of the four types listed in DR 2-103(D)(1)-(4), inclusive, that meets all the requirements thereof.2

NOTES * “Confidence” and “secret” are defined in DR 4-101(A). 1. Amended, February 1975, House Informational Report No. 110. 2. Id.

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INDEX A Acceptance of employment. See Employment, acceptance of. Acquiring interest in litigation. See Adverse effect on professional judgment, interests of lawyer Address change, notification of, DR 2-102(A)(2) Administrative agencies and tribunals. former employee, rejection of employment by, DR 9-101(B) improper influences on, EC 5-13, EC 5-21, EC 5-24, DR5-107(A), (B), EC 8-5, EC 8-6, DR 8-101(A) representation of client, generally, Canon 7, EC 7-15, EC 7-16, EC 8-4, EC 8-8, DR 8-101(A) Admiralty practitioners, EC 2-14 Admission to practice duty of lawyers as to applicants, EC 1-3, DR 1-101(B) requirements for, EC 1-2, EC 1-3, EC 1-6, DR 1-101(A) Advancing funds to clients, EC 5-8, DR 5-103(B) court costs, EC 5-8, DR 5-103(B) investigation expenses, EC 5-8, EC 508, DR 5-103(B) litigation expenses, EC 5-7, DR 5-103(B) medical examination, EC 5-8, DR 5-103(B) personal expenses, EC 5-8, DR 5-103(B) Adversary system, duty of lawyer to, Canon 7 Adverse legal authority, duty to reveal, EC 7-23, DR 7-106(B)(1) Adverse effect on professional judgment of lawyer Canon 5 desires of third persons, EC 5-21 – EC 5-24, DR 5-107 interests of lawyer, EC 5-2 – EC 5-13, DR 5-101, DR 5-104 interests of other clients, EC 5-14 – EC 5-20, DR 5-105, DR 5-106 Advertising. See also Name, use of. EC 2-6 – EC 2-15, DR 2-101, DR 2-102 announcement of change of association, DR 2-102 (A) (2) announcement of change of firm name, DR 2-102(A)(2) announcement of change of office address, DR 2-102(A)(2) announcement of establishment of law office, DR 2-102(A)(2) announcement of office opening,

659

DR 2-102(A)(2) books written by lawyer, DR 2-101(H)(5) building directory, DR 2-102(A)(3) cards, professional announcement, DR 2-102 (A) (1), (2) commercial publicity, EC 2-8 – EC 2-10, DR 2-101 compensation for, EC 2-8, DR 2-101(B), DR 2-101(I) jurisdictional limitations of members of firm, required notice of, DR 2-102(D) legal documents, DR 2-101(H)(4) letterheads of clients, DR 2-102(A)(4) of law firm, DR 2-102(A)(4), DR 2-102(B) of lawyer, DR 2-102(A)(4), DR 2-102(B) limited practice, EC 2-14, DR 2-101(B)(2), DR 2-105 magazine, DR 2-101(B), DR 2-101(I) name, See Name, use of Newspaper, DR 2-101(B), DR 2-101(I) office address change, DR 2-102(A)(2) office building directory, DR 2-102(A)(3) office establishment, DR 2-102(A)(2) office, identification of, DR 2-101(B)(1), DR 2-102(A) office sign, DR 2-102(A)(3) office sign, DR 2-102(A)(3) political, DR 2-101(H)(1) public notices, DR 2-101(H)(2) radio, DR 2-101(B), DR 2-101(D), DR 2-101(I) reasons for regulating, EC 2-6 – EC 2-10 sign, DR 2-102(A)(3) specialization, EC 2-14, DR 2-101(B)(2), DR 2-105 television, EC 2-8, DR 2-101(B), (D) textbook, DR 2-101(H)(5)

660

treatises, DR 2-101(H)(5) Advice by lawyer to secure legal services, EC 2-4 – EC 2-5, DR 2-104 client, former or regular, EC 2-4, DR 2-104(A)(1) close friend, EC 2-4, DR 2-104(A)(C) employment resulting from, EC 2-4, DR 2-104 motivation, effect of, EC 2-4 other laymen parties to class action, DR 2-104(A)(5) relative, EC 2-4, DR 2-104(A)(1) volunteered, EC 2-4, DR 2-104 within permissible legal service programs, DR 2-104(A)(3) Advocacy, professional, Canon 7 Aiding unauthorized practice of law, Canon 3 Ambulance chasing. See Recommendation of professional employment. Announcement card. See Advertising, cards, professional announcement. Appearance of improperity, avoiding, EC 5-6, Canon 9 Appearance of lawyer. See Administrative agencies, representation of client before; Courts, representation of client before; Legislature, representation of client before; Witness, lawyer acting as. Applicant for bar admission. See Admission to practice. Arbitrator, lawyer acting as, EC 5-20 Argument before administrative agency, EC 7-15 before jury, EC 7-24, EC 7-25, DR 7-106(C) before legislature, EC 7-16 before tribunal, EC 7-19 – EC 7-25, DR 7-102, DR 7-106 Associates of lawyer, duty to control, EC 1-4, DR 2-103, EC 3-8, EC 3-9, EC 4-2, DR 4-101(D), DR 7-107 Association of counsel. See also counsel; Division of legal fees. client’s suggestion of, EC 5-10, EC 5-11 lawyer’s suggestion of, EC 5-10, EC 5-11, EC 6-3, DR 6-101(1) Assumed name. See name, use of assumed name. Attempts to exert personal influence on tribunal, EC 7-24, EC 7-29 – EC 7-33, EC 7-36, DR 7-106(C), DR 7-108, DR 7-110 Attorney-client privilege. See also Confidences of client; Secrets of client,

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EC 4-4, DR 4-101(A), DR 7-102(B)(1) Attorney’s lien. See Fee for legal services, collection of. Availability of counsel, EC 2-1, EC 2-7, EC 2-24 – EC 2-33

B Bank accounts for clients’ funds, EC 9-5, DR 9-102 Bank charges on clients’ accounts, EC 9-5, DR 9-102 Bar applicant. See Admission to practice. bar examiners, assisting, EC 1-2 Bar associations disciplinary authority, assisting, EC 1-4, DR 1-103 educational activities, EC 6-2 lawyer referral service, DR 2-103(C)(1), DR 2-103(D)(3) legal aid office, DR 2-103(D)(1)(d) Barratry. See Advice by lawyer to secure legal services; Recommendation of professional employment. Bequest by client to lawyer, EC 5-5 Best efforts. See Zeal Bounds of law difficulty of ascertaining, EC 7-2, 7-3, 7-4, 7-6 duty to observe, EC 7-1, DR 7-102 generally, Canon 7 Bribes. See Gifts to tribunal officer or employee by lawyer. Building directory. See Advertising, building directory. Business card. See Advertising, cards, professional.

C Calling card. See Advertising, cards, professional. Candidate. See Political activity. Canons, purpose and function of, Preamble & Preliminary Statement Cards. See Advertising, cards. Change of office address. See Advertising, announcement of change of office address. Change of association. See Advertising, announcement of change of association. Change of firm name. See Advertising, announcement of change of firm name. Character requirements, EC 1-3 Class action. See Advice by lawyer to secure legal services, parties to legal action. Clients. See also Employment; Adverse effect on professional judgment of lawyer; Fee for legal

662

services; Indigent parties, representation of; Unpopular party, representation of, appearance as witness for, EC 5-9, EC 5-10, DR 5-101(B), DR 5-102 attorney-client privilege, Canon 4 commingling of funds of, EC 9-5, DR 9-102 confidence of, Canon 4 counseling, EC 7-5, EC 7-7, EC 7-8, EC 7-9, EC 7-12, DR 7-102(A)(7), (B)(1), DR 7-109(B) Clients’ security fund, EC 9-7 Co-counsel. See also Association of counsel. division of fee with, DR 2-107 inability to work with, DR 2-110(C)(3) Commercial publicity. See Advertising, commercial publicity. Commingling of funds, EC 9-5, DR 9-102 Communications with one of adverse interests, DR 7-104 judicial officers, EC 7-34, EC 7-35, EC 7-36, DR 7-110 jurors, EC 7-29, EC 7-31, DR 7-108 opposing party, DR 7-104 veniremen, EC 7-29, EC 7-31, DR 7-108 witnesses, EC 7-28, DR 7-109 Compensation for recommendation of employment, prohibition against, DR 2-103(B) Competence, mental. See instability, mental or emotional; Mental competence of client, effect on representation. Competence, professional, EC 2-30, Canon 6 Confidences of client, Canon 4 Conflicting interests. See Adverse effect on professional judgment of lawyer. Consent of client, requirement of acceptance of employment though interest conflict, EC 5-14, EC 5-15, EC 5-16, EC 5-17, EC 5-18, EC 5-19, EC 5-20, DR 5-101, DR 5-105 acceptance of value from third person, EC 2-21, EC 5-22, EC 5-23, DR 5-107(A), (B) advice requested from another lawyer, EC 4-2 aggregate settlement of claims, DR 5-106(A) association of lawyer, EC 2-22, DR 2-107(A)(1) forgoing legal action, EC 7-7, EC 7-8 multiple representation, EC 5-16, DR 5-105(C)

663

revelation of client’s confidences and secrets, EC 4-2, EC 4-5, DR 4-101(B)(3), DR 4-101(C)(1) use of client’s confidences and secrets, EC 4-2 EC 4-5, DR 4-101(B)(3), DR 4-101(C)(1) withdrawal from employment, EC 2-32, DR 2-110(A)(2), DR 2-110(C)(5) Consent of tribunal to lawyer’s withdrawal, requirement of, EC 2-32, DR 2-110(A)(1), DR 2-110(C) Consultant. See Advertising, availability as consultant. Contingent fee, propriety of in civil actions, EC 2-20, EC 5-7, DR 5-103(A)(2) in criminal actions, EC 2-20, DR 2-106(C) in domestic relation cases, EC 2-20 Continuing legal education programs, EC 6-2 Contract of Employment fee provisions, desirability of writing, EC 2-19 restrictive covenant in, DR 2-108 Controversy over fee, avoiding, EC 2-23 Copyright practitioner, EC 2-14, DR 2-105(A)(1) Corporation, lawyer employed by, EC 5-18 Counsel, designation as “General Counsel” designation, DR 2-102(A)(4) “Of Counsel” designation, DR 2-102(A)(4) Corporation, professional legal. See Professional legal corporation Counseling. See Client, counseling. Courts. See also Consent of tribunal to lawyer’s withdrawal, requirement of; Evidence, conduct regardng; Trial tactics. appointment of lawyers as counsel, EC 2-29 courtesy, known customs of, EC 7-36,EC 7-38, DR 7-106(C)(5), (6) personal influence, prohibitions against exerting, EC 7-35, EC 7-36, DR 7-110(C)(5), (6) representation of client before, Canon 7 Criminal conduct as basis for discipline of lawyer, EC 1-5, DR 1-102 (A) (3) duty to reveal information as to, EC 1-4, DR 1-103 providing counsel for those accused of, EC 2-27, EC 2-29 Criticism of judges and administrative officials, EC 8-6, DR 8-102 Cross-examination of witness. See Witnesses, communications with.

664

D Deceased lawyer payment to estate of, EC 3-8, DR 3-102(A)(1) use of name by law firm, EC 2-11, DR 2-102(B) De facto specialization, EC 2-14, DR 2-105 Defender, public. See Public defender office, working with. Defense against accusation by client, privilege to disclose confidences and secrets, DR 4-101(C)(4) Defense of those accused of crime, EC 2-29, EC 2-31 Definitions, P. XXX Delegation by lawyer of tasks, EC 3-6 Desires of third parties, duty to avoid influence of, EC 5-21, EC 5-22, EC 5-23, EC 5-24, DR 5-107 Differing interests. See also Adverse effect on professional judgment of lawyer. Canon 5 Directory listing. See Advertising, directories. Discipline of lawyer, grounds for advancement of funds to client improper, DR 5-103(B) advertising, improper, DR 1-102, DR 2-102 associates, failure to exercise reasonable care toward, DR 4-101(D) bribery of legal officials, DR 7-110(A) circumvention of disciplinary rule, DR 1-102(A)(3) clients’ funds, mismanagement of, DR 9-102 communication with adverse party, improper, DR 7-104 communication with jurors, improper, DR 7-108 confidential information, disclosure of, DR 4-101(B) conflicting interests, representation of, DR 5-105, DR 5-106, DR 5-107 crime of moral turpitude, DR 1-102(A)(3) criminal conduct, DR 1-102, DR 7-102(A)(7), (8), DR 7-109(A) differing interests, improper representation of, DR 5-105(A), (B) disregard of tribunal ruling, DR 7-106(A) division of fee, improper, DR 2-107(A) employees, failure to exercise reasonable care toward, DR 3-102, DR 4-101(D) evidence, false or misleading, use of,

665

DR 7-102(A)(4), (6) extra-judicial statement, improper, DR 7-107 failure to act competently, DR 6-101 failure to act zealously, DR 7-101(A) failure to disclose information concerning another lawyer or judge, DR 1-103 failure to disclose information to tribunal, DR 7-102(A)(3), DR 7-106(B) false accusations, DR 8-102 false statement in bar application, DR 1-101(A) fees charging illegal or clearly excessive, DR 2-106 (A) charging contingent fee in criminal case, DR 2-106(C) failure to return unearned, DR 2-110(A)(3) further application of unqualified bar applicant, DR 1-101(B) guaranty of financial assistance, DR 5-103(B) holding out as having limited practice, DR 2-105 holding out as a specialist, DR 2-105 illegal conduct, DR 1-102(A)(3), DR 7-102(A)(7) improper argument before tribunal, DR 7-106(C) institution of criminal charges, DR 7-103(A) investigation of jurors, DR 7-108 malpractice, DR 6-102 moral turpitude, crime of, DR 1-102(A)(3) public office, improper use of, DR 8-101(A) publicity, improper, DR 2-101 recommendation of professional employment, prohibited, DR 2-103 restrictive covenant, entering prohibited, DR 2-108 secrets, disclosure of, DR 4-101 solicitation of business, DR 2-103, DR 2-104

666

specialization, notice of, DR 2-105 suggestion of need of legal services, prohibited, DR 2-104 unauthorized practice of law, aiding laymen in, DR 3-101 violation of disciplinary rule, DR 2-102(A)(1) withdrawal, improper, DR 2-110(A) Disclosure of improper conduct of another lawyer, EC 1-4, DR 1-103 of bar applicant, EC 1-2, EC 1-3, DR 1-101(B) of judge, DR 1-103(B) toward juror or venireman, EC 7-32, DR 7-108(G) Discretion of government lawyer, exercise of, EC 7-14 Discussion of pending litigation with news media. See Trial publicity. Diverse interests. See Adverse effect on professional judgment of lawyer. Division of legal fees consent of client, when required for, EC 2-22, DR 2-107(A)(1) reasonableness of total fee, requirement of, EC 2-22, DR 2-107(A)(3) with associated lawyer, EC 2-22, DR 2-107(A) with estate of deceased lawyer, EC 3-8, DR 3-102(A)(2), (3) with laymen, EC 3-8, DR 3-102(A)

E Education continuing legal education programs, EC 6-2 of laymen to recognize legal problems, EC 2-1 – EC 2-5, EC 8-1 of laymen to select lawyers, EC 2-6 – EC -2-15, EC 8-1 requirement of bar for applicant, EC 1-2 Elections. See Political activity. Emotional instability. See Instability, mental or emotional. Employees of lawyer, delegation of tasks, EC 3-6 duty of lawyer to control, EC 4-2, EC 4-3, DR 4-101(D) Employment. See also Advice by lawyer to secure legal services; Recommendation of professional employment.

667

acceptance of generally, EC 2-6 – EC 2-33 indigent client, on behalf of, EC 2-25 instances when improper, EC 2-3, EC 2-4 EC 2-30, DR 2-103, DR 2-104, Canon 5, EC 6-1, EC 6-3, DR 6-101(A)(1), EC 9-3, DR 9-101(A), (B) public retirement from, EC 9-3, DR 9-101(A), (B) rejection of, EC 2-26 – EC 2-33, DR 2-103(E), DR 2-104, DR 2-109, DR 2-110, EC 4-5, Canon 5, EC 61, EC 6-3, DR 6-101(A), EC 9-3, DR 9-101(A), (B) unpopular cause, on behalf of, EC 2-27 unpopular client, on behalf of, EC 2-27 when able to render competent service, EC 2-30, EC 6-1, EC 6-3, DR 6-101(A)(1) contract of desirability of, EC 2-19 withdrawal from generally, EC 2-32, DR 2-110, Canon 5, EC 7-8 harm to client, avoidance of, EC 2-32, DR 2-110(A)(2), Canon 5 mandatory withdrawal, EC 2-32, DR 2-110(B), Canon 5 permissive withdrawal, DR 2-110(C), Canon 5, EC 7-8 refund of unearned fee paid in advance, requirement of, EC 2-32, DR 2-110(A)(3) tribunal, consent to, EC 2-32, DR 2-110 when arbitrator or mediator, EC 5-20 Estate of deceased lawyer. See Division of legal fees, with estate of deceased lawyer. Ethical considerations, purpose and function of, Preliminary Statement Evidence, conduct regarding, EC 7-24, EC 7-25, DR 7-102(A), (3) – (6) Excessive fee. See Fee for legal services, amount of, excessive. Expenses of client, advancing or guaranteeing payment of, EC 5-8, DR 5-103

F Fee for legal services, adequate fee, need for, EC 2-17 agreement as to,

668

EC 2-19, DR 2-106(A) amount of excessive, clearly, DR 2-106 reasonableness, desirability of, EC 2-17, EC 2-18 collection of avoiding litigation with client, EC 2-23 client’s secrets, use of in collecting or establishing, DR 4-101(C)(4) liens, use of, EC 5-7, DR 5-103(A)(1) contingent fee, EC 2-20, DR 2-106(B)(8), DR 2-106(C), EC 5-7, DR 5-103(A)(2) contract as to, desirability of written, EC 2-19 controversy over, avoiding, EC 2-23 determination of, factors to consider ability of lawyer, EC 2-18, DR 2-106(B)(7) amount involved, DR 2-106(B)(4) customary, DR 2-106(B)(3) effort required, DR 2-106(B)(1) employment, likelihood of preclusion of other, DR 2-106(B)(2) experience of lawyer, EC 2-18, DR 2-106(B)(7) fee customarily charged in locality, DR 2-106(B)(3) interests of client and lawyer, EC 2-17 labor required, DR 2-106(B)(1) nature of employment, EC 2-18 question involved, difficulty and novelty of, DR 2-106(B)(1) relationship with client, professional, EC 2-17, DR 2-106(B)(6) reputation of lawyer, EC 2-18, DR 2-106(7) responsibility assumed by lawyer, EC 2-18 results obtained, EC 2-18, DR 2-106(B)(4) skill requisite to services, EC 2-18 time required,

669

EC 2-18, DR 2-106(B)(1) type of fee, fixed or contingent, EC 2-18, DR 2-106(B)(8) division of, EC 2-22, DR 2-107, DR 3-102 establishment of fee, use of client’s confidences and secrets, DR 4-101(C)(4) excessive fee, EC 2-17, DR 2-106(A) explanation of, EC 2-17, EC 2-18 illegal fee, prohibition against, DR 2-106(A) persons able to pay reasonable fee, EC 2-17, EC 2-18 persons only able to pay a partial fee, EC 2-16 persons without means to pay a fee, EC 2-24, EC 2-25 reasonable fee, rationale against overcharging EC 2-17 refund of unearned portion to client, DR 2-110 (A)(3) Felony. See Discipline of lawyer, grounds for, illegal conduct. Firm name. See Name, use of, firm name. Framework of law. See Bounds of law. Frivolous position, avoiding, EC 7-4, DR 7-102 (A) (1) Funds of client, protection of, EC 9-5, DR 9-102 Future conduct of client, counseling as to. See Clients, counseling.

G “General Counsel” designation, DR 2-102(A)(4) Gift to lawyer by client, EC 5-5 Gifts to tribunal officer or employee by lawyer, DR 7-110(A) Government legal agencies, working with, DR 2-103(C)(2), DR 2-103 (D)(1)(C) Grievance committee. See Bar associations, disciplinary authority, assisting. Guaranteeing payment of client’s cost and expenses, EC 5-8, DR 5-103(B)

H Harassment, duty to avoid litigation, involving,

670

EC 2-30, DR 2-109(A)(1), DR 7-102(A)(1) as limiting practice, EC 2-8, EC 2-14, DR 2-101(B)(2), DR 2-105 as partnership, EC 2-13, DR 2-102(C) as specialist, EC 2-8, EC 2-14, DR 2-101(B)(2), DR 2-105

I Identity of client, duty to reveal, EC 7-16, EC 8-5 Illegal conduct, as cause for discipline, EC 1-5, DR 1-102(A)(3), DR 7-102(A)(7) Impartiality of tribunal, aiding in the, Canon 7 Instability, mental or emotional of bar applicant, EC 1-6 of lawyer, EC 1-6, DR 2-110(B)(3), DR 2-110(C)(4) recognition of rehabilitation, EC 1-6 Improper influences, gift or loan to judicial officer, EC 7-34, DR 7-110(A) on judgment of lawyer. See Adverse effect on professional judgment of lawyer. Improvement of legal system, EC 8-1, EC 8-2, EC 8-9 Incompetence, mental. See Instability, mental or emotional; Mental competence of client. Incompetence, professional. See Competence, professional. Independent professional judgment, duty to preserve, Canon 5 Indigent parties provisions of legal services to, EC 2-24, EC 2-25 representation of, EC 2-25 Integrity of legal profession, maintaining Preamble, EC 1-1, EC 1-4, DR 1-101, EC 8-7 Intent of client, as factor in giving advice, EC 7-5, EC 7-6, DR 7-102 Interests of lawyer. See Adverse effect on professional judgment of lawyer, interests of lawyer. Interests of other client. See Adverse effect on professional judgment of lawyer, interests of other clients. Interests of third person. See Adverse effect on professional judgment of lawyer, desires of third persons. Intermediary, prohibition against use of, EC 5-21, EC 5-23, EC 5-24,

671

DR 5-107(A), (B) Interview, with opposing party, DR 7-104 with news media EC- 7-33, DR 7-107 with witness, EC 7-28, DR 7-109 Investigation expenses, advancing or guaranteeing payment, EC 5-8, DR 5-103(B)

J Judges, false statements concerning DR 8-102 improper influences on gifts to EC 7-34, DR 7-110(A) private communication with, EC 7-39, DR 7-110(B) misconduct toward, criticisms of, EC 8-6 disobedience of orders, EC 7-36, DR 7-106(A) false statement regarding, DR 8-102 name in partnership, use of, EC 2-12, DR 2-102(B) retirement from bench, EC 9-3 selection of, EC 8-6 Judgment of lawyer. See Adverse effect on professional judgment of lawyer. Jury, arguments before, EC 7-25, DR 7-102(A)(4), (5), (6) investigation of members EC 7-30, DR 7-108(E) misconduct of, duty to reveal, EC 7-32, DR 7-108(G) questioning members of after their dismissal, EC 7-29, DR 7-108(D) Knowledge of intended crime, revealing, DR 4-101(C)(3)

L Law firm. See Partnership. Law office. See Partnership Law School, working with legal aid office or public defender office sponsored by, DR 2-103(D)(1)(a) Lawyer-client privilege. See Attorney-client privilege. Lawyer referral services, fee for listing, propriety of paying,

672

DR 2-103(C)(1) request for referrals, propriety of, DR 2-103(D) working with, EC 2-15, DR 2-103(C)(D) Laymen. See also Unauthorized practice of law. need of legal services, EC 2-6, EC 2-7, EC 2-8 recognition of legal problems, need to improve, EC 2-2, EC 8-3 selection of lawyer, need to facilitate, EC 2-9, EC 2-10, EC 8-3 Legal aid offices, working with, EC 2-25, DR 2-103(D)(1) Legal corporation. See professional legal corporation. Legal directory. See Advertising, legal directories. Legal documents of clients, duty to safeguard, EC 4-2, EC 4-3 Legal education programs. See continuing legal education programs. Legal problems, recognition of by laymen, EC 2-2, EC 8-3 Legal system, duty to improve, Canon 8 Legislature improper influence upon, EC 9-2, EC 9-3, EC 9-4, DR 8-101(A), DR 9-101(B), DR 9-101(C) representation of client before, EC 7-17, EC 8-4, EC 8-5 serving as a member of, EC 8-8, DR 8-101 Letterhead. See Advertising, letterheads. Liability to client, Preamble, Canon 7 Licensing of lawyers, control of, EC 3-1, EC 3-3, EC 3-4, EC 3-5, EC 3-6, EC 3-9, DR 3-101 modernization of, EC 3-5, EC 3-9, EC 8-3 Liens, attorneys’, EC 5-7, DR 5-103(A) Limited practice, holding out as having, EC 2-14, DR 2-101(B)(2), DR 2-105 Litigation, acquiring an interest in, EC 5-7, EC 5-8, DR 5-103(A) expenses of advancing or guaranteeing payment of, EC 5-7, EC 5-8, DR 5-103(B) pending, discussion of in the media, EC 7-33, DR 7-107 responsibility for conduct of, EC 7-4, EC 7-5, EC 7-7, EC 7-10, EC 7-13, EC 7-14, EC 7-20, EC 7-22, EC 7-23, EC 7-24, DR 7-102, DR 7-103, DR 7-106 to harass another, duty to avoid,

673

EC 2-30, DR 2-110(B), DR 2-109(A)(1), EC 7-10, EC 7-14, DR 7-102(A)(1), DR 7-103(A) to maliciously harm another, duty to avoid, EC 2-30, DR 2-110(B), DR 2-109(A)(1), EC 7-10, EC 7-14, DR 7-102(A)(1), DR 7-103(A) Living expenses of client, advances to client, EC 5-8, DR 5-103(B) Loan to judicial officer, EC 7-34, DR 7-110(A) Loyalty to client. See Zeal. Lump-sum settlements, DR 5-106

M Mandatory withdrawal. See Employment, withdrawal from, mandatory. Mediator, lawyer serving as EC 5-20 Medical expenses, EC 5-8, DR 5-103(B) Mental competence of client, effect on representation, EC 7-11, EC 7-12 Mental competence of lawyer. See Instability, mental or emotional. Military legal service officers, being recommended by and collaborating with, DR 2-103(D)(2) Minimum fee schedule. See Fee for legal services, determination of, factors to consider, minimum fee schedule. Misappropriation, confidences and secrets of client, EC 4-1, EC 4-5, EC 4-6, DR 4-101(B)(3) property of client, EC 9-5, EC 9-6, DR 9-102 Misconduct. See also Discipline of lawyer. of client, EC 2-23, EC 2-26, EC 2-30, DR 2-110(A), DR 2-110(B)(1), DR 2-110(C)(1), DR 4-101(C), EC 7-5, EC 7-8, EC 7-9, EC 710 of juror, DR 7-108(D), DR 7-108(F), DR 7-108(G) of lawyer, duty to reveal to proper officials, DR 1-103 Misleading advertisement or professional notice, prohibition of, EC 2-9, EC 2-11, EC 2-13, EC 2-14, DR 2-101, DR 2-102(B), (C) Moral character, requirement of, EC 1-2, EC 1-3, EC 1-5, DR 1-102 Moral factors considered in counseling, EC 7-3, EC 7-5, EC 7-9 Moral turpitude, crime of as ground for discipline, DR 1-102(A)(3) Multiple clients, representation of, EC 5-14, EC 5-20, DR 5-105, DR 5-106

N

674

Name, use of, assumed name, EC 2-11, DR 2-102(B) deceased partner’s EC 2-11, DR 2-102(A)(4), DR 2-102(B) firm name, EC 2-11, EC 2-12, DR 2-102(B) misleading name, EC 2-11, DR 2-102(B) partners who hold public office, EC 2-12, DR 2-102(B) predecessor firms, EC 2-11, DR 2-102(A)(4), (B) retired partner, EC 2-11, DR 2-102(A)(4), (B) trade name, EC 2-11, DR 2-102(B) withdrawn partner’s, EC 2-11, DR 2-104(B) Need for legal services, suggestion of. See Advice by lawyer to secure legal services. Negligence of lawyer, Canon 6 Negotiations with opposite party, EC 7-18, EC 7-20, DR 7-104, DR 7-105 Neighborhood law offices, working with, EC 2-6, EC 2-7, DR 2-103(D)(1)(b) Newspapers advertising in, EC 2-8, EC 2-9, EC 2-10, DR 2-101(A), (B), (C), (E), (F), (I) news stories in, EC 2-5, DR 7-107 news release in, during or pending trial EC 7-33, DR 7-107 Non-meritorious position, duty to avoid, DR 2-109(A)(2), (3), EC 7-4, EC 7-5, EC 7-14, DR 7-102(A)(1), (2), DR 7-103(A)(2), (3) Non-profit organizations, legal aid services of, EC 2-24, EC 2-25, DR 2-103(D)(1), (4), DR 2-104(A)(2), (3) Notices. See Advertising.

O Objectives of client, duty to seek, EC 7-1, EC 7-10, DR 7-102 “Of Counsel” designation, DR 2-102(A)(4) Offensive tactics by lawyer, EC 7-4, EC 7-5, EC 7-10, DR 7-102, DR 7-104, DR 7-105 Office building directory. See advertising, building directory. Office sign, DR 2-102(A)(3)

675

Opposing counsel, EC 5-9, EC 7-20, EC 7-23, EC 7-35, EC 7-37, EC 7-38, DR 7-104, DR 7-106(C)(5), DR 7110(B)(2), (3) Opposing party, communications with, EC 7-18, DR 7-104

P Partnership, advertising, See Advertising conflicts of interest DR 5-105 deceased member, payments to estate of, EC 3-8 use of name, EC 2-11, DR 2-102(A)(4), (B) dissolved, use of name of, EC 2-11, EC 2-12, EC 2-13, DR 2-102(A)(4), (B), (C) holding out as, falsely, EC 2-13, DR 2-102(B), (C) members licensed in different jurisdictions, DR 2-102(D) name, EC 2-11, EC 2-12, DR 2-102(B) nonexistent, holding out falsely, EC 2-13, DR 2-102(B), (C) non-lawyer, with, EC 3-8, DR 3-103 professional corporation, with, DR 2-102(C) recommending professional employment of, EC 2-9 Patent practitioner, EC 2-14, DR 2-105-105(A)(1) Payment to obtain recommendation or employment, prohibition against, EC 2-8, DR 2-103(B), (D) Pending litigation, discussion of in media, EC 7-33, DR 7-107 Perjury, EC 7-5, EC 7-6, EC 7-26, EC 7-28, DR 7-102(A)(4), (6), (7), DR 7-102(B) Personal interests of lawyer. See Adverse effect on professional judgment of lawyer, interests of lawyer. Personal opinion of client’s cause, EC 2-27, EC 2-28, EC 2-29, EC 7-24, DR 7-106(C)(4) Political activity, EC 8-8, DR 8-101, DR 8-103 Political considerations in selection of judges, EC 8-6, DR 8-103 Potentially differing interests. See Adverse effect on professional judgement of lawyer. Practice of law, unauthorized, Canon 3 Prejudice to right of client, duty to avoid, EC 2-32, DR 2-110(A)(2), (C)(3), (C)(4), DR 7-101(A)(3) Preservation of confidences of client,

676

Canon 4 Preservation of secrets of client, Canon 4 Pressure on lawyer by third person. See Adverse effect on professional judgment of lawyer. Privilege, attorney-client. See Attorney-client privilege. Procedures, duty to help improve, EC 8-1, EC 8-2, EC 8-9 Professional card of lawyer. See Advertising, cards, professional. Professional impropriety, avoiding appearance of, EC 5-1, Canon 9 Professional judgment, duty to protect independence of, Canon 5 Professional legal corporations, Definitions (2), (4), DR 2-102(B), EC 5-24, DR 5-107(C) Professional notices. See Advertising. Professional status, responsibility not to mislead concerning, EC 2-11, EC 2-12, EC 2-14, DR 2-102(B), (C), (D) Profit-sharing with lay employees, authorization of, EC 3-8, DR 3-102(A)(3) Property of client, handling, EC 9-5, DR 9-102 Prosecuting attorney, duty of, EC 7-13, EC 7-14, DR 7-103 Public defender office, working with, DR 2-103(C)(2), DR 2-103(D)(1) Public employment, retirement from, EC 9-3, DR 9-101(B) Public office, duty of holder, EC 8-8, DR 8-101 Public opinion, irrelevant to acceptance of employment, EC 2-26, EC 2-27, EC 2-29 Public prosecutor. See Prosecuting attorney, duty of. Publication of articles for lay press, EC 2-2, EC 2-5 Publicity, commercial. See Advertising, commercial publicity. Publicity, trial. See Trial publicity.

Q Quasi-judicial proceedings, EC 7-15, EC 7-16, DR 7-107(H), EC 8-4

R Radio broadcasting. See Advertising, radio. Reasonable fee. See Fee for legal services, amount of Rebate, propriety of accepting, EC 2-24, EC 2-25 Recognition of legal problems, aiding laymen in, EC 2-1, EC 2-5 Recommendation of bar applicant, duty of lawyer to satisfy himself that applicant is qualified, EC 1-3, DR 1-101(B) Recommendation of professional employment,

677

EC 2-8, EC 2-15, DR 2-103 Records of funds, securities, and properties of clients, EC 9-5, DR 9-102(B) Referral service. See Lawyer referral services Rehabilitation of bar applicant or lawyer, recognition of, EC 1-6 Refund of unearned fee when withdrawing, duty to give to client, EC 2-32, DR 2-110 Regulation of legal profession, Canons 3 and 8, EC 3-1, EC 3-3, EC 3-9, EC 8-7 Representation of multiple clients. See Adverse effect on professional judgment of lawyer, interest of other clients. Reputation of lawyer, EC 2-6, EC 2-7 Requests for recommendation for employment, EC 2-8, DR 2-103(C) Requirements for bar admission, EC 1-2, EC 1-6, DR 1-101(B) Respect for law, EC 1-5 Restrictive covenant, DR 2-108 Retention of employment. See Employment. Retirement. See also Name, use of retired partner. from judicial office, EC 9-3, DR 9-101(A) from public employment, EC 9-3, DR 9-101(B) plan for laymen employees, EC 3-8, DR 3-102(3) Revealing of confidences, EC 4-1, EC 4-2, EC 4-6, DR 4-101(B)(1), (C), (D) Revealing of secrets, EC 4-1, EC 4-2, EC 4-6, DR 4-101(B)(1), (C), (D) Revealing to tribunal jury, misconduct, EC 7-32, DR 7-108(G) Runner, prohibition against use of, EC 2-8, DR 2-103(B)

S Sanction for violating disciplinary rules, Preliminary statement Secrets of client, Canon 4 Selection of lawyer, EC 2-6, EC 2-7, EC 2-8, EC 2-9, EC 2-11, EC 2-14, EC 2-15, DR 2-101 Selection of judges, duty of lawyers, EC 8-6, DR 8-102(A) Self interest of lawyer. See Adverse effect on professional judgment of lawyer, interests of lawyer. Self-representation, privilege of,

678

EC 3-7 Settlement agreement, DR 5-106 Solicitation of business. See Advertising; Recommendation of professional employment. Specialist, holding out as, EC 2-14, DR 2-105 Specialization, admiralty, EC 2-14, holding out as having, EC 2-14, DR 2-105 patents, EC 2-14, DR 2-105(A)(1) trademark, EC 2-14, DR 2-105(A)(1) Speeches to lay groups, EC 2-2, EC 2-5 State of mind of client, effect of in advising him, EC 7-11, EC 7-12 State’s attorney. See Prosecuting attorney. “Stirring up litigation.” See Advertising; Advice by lawyer to secure legal services; Recommendation of professional employment. Stockholders of corporation, corporate counsel’s allegiance to, EC 5-18 Suit to harass another, duty to avoid, EC 2-30, DR 2-109(A)(1), EC 7-10, EC 7-14, DR 7-102(A)(1) Suit to maliciously harm another duty, to avoid, EC 2-30, DR 2-109(A)(1), EC 7-10, EC 7-14, DR 7-102(A)(1) Suggested fee schedule. See Fee for legal services, determination of minimum fee schedule. Suggestion of need for legal services. See Advice by lawyer to secure legal services. Suppression of evidence, EC 7-27, DR 7-102(A)(2), DR 7-103(B), DR 7-106(C)(7)

T Technical and professional licenses, DR 2-101(B)(12), DR 2-102(E) Termination of employment. See Confidences of client; Employment, withdrawal from. Third persons, desires of. See adverse effect on professional judgment of lawyer, desire of third persons. Threatening criminal process, EC 7-21, DR 7-105(A) Trademark practitioner, EC 2-14, DR 2-105(A)(1) Trade name. See Name, use of trade name. Trial publicity, EC 7-33, DR 7-107 Trial tactics, Canon 7 Tribunal, representation of client before, Canon 7 Trustee, client naming lawyer as, EC 5-6

U

679

Unauthorized practice of law. See also Division of legal fees; Partnership, non-lawyer, with. aiding a layman in the, prohibited, EC 3-8, DR 3-101(A) distinguished from delegation of tasks to subprofessionals, EC 3-5, EC 3-6, DR 3-102(A)(3) functional meaning of, EC 3-5, EC 3-9 self-representation by layman not included in, EC 3-7 Undignified conduct, duty to avoid, EC 7-37, EC 7-38 Unlawful conduct, aiding client in, DR 7-102(A)(6), (7), (B)(1) Unpopular party, representation of, EC 2-27, EC 2-29, EC 2-30, EC 2-31 Unreasonable fees. See Fee for legal services, amount of. Unsolicited advice. See advice by lawyer to obtain legal services.

V Varying interests of clients. See Adverse effect on professional judgment of a lawyer, interests of other clients. Veniremen. See Jury. Violation of disciplinary rule as cause for discipline, DR 1-102(A) (1), (2) Violation of law as cause for discipline, EC 1-5, DR 1-102(3), (4), EC 7-26, DR 7-102(A)(3)-(8) Voluntary gifts by clients to lawyer, EC 5-5 Volunteered advice to secure legal services. See advice by lawyer to secure legal services.

W Waiver of position of client, DR 7-101(B)(1) Will of client, gift to lawyer in, EC 5-5 Withdrawal. See Employment, withdrawal from. Witness, communications with, EC 7-27, EC 7-28, DR 7-109 false testimony by, EC 7-26, EC 7-28, DR 7-102(B)(2) lawyer acting as, EC 5-9, EC 5-10, DR 5-101(B), DR 5-102 member of lawyer’s firm acting as, DR 5-101(B), DR 5-102 payment to, EC 7-28, DR 7-109(C) Writing for lay publication, avoiding appearance of giving general solution, EC 2-5

Z Zeal

680

general duty of, EC 7-1, DR 7-101 limitations upon, EC 7-1, EC 7-2, EC 7-3, EC 7-5, EC 7-6, EC 7-7, EC 7-8, EC 7-9, EC 7-10, EC 7-15, EC 7-16, EC 7-17, EC 7-21, EC 7-22, EC 7-25, EC 7-26, EC 7-27, EC 7-36, EC 7-37, EC 7-38, EC 7-39, DR 7-110, DR 7-102, DR 7-105

681

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MONTANA RULES OF PROFESSIONAL CONDUCT IN THE SUPREME COURT OF THE STATE OF MONTANA No. 03-264

IN RE: REVISING THE MONTANA RULES OF PROFESSIONAL CONDUCT

) ) )

ORDER

On April 25, 2003, the State Bar of Montana, together with its Ethics Committee, petitioned this Court to revise the Montana Rules of Professional Conduct. On May 20, 2003, we issued an order inviting the bench and bar and any interested persons to file written comments, suggestions or criticisms with the Clerk of this Court regarding the proposed revisions to the Montana Rules of Professional Conduct by September 1, 2003. We received all comments on that date. The Court has considered each and every proposed revision and comment. We haveaccepted most, but not all, of the proposed revisions and have, after discussion, amended several of the proposed revisions. The attached Rules are the complete Montana Rules ofProfessional Conduct. Many existing Rules are not changed, others are changed subtly, some include entire new subsections and a few are entirely new. For ease of reading, no underlining or strikeouts are shown. In addition, we are deferring consideration of the proposed revisions to Rule 5.5 on the unauthorized practice of law and Rule 8.5 on disciplinary authority and choice of law until the comment period has run on the State Bar’s petition for proposed revisions to the Rules which would–if adopted–establish multijurisdictional practice in Montana. Accordingly, the attached Rules 5.5 and 8.5 do not reflect any revisions. THEREFORE, pursuant to the authority granted this Court by Article VII, Section 2(3) of the 1972 Montana Constitution, IT IS ORDERED that the Montana Rules of Professional Conduct attached to this order are ADOPTED. IT IS FURTHER ORDERED that any existing Rules which are attached but were not revised remain in full force and effect. IT IS FURTHER ORDERED that Rules revised during this process are effective April 1, 2004. IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail copies of this Order with attached Montana Rules of Professional Conduct to: Robert J. Sullivan, President of the State Bar of Montana; Michael G. Alterowitz, Chair of the State Bar of Montana Ethics Commission; Chris Manos, Executive Director of the State Bar of Montana with the request that this Order be published in the next available issue of The Montana Lawyer and that this Order and the attached Montana Rules of Professional Conduct be posted to the State Bar’s webpage; The State Law Librarian with a request that this Order and attached Montana Rules of Professional Conduct be posted to the State Law Library webpage; The State Reporter Publishing Company with the request that this Order and the attached Montana Rules of Professional Conduct be published in State Reporter; West Group with the request that this Order and the attached Montana Rules of Professional Conduct be published in the annual update of Montana Rules of Court; Gregory Petesch, Code Commissioner and Director of Legal Services for the Montana Legislative Services Division. IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail copies of this Order only to the Clerks of all of the District Courts of the State of Montana and to each District Court Judge with the request that each Clerk and each District Judge print their copy of the Montana Rules of Professional Conduct from the State Law Library webpage at: http://www.lawlibrary. state.mt.us DATED this 17th day of February, 2004. /S/ KARLA M. GRAY /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ JAMES C. NELSON /S/ PATRICIA O’BRIEN COTTER /S/ JAMES A. RICE

IN THE SUPREME COURT OF THE STATE OF MONTANA No. 09-0688

IN RE: THE RULES OF PROFESSIONAL CONDUCT ON ADVERTISING

) ) )

ORDER

On November 30, 2009, the Trustees of the State Bar of Montana and the Ethics Committee (Petitioners) filed with this Court a Petition and Memorandum in Support of Revision of the Rules of Professional Conduct on Advertising. The Petition alleges the proposed amendments would (1) clarify Montana disciplinary jurisdiction over attorney advertising; (2) specifically identify types of misleading lawyer communications; and (3) recognize that Montana does not have a procedure to “qualify” a awyer referral service. On January 8, 2010, this Court ordered members of the bench and bar of Montana and any other interested persons 90 days to file comments and/or suggestions to the Proposed Revision to the Rules of Professional Conduct on Advertising. We have reviewed the Petition, Memorandum and all comments and/or suggestions received and conclude that the attached amendments to the Rules of Professional Conduct on Advertising should be adopted. Therefore, good cause appearing, IT IS HEREBY ORDERED that Rules 7.1 (Communications Concerning a Lawyer’s Services), 7.2 (Advertising), and (Jurisdiction and Certification) of the Rules of Professional Conduct on Advertising are hereby amended in accordance with the attached, and by this reference made a part hereof. The deleted language of the attached, amended Rules is stricken and the underlined language is added.

682

265 2012 Lawyers’ Deskbook & Directory

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IT IS FURTHER ORDERED that these amendments shall be effective immediately. IT IS FURTHER ORDERED that the Clerk of this Court shall give notice hereof to each District Court Judge; each Clerk of the District Court; the Executive Director of the State Bar of Montana, with a request that the State Bar publish a reference or link to this order on the State Bar’s website and that notice of this order be published in the Montana Lawyer; to the Montana State Law Library, with a request that it publish a reference or link to this order on the Law Library’s website. DATED this 20th day of July, 2010. /S/ MIKE MCGRATH /S/ W. WILLIAM LEAPHART /S/ PATRICIA O’BRIEN COTTER /S/ MIKE WHEAT /S/ JAMES A. RICE /S/ JAMES C. NELSON

IN THE SUPREME COURT OF THE STATE OF MONTANA No. AF 09-0688

IN RE: CHANGES TO THE MONTANA RULES OF PROFESSIONAL CONDUCT to encourage limited scope representation (LSR) in Montana

) ) )

ORDER

In September of 2010, the Montana Supreme Court Equal Justice Task Force, the Montana Supreme Court Commission on Self-Represented Litigants, and the State Bar Access to Justice Committee petitioned the Court to adopt rule changes in order to encourage limited scope representation (LSR) by Montana attorneys, as one means of addressing the unmet legal needs of low-to moederate-income Montanans. For that purpose, changes were proposed to the Montana Rules of Civil Procedure and the Montana Rules of Professional Conduct. We invited and received written public comment on the proposed rule changes. At the end of the comment period, we also heard public comment at several public meetings. At our public meeting on March 1, 2011, we voted to adopt most, but not all, of the changes proposed to the Montana Rules of Professional Conduct and the Montana Rules of Civil Procedure. IT IS NOW ORDERED: Rules 1.2, 4.2, and 4.3 of the Montana Rules of Professional Conduct are amended by the addition of the language highlighted and underlined below: Rule 1.2 -- Scope of Representation and Allocation of Authority Between Client and Lawyer [existing subsections (a) and (b) ] (c) A lawyer may limit scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. (1) The client’s informed consent must be confirmed in writing unless: (i) the representation of the client consists solely of telephone consultation; (ii) the representation is provided by a lawyer employed by a nonprofit legal services program or participating in a nonprofit court-annexed legal services program and the lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms; or (iii) the court appoints the attorney for a limited purpose that is set forth in the appointment order. (2) If the client gives informed consent in writing signed by the client, there shall be a presumption that: (i) the representation is limited to the attorney and the services described in writing; and (ii) the attorney does not represent the client generally or in maters other than those identified in the writing. [existing subsection (d)] Rule 4.2 -- Communication with Person Represented by Counsel (a) [existing rule] (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. Rule 4.3 -- Dealing with Unrepresented Person (a) [existing rule] (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. The above changes to the Montana Rules of Professional Conduct shall be effectiv on October 1, 2011. This Order shall be published on the Montana Supreme Court website. The Clerk is directed to provide copies of this Order to the Montana State Law Library, the State Bar of Montana, Court Services Director Beth McLaughlin, Thomson-Reuters, Chair of the State Bar Ethics Committee Michael Alterowitz, and the Montana Legislative Services Division. The Clerk is further directed to provide copies of this Order to the Chairs of the Montana Supreme Court Equal Justice Task Force, the Montana Supreme Court Commission on Self-Represented Litigants, the State Bar of Montana Access to Justice Committee, and the Advisory Commission on Rules of Civil and Appellate Procedure.

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DATED this 15th day of March, 2011.

(1) A lawyer shall always pursue the truth. (2) A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. (3) As a representative of clients, a lawyer performs various functions. In performance of any functions a lawyer shall behave consistently with the requirements of honest dealings with others. As advisor, a lawyer endeavors to provide a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements under these Rules of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them. (4) In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. (5) In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. (6) A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. (7) As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot

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PREAMBLE: A LAWYER’S RESPONSIBILITIES

/S/ MIKE MCGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JAMES C. NELSON /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE

afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. (8) Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service. (9) A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are harmonious. A lawyer can be a dedicated advocate on behalf of a client, even an unpopular one, but in doing so must comply with these Rules of Professional Conduct. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. (10) In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (11) The legal profession is self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the courts. (12) Self-regulation helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. (13) The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these

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responsibilities compromises the independence of the profession and the public interest which it serves. (14) Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. All lawyers understand that, as officers of the court, they have a duty to be truthful, which engenders trust in both the profession and the rule of law. The Rules of Professional Conduct, when properly applied, serve to define that relationship. Trust in the integrity of the system and those who operate it is a basic necessity of the rule of law; accordingly truthfulness must be the hallmark of the legal profession, and the stock-in-trade of all lawyers. (15) The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role. Many of the Comments use the term “should.” Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. (16) The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. (17) Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. (18) Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the clientlawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.20. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. (19) Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several

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government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. (20) Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. (21) Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule provides just basis for self-assessment by a lawyer of his/her conduct or a basis for sanctioning a lawyer under the disciplinary process does not imply that an opposing party or lawyer has standing to seek enforcement of the Rules in a collateral proceeding or transaction outside of the disciplinary process.

RULE 1.0 - TERMINOLOGY (a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances. (b) “Bona fide” denotes in or with good faith; honestly, openly, and sincerely; without deceit or fraud. (c) “Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question. (d) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (g) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. (e) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. (f) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. (g) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (h) “Knowingly,” “known” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

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CLIENT-LAWYER RELATIONSHIP

RULE 1.1 - COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.2 - SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. (1) The client’s informed consent must be confirmed in writing unless: (i) the representation of the client consists solely of telephone consultation; (ii) the representation is provided by a lawyer employed by a nonprofit legal services program or participating

in a nonprofit court-annexed legal services program and the lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms; or (iii) the court appoints the attorney for a limited purpose that is set forth in the appointment order. (2) If the client gives informed consent in writing signed by the client, there shall be a presumption that: (i) the representation is limited to the attorney and the services described in writing; and (ii) the attorney does not represent the client generally or in maters other than those identified in the writing.. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

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(i) “Partner” denotes a member of a law partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (j) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (k) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (l) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. (m) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. (n) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance. (o) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter. (p) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording and e-mail. A “signed” writing includes the electronic equivalent of a signature, such as an electronic sound, symbol or process, which is attached to a writing and executed or adopted by a person with the intent to sign the writing.

RULE 1.3 - DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client.

RULE 1.4 - COMMUNICATION (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(g), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

RULE 1.5 - FEES (a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except

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when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing. This paragraph does not apply in any matter in which it is reasonably foreseeable that total cost to a client, including attorney fees, will be $500 or less. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of maintenance or support or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.

RULE 1.6 - CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (4) to comply with other law or a court order.

RULE 1.7 - CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s

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responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

RULE 1.8 - CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) in matters in which a lawyer wishes to assert a retaining lien against client property, papers or materials in the lawyer’s possession to secure payment for the lawyer’s services and costs advanced relating to such property, papers or materials, a written agreement for such a lien shall expressly set forth the limitations contained in paragraph (i)(3); (3) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (4) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; (3) a lawyer may, for the sole purpose of providing basic living expenses, guarantee a loan from a regulated financial institution whose usual business involves making loans if such loan is reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided that neither the lawyer nor anyone on his/her behalf offers, promises or advertises such financial

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RULE 1.9 - DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter

or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

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assistance before being retained by the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives written informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer: (1) may acquire and assert a charging lien only against causes of action or counterclaims in litigation pursuant to and only to the extent specified in MCA 37-61-420(2); such a charging lien does not extend to other client property, papers or materials in the lawyer’s possession, to any matter not in litigation, or to any matter otherwise not covered by the specific language of MCA 37-61-420(2); (2) may contract with a client for a reasonable contingent fee in a civil case; and (3) may not acquire or assert a retaining lien to secure payment due for the lawyer’s services against any client property, papers or materials other than those related to the matter for which payment has not been made and, upon termination of representation, shall deliver to the client any client property, papers or materials reasonably necessary to protect the client’s interest in the matter to which the property, papers or materials relate as provided in Rule 1.16(d). (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

RULE 1.10 - IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless: (1) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule. (d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7. (e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

RULE 1.11 - SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a

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matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). (e) As used in this Rule, the term “matter” includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

RULE 1.12 - FORMER JUDGE, ARBITRATOR, SETTLEMENT MASTER, MEDIATOR OR OTHER THIRD-PARTY NEUTRAL (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, settlement master, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, settlement master, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule. (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

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RULE 1.13 - ORGANIZATION AS CLIENT (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking for reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law. (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16. (d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. (e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

RULE 1.14 - CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly

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RULE 1.15 - SAFEKEEPING PROPERTY (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in accordance with Rule 1.18 and this Rule. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

RULE 1.16 - DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and

property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. A lawyer is entitled to retain and is not obliged to deliver to a client or former client papers or materials personal to the lawyer or created or intended for internal use by the lawyer except as required by the limitations on the retaining lien in Rule 1.8(i). Except for those client papers which a lawyer may properly retain under the preceding sentence, a lawyer shall deliver either the originals or copies of papers or materials requested or required by a client or former client and bear the copying costs involved.

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authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

RULE 1.17 - GOVERNMENT EMPLOYMENT An attorney employed full time by the State of Montana or a political subdivision shall not accept other employment during the course of which it would be possible to use or otherwise rely on information obtained by reason of government employment that is injurious, confidential or privileged and not otherwise discoverable.

RULE 1.18 - INTEREST ON LAWYER TRUST ACCOUNTS (IOLTA) PROGRAM (a) Purpose. The purpose of the Interest on Lawyer Trust Accounts (IOLTA) program is to provide funds for the Montana Justice Foundation to pay the reasonable costs of administering the program and to make grants to entities with missions within the following general categories: (1) Providing legal services, through both paid staff program(s) and pro bono program(s), to Montana’s low income citizens who would otherwise be unable to obtain legal assistance; (2) promoting a knowledge and awareness of the law; and (3) improving the administration of justice. (b) Required participation. IOLTA program participation is mandatory, except as provided in subsection (d), below. Every non-exempt lawyer admitted to practice in Montana, and/or every law firm composed of any such lawyers, which receives client funds, shall establish and maintain an interest-bearing trust account for pooled client funds, termed an “IOLTA Trust Account.” Each lawyer/firm shall also establish separate interestbearing trust accounts for individual clients, termed “Client Trust Accounts,” when appropriate pursuant to this Rule. (c) Administration. (1) Deposits of clients’ funds. (A) All client funds paid to a lawyer/firm, including advances for costs and expenses, shall be deposited and maintained in one or more identifiable interest-bearing trust accounts (Trust Accounts) in the State of Montana. No funds belonging to the lawyer/firm shall be deposited into a Trust Account except: (i) funds reasonably sufficient to pay account charges not offset by interest; (ii) an amount to meet a minimum balance requirement for the waiver of service charges; and/or (iii) funds belonging in part to a client and in part presently or potentially to the lawyer/firm, but the portion belonging to the lawyer/firm shall be withdrawn when due unless the right of the lawyer/firm to such funds is disputed by the client, in which event the disputed portion shall remain in the account until the dispute is resolved. (B) The lawyer/firm shall comply with all Rules relating to preserving the identity of clients’ funds and property. (C) Every Trust Account shall be established with a federallyinsured and state or federally regulated financial institution authorized by federal or state law to do business in Montana. Funds in each Trust Account shall be subject to immediate withdrawal. (D) The interest rate payable on a Trust Account shall not be less than the rate paid to non-lawyer depositors. Higher rates offered for deposits meeting certain criteria, such as certificates

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of deposit, may be obtained on Trust Account funds if immediate withdrawal is available. (E) Every Trust Account shall bear the name of the lawyer/ firm and be clearly designated as either an IOLTA Trust Account or a Client Trust Account established under this Rule. (2) IOLTA Trust Accounts. Every IOLTA Trust Account shall comply with the following provisions: (A) The lawyer/firm shall maintain all client funds that are either nominal in amount or to be held for a short period of time in an IOLTA Trust Account. (B) No client may elect whether his/her funds should be deposited in an IOLTA Trust Account, receive interest or dividends earned on funds in an IOLTA Trust Account, or compel a lawyer/ firm to invest funds that are nominal in amount or to be held for a short period of time in a Client Trust Account. (C) The determination of whether a client’s funds are nominal in amount or to be held for a short period of time rests solely in the sound judgment of each lawyer/firm. No charge of professional misconduct or ethical impropriety shall result from a lawyer’s exercise of good faith judgment in that regard. (D) To determine if a client’s funds should be deposited in an IOLTA Trust Account, a lawyer/firm may be guided by considering: (i) the amount of interest the funds would earn during the period they are expected to be deposited; (ii) the costs of establishing and administering the account, including the lawyer’s/firm’s fees, accounting fees and tax reporting requirements; (iii) the amount of funds involved, the period of time they are expected to be held and the financial institution’s minimum balance requirements and service charges; (iv) the financial institution’s ability to calculate and pay interest to individual clients; and (v) the likelihood of delay in the relevant transaction or proceeding. (E) The lawyer/firm shall require the financial institution in which the IOLTA Trust Account is established to: (i) remit to the Montana Justice Foundation, at least quarterly, all interest or dividends on the average monthly balance in the IOLTA Trust Account, or as otherwise computed according to the institution’s standard accounting practices, less reasonable service fees, if any; (ii) with each remittance, provide the Montana Justice Foundation and the lawyer/firm with a statement showing for which lawyer/firm the remittance is sent, the period covered, the rate of interest applied, the total amount of interest earned, any service fees assessed against the account and the net amount of interest remitted; (iii) charge no fees against an IOLTA Trust Account greater than fees charged to non-lawyer depositors for similar accounts, or which are otherwise unreasonable; and (iv) collect no fees from the principal deposited in the IOLTA Trust Account. (F) Annually the Montana Justice Foundation shall make available a list of all financial institutions offering IOLTA accounts and meeting this Rule’s IOLTA depository qualifying requirements. Lawyers/firms shall be entitled to rely on the most recently published list for purposes of IOLTA Rule compliance. The Montana Justice Foundation shall pay all service charges incurred in operating an IOLTA Trust Account from IOLTA funds, to the extent the charges exceed those incurred in operating non-interest-bearing checking accounts at the same financial institution. (G) Confidentiality. The Montana Justice Foundation shall protect the confidentiality of information regarding Trust Accounts pursuant to this Rule. (3) Non-IOLTA client Trust Accounts. All client funds shall be deposited in an IOLTA Trust Account, unless they are deposited

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in a separate interest-bearing account for a particular client’s matter with the net interest paid to the client. Such interest must be held in trust as the property of the client as provided in this Rule for the principal funds of the client. (d) A lawyer/firm is exempt from this Rule’s requirements if: (1) the nature of their practice is such that no client funds are ever received requiring a Trust Account; (2) the lawyer practices law in another jurisdiction and not in Montana; (3) the lawyer is a full-time judge, or government, military or inactive lawyer; or (4) the Montana Justice Foundation’s Board of Directors, on its own motion, exempts the lawyer/firm from participation in the program for a period of no more than two years when: (A) service charges on the lawyer’s/firm’s Trust Account equal or exceed any interest generated; or (B) no financial institution in the county where the lawyer/firm does business will accept IOLTA accounts. (e) Lawyer filings and records. (1) Filings. Each lawyer/firm shall file an annual certificate of compliance with or exemption from this Rule with the Montana Justice Foundation. The certification must include the name of the lawyer/firm listed on the account, the account number, and the financial institution name and address. The certification may be made in conjunction with the annual dues billing process. Failure to provide the certification may result in suspension from the practice of law in this state until the lawyer complies with the requirements of this Rule. (2) Records. Lawyer trust accounts shall be maintained as prescribed by the Montana Supreme Court in the “Trust Account Maintenance and Audit Requirements” (adopted February 27, 1989). (f) Implementation. Implementation will be effected through this Rule and the Rules of the State Bar of Montana, all as amended and approved by the Montana Supreme Court.

RULE 1.19 - SALE OF LAW PRACTICE A lawyer or a law firm may sell or purchase a law practice, including good will, if the following conditions are satisfied: (a) The seller ceases to engage in the private practice of law in the geographic area in which the practice has been conducted. (b) The entire practice is sold to one or more lawyers or law firms. (c) Actual written notice is given to each of the seller’s clients regarding: (1) the proposed sale; (2) the client’s right to retain other counsel or to take possession of the file; and (3) the fact that the client’s consent to the sale will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice. If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file. (d) The fees charged clients shall not be increased by reason of the sale.

RULE 1.20 - DUTIES TO PROSPECTIVE CLIENTS (a) A person who consults with or has had consultations with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had consultations with a prospective client shall not use or reveal information learned in the consultation(s), except

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RULE 2.1 - ADVISOR In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

RULE 2.2 - EVALUATION FOR USE BY THIRD PERSONS (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

RULE 2.3 - LAWYER SERVING AS THIRD-PARTY NEUTRAL (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, settlement master, mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) A lawyer serving as a third-party neutral shall inform all parties that the lawyer is not representing them. The lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client. ADVOCATE

RULE 3.1 - MERITORIOUS CLAIMS AND CONTENTIONS (a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein: (1) without having first determined through diligent investigation that there is a bona fide basis in law and fact for the position to be advocated; (2) for the purpose of harassment, delay, advancement of a nonmeritorious claim or solely to gain leverage; or (3) to extend, modify or reverse existing law unless a bona fide basis in law and fact exists for advocating doing so. (b) A lawyer for the defendant in a criminal proceeding, or the

respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

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as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) Representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing, or: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the prospective client.

RULE 3.2 - EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

RULE 3.3 - CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

RULE 3.4 - FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence, unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

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RULE 3.5 - IMPARTIALITY AND DECORUM OF THE TRIBUNAL A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person except as permitted by law; or (c) engage in conduct intended to disrupt a tribunal.

RULE 3.6 - TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

RULE 3.7 - LAWYER AS WITNESS (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

RULE 3.8 - SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain

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counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule consistent with the Confidential Criminal Justice Information Act.

RULE 3.9 - ADVOCATE IN NONADJUDICATIVE PROCEEDINGS A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. OTHER THAN CLIENTS

RULE 4.1 - TRUTHFULNESS IN STATEMENT TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

R U L E 4.2 - C O M M U N I C AT I O N REPRESENTED BY COUNSEL

WITH

PERSON

(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation.

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RULE 4.3 - DEALING WITH UNREPRESENTED PERSON

RULE 4.4 - RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a writing and knows or reasonably should know that the writing was inadvertently sent shall promptly notify the sender. LAW FIRMS AND ASSOCIATIONS

RULE 5.1 - RESPONSIBILITIES OF PARTNERS, MANAGERS AND SUPERVISORY LAWYERS (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer within a firm shall be responsible for another lawyer in the firm’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

RULE 5.2 - RESPONSIBILITIES OF A SUBORDINATE LAWYER (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if the lawyer acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

RULE 5.3 - RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS With respect to a nonlawyer employed or retained by or associated with a lawyer:

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(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation.

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

RULE 5.4 - PROFESSIONAL INDEPENDENCE OF A LAWYER (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 1.19, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

RULE 5.5 - UNAUTHORIZED PRACTICE OF LAW A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

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RULE 5.6 - RESTRICTIONS ON RIGHT TO PRACTICE A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy. PUBLIC SERVICE

RULE 6.1 - PRO BONO PUBLICO SERVICE Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least fifty (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the fifty (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means; or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

RULE 6.2 - ACCEPTING APPOINTMENTS A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

RULE 6.3 - MEMBERSHIP IN LEGAL SERVICES ORGANIZATION A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or (b) where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

RULE 6.4 - LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS A lawyer may serve as a director, officer or member of an

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organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

RULE 6.5 - NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule. INFORMATION ABOUT LEGAL SERVICES

RULE 7.1 - COMMUNICATIONS CONCERNING A LAWYER’S SERVICES A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false if it contains a material misrepresentation of fact or law. A misleading communication includes, but is not limited to those that: (a) omits a fact as a result of which the statement considered as a whole is materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve; (c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits; (d) states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (e) compares the quality of a lawyer’s or a law firm’s services with other lawyers’ services, unless the comparison can be factually substantiated; (f) advertises for a specifc type of case concerning which the lawyer has neither experience nor competence; (g) indicates an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuous identification of such fact; (h) contains any paid testimonial about, or endorsement of, the lawyer without conspicuous identification of the fact that payments have been made for the testimonial or endorsement; (i) contains any simulated portrayal of a lawyer, client, victim, scene, or event without conspicuous identification of the fact that it is a simulation; (j) provides an office address for an office staffed only part time or by appointment only, without conspicuous idenfitication of such fact; (k) states that legal services are available on a contingent or no-recovery, no-fee basis without stating conspicuously that the client may be responsible for costs or expenses, if that is the case; or (l) advertises for legal services without indentifying the jurisdictions in which the lawyer is licensed to practice.

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RULE 7.2 - ADVERTISING

RULE 7.3 - DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) A lawyer shall not by in-person, live telephone or realtime electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; (2) the solicitation involves coercion, duress or harassment; (3) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person cannot exercise reasonable judgment in employing a lawyer; or(4) the lawyer reasonably should know that the person is already represented by another lawyer. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a) (2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Lawyers who participate in a legal services plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See Rule 8.4(a).

RULE 7.4 - COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his/her practice is limited to or concentrated in a particular field of law, if such communication does not imply an unwarranted expertise in the field so as to be false or misleading under Rule 7.1. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the

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(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-forprofit lawyer referral service; and (3) pay for a law practice in accordance with Rule 1.19. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.

RULE 7.5 - FIRM NAMES AND LETTERHEADS (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional (e.g., website) designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. MAINTAINING THE INTEGRITY OF THE PROFESSION

RULE 8.1 - BAR ADMISSION AND DISCIPLINARY MATTERS An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

RULE 8.2 - JUDICIAL AND LEGAL OFFICIALS (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct.

RULE 8.3 - REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable code of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority. (c)This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

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RULE 8.4 - MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable code of judicial conduct or other law.

RULE 8.5 - JURISDICTION AND CERTIFICATION A lawyer who is not an active member in good standing of the State Bar of Montana and who seeks to practice in any state or federal court located in this State pro hac vice, by motion, or before being otherwise admitted to the practice of law in this State, shall, prior to engaging in the practice of law in this State, certify in writing and under oath to this Court that, except as to Rules 6.1 through 6.4, he or she will be bound by these Rules of Professional Conduct in his or her practice of law in this State and will be subject to the disciplinary authority of this State. A copy of said certification shall be mailed, contemporaneously, to the business offices of the State Bar of Montana in Helena, Montana. A lawyer not admitted to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that: (1) involves the practice of law in this State by that lawyer; (2) involves that lawyer holding himself or herself out as practicing law in this State; (3) advertises, solicits, or offers legal services in this State; or (4) involves the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur. Effective April 1, 2004 Amended July 5, 2005 (Rule 8.5) Amended July 20, 2010 (Rules 7.1, 7.2 and 8.5) Amended March 15, 2011 (Rules 1.2, 4.2 and 4.3)

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(The Office of Disciplinary Counsel can be reached at (877) 442-1648.) The Supreme Court of the State of Montana (hereinafter referred to as “Supreme Court” or “Court”) declares that it possesses original and exclusive jurisdiction and responsibility under Article VII, Section 2(3), of the 1972 Montana Constitution and the provisions of Chapter 61, Title 37, Montana Code Annotated, in addition to its inherent jurisdiction, in all matters involving admission of persons to practice law in the State of Montana, and the conduct and disciplining of such persons. In the exercise of that jurisdiction, the Court hereby adopts and promulgates the following Rules for Lawyer Disciplinary Enforcement. These rules shall be referred to as the Rules For Lawyer Disciplinary Enforcement (2002) or RLDE (2002). I. STRUCTURE AND SCOPE

RULE 1 - COMPREHENSIVE LAWYER REGULATION SYSTEM The Court hereby establishes a comprehensive lawyer discipline and disability system, consisting of an Office of Disciplinary Counsel and a Commission on Practice. The Office of Disciplinary Counsel shall perform central intake functions and shall process, investigate, and prosecute those complaints against lawyers which are within the disciplinary jurisdiction of the Court. The Commission on Practice, which shall be divided into Review and Adjudicatory Panels, shall hear and decide complaints and in appropriate cases, shall make recommendations to the Court for discipline. Prosecutorial and adjudicatory functions shall be separated and managed to secure responsiveness, efficiency, and fairness.

RULE 2 -THE COMMISSION ON PRACTICE OF THE SUPREME COURT OF THE STATE OF MONTANA A. Appointment. The Court shall appoint a fourteenmember commission to be known as “The Commission on Practice of the Supreme Court of the State of Montana,” hereinafter referred to as the “Commission,” which shall consist of nine practicing lawyers, who shall be residents of the State of Montana and licensed and admitted to practice in the state of Montana, and five nonlawyers. One of said lawyers shall be appointed from each of the areas hereinafter defined. One lawyer member shall be at large and may be appointed from any area set forth below. The nonlawyer members of the Commission shall be appointed at large, but they shall be residents of the state of Montana. The term of office of all members of the Commission shall be four years. The persons serving on the Commission on the effective date of these Rules shall continue to serve on the Commission for the remainder of the terms for which they were appointed, unless their membership on the Commission is terminated as hereinafter provided. The areas from which the lawyer members of the Commission shall be appointed shall be comprised of the various judicial districts of the state of Montana, and are to be designated as follows: Area A shall comprise the Fourth, Eleventh, Nineteenth, Twentieth, and Twenty-first Judicial Districts. Area B shall comprise the Second, Third, and Fifth Judicial Districts. Area C shall comprise the Eighth and Ninth Judicial Districts. Area D shall comprise the Twelfth, Fifteenth, and Seventeenth Judicial Districts. Area E shall comprise the First, Sixth, and Eighteenth Judicial Districts. Area F shall comprise the Tenth and Fourteenth Judicial Districts.

Area G shall comprise the Thirteenth and Twenty-second Judicial Districts. Area H shall comprise the Seventh and Sixteenth Judicial Districts. Except for the at-large lawyer member, appointments to the Commission of the lawyer members shall be made by the Supreme Court from a list of three practicing lawyers in each Area having the three highest number of votes in an election by the Area members of the State Bar of Montana. The time, place, and method of such election shall be in accordance with the orders of this Court. In the event that said election is not held in any Area as ordered, the Supreme Court shall appoint a member from that Area to serve on the Commission. The nonlawyer members and the at-large lawyer member of the Commission shall not be subject to the election procedure, but shall be appointed by the Court. In the event of a vacancy in the Commission, a successor shall be appointed by the Supreme Court for the unexpired term of the member whose office is vacated. Members of the Commission may terminate their membership at their pleasure, and their membership may be terminated by the Court at its pleasure. B. Election of Officers. The members of the Commission shall annually elect lawyer members as chairperson, vice chairperson, and executive secretary. The chairperson, and in the absence of the chairperson, the vice chairperson, shall preside at meetings of the Commission except that in the conduct of disciplinary hearings the chairperson may appoint another lawyer member of the Commission to act as presiding officer. A presiding officer shall have all of the powers of the chairperson in any case in which he or she has been appointed. C. Quorum. Eight members of the Commission shall constitute a quorum when the Commission is acting as a whole. The act of a majority of the members present at a meeting at which a quorum is present shall be the act of the Commission. D. Meetings. Members of the Commission shall meet at times and places designated by the chairperson or, in the absence of the chairperson, by the vice chairperson, who shall determine the agenda for the meetings. Notice of any such meeting shall be given by mail or by telephone not less than seven calendar days in advance of the time for such meeting, except in cases of emergency or urgency requiring, in the judgment of the person calling the meeting, a shorter time of notice. Also, the Supreme Court may call a meeting of the members to be held at a time and place ordered by the Court. Notice of such meeting shall be given as above provided. The minutes of any meeting of the Commission shall state the form and time of notice of meeting given to the members. E. Executive Committee. The chairperson, vice chairperson,

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RULES FOR LAWYER DISCIPLINARY ENFORCEMENT

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and executive secretary of the Commission shall constitute the executive committee. The principal function of the executive committee shall be to attend to administrative matters during the interval between meetings of the Commission. The executive committee shall have such other duties and authority as the Commission shall determine from time to time. F. Compensation and Expenses. Members of the Commission shall receive no compensation for their services, but may be reimbursed for travel and other expenses incidental to the performance of their duties. G. Powers and Duties of the Commission. The Commission shall exercise the following powers and duties: (1) Adopt rules or policies providing for the time and place of meetings, and such other procedural rules not in conflict with these rules, as may be necessary to expedite the conduct of its business; (2) Periodically review the operation of the lawyer disciplinary system with the Supreme Court; (3) Establish Review Panels pursuant to Rule 3; (4) Establish Adjudicatory Panels pursuant to Rule 4; (5) Appoint and supervise any Commission staff; (6) Assure that a Review Panel member who sits on a particular case does not also sit on an Adjudicatory Panel for that case; (7) Maintain all permanent records of disciplinary matters and proceedings; (8) Exercise such other authority and perform such other duties as are provided in these Rules, or that may be required in order to carry out the provisions of these Rules; and (9) Operate subject to budgetary limitations imposed by the Court.

RULE 3 - REVIEW PANELS: COMPOSITION; POWERS & DUTIES; QUORUM A. Composition. The Chairperson of the Commission shall appoint one or more Review Panels of five members each, at least two of whom shall be nonlawyers; shall designate a Chairperson for each Review Panel; and shall realign the membership of Review Panels from time to time. B. Powers and Duties. A Review Panel shall: (1) Review Disciplinary Counsel’s request to file a formal complaint, together with the complaint, the response from the lawyer against whom the complaint was made and any reply from the complainant together with other relevant documents and Disciplinary Counsel’s intake summary, investigative report, and recommendations; (2) Refer complaint to Disciplinary Counsel for any further investigation, if needed, to determine whether a formal complaint is appropriate; (3) Approve Disciplinary Counsel’s request to file a formal complaint when the facts appear to warrant disciplinary action or transfer to disability/inactive status or reject the request to file a formal complaint if discipline does not appear to be warranted; (4) Hear and determine requests for review pursuant to Rule 10C(3) and for reconsideration pursuant to Rule 14; (5) Authorize the stay of disciplinary proceedings for good cause shown pursuant to Rule 28; (6) Conduct show cause hearings when a lawyer has refused to respond to inquiries from the Office of Disciplinary Counsel or the Commission; and (7) Notify parties of action by a Review Panel. C. Quorum. Three members of a Review Panel, at least two of whom are lawyers, shall constitute a quorum; however, any act of the Review Panel shall require the vote of three members.

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RULE 4 - ADJUDICATORY PANELS: COMPOSITION; POWERS & DUTIES; QUORUM A. Composition. The Chairperson of the Commission shall appoint one or more Adjudicatory Panels of nine members each, at least three of whom shall be nonlawyers; shall designate a Chairperson for each Adjudicatory Panel; and shall realign the membership of Adjudicatory Panels from time to time. B. Powers and Duties. Adjudicatory Panels shall, in accordance with the specific procedures and provisions of these Rules: (1) Hold hearings on formal complaints and complaints for interim suspension filed by Disciplinary Counsel; (2) After hearing, make findings of fact, conclusions of law, and recommendations to the Court for discipline or other disposition of formal complaints; (3) Hear and determine preliminary and procedural matters incidental to the exercise of its powers and duties; (4) Administer admonitions; (5) Hear and determine requests for reconsideration pursuant to Rule 14; (6) Administer oaths, provide for discovery, and exercise its subpoena power pursuant to Rule 19; (7) Authorize the stay of a disciplinary proceeding for good cause shown pursuant to Rule 28; (8) Hold show cause hearings when a lawyer has refused to respond or cooperate with the Office of Disciplinary Counsel, a Review Panel, or an Adjudicatory Panel pursuant to Rule 24; (9) Conduct proceedings relative to disability and transfer to inactive status pursuant to Rule 28; (10) Hold hearings on petitions for reinstatement and make recommendations for their disposition to the Supreme Court pursuant to Rule 29; (11) Hold hearings and make recommendations to the Court concerning assessment of the costs of proceedings, investigations, and audits pursuant to Rule 9; and (12) Approve Disciplinary Counsel’s request to file a formal complaint when the facts appear to warrant disciplinary action or transfer to disability/inactive status. C. Quorum. Five members of an Adjudicatory Panel, at least three of whom are lawyers, shall constitute a quorum; however, any act of the Adjudicatory Panel shall require the vote of three members.

RULE 5 - OFFICE OF DISCIPLINARY COUNSEL A. Appointment. The Court shall appoint a lawyer to serve as Chief Disciplinary Counsel and may appoint such Deputy Disciplinary Counsels as they deem necessary. Disciplinary Counsel shall not engage in private practice; shall be admitted to practice in Montana at the time of appointment or within a reasonable time thereafter as determined by the Court; and shall maintain offices in Helena, Montana, in facilities designated by the Court. B. Powers and Duties. Disciplinary Counsel shall perform all prosecutorial functions and shall have the following powers and duties: (1) Supervise Office of Disciplinary Counsel (Office) staff in performing central intake functions; (2) Evaluate all information coming to the attention of the Office to determine whether it is within the disciplinary jurisdiction of the Court; (3) Investigate all information coming to the attention of the Office which, if true, would be grounds for discipline or transfer to disability/inactive status; (4) Investigate all facts pertaining to petitions for reinstatement

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RULE 6 - COSTS AND EXPENSES; FISCAL REVIEWS AND AUDITS A. Office of Disciplinary Counsel. The costs and expenses of the Office of Disciplinary Counsel shall be paid from an annual assessment of active members of the State Bar of Montana and of nonmembers admitted to practice under the Montana State Bar pro hac vice rules. The Supreme Court shall determine the amount of the annual member assessment. B. Commission on Practice. The costs and expenses of the Commission shall be paid from legislatively-appropriated public funds. C. Fiscal Reviews and Audits. The Court may direct fiscal

reviews and audits of the components of the lawyer regulation system.

RULE 7 - JURISDICTION Any lawyer admitted to practice law in the state of Montana and any lawyer specially admitted by a court of the state of Montana for a particular proceeding, or appearing by pleading or otherwise in any judicial proceeding in the state of Montana, or otherwise engaging in the practice of law in the state of Montana is subject to the disciplinary jurisdiction of the Supreme Court. If a lawyer, because of allegations of misconduct or against whom formal disciplinary proceedings have been filed, shall surrender his or her license to practice law, the Commission retains jurisdiction to proceed with formal disciplinary proceedings and shall thereafter enter its order of discipline or recommendation for discipline in accordance with the Rules.

RULE 8 - GROUNDS FOR DISCIPLINE A. Reasons for Discipline. Discipline may be imposed for any of the following reasons: (1) Acts or omissions by a lawyer, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct or the disciplinary rules adopted from time to time by the Supreme Court. (2) Any act committed by an attorney contrary to the highest standards of honesty, justice, or morality, including but not limited to those outlined in Title 37, chapter 61, parts 3 and 4, MCA, whether committed in such attorney’s capacity as an attorney or otherwise. (3) Conduct which results in conviction of a criminal offense. (4) Conduct which results in lawyer discipline in another jurisdiction. (5) Violation of the terms of any discipline or disciplinary order. (6) Failure to promptly and fully respond to an inquiry from Disciplinary Counsel, an investigator, or the Commission, or failure to justify such refusal or nonresponse. (7) Willful contempt of court and failure to purge the contempt. B. Relationship to Criminal Proceedings. Acquittal of a charge of crime, plea bargain, conviction of a lesser crime, or dismissal of a charge of crime after deferred imposition of sentence shall not constitute a bar to lawyer discipline for that act, nor shall conviction in a criminal proceeding be a condition precedent to the institution of disciplinary proceedings for that act.

RULE 9 - DISCIPLINE AND SANCTIONS A. Forms of Discipline. Discipline may take one or more of the following forms: (1) Disbarment. “Disbarment” means the unconditional termination of any privilege to practice law in this State and, when applied to any attorney not admitted to practice law in this State, means the unconditional exclusion from the admission to or the exercise of any privilege to practice law in this State. (2) Suspension from the practice of law for a definite period of time or for an indefinite period of time with a fixed minimum term. “Suspension” means the temporary or indefinite termination of the privilege to practice law in this State and, when applied to any attorney not admitted to practice law in this State, means the temporary or indefinite exclusion from the admission to or the exercise of any privilege to practice law in this State. (3) Public censure. (4) Admonition administered by an Adjudicatory Panel of the Commission. (5) Probation.

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or readmission; (5) Dismiss a complaint that Disciplinary Counsel determines does not warrant disciplinary action; (6) In addition to dismissing the complaint, Disciplinary Counsel may issue a letter of caution or take other corrective action when Disciplinary Counsel deems it appropriate; (7) Request leave to file a formal complaint when Disciplinary Counsel determines that disciplinary action is warranted; (8) Prosecute before Review Panels, Adjudicatory Panels, and the Court, discipline, interim suspension, reinstatement, and readmission proceedings, and proceedings for transfer to or from disability/inactive status; (9) Employ and supervise Office staff needed for the performance of prosecutorial functions and, when circumstances necessitate their use, appoint and supervise special investigators and volunteer special counsel; (10) Notify promptly the complainant and the lawyer that an investigation is to be initiated by Disciplinary Counsel or, where Disciplinary Counsel dismisses, provide a concise written statement of the facts and reasons a matter has been dismissed; (11) Develop written guidelines for determining which matters fail to allege facts that would constitute grounds for disciplinary action; (12) Request the Clerk of the Supreme Court to notify each jurisdiction in which a lawyer is admitted of a transfer to or from disability/inactive status, reinstatement, readmission, or any public discipline imposed in this state; (13) Whenever costs have been assessed against a lawyer by the Supreme Court, assemble and serve on the lawyer an itemized list of the costs of proceedings, investigations, and audits; (14) Seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction; (15) Forward a certified copy of the judgment of conviction to the disciplinary office in each jurisdiction in which a lawyer is admitted when the lawyer is convicted of a serious crime (as hereinafter defined) in this state; (16) Maintain permanent records of discipline and disability matters and compile statistics to aid in the administration of the system; (17) Prepare an annual budget for the Office and submit it to the Board of Trustees of the State Bar of Montana for review; (18) Make reasonable and necessary expenditures pursuant to the reviewed budget to perform the duties of the Office; (19) Supervise and direct Office staff and operations; (20) Prepare and submit to the Court recommendations concerning the annual assessment of Bar members; and (21) Make recommendations to the Court about the lawyer regulation system. C. Prohibited Activities. Disciplinary Counsel shall not have authority to render advisory ethics opinions, either orally or in writing, or to impose any form of discipline on a lawyer.

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(6) Requirement of restitution to persons financially injured. (7) Reimbursement to the Lawyers’ Fund for Client Protection. (8) Assessment of the cost of proceedings, investigations, and audits. Whenever costs of proceedings are assessed by the Supreme Court as part of the discipline imposed upon a lawyer, the Disciplinary Counsel shall assemble and serve upon the lawyer an itemized list of those costs. The lawyer shall then have ten days thereafter in which to file written objections with the Commission on Practice and, if so desired, request a hearing before an Adjudicatory Panel on whether the amount of such costs is reasonable and necessary. An Adjudicatory Panel shall thereafter recommend an amount of costs to be imposed, and shall file its recommendation with the Supreme Court, which shall then issue an appropriate order assessing costs. (9) Interim suspension pending final determination of discipline. B. Discipline Criteria. The following factors shall be considered in determining discipline to be recommended or imposed: (1) The gravity and nature of the duty violated, including whether the duty is owed to a client, to the public, to the legal system, or to the profession; (2) The lawyer’s mental state; (3) The actual or potential injury caused by the lawyer’s misconduct; (4) The existence of aggravating or mitigating factors; and (5) The existence of prior offenses. C. Probation. A lawyer against whom disciplinary proceedings are pending may be placed on probation by the Supreme Court or, with the lawyer’s concurrence, by an Adjudicatory Panel. The probation shall be for such time and upon such terms and conditions as are determined appropriate in the case. Discipline may be imposed for violation of any of the terms and conditions of such probation, including satisfactory completion of a diversion or treatment program. D. Procedure for Discipline for Willful Contempt of Court and Failure to Purge the Contempt. Upon receipt of a certified copy of an order of contempt that has become final, the Supreme Court may, in its discretion, issue an order to show cause why the lawyer’s license to practice law should not be suspended or other discipline should not be imposed. The lawyer against whom such an order has been entered in district court shall not have the right or opportunity to re-litigate the merits of the contempt order, the right to hearing and due process having been afforded him or her in the district court. In the alternative, the Supreme Court may direct an Adjudicatory Panel to issue the order to show cause or direct the lawyer to appear before the Adjudicatory Panel. In that event, the Adjudicatory Panel shall make a written recommendation to the Supreme Court regarding suspension of the lawyer’s license or other discipline. An attorney who has been purged of the contempt order may be reinstated to practice law. Prior to reinstatement, the lawyer shall be required to pay the costs of any proceedings before the Commission on Practice. II. PROCEDURE

RULE 10 - OFFICE OF DISCIPLINARY COUNSEL PROCEDURE A. Central Intake and Evaluation. The Office of Disciplinary Counsel shall perform central intake functions including, but not limited to, the following: (1) Receive information and complaints regarding lawyer’s alleged misconduct; (2) Make appropriate referrals regarding information and complaints while assuring that any member of the public who

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wishes to make a complaint against a lawyer is able to do so; (3) Provide the complainant access to a packet of written materials containing forms, instructions, and information about Montana’s lawyer disciplinary process; and (4) Receive written complaints on the forms provided. B. Preliminary Review and Processing of Complaints. The Office of Disciplinary Counsel shall conduct a preliminary review of each written complaint received by the Office and determine whether the complaint involves a matter that is within the disciplinary jurisdiction of the Court. C. Investigation. (1) All investigations shall be conducted by or under the authority and direction of Disciplinary Counsel. Upon such investigation as Disciplinary Counsel deems appropriate, he or she may: (a)(1) Send the complaint to the lawyer against whom the complaint is made; (2) Send the lawyer’s response to the complainant and, if appropriate, request his or her reply to the lawyer’s response; (3) Prepare an intake summary; and (4) Conduct an investigation and prepare an investigative report; or (b) With or without some or all of the process set forth in Rule 10C(1)(a), dismiss the complaint without prejudice, where the complaint does not appear to be within the disciplinary jurisdiction of the Court, or the facts do not appear to warrant disciplinary action. (c) Issue a letter of caution to a lawyer or take other corrective action when Disciplinary Counsel deems it appropriate. Any such action by Disciplinary Counsel is not disciplinary action. (2) Notice of Disposition. In the event of a dismissal, Disciplinary Counsel shall give written notice to the complainant and to the lawyer of the dismissal, stating the reasons for the action taken, and advising the complainant of the right to request review of the dismissal. (3) Request for Review. The complainant may file a written request for review of Disciplinary Counsel’s dismissal within 30 days of the notice of disposition pursuant to Rule 10C(2). Disciplinary Counsel’s dismissal shall be reviewed by a Review Panel upon the record before it. The Review Panel may approve, disapprove, or modify Disciplinary Counsel’s disposition. A lawyer against whom Disciplinary Counsel determines to take corrective action other than a letter of caution may file a written request for review of Disciplinary Counsel’s determination within 30 days after Disciplinary Counsel notifies the lawyer of the corrective action. Disciplinary Counsel’s determination shall be reviewed by a Review Panel upon the record before the Review Panel. The Review Panel may approve, disapprove, or modify Disciplinary Counsel’s determination as to corrective action. D. Review Panel Proceeding. Disciplinary Counsel shall: (1) Request leave of a Review Panel to file a formal complaint; and (2) Conduct further investigation at the request of a Review Panel. E. Adjudicatory Panel Proceeding. Disciplinary Counsel shall: (1) Draft and prosecute formal complaints and complaints proposing interim suspension before an Adjudicatory Panel; (2) Recommend discipline or other disposition of a case to an Adjudicatory Panel; (3) Conduct any discovery pursuant to Rule 19; and (4) Investigate a petition for reinstatement and present relevant evidence at an Adjudicatory Panel hearing on the petition.

RULE 11 - [ABROGATED]

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RULE 12 - ADJUDICATORY PANEL PROCEDURES

RULE 13 - ADJUDICATORY HEARINGS; ADMONITIONS Following the filing of a formal complaint, an Adjudicatory Panel may determine to sanction a lawyer by the imposition of an admonition. The Adjudicatory Panel shall determine whether to impose the admonition publicly or privately after weighing, on a case-by-case basis, the lawyer’s privacy interests and the public’s right to know. The demands of the lawyer’s individual privacy must clearly exceed the merits of public disclosure in order for an Adjudicatory Panel to impose a private admonition. An Adjudicatory Panel may do so, however, only after consulting Disciplinary Counsel and the lawyer subject to sanction, to apprise the interested parties of

RULE 14 - REQUEST FOR RECONSIDERATION BY COMPLAINANT A Review or Adjudicatory Panel before which a matter is pending shall advise complainants in writing that a complainant who is not satisfied with the disposition of a complaint by the Panel may, within thirty days of receipt of notice of the disposition, petition the Panel for reconsideration. The Panel, upon reconsideration, may approve the disposition or take such other action as may be appropriate and notify the complainant and the lawyer. The Supreme Court may, in its sole discretion, review the Panel’s disposition upon reconsideration.

RULE 15 - EX PARTE COMMUNICATIONS PROHIBITED Disciplinary Counsel and members of Review Panels, Adjudicatory Panels, the Commission, and the Supreme Court shall not communicate ex parte among themselves or with others regarding the merits of a pending or impending investigation or a disciplinary proceeding except as permitted by the Rules for Lawyer Disciplinary Enforcement. Communications for purposes of scheduling, administration, and procedural matters shall not be prohibited but shall be conducted to assure fairness to all parties.

RULE 16 - REVIEW BY THE SUPREME COURT After service of a copy of the findings of fact, conclusions of law, and recommendation of discipline to the lawyer and to the lawyer’s counsel, if any, the lawyer shall have thirty days from the date of service within which to file with the Court objections to the findings of fact, conclusions of law, and recommendation of discipline, and a written brief in support thereof. The lawyer or the lawyer’s counsel shall serve upon Disciplinary Counsel a copy of any such objections and brief in support thereof. Disciplinary Counsel shall have thirty days after the date of service of such objections and written brief within which to file with the Court a written brief in opposition to such objections, and a copy of such brief shall be served upon the lawyer or the lawyer’s counsel. The Court may, in its discretion, set the matter for oral argument if the Court deems oral argument appropriate. Thereafter, or in the event objections are not filed by the lawyer, the matter shall be deemed submitted and the Court shall determine the appropriate discipline, if any, authorized by these Rules. In the event objections are not filed, the matter shall be deemed submitted at the expiration of the time for filing objections and the Supreme Court shall consider the matter, issue its written decision, and impose such discipline, if any, as it considers appropriate. In the imposition of discipline, the Court may fix a time and place

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A. Complaint and Citation. When a Review Panel has determined that formal disciplinary proceedings shall be instituted against a respondent lawyer: (1) Disciplinary Counsel shall file a formal complaint with the Clerk of the Supreme Court and shall furnish a copy to the Adjudicatory Panel; (2) The complaint shall set forth the charges with sufficient clarity and particularity as to inform the lawyer of the alleged misconduct; (3) The complaint shall be signed by Disciplinary Counsel but need not be verified; and (4) The Clerk of the Supreme Court shall issue a citation which, together with a copy of the complaint, shall be served on the lawyer; the citation shall require the lawyer to file a written answer to the complaint with the Clerk within twenty days. B. Answer. (1) The lawyer shall serve a copy of the answer on the Commission and on Disciplinary Counsel. (2) If the lawyer fails to answer within the prescribed time, the charges shall be deemed admitted. An Adjudicatory Panel to which the case has been assigned may make findings and impose on the lawyer such discipline and sanctions as these Rules authorize. (3) An Adjudicatory Panel may elect to hold a hearing nothwithstanding the lawyer’s failure to answer, after notice of hearing has been given. C. Hearing, Findings, and Conclusions. (1) If the lawyer files an answer, Disciplinary Counsel shall consult with the Commission to determine a hearing date before an Adjudicatory Panel. The Commission shall file and serve upon Disciplinary Counsel, the lawyer, the lawyer’s counsel, if any, and any complainant, a notice of hearing setting forth the date, time, and place of hearing, which notice shall be served upon said persons at least twenty days in advance thereof. The lawyer is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence. The hearing shall be recorded. (2) In the conduct of a hearing, the Chairperson of an Adjudicatory Panel shall have authority to rule on all motions, objections, and other matters presented in connection with the hearing. Except as may otherwise be provided herein, and except as an Adjudicatory Panel Chairperson may determine in the interests of justice and fairness, hearings in formal disciplinary proceedings shall be conducted in accordance with the Montana Rules of Civil Procedure and the Montana Rules of Evidence. (3) Following the hearing, an Adjudicatory Panel shall make findings of fact, conclusions of law, and a recommendation to the Supreme Court for discipline or other disposition of the case.

its reasoning for such decision and to allow for comment. An Adjudicatory Panel’s decision to close an adjudicatory hearing and/or impose an admonition, either publicly or privately, shall be final unless, within ten days of the Adjudicatory Panel’s decision, the lawyer subject to sanction, Disciplinary Counsel, or a member of the public, files a petition with the Clerk of the Supreme Court asking the Court to review the Adjudicatory Panel’s decision. The Court shall conduct an in-camera review of the Adjudicatory Panel’s decision in which it evaluates the lawyer’s privacy interest and the public’s right to know. A private admonition should be imposed only in cases of minor misconduct, when there is little or no injury to the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer. A private admonition informs the lawyer that his or her conduct is unethical, but does not unnecessarily stigmatize a lawyer from whom the public needs no protection.

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for the lawyer to appear before it. The Clerk shall notify the Commission, Disciplinary Counsel, the lawyer, and the lawyer’s counsel of the time and place of the appearance and the purpose thereof. At such time and place, the lawyer shall appear in person, may be accompanied by counsel, and may make a statement with respect to the discipline to be imposed. Thereupon, the Court shall impose such discipline as it deems appropriate. Proof of all service required herein shall be made in accordance with Rule 5(f), Montana Rules of Civil Procedure.

RULE 17 - IMMUNITY A. From Civil Suit. Communications or complaints, oral or written to, or from, the Commission and Office of Disciplinary Counsel, and testimony given in the proceedings are privileged, and no evidence thereof is admissible in any lawsuit against any complainant, witness, Commission member, Commission staff, Disciplinary Counsel, Office of Disciplinary Counsel staff, investigator, special counsel, or other person employed or retained by the Commission or the Office of Disciplinary Counsel. Waiver, if any, of such privilege by voluntary disclosure by a complainant or witness shall be determined under Rule 503, Montana Rules of Evidence. Members of the Commission, Commission staff, Disciplinary Counsel, Office of Disciplinary Counsel staff, investigators, special counsel, any other person employed or retained by the Commission to represent it in Commission matters, staff members, and persons acting for the Commission shall be immune from suit for any conduct undertaken in good faith in the course of their official duties under these Rules. All of said persons are deemed officers and/or agents of the Court for all purposes mentioned in these Rules. B. From Criminal Prosecution. Upon application of Disciplinary Counsel or the Commission and after reasonable notice to and written consent from the appropriate county attorney(s), the Supreme Court may order that a witness cannot be prosecuted or subjected to any penalty or forfeiture other than a prosecution or action for perjury or contempt, for or on account of any transaction, matter, or thing concerning which the witness testified or produced in a lawyer disciplinary proceeding.

RULE 18 - SERVICE A. Service of Complaint. Service upon the lawyer of a complaint in a formal disciplinary proceeding shall be made by personal service by any person designated by the Office of Disciplinary Counsel or authorized by law, or by mail at the last known address of the lawyer, and proof thereof shall be made as provided in Rule 4, Montana Rules of Civil Procedure. For the purposes of this Rule, any attorney who is the subject of a disciplinary matter shall: (1) accept any and all mail from the Montana Supreme Court, the Commission on Practice, or the Office of Disciplinary Counsel to their current address as listed with the State Bar of Montana; and (2) acknowledge and stipulate that any person who may sign for certified mail at that address is an authorized agent for the purpose of notice and service in a disciplinary matter. B. Service of Other Papers. Service of any other papers or notices required by these Rules shall, unless otherwise provided by these Rules, be made in accordance with the Rules of Civil Procedure of the State of Montana. C. Acceptance of Service. Service by mail as permitted by subparagraph B herein is deemed complete upon mailing to the attorney’s current address as required to be maintained on file with the State Bar.

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RULE 19 - OATHS, SUBPOENA POWER AND DISCOVERY A. Oaths. Any member of the Commission or other person authorized by law may administer oaths and affirmations in matters pending before the Commission. B. Subpoenas. Any member of the Commission may, at the request of an investigator, the Office of Disciplinary Counsel, or the lawyer, compel, by subpoena, the attendance of witnesses and the production of pertinent books, papers, and documents. Any person subpoenaed to appear and give testimony or to produce pertinent books, papers, or documents, who fails or refuses to appear or to produce such books, papers, or documents, or any person having been sworn to testify who refuses to answer any proper questions, may upon request of the Commission or the Office of Disciplinary Counsel be cited for contempt of the Supreme Court. The Commission or the Office of Disciplinary Counsel shall report to the Court the facts relating to any such contempt. Thereupon, proceedings before the Supreme Court shall be had as in cases of other contempts. The Supreme Court may, upon proper application, enforce the attendance of any witness and the production of any documents subpoenaed. C. Quashing Subpoena. Any attack on the validity of a subpoena so issued shall be heard and determined by the chairperson of the Commission, or in his or her absence, the vice chairperson or executive secretary, subject to review by the Supreme Court, at the request of Disciplinary Counsel or the lawyer. D. Discovery. Disciplinary Counsel and the lawyer shall be afforded reciprocal discovery. Disputes concerning the scope and other aspects of discovery shall be determined by the chairperson, or in his or her absence the vice chairperson, of the Adjudicatory Panel. E. Witnesses and Fees. Witness fees and mileage shall be the same as provided by law for witnesses in civil actions in the district courts of the state of Montana.

RULE 20 - ACCESS TO DISCIPLINARY INFORMATION A. Confidentiality. All disciplinary information provided to the Office of Disciplinary Counsel and proceedings before the Commission on Practice prior to the filing of a formal complaint with the Clerk of the Supreme Court shall be confidential, except that Disciplinary Counsel may disclose information if: (1) The respondent has waived confidentiality; (2) The proceeding is based upon allegations that include either the conviction of a crime or reciprocal discipline; (3) The proceeding is based upon allegations that have become generally known to the public; (4) There is a need to notify another person or organization, including the Lawyers Fund for Client Protection Board, the Commission on Character and Fitness, other lawyer disciplinary agencies, law enforcement agencies, and the Lawyer’s Assistance Program, in order to protect the public, the administration of justice, or the legal profession, unless Disciplinary Counsel reasonably determines that disclosure would hinder an ongoing investigation or prosecution, infringe upon the privacy interests of a reporting or other third party, or constitute an unduly broad or burdensome request; or, (5) There is a need to disclose information to third parties while investigating a complaint. B. Public Information. Upon the filing of a formal complaint with the Clerk of the Supreme Court in a disciplinary matter, or upon the filing with the Clerk of the Supreme Court of a petition for reinstatement, the proceedings before the Commission and pleadings and other documents filed with the Clerk or Commission shall be public except for:

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RULE 21 - DISSEMINATION OF DISCIPLINARY INFORMATION

Notice of Discipline Imposed. The Clerk of the Supreme Court shall cause copies of orders and notices of transfer to disability/inactive status, public censure, suspension, disbarment, and reinstatement to be given to the Clerks of all of the District Courts of the State of Montana, all of the District Judges of the State of Montana, the Clerk of the Federal District Court for the District of Montana, the Clerk of the Circuit Court of Appeals of the Ninth Circuit, the Chairperson of the Commission, and the Executive Director of the State Bar of Montana, or as the Supreme Court otherwise may direct.

RULE 22- ADDITIONAL RULES OF PROCEDURE A. Proceedings Governed by Rules of Civil Procedure. Except as otherwise provided in these Rules, the Rules of Civil Procedure of the State of Montana apply in disciplinary cases. B. Standard of Proof. Formal charges of misconduct and grounds for reinstatement shall be established by clear and convincing evidence. C. Burden of Proof. The burden of proof in formal proceedings seeking discipline is on Disciplinary Counsel. The burden of proof in reinstatement proceedings is on the person seeking reinstatement. D. Availability of Hearing Transcript. A copy of the record of a hearing shall be made available to the lawyer at his or her expense on request made to the Commission. E. Related Pending Litigation. The proceeding of a disciplinary matter shall not be delayed because of substantial similarity to the material allegations of pending criminal or civil litigation unless a Review Panel or an Adjudicatory Panel in its discretion authorizes a stay for good cause shown, but only after notice to the complainant, Disciplinary Counsel, the lawyer, and the lawyer’s counsel, and opportunity to be heard by the complainant. F. Delay Caused by Complainant. Neither unwillingness nor neglect of the complainant to sign a complaint nor to prosecute a charge, nor a settlement, nor a compromise between the complainant and the lawyer, nor restitution by the lawyer shall, in itself, justify abatement of the processing of any complaint. G. Effect of Time Limitations. Except as is otherwise provided in these Rules, time is directory and not jurisdictional. Failure to observe prescribed time intervals may result in sanctions against the violator but does not justify abatement of any disciplinary investigation or proceeding. H. Complaints Against Commission Members. Allegations of grounds for discipline against members of the Commission shall be processed in the same manner as allegations against nonmembers of the Commission; provided, however, that the Commission member against whom such allegations are made shall be disqualified from participating in any manner

as a Commission member with respect to that matter. Further, in the event of allegations of grounds for discipline being made against any member of the Commission, the Supreme Court will be immediately notified of such allegations, and the Commission will keep the Court informed in a timely manner of the status of the matter. I. Dismissed Complaints. A complaint which is dismissed or upon which no disciplinary action is taken or recommended shall be expunged from Commission and Disciplinary Counsel records and for all purposes shall be considered as null, void, and nonexistent.

RULE 23 - LAWYERS CONVICTED OF A CRIMINAL OFFENSE A. Transmittal of Certificate of Conviction. The clerk or other official of any court in this state in which a lawyer subject to the disciplinary jurisdiction of the Supreme Court has been convicted of a criminal offense shall, within thirty days of the date of conviction, transmit a certificate of conviction to the Supreme Court, Disciplinary Counsel, and the Commission on Practice. B. Procedure on Receipt of Certificate of Conviction. Upon receipt of the certificate of conviction, the Supreme Court, either on its own motion or on that of Disciplinary Counsel, shall determine whether the criminal offense is one which affects the lawyer’s ability to practice law. If the Court determines that the lawyer was found guilty of a criminal offense that affects the lawyer’s ability to practice law, the Supreme Court shall enter an order immediately suspending the lawyer from the practice of law pending final disposition of a disciplinary proceeding predicated upon the conviction. The Supreme Court shall in the same order direct Disciplinary Counsel to prepare and file a formal complaint against the lawyer predicated upon the conviction. If the criminal offense does not involve the lawyer’s ability to practice law, the Supreme Court shall enter an order to that effect and, thereafter, the matter shall be processed like any other information coming to the attention of the Commission. The Court need not give notice to the lawyer, nor shall a hearing be required prior to its determination of whether the criminal offense of which the lawyer was convicted was one which affects the lawyer’s ability to practice law, nor shall a hearing be required prior to the Supreme Court’s entering an interim order of suspension. A copy of any order entered pursuant to this Rule shall be served upon the lawyer, Disciplinary Counsel, and the Commission. Upon good cause shown, the Court may in the interest of justice set aside or modify the interim suspension; however, the interim suspension may not be set aside solely by reason of a pending appeal of the conviction to the Supreme Court or because of an appeal by trial de novo. C. Formal Proceedings After a Conviction. The sole issue to be determined in the formal disciplinary proceedings conducted after a lawyer is convicted of a criminal offense which affects the lawyer’s ability to practice law shall be the extent of the final discipline to be imposed, provided that a disciplinary proceeding so instituted will not be brought to hearing until all appeals from the conviction are concluded unless the lawyer requests that the matter not be deferred. D. Certificate of Conviction Conclusive. A certificate of conviction of a lawyer for a criminal offense shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the lawyer based upon the conviction. E. Automatic Reinstatement From Interim Suspension Upon Reversal of Conviction. If a lawyer suspended solely under the provisions of paragraph B above demonstrates that the

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(1) Deliberations and minutes of the Commission; (2) Information or proceedings with respect to which an Adjudicatory Panel or Supreme Court has issued a protective order; (3) Conditional admissions and affidavits of consent submitted pursuant to Rule 26 of these Rules until, and if, approved by the Court and public discipline is imposed; and (4) Hearings conducted pursuant to Rule 26 of these Rules. C. Admissibility in Other Proceedings. The conclusions, opinions, and recommendations of Disciplinary Counsel or any investigator or special counsel acting on behalf of the Office of Disciplinary Counsel while acting in those capacities are not relevant or admissible for any purpose in any quasi-judicial or judicial forum, exclusive of the Commission on Practice and the Montana Supreme Court in a disciplinary action.

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underlying conviction has been reversed or vacated, the order for interim suspension shall be vacated and the lawyer placed on active status. The vacating of the interim suspension will not automatically terminate any formal proceeding then pending against the lawyer, the disposition of which shall be determined by the Adjudicatory Panel on the basis of the available evidence. F. Notice to Clients and Others on Interim Suspension. An interim suspension order entered pursuant to this Rule shall constitute a suspension of the lawyer for purposes of Rule 21.

RULE 24 - FAILURE TO RESPOND TO THE OFFICE OF DISCIPLINARY COUNSEL OR THE COMMISSION If a lawyer subject to the jurisdiction of the Commission should fail or refuse to promptly and fully respond to a complaint or other inquiry communicated to such lawyer in writing by the Office of Disciplinary Counsel or the Adjudicatory or Review Panel before which the matter is pending, the Panel, in addition to other proceedings authorized by these Rules, may direct such lawyer to appear before the Panel and show cause why appropriate discipline or sanction should not be imposed for failure to respond or cooperate. If the matter is pending before a Review Panel, and the lawyer fails to show good cause, the Review Panel shall refer the matter to an Adjudicatory Panel. Notice of such show cause hearing shall be served upon the lawyer at least twenty days prior to the hearing. If at such hearing the lawyer shall fail to respond or show a just or reasonable cause for not responding, then in addition to the disciplines and sanctions otherwise provided by these Rules, the Adjudicatory Panel may, upon determination of its appropriateness, recommend to the Supreme Court the immediate interim suspension of such lawyer for a period not to exceed thirty days, or such earlier date as the attorney shall fully respond to and cooperate with the Disciplinary Counsel and the Commission on Practice.

RULE 25 - CONDUCT CONSTITUTING THREAT OF HARM TO CLIENTS A. Transmittal of Evidence. Upon receipt of evidence constituting probable cause that a lawyer subject to the disciplinary jurisdiction of the Supreme Court has committed a violation of the Rules of Professional Conduct or is incapacitated and, in either case, poses a substantial threat of serious harm to clients or the public, an Adjudicatory Panel shall: (1) Transmit the evidence to the Supreme Court together with a proposed order for interim suspension; and (2) Contemporaneously make a reasonable attempt to provide the lawyer with notice, which may include notice by electronic means, that a proposed order for interim suspension has been transmitted to the Supreme Court. B. Interim Suspension. The Supreme Court may, on its own motion or based upon a recommendation to it by an Adjudicatory Panel, direct a lawyer to appear before the Supreme Court and show cause why the lawyer’s license to practice law should not be suspended during the pendency of either criminal proceedings or disciplinary proceedings and, after a hearing, the Supreme Court may enter an order suspending the lawyer’s license for a definite or indefinite period, or may discharge the order to show cause. In the event the order suspending license is entered, the Supreme Court may appoint a trustee pursuant to Rule 33 to protect clients’ interests. Further, the Court may make an order relieving the lawyer of any fiduciary position held by the lawyer and appoint a trustee to assume those fiduciary positions. C. Notice to Clients. The lawyer suspended pursuant to the foregoing paragraph, or the lawyer’s trustee appointed

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pursuant to Rule 33, if one is so appointed, shall comply with the notice requirements of Rules 30 and 32.

RULE 26 - DISCIPLINE BY CONSENT A. Adjudicatory Panel Approval of Tendered Admission. A lawyer against whom formal disciplinary proceedings have been filed may tender a conditional admission to the complaint or to particular allegations therein in exchange for a stated form of discipline. The tendered admission shall be submitted to an Adjudicatory Panel. An Adjudicatory Panel may refer the tendered admission to the Disciplinary Counsel for recommendations. The Adjudicatory Panel may either approve or reject the tendered admission. The Adjudicatory Panel may hold a private hearing for the purpose of obtaining information to aid the Adjudicatory Panel in determining whether to approve or reject the tendered admission. If the tendered admission is approved by the Adjudicatory Panel, such approval shall be final if the stated form of discipline is an admonition, probation imposed by an Adjudicatory Panel as provided in Rule 9C of these Rules, or both, with or without imposition of costs of the proceeding; but, in all other instances, the tendered admission shall be subject to approval or rejection by the Supreme Court. If the tendered admission is rejected by either the Adjudicatory Panel or the Supreme Court, the admission shall be deemed withdrawn and cannot be used against the lawyer in any subsequent proceedings. B. Affidavit of Consent. A tendered admission shall include an affidavit stating the lawyer’s consent to the discipline and that: (1) The lawyer’s consent is freely and voluntarily tendered, and that the lawyer is not being subjected to coercion or duress, and that the lawyer is fully aware of the implications of submitting the consent; (2) The lawyer is aware that there has been a formal charge filed against the lawyer, the nature of which the lawyer shall specifically set forth; and (3) The lawyer acknowledges that the material facts so alleged are true or the lawyer submits his or her consent because he or she knows that if the case proceeded to a formal hearing, he or she could not successfully defend himself or herself. The final order of discipline shall be predicated upon the formal complaint, the conditional admission, the affidavit, and such other information and evidence to which the Disciplinary Counsel and the lawyer may have stipulated, or which may have been elicited at a private hearing referred to in Rule 26A. C. Order of Discipline. If the discipline by consent is a form of discipline that may be imposed by the Adjudicatory Panel, the Adjudicatory Panel shall enter the order. In all other instances in which the proposed discipline has been approved, the Supreme Court shall enter the order. The order of discipline by consent shall be filed with the Clerk of the Supreme Court, and a copy thereof shall be served upon the lawyer, the lawyer’s counsel, the Commission, Disciplinary Counsel, and the complainant. D. Confidentiality. All tendered admission proceedings prior to entry of a consent discipline order shall be confidential and subject to the provisions of Rule 20 of these Rules. Upon entry of an order imposing public discipline, the conditional admission and affidavit of consent shall be filed with the Clerk of the Supreme Court and made public.

RULE 27 - RECIPROCAL DISCIPLINE A. Commission to Obtain Order of Discipline from Other Jurisdiction. Upon being disciplined in another jurisdiction, a lawyer admitted to practice in Montana shall promptly inform the Supreme Court, the Commission, and Disciplinary Counsel of such action. Upon notification that a lawyer subject to the disciplinary jurisdiction of the Supreme Court has been

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RULE 28 - DISABILITY/INACTIVE STATUS A. Grounds. A lawyer subject to the disciplinary jurisdiction of the Supreme Court shall be transferred to disability/inactive status if: (1) The lawyer asserts an inability to assist in the defense of disciplinary proceedings; (2) The lawyer is determined, upon hearing, to have a physical or mental condition which adversely affects the lawyer’s ability to practice law to the extent that the lawyer is incapacitated from continuing to practice law; or (3) The lawyer is judicially declared incompetent or involuntarily committed on grounds of incompetency or disability by a court of competent jurisdiction. B. Proceedings. (1) Proceedings to determine a lawyer’s inability to assist in the defense of disciplinary proceedings or to determine incapacity shall be conducted in the same manner as formal disciplinary proceedings pursuant to Rules 11 and 12, except that all of the proceedings shall be confidential. (2) Counsel may be appointed by the Commission to represent a lawyer without adequate representation. (3) The Adjudicatory Panel may order examination of the lawyer by qualified medical experts selected by the Adjudicatory Panel.

C. Report and Recommendation. The report and recommendation of the Adjudicatory Panel shall be subject to review and determination by the Supreme Court as provided in Rule 16. D. Notice of Transfer. Unless otherwise ordered by the Court, notice of transfer to disability/inactive status shall be given to those persons and in the manner provided in Rule 30. E. Term of Disability/Inactive Status. Transfer to disability/ inactive status, unless otherwise specified by order, shall be for an indefinite period and may include such terms and conditions for reinstatement as may be appropriate. F. Stay of Disciplinary Proceedings. Pending disciplinary proceedings shall be deferred during the period of a lawyer’s inability to defend. Such proceedings shall be heard and disposed of as provided in these Rules upon reinstatement of the lawyer to active status. G. Reinstatement. (1) A lawyer transferred to disability/inactive status may petition for transfer to active status after six months, or such other time period specified in the order of transfer, or in subsequent orders. (2) Upon receipt of a petition for transfer to active status, the Adjudicatory Panel shall schedule a hearing on the petition as soon as practicable. Proceedings for transfer to active status shall be conducted in the same manner as formal proceedings pursuant to Rule 29, except that all of the proceedings shall be confidential. The Adjudicatory Panel may order examination of the lawyer by qualified medical experts selected by the Adjudicatory Panel. (3) A petition for transfer to active status shall be granted upon a showing by clear and convincing evidence that the disability has been removed. (4) A lawyer previously judicially declared incompetent may petition for immediate transfer to active status, without hearing, upon proof of judicial declaration of competency by a court of competent jurisdiction.

RULE 29 - REINSTATEMENT A. After Suspension of Six Months or Less. A lawyer suspended for no more than six months may resume practice at the end of the period of suspension by filing with the Court, and serving upon the executive secretary of the Commission and Disciplinary Counsel an affidavit alleging that the lawyer has fully complied with the requirements of the suspension order, and paying any required fees and costs ordered by the Court. B. After Disbarment or Suspension for More Than Six Months. Subject to the limitations set forth in Rule 29C, any lawyer who shall have been disbarred or who shall have been suspended indefinitely or for more than six months may, by verified petition, apply for: (1) An order of reinstatement; (2) An order shortening the term of a fixed period of suspension; or (3) An order modifying an order of indefinite period of suspension by fixing a definite period of suspension. Such petition shall bear the case number and caption appearing in the order of discipline, and an original and one copy thereof shall be filed with Disciplinary Counsel, the Commission on Practice, and by the Commission filed with the Clerk of the Supreme Court and made a part of the record in said case. Such petition shall set forth the facts that show the lawyer contends that he or she has rehabilitated himself or herself, or that he or she is entitled to have the order of discipline vacated, terminated, or modified. C. Time for Filing Petition. (1) A lawyer suspended from practice may not petition for

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disciplined in another jurisdiction, Disciplinary Counsel shall obtain a certified copy of the disciplinary order and file it with the Commission and with the Supreme Court. B. Notice Served Upon the Lawyer. Upon receipt of a certified copy of an order demonstrating that a lawyer admitted to practice in Montana has been disciplined in another jurisdiction, the Court shall forthwith issue a notice directed to the lawyer containing the following: (1) A copy of the order from the other jurisdiction; and (2) An order directing that the lawyer inform the Court, within thirty days from the date of service of the notice, of any claim by the lawyer predicated upon the grounds set forth in paragraph D of this Rule, that the imposition of the identical discipline in the state of Montana would be unwarranted and the reasons therefor. C. Effect of Stay of Discipline in Other Jurisdiction. In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in Montana may be deferred until the stay expires. D. Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B of this Rule, the Supreme Court shall impose the identical discipline unless the lawyer demonstrates, or the Court finds, that upon the face of the record from which the discipline was predicated it clearly appears that: (1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) That there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Supreme Court could not, consistent with its duty, accept as final the conclusion on that subject; (3) The imposition of the same discipline by the Supreme Court would result in grave injustice; or (4) The misconduct established warrants substantially different discipline in the State of Montana. If the Supreme Court determines that any of those elements exists, it shall enter such other order as it deems appropriate. E. Conclusiveness of Adjudication in Other Jurisdiction. In all other aspects, a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in the state of Montana.

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reinstatement earlier than ninety days prior to the end of the period of the fixed term or minimum fixed term of the suspension. (2) A lawyer serving an indefinite suspension beyond the minimum fixed term may petition for reinstatement at any time. (3) No petition for reinstatement shall be filed by a disbarred lawyer until five years after the effective date of disbarment. D. Hearing and Notice on Application. Upon receipt of a petition, the Commission shall, within ninety days after receipt of such petition, or such later date as may be mutually agreed upon by petitioner and the Commission, schedule an Adjudicatory Panel hearing on the petition. The petitioner shall have the burden of demonstrating by clear and convincing evidence that he or she meets the following criteria or, if not, has presented good and sufficient reason why he or she should nevertheless be reinstated: (1) The lawyer has fully complied with the terms of all prior disciplinary orders; (2) The lawyer has not engaged nor attempted to engage in the unauthorized practice of law; (3) If the lawyer was suffering under a physical or mental disability or infirmity at the time of suspension, including alcohol or other drug abuse, the disability or infirmity has been removed, and where alcohol or other drug abuse was a causative factor in the lawyer’s misconduct, the lawyer: (a) has pursued appropriate rehabilitative treatment; and (b) has abstained from the use of alcohol or other drugs for at least one year, and is likely to continue to abstain from alcohol or other drugs; (4) The lawyer recognizes the wrongfulness and seriousness of the misconduct; (5) The lawyer has not engaged in any other professional misconduct since suspension; (6) The lawyer has the requisite honesty and integrity to practice law; and (7) The lawyer has kept informed about recent developments in the law and is competent to practice. The proceedings before the Adjudicatory Panel relating to such petition shall be governed by the applicable provisions of these Rules governing hearings in disciplinary proceedings including Rule 20 concerning confidentiality, unless otherwise provided herein or unless otherwise ordered by the Court. Notice of such hearing shall be given to the public in such manner and to such extent as the Adjudicatory Panel deems appropriate in each case. In any event, notice of such application or petition shall be given to the Supreme Court, all of the Judges of the District Courts of the State of Montana, all of the Federal District Judges of the District of Montana, and the Executive Director of the State Bar of Montana. The notice of hearing shall set forth that any interested person may testify at the hearing. An Adjudicatory Panel may request Disciplinary Counsel to investigate the allegations set forth in the petition for reinstatement and present relevant evidence at the hearing. E. Deposit for Cost of Proceeding. Upon receipt of a petition for reinstatement, an Adjudicatory Panel, before proceeding further, may require the petitioner to deposit with the Commission an amount deemed reasonable by the Commission to cover anticipated costs of the reinstatement proceedings. F. Recommendation of Commission and Action by Court. The Adjudicatory Panel shall make a written recommendation to the Supreme Court on the petition for reinstatement, including the imposition of such conditions to reinstatement as it deems appropriate to protect the public interest. Thereupon the Supreme Court shall, in the exercise of its discretion, take such action as it deems advisable.

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RULE 30 - NOTICE TO CLIENTS AND OTHERS A. Recipients of Notice and Contents of Notice. Unless otherwise ordered by the Adjudicatory Panel or the Supreme Court, within ten days after the date of the order of the Court imposing the discipline of disbarment or suspension, the lawyer shall notify or cause to be notified by registered or certified mail, return receipt requested: (1) All clients being represented in pending matters; (2) Any co-counsel in pending matters; (3) Any opposing counsel in pending matters or, in the absence of such counsel, the adverse parties, that the Court has ordered the disbarment or suspension of the lawyer and that the lawyer is therefore disqualified to act as a lawyer after the effective date of the order; and (4) any court in which the respondent attorney appears as counsel of record in any pending matter in compliance with Uniform District Court Rule 10 (and any corresponding Local Rule), as well as § 37-61-403, MCA. B. Notice to Clients of Lawyers Who Are Disbarred or Suspended. The lawyer shall deliver to all clients being represented in pending matters any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property. C. Notification to Court. In the event the client does not obtain another lawyer before the effective date of the disbarment or suspension, it shall be the responsibility of the lawyer to notify in writing the judge of the court having jurisdiction of the pending matter of the circumstances.

RULE 31 - EFFECTIVE DATE OF ORDER, WINDING UP OF AFFAIRS Orders imposing discipline shall be effective immediately upon entry, unless the Adjudicatory Panel or the Supreme Court specifies otherwise in the order. The lawyer, after entry of a disbarment or suspension order, shall not engage as a lawyer for any new case or legal matter of any nature. The lawyer shall refund any part of any fees paid in advance which have not been earned.

RULE 32 - AFFIDAVIT FILED WITH COURT Within twenty days after the effective date of the disbarment or suspension order, the lawyer shall file with the Supreme Court, the Adjudicatory Panel, and the Disciplinary Counsel an affidavit showing: (1) The lawyer has fully complied with the provisions of the order and with these Rules; (2) A list of all other state, federal, and administrative jurisdictions to which the lawyer is admitted to practice; and (3) The lawyer’s residence or other addresses where communications may thereafter be directed to him or her.

RULE 33 - APPOINTMENT OF TRUSTEE TO PROTECT CLIENT’ INTEREST WHEN THE LAWYER HAS BEEN DISBARRED OR SUSPENDED A. Inventory of the Lawyer’s Files. If a lawyer has been disbarred or suspended and there is evidence the lawyer has not complied with Rule 30, and no partner, personal representative, or other responsible party capable of conducting the lawyer’s affairs is known to exist, the presiding judge in the judicial district in which the lawyer maintained his or her practice, upon proper proof of the fact, shall appoint an attorney or attorneys as trustees to inventory the files of the lawyer, and to take such action as seems indicated to protect the interest of the lawyer and the lawyer’s clients.

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RULE 34 - VERIFICATION OF BANK ACCOUNTS Whenever Disciplinary Counsel has probable cause to believe that the bank accounts of a lawyer that contain, should contain, or have contained funds belonging to clients, have not been properly maintained or that the funds have not been properly handled, the Disciplinary Counsel may initiate an investigation for the purpose of verifying the accuracy and integrity of all bank accounts maintained by the lawyer, and an investigator may be appointed by Disciplinary Counsel for that purpose. Investigations, examinations, and verifications shall be conducted so as to preserve the private and confidential nature of the lawyer’s records insofar as is consistent with these Rules and the attorney-client privilege, provided, however, that all investigatory materials may be provided to, or exchanged with, the State Bar of Montana, Lawyers’ Fund for Client Protection.

RULE 35 - EFFECTIVE DATE These rules are effective January 1, 2011, provided, however, that any matter then pending shall be concluded under the procedure existing prior to the effective date of these Rules.

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B. Protection for Records Subject to Inventory. Any attorney so appointed shall not be permitted to disclose any information contained in any files inventoried without the consent of the client to whom the file relates, except as necessary to carry out the order of the court which appointed the attorney to make the inventory.

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1 ABA MODEL CODE OF JUDICIAL CONDUCT 2 FEBRUARY 2007 3 TABLE OF CONTENTS 4 5 6 PREAMBLE…………………………………………………………………………….1 7 SCOPE……………………...……………………………………………………….......2 8 TERMINOLOGY……………...…………………………………………………….....3 9 APPLICATION…………………………………………………………………….......6 10 11 12 CANON 1 13 A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND 14 IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE 15 APPEARANCE OF IMPROPRIETY 16

RULE 1.1

Compliance with the Law….……………………………….....................11

17 RULE 1.2 Promoting Confidence in the Judiciary………………………….............12 18 RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office…………………........13 19 20 CANON 2 21 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, 22 COMPETENTLY, AND DILIGENTLY. 23

RULE 2.1

Giving Precedence to the Duties of Judicial Office……………………...15

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

RULE 2.2 RULE 2.3 RULE 2.4 RULE 2.5 RULE 2.6 RULE 2.7 RULE 2.8 RULE 2.9 RULE 2.10 RULE 2.11 RULE 2.12 RULE 2.13 RULE 2.14 RULE 2.15 RULE 2.16

Impartiality and Fairness………………………...............………….........16 Bias, Prejudice and Harassment …………………………………............17 External Influences on Judicial Conduct….............…………………......19 Competence, Diligence, and Cooperation…............……………….........20 Ensuring the Right to Be Heard……………......…..……………….........21 Responsibility to Decide……............................………...….....................22 Decorum, Demeanor, and Communication with Jurors...................…......23 Ex Parte Communications...................…………………….………..........24 Judicial Statements on Pending and Impending Cases...............…….......26 Disqualification..........................................…......................….….............27 Supervisory Duties.....................……….……….….….............................30 Administrative Appointments................………………………...….........31 Disability and Impairment......................………………...........................33 Responding to Judicial and Lawyer Misconduct........……….….….........34 Cooperation with Disciplinary Authorities...................……….…............35

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1 2 CANON 3 3 A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL 4 ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF 5 JUDICIAL OFFICE. 6

RULE 3.1

Extrajudicial Activities in General.....................….….….........................37

7 8 9 10 11 12

RULE 3.2

Appearances before Governmental Bodies and Consultation with Government Officials.......................................….....................................39 Testifying as Character Witness..............................….….........................40 Appointments to Governmental Positions.................................…….…...41 Use of Nonpublic Information..................................................................42 Affiliation with Discriminatory Organizations..............………...............43 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities...........................................................44 Appointments to Fiduciary Positions .......................................…............46 Service as Arbitrator or Mediator..........................…...............................47 Practice of Law.....................................................…................................48 Financial, Business, or Remunerative Activities........……………..........49 Compensation for Extrajudicial Activities.....................…......................50 Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value….....................................................51 Reimbursement of Expenses and Waivers of Fees or Charges................54 Reporting Requirements...........................................................................56

13 14 15 16 17 18 19 20 21 22 23

RULE 3.3 RULE 3.4 RULE 3.5 RULE 3.6 RULE 3.7 RULE 3.8 RULE 3.9 RULE 3.10 RULE 3.11 RULE 3.12 RULE 3.13 RULE 3.14 RULE 3.15

24 25 CANON 4 A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN 26 27 POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE 28 INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY Political and Campaign Activities of Judges and Judicial Candidates in 29 RULE 4.1 General.....................................................................................................58 30 Political and Campaign Activities of Judicial Candidates in Public 31 RULE 4.2 Elections...................................................................................................62 32 RULE 4.3 Activities of Candidates for Appointive Judicial Office..........................65 33 RULE 4.4 Campaign Committees.............................................................................66 34 RULE 4.5 Activities of Judges Who Become Candidates for 35 Nonjudicial Office....................................................................................68 36 37

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PREAMBLE [1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. [3] The Model Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.

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SCOPE [1] The Model Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or judicial candidate. [2] The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. [3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a Comment contains the term “must,” it does not mean that the Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct at issue. [4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office. [5] The Rules of the Model Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions. [6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others. [7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.

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TERMINOLOGY The first time any term listed below is used in a Rule in its defined sense, it is followed by an asterisk (*). “Aggregate,” in relation to contributions for a candidate, means not only contributions in cash or in kind made directly to a candidate’s campaign committee, but also all contributions made indirectly with the understanding that they will be used to support the election of a candidate or to oppose the election of the candidate’s opponent. See Rules 2.11 and 4.4. “Appropriate authority” means the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported. See Rules 2.14 and 2.15. “Contribution” means both financial and in-kind contributions, such as goods, professional or volunteer services, advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial expenditure. See Rules 2.11, 2.13, 3.7, 4.1, and 4.4. “De minimis,” in the context of interests pertaining to disqualification of a judge, means an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality. See Rule 2.11. “Domestic partner” means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married. See Rules 2.11, 2.13, 3.13, and 3.14. “Economic interest” means ownership of more than a de minimis legal or equitable interest. Except for situations in which the 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, an officer, an 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. See Rules 1.3 and 2.11.

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“Fiduciary” includes relationships such as executor, administrator, trustee, or guardian. See Rules 2.11, 3.2, and 3.8. “Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2. “Impending matter” is a matter that is imminent or expected to occur in the near future. See Rules 2.9, 2.10, 3.13, and 4.1. “Impropriety” includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality. See Canon 1 and Rule 1.2. “Independence” means a judge’s freedom from influence or controls other than those established by law. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2. “Integrity” means probity, fairness, honesty, uprightness, and soundness of character. See Canon 1 and Rule 1.2. “Judicial candidate” means any person, including a sitting judge, who is seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office. See Rules 2.11, 4.1, 4.2, and 4.4. “Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. See Rules 2.11, 2.13, 2.15, 2.16, 3.6, and 4.1. “Law” encompasses court rules as well as statutes, constitutional provisions, and decisional law. See Rules 1.1, 2.1, 2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9, 3.12, 3.13, 3.14, 3.15, 4.1, 4.2, 4.4, and 4.5. “Member of the candidate’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the candidate maintains a close familial relationship. “Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10, and 3.11. “Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household. See Rules 2.11 and 3.13. 4

714

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“Nonpublic information” means information that is not available to the public. Nonpublic information may include, but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports. See Rule 3.5. “Pending matter” is a matter that has commenced. A matter continues to be pending through any appellate process until final disposition. See Rules 2.9, 2.10, 3.13, and 4.1. “Personally solicit” means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication. See Rules 3.7 and 4.1. “Political organization” means a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office. For purposes of this Code, the term does not include a judicial candidate’s campaign committee created as authorized by Rule 4.4. See Rules 4.1 and 4.2. “Public election” includes primary and general elections, partisan elections, nonpartisan elections, and retention elections. See Rules 4.2 and 4.4. “Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Rule 2.11.

5

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APPLICATION The Application section establishes when the various Rules apply to a judge or judicial candidate.

I.

APPLICABILITY OF THIS CODE (A) The provisions of the Code apply to all full-time judges. Parts II through V of this section identify those provisions that apply to four distinct categories of part-time judges. The four categories of judicial service in other than a full-time capacity are necessarily defined in general terms because of the widely varying forms of judicial service. Canon 4 applies to judicial candidates. (B) A judge, within the meaning of this Code, is anyone who is authorized to perform judicial functions, including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or member of the administrative law judiciary. 1

COMMENT [1] The Rules in this Code have been formulated to address the ethical obligations of any person who serves a judicial function, and are premised upon the supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions. [2] The determination of which category and, accordingly, which specific Rules apply to an individual judicial officer, depends upon the facts of the particular judicial service. [3] In recent years many jurisdictions have created what are often called “problem solving” courts, in which judges are authorized by court rules to act in nontraditional ways. For example, judges presiding in drug courts and monitoring the progress of participants in those courts’ programs may be authorized and even encouraged to communicate directly with social workers, probation officers, and others outside the context of their usual judicial role as independent decision makers on issues of fact and law. When local rules specifically authorize conduct not otherwise permitted under these Rules, they take precedence over the provisions set forth in the Code. Nevertheless, judges serving on “problem solving” courts shall comply with this Code except to the extent local rules provide and permit otherwise. 1

Each jurisdiction should consider the characteristics of particular positions within the administrative law judiciary in adopting, adapting, applying, and enforcing the Code for the administrative law judiciary. See, e.g., Model Code of Judicial Conduct for Federal Administrative Law Judges (1989) and Model Code of Judicial Conduct for State Administrative Law Judges (1995). Both Model Codes are endorsed by the ABA National Conference of Administrative Law Judiciary.

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II.

RETIRED JUDGE SUBJECT TO RECALL

A retired judge subject to recall for service, who by law is not permitted to practice law, is not required to comply: (A) with Rule 3.9 (Service as Arbitrator or Mediator), except while serving as a judge; or (B)

at any time with Rule 3.8 (Appointments to Fiduciary Positions).

COMMENT [1] For the purposes of this section, as long as a retired judge is subject to being recalled for service, the judge is considered to “perform judicial functions.”

III.

CONTINUING PART-TIME JUDGE

A judge who serves repeatedly on a part-time basis by election or under a continuing appointment, including a retired judge subject to recall who is permitted to practice law (“continuing part-time judge”), (A)

is not required to comply: (1) with Rules 2.10(A) and 2.10(B) (Judicial Statements on Pending and Impending Cases), except while serving as a judge; or at any time with Rules 3.4 (Appointments to Governmental (2) Positions), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges), 3.15 (Reporting Requirements), 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General), 4.2 (Political and Campaign Activities of Judicial Candidates in Public Elections), 4.3 (Activities of Candidates for Appointive Judicial Office), 4.4 (Campaign Committees), and 4.5 (Activities of Judges Who Become Candidates for Nonjudicial Office); and

(B) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.

44 45 46

7

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COMMENT [1] 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 act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the informed consent of all parties, and pursuant to any applicable Model Rules of Professional Conduct. An adopting jurisdiction should substitute a reference to its applicable rule.

IV.

PERIODIC PART-TIME JUDGE

A periodic part-time judge who serves or expects to serve repeatedly on a part-time basis, but under a separate appointment for each limited period of service or for each matter, (A)

is not required to comply: (1) with Rule 2.10 (Judicial Statements on Pending and Impending Cases), except while serving as a judge; or (2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General), and 4.5 (Activities of Judges Who Become Candidates for Nonjudicial Office); and

(B) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.

V.

PRO TEMPORE PART-TIME JUDGE

A pro tempore part-time judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard is not required to comply: (A) except while serving as a judge, with Rules 1.2 (Promoting Confidence in the Judiciary), 2.4 (External Influences on Judicial Conduct), 2.10 (Judicial Statements on Pending and Impending Cases), or 3.2 (Appearances

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before Governmental Bodies and Consultation with Government Officials); or (B) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.6 (Affiliation with Discriminatory Organizations), 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General), and 4.5 (Activities of Judges Who Become Candidates for Nonjudicial Office).

VI.

TIME FOR COMPLIANCE

A person to whom this Code becomes applicable shall comply immediately with its provisions, except that those judges to whom Rules 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative Activities) apply shall comply with those Rules as soon as reasonably possible, but in no event later than one year after the Code becomes applicable to the 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.

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CANON 1 JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.

A

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RULE 1.1 Compliance with the Law A judge shall comply with the law,* including the Code of Judicial Conduct.

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RULE 1.2 Promoting Confidence in the Judiciary A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.

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.

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RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or others, or allow others to do so.

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 the judge indicates that the reference is personal and 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 forprofit 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.

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CANON 2 A JUDGE SHALL PERFORM THE COMPETENTLY, AND DILIGENTLY.

DUTIES

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OF

JUDICIAL

OFFICE

IMPARTIALLY,

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

RULE 2.1 Giving Precedence to the Duties of Judicial Office The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge’s personal and extrajudicial activities.

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.

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RULE 2.2 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. Although each judge comes to the bench with a unique background and personal [2] 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.

16

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RULE 2.3 Bias, Prejudice, and Harassment (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so. (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others. (D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

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. 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. 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.

17

727

1 2

[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.

18

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RULE 2.4 External Influences on Judicial Conduct (A)

A judge shall not be swayed by public clamor or fear of criticism.

(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.

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.

19

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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 [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. Prompt disposition of the court’s business requires a judge to devote adequate [3] 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.

20

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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. [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 2.11(A)(1).

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RULE 2.7 Responsibility to Decide A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.*

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.

22

732

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RULE 2.8 Decorum, Demeanor, and Communication with Jurors (A) A judge shall require order and decorum in proceedings before the court. (B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control. (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

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. [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.

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RULE 2.9 Ex Parte Communications (A) 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 or their lawyers, concerning a pending* or impending matter,* except as follows: (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided: (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond. (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received. (3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter. (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge. (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so. (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

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(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.

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. [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).

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RULE 2.10 Judicial Statements on Pending and Impending Cases (A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing. (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B). (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity. (E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.

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. 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.

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RULE 2.11 Disqualification (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of facts that are in dispute in the proceeding. (2) The judge knows* that the judge, the judge’s spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner of such a person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b)

acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or (d)

likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary,* or the judge’s spouse, domestic partner, parent, or child, 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. (4) The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous [insert number] year[s] made aggregate* contributions* to the judge’s campaign in an amount that is greater than [$[insert amount] for an individual or $[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity]. (5) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. (6)

The judge:

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(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (c)

was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court. (B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household. (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

COMMENT [1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. 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.

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[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.

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RULE 2.12 Supervisory Duties (A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code. (B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them.

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.

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RULE 2.13 Administrative Appointments (A)

In making administrative appointments, a judge: (1) shall exercise the power of appointment impartially* and on the basis of merit; and (2) shall avoid appointments.

nepotism,

favoritism,

and

unnecessary

(B) A judge shall not appoint a lawyer to a position if the judge either knows* that the lawyer, or the lawyer’s spouse or domestic partner,* has contributed more than $[insert amount] within the prior [insert number] year[s] to the judge’s election campaign, or learns of such a contribution* by means of a timely motion by a party or other person properly interested in the matter, unless: (1)

the position is substantially uncompensated;

(2) the lawyer has been selected in rotation from a list of qualified and available lawyers compiled without regard to their having made political contributions; or (3) the judge or another presiding or administrative judge affirmatively finds that no other lawyer is willing, competent, and able to accept the position. (C) A judge shall not approve compensation of appointees beyond the fair value of services rendered.

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, and bailiffs. 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. [3] The rule against making administrative appointments of lawyers who have contributed in excess of a specified dollar amount to a judge’s election campaign includes

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an exception for positions that are substantially uncompensated, such as those for which the lawyer’s compensation is limited to reimbursement for out-of-pocket expenses.

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RULE 2.14 Disability and Impairment A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.

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. 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.

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RULE 2.15 Responding to Judicial and Lawyer Misconduct (A) A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.* (B) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority. (C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action. (D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action.

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 does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives information indicating a substantial likelihood of such misconduct, 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.

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RULE 2.16 Cooperation with Disciplinary Authorities (A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies. (B) A judge shall not retaliate, directly or indirectly, against a person known* or suspected to have assisted or cooperated with an investigation of a judge or a lawyer.

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.

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CANON 3

3 4 5

A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.

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RULE 3.1 Extrajudicial Activities in General A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not: (A) participate in activities that will interfere with the proper performance of the judge’s judicial duties; (B) participate in activities that will lead to frequent disqualification of the judge; (C) participate in activities that would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality;* (D) engage in conduct that would appear to a reasonable person to be coercive; or (E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.

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] 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. [3] 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. See Rule 3.6.

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[4] 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.

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RULE 3.2 Appearances before Governmental Government Officials

Bodies and Consultati

on with

A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except: (A) in connection with matters concerning the law, the legal system, or the administration of justice; (B) in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties; or (C) when the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary* capacity.

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.

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RULE 3.3 Testifying as a Character Witness A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.

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.

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RULE 3.4 Appointments to Governmental Positions A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.

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.

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RULE 3.5 Use of Nonpublic Information A judge shall not intentionally disclose or use nonpublic information* acquired in a judicial capacity for any purpose unrelated to the judge’s judicial duties.

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.

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RULE 3.6 Affiliation with Discriminatory Organizations (A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (B) A judge shall not use the benefits or facilities of an organization if the judge knows* or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.

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.

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RULE 3.7 Participation in Educational, Religio us, Charitable, Fraternal, or Civic Organizations and Activities (A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities: (1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization’s or entity’s funds; soliciting* contributions* for such an organization or entity, (2) but only from members of the judge’s family,* or from judges over whom the judge does not exercise supervisory or appellate authority; (3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; (4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice; (5) making recommendations to such a public or private fundgranting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and (6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (a) will be engaged in proceedings that would ordinarily come before the judge; or (b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court

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subject to the appellate jurisdiction of the court of which the judge is a member. (B) A judge may encourage lawyers to provide pro bono publico legal services.

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] 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. [5] 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.

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RULE 3.8 Appointments to Fiduciary Positions (A) A judge shall not accept appointment to serve in a fiduciary* position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge’s family,* and then only if such service will not interfere with the proper performance of judicial duties. (B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction. (C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally. (D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than [one year] after becoming a judge.

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.

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RULE 3.9 Service as Arbitrator or Mediator A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge’s official duties unless expressly authorized by law.*

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 unless it is expressly authorized by law.

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RULE 3.10 Practice of Law A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family,* but is prohibited from serving as the family member’s lawyer in any forum. 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.

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RULE 3.11 Financial, Business, or Remunerative Activities (A) A judge may hold and manage investments of the judge and members of the judge’s family.* (B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in: (1) a business closely held by the judge or members of the judge’s family; or (2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family. A judge shall not engage in financial activities permitted under (C) paragraphs (A) and (B) if they will: (1)

interfere with the proper performance of judicial duties;

(2)

lead to frequent disqualification of the judge;

(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or (4)

result in violation of other provisions of this 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.

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RULE 3.12 Compensation for Extrajudicial Activities A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law* unless such acceptance would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality.*

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.

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RULE 3.13 Acceptance and Reporting of Gifts, L oans, Bequests, Benefits, or Other Things of Value (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law* or would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality.* (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance: (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending* or impending* before the judge would in any event require disqualification of the judge under Rule 2.11; (3)

ordinary social hospitality;

(4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges; scholarships, fellowships, and similar benefits or awards, if (6) they are available to similarly situated persons who are not judges, based upon the same terms and criteria; (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner,* or other family member of a judge residing in the judge’s household,* but that incidentally benefit the judge.

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(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15: (1)

gifts incident to a public testimonial;

(2) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge: (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or (b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and (3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.

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

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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.

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RULE 3.14 Reimbursement of Expenses and Waivers of Fees or Charges (A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge’s employing entity, if the expenses or charges are associated with the judge’s participation in extrajudicial activities permitted by this Code. (B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge’s spouse, domestic partner,* or guest. (C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judge’s spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule 3.15.

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 lawrelated 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;

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(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.

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RULE 3.15 Reporting Requirements (A)

A judge shall publicly report the amount or value of: (1) compensation received for extrajudicial activities as permitted by Rule 3.12; (2) gifts and other things of value as permitted by Rule 3.13(C), unless the value of such items, alone or in the aggregate with other items received from the same source in the same calendar year, does not exceed $[insert amount]; and (3) reimbursement of expenses and waiver of fees or charges permitted by Rule 3.14(A), unless the amount of reimbursement or waiver, alone or in the aggregate with other reimbursements or waivers received from the same source in the same calendar year, does not exceed $[insert amount].

(B) When public reporting is required by paragraph (A), a judge shall report the date, place, and nature of the activity for which the judge received any compensation; the description of any gift, loan, bequest, benefit, or other thing of value accepted; and the source of reimbursement of expenses or waiver or partial waiver of fees or charges. (C) The public report required by paragraph (A) shall be made at least annually, except that for reimbursement of expenses and waiver or partial waiver of fees or charges, the report shall be made within thirty days following the conclusion of the event or program. (D) Reports made in compliance with this Rule shall be filed as public documents in the office of the clerk of the court on which the judge serves or other office designated by law,* and, when technically feasible, posted by the court or office personnel on the court’s website.

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CANON 4 A

JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.

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RULE 4.1 Political and Campaign Activities of Judges and Judicial Candidate General

s in

(A) Except as permitted by law,* or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate* shall not: (1)

act as a leader in, or hold an office in, a political organization;*

(2)

make speeches on behalf of a political organization;

(3)

publicly endorse or oppose a candidate for any public office;

(4) solicit funds for, pay an assessment to, or make a contribution* to a political organization or a candidate for public office; (5) attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office; (6) publicly identify himself or herself as a candidate of a political organization; (7) seek, accept, organization;

or

use

endorsements

from

a

political

personally solicit* or accept campaign contributions other than (8) through a campaign committee authorized by Rule 4.4; (9) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others; (10) use court staff, facilities, or other court resources in a campaign for judicial office; (11) knowingly,* or with reckless disregard for the truth, make any false or misleading statement; (12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court; or (13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.

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(B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A).

COMMENT GENERAL CONSIDERATIONS [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, or from endorsing or opposing candidates for the same judicial office for which they are running. See Rules 4.2(B)(2) and 4.2(B)(3). [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.

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[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)(11) 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 whole 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)(11), (A)(12), or (A)(13), 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)(12), 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)(12) 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 OF THE ADJUDICATIVE DUTIES OF JUDICIAL OFFICE

WITH IMPARTIAL

PERFORMANCE

[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)(13) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or 60

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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)(13) 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)(13), 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.

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RULE 4.2 Political and Campaign Activities of Elections

Judicial Candidates in Public

(A) A judicial candidate* in a partisan, nonpartisan, or retention public election* shall: (1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary; (2) comply with all applicable election, election campaign, and election campaign fund-raising laws and regulations of this jurisdiction; (3) review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.4, before their dissemination; and (4) take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1. (B) A candidate for elective judicial office may, unless prohibited by law,* and not earlier than [insert amount of time] before the first applicable primary election, caucus, or general or retention election: (1) establish a campaign committee pursuant to the provisions of Rule 4.4; (2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature; (3) publicly endorse or oppose candidates for the same judicial office for which he or she is running; (4) attend or purchase tickets for dinners or other events sponsored by a political organization* or a candidate for public office; (5) seek, accept, or use endorsements from any person or organization other than a partisan political organization; and (6) contribute to a political organization or candidate for public office, but not more than $[insert amount] to any one organization or candidate.

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(C) A judicial candidate in a partisan public election may, unless prohibited by law, and not earlier than [insert amount of time] before the first applicable primary election, caucus, or general election: (1) identify himself or herself as a candidate of a political organization; and (2)

seek, accept, and use endorsements of a political organization.

COMMENT [1] Paragraphs (B) and (C) permit judicial candidates in public elections to engage in some political and campaign activities otherwise prohibited by Rule 4.1. Candidates may not engage in these activities earlier than [insert amount of time] before the first applicable electoral event, such as a caucus or a primary election. [2] Despite paragraphs (B) and (C), 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), (11), and (13). [3] In partisan public elections for judicial office, a candidate may be nominated by, affiliated with, or otherwise publicly identified or associated with a political organization, including a political party. This relationship may be maintained throughout the period of the public campaign, and may include use of political party or similar designations on campaign literature and on the ballot. [4] In nonpartisan public elections or retention elections, paragraph (B)(5) prohibits a candidate from seeking, accepting, or using nominations or endorsements from a partisan political organization. [5] Judicial candidates are permitted to attend or purchase tickets for dinners and other events sponsored by political organizations. [6] For purposes of paragraph (B)(3), candidates are considered to be running for the same judicial office if they are competing for a single judgeship or if several judgeships on the same court are to be filled as a result of the election. In endorsing or opposing another candidate for a position on the same court, a judicial candidate must abide by the same rules governing campaign conduct and speech as apply to the candidate’s own campaign. [7] Although judicial candidates in nonpartisan public elections are prohibited from running on a ticket or slate associated with a political organization, they may group themselves into slates or other alliances to conduct their campaigns more effectively.

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Candidates who have grouped themselves together are considered to be running for the same judicial office if they satisfy the conditions described in Comment [6].

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RULE 4.3 Activities of Candidates for Appointive Judicial Office A candidate for appointment to judicial office may: (A) communicate with the appointing or confirming authority, including any selection, screening, or nominating commission or similar agency; and (B) seek endorsements for the appointment from any person or organization other than a partisan political organization.

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)(13).

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RULE 4.4 Campaign Committees (A) A judicial candidate* subject to public election* may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.* (B) A judicial candidate subject to public election shall direct his or her campaign committee: (1) to solicit and accept only such campaign contributions* as are reasonable, in any event not to exceed, in the aggregate,* $[insert amount] from any individual or $[insert amount] from any entity or organization; (2) not to solicit or accept contributions for a candidate’s current campaign more than [insert amount of time] before the applicable primary election, caucus, or general or retention election, nor more than [insert number] days after the last election in which the candidate participated; and (3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign contributions, and to file with [name of appropriate regulatory authority] a report stating the name, address, occupation, and employer of each person who has made campaign contributions to the committee in an aggregate value exceeding $[insert amount]. The report must be filed within [insert number] days following an election, or within such other period as is provided by law.

COMMENT [1] Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. See Rule 4.1(A)(8). 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.

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[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. Although lawyers and others who might appear before a successful candidate for judicial office are permitted to make campaign contributions, the candidate should instruct his or her campaign committee to be especially cautious in connection with such contributions, so they do not create grounds for disqualification if the candidate is elected to judicial office. See Rule 2.11.

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RULE 4.5 Activities of Judges Who Become Candidates for Nonjudicial Office (A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law* to continue to hold judicial office. (B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial office, provided that the judge complies with the other provisions of this Code.

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, and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election. When a judge is seeking appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the “resign to run” rule.

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2009 MONTANA CODE OF JUDICIAL CONDUCT Revised by the Montana Supreme Court March 25, 2014 TABLE OF CONTENTS PREAMBLE ......................................................................................................................................................................................246 SCOPE .............................................................................................................................................................................................246 TERMINOLOGY ...............................................................................................................................................................................246 APPLICATION ..................................................................................................................................................................................247 CANON 1 A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. RULE 1.1 Compliance with the Law ...................................................................................................................................................248 RULE 1.2 Promoting Confidence in the Judiciary ..............................................................................................................................248 RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office ...............................................................................................................248 CANON 2 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. RULE 2.1 Giving Precedence to the Duties of Judicial Office ............................................................................................................248 RULE 2.2 Impartiality and Fairness ....................................................................................................................................................248 RULE 2.3 Bias, Prejudice, and Harassment.......................................................................................................................................248 RULE 2.4 External Influences on Judicial Conduct ............................................................................................................................249 RULE 2.5 Competence, Diligence, and Cooperation .........................................................................................................................249 RULE 2.6 Ensuring the Right to Be Heard .........................................................................................................................................249 RULE 2.7 Responsibility to Decide.....................................................................................................................................................249 RULE 2.8 Decorum, Demeanor, and Communication with Jurors .....................................................................................................249 RULE 2.9 Ex Parte Communications; Investigations—Courts of Limited Jurisdiction........................................................................249 RULE 2.10 Ex Parte Communications—All Courts Except for Courts of Limited Jurisdiction..........................................................................................................................................................................................250 RULE 2.11 Judicial Statements on Pending and Impending Cases ...................................................................................................251 RULE 2.12 Disqualification .................................................................................................................................................................251 RULE 2.13 Supervisory Duties ...........................................................................................................................................................252 RULE 2.14 Administrative Appointments ............................................................................................................................................252 RULE 2.15 Disability and Impairment.................................................................................................................................................252 RULE 2.16 Responding to Judicial and Lawyer Misconduct ..............................................................................................................252 RULE 2.17 Cooperation with Disciplinary Authorities .........................................................................................................................252 CANON 3 A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE. RULE 3.1 Extrajudicial Activities in General ...................................................................................................................................... 252 RULE 3.2 Appearances before Governmental Bodies and Consultation with Government Officials .............................................................................................................................................................................................. 253 RULE 3.3 Testifying as a Character Witness..................................................................................................................................... 253 RULE 3.4 Appointments to Governmental Positions ......................................................................................................................... 253 RULE 3.5 Use of Nonpublic Information............................................................................................................................................ 253 RULE 3.6 Affiliation with Discriminatory Organizations ..................................................................................................................... 253 RULE 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities .............................................................................................................................................................. 254 RULE 3.8 Appointments to Fiduciary Positions ................................................................................................................................. 254 RULE 3.9 Service as Arbitrator or Mediator ...................................................................................................................................... 254 RULE 3.10 Practice of Law ............................................................................................................................................................... 255 RULE 3.11 Financial, Business, or Remunerative Activities.............................................................................................................. 255 RULE 3.12 Compensation for Extrajudicial Activities ........................................................................................................................ 255 RULE 3.13 Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value .................................................................................................................................................................................. 255 RULE 3.14 Reimbursement of Expenses and Waivers of Fees or Charges ..................................................................................... 256 CANON 4 A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY. RULE 4.1 Political and Campaign Activities of Judges and Judicial Candidates in General ............................................................. 256 RULE 4.2 Political and Campaign Activities of Judicial Candidates in Public Elections .................................................................... 257 RULE 4.3 Activities of Candidates for Appointive Judicial Office....................................................................................................... 258 RULE 4.4 Campaign Committees ..................................................................................................................................................... 258

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PREAMBLE [1] An independent, fair, and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. [3] The Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies. SCOPE [1] The Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology paragraphs provide additional guidance in interpreting and applying the Code. An Application paragraph establishes when the various Rules apply to a judge or judicial candidate. The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek to change a judge’s decision, to seek collateral remedies against each other, or to obtain tactical advantages in proceedings before a court. [2] The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. [3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a Comment contains the term “must,” it does not mean that the Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct at issue. [4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office. [5] The Rules of the Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions. [6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others. TERMINOLOGY The first time any term listed below is used in any given Rule in its defined sense, it is followed by an asterisk (*). “Appropriate authority” means the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported. See Rule 2.16. “Contribution” means both financial and in-kind contributions, such as goods, professional or volunteer services, advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial expenditure. See Rules 3.7, 4.1, and 4.4. “Courts of limited jurisdiction” means justice courts, justice courts of record, city courts and municipal courts. Where the context allows and for simplicity, the justices of the peace and judges of such courts may be collectively referred to as judges. See Rules 2.9 and 2.10. “De minimis,” in the context of interests pertaining to disqualification of a judge, means an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality. See Rule 2.12. “Domestic partner” means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married. See Rules 2.12, 3.13, and 3.14. “Economic interest” means ownership of more than a de minimis legal or equitable interest. Except for situations in which the 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, an officer, an 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. See Rules 1.3, 2.12, and 3.2. “Ex parte communication” is any oral communication to a judge concerning a pending or impending matter, outside the presence of all the parties to the proceeding or their attorneys or outside the confines of a duly noticed proceeding, or any written communication received by a judge that is

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not simultaneously provided to all parties or their attorneys. See Rules 2.9 and 2.10. “Fiduciary” includes relationships such as executor, administrator, trustee, or guardian. See Rules 2.12, 3.2, and 3.8. “Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.9, 2.11, 2.12, 2.14, 3.1, 3.12, 3.13, 4.1, and 4.2. “Impending matter” is a matter that is imminent or expected to occur in the near future. See Rule 2.9. “Impropriety” includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality. See Canon 1, and Rules 1.2 and 3.10. “Independence” means a judge’s freedom from influence or controls other than those established by law. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2. “Independent candidate” means a candidate for a non-judicial public office who is not a member or representative of a political organization. See Rules 4.1 and 4.2. “Integrity” means probity, fairness, honesty, uprightness, and soundness of character. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2. “Judicial candidate” means any person, including a sitting judge, who is seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office. See Rules 2.12, 4.1, 4.2, and 4.4. “Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. See Rules 2.12, 2.16, 2.17, 3.2, 3.5, 3.6, and 4.1. “Law” encompasses court rules as well as statutes, constitutional provisions, and decisional law. See Rules 1.1, 2.1, 2.2, 2.6, 2.7, 2.9, 2.10, 3.1, 3.2, 3.4, 3.7, 3.9, 3.10, 3.12, 3.13, 3.14, 4.1, 4.2, and 4.4. “Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10, and 3.11. “Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household. See Rules 2.12 and 3.13. “Nonpublic information” means information that is not available to the public. Nonpublic information includes any information regarding rulings or decisions the court is inclined to or intends to make, and any communications shared among judges during the decision-making process. It may also include, but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports. See Rule 3.5. “Partisan candidate” means a candidate for public office who seeks election as a member of or representing a political organization. See Rules 4.1 and 4.2. “Pending matter” is a matter that has commenced. A matter continues to be pending through any appellate process until final disposition. See Rules 2.9, 2.11, and 4.1. “Political organization” means a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office. For purposes of this Code, the term does not include a judicial candidate’s campaign committee created as authorized by Rule 4.4. See Rules 4.1, 4.2, and 4.3. “Public election” includes primary and general elections, partisan elections, nonpartisan elections, and retention elections. See Rule 4.4. “Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Rule 2.12. APPLICATION The Application paragraph establishes when the various Rules apply to a judge or judicial candidate. I. APPLICABILITY OF THIS CODE (A) The provisions of this Code apply to justices of the supreme court, district court judges, the chief water judge, the workers compensation court judge, justices of the peace, municipal court judges, city court judges and judges of courts of limited jurisdiction created by the legislature, including judges pro tempore, as hereinafter set forth, and, where specifically indicated, to judicial candidates. (B) The provisions of this Code do not apply to special masters, referees, administrative law judges, or persons appointed to perform quasi-judicial functions. II. JUDGE PRO TEMPORE (A) A judge pro tempore is a person who, pursuant to the law, is called to serve temporarily as a judge. (B) While presiding over any stage of a pending case under temporary appointment, a judge pro tempore must comply with this Code except for Rules 3.4, 3.7, 3.9, and 3.11(B). III. EFFECTIVE DATE—COMPLIANCE (A) The provisions of this Code are effective on the date specified by the supreme court. (B) A person to whom this Code becomes applicable shall comply immediately with its provisions, unless otherwise provided in this Code.

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CANON 1

CANON 2

A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY.

RULE 1.1 - COMPLIANCE WITH THE LAW A judge shall comply with the law,* including the Code of Judicial Conduct.

A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety* and the appearance of impropriety. 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. OF

PRESTIGE

OF

TO THE

DUTIES

OF

The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge’s personal and extrajudicial activities.

RULE 1.2 - PROMOTING CONFIDENCE IN THE JUDICIARY

RULE 1.3 - AVOIDING ABUSE OFFICE

RULE 2.1 - GIVING PRECEDENCE JUDICIAL OFFICE

JUDICIAL

A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or others, or allow others to do so. 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 the judge indicates that the reference is personal and 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.

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.

RULE 2.2 - 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 2.3 - BIAS, PREJUDICE, AND HARASSMENT (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so. (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others. (D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding. 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.

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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. 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.

RULE 2.4 - EXTERNAL INFLUENCES ON JUDICIAL CONDUCT (A) A judge shall not be swayed by public clamor or fear of criticism. (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge. 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.

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 [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 selfrepresented 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. [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).

RULE 2.7 - RESPONSIBILITY TO DECIDE A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.12 or other law.* 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.

RULE 2.8 - DECORUM, DEMEANOR, AND COMMUNICATION WITH JURORS (A) A judge shall require order and decorum in proceedings before the court. (B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control. (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding. 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. [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.

RULE 2.9 - EX PARTE COMMUNICATIONS; *INVESTIGATIONS - COURTS OF LIMITED JURISDICTION* (A) Except as permitted in paragraph (C) of this Rule, a judge of a court of limited jurisdiction shall not investigate the substantive facts, circumstances, or merits of a pending* or impending* matter. (B) Except as permitted in paragraph (D) of this Rule, a judge of a court of limited jurisdiction shall not initiate, permit, or consider ex parte communications.* (C) When circumstances or the interests of justice require it or when expressly authorized by law,* a judge of a court of limited jurisdiction may

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examine the criminal record, driving record, and on-line court records repository pertaining to a defendant in a pending or impending matter which is on file within an agency of the state of Montana for the purpose of determining whether the charge is lawful or for purposes of setting bail or sentencing. A judge may not amend the charge except on motion of the prosecutor and as otherwise provided by law. (D) When circumstances or the interests of justice require it or when expressly authorized by law, a judge of a court of limited jurisdiction may: (1) engage in ex parte communications involving administrative, ministerial or scheduling matters provided: (a) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and (b) the judge notifies all other parties, if necessary to prevent any party from gaining a procedural or tactical advantage. (2) consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, with other judges or with peace officers, prosecutors, and defense counsel provided: (a) that the judge avoids receiving factual information that is not a part of the record or part of the defendant’s criminal or driving record; and (b) that the judge does not abrogate his or her responsibility to personally adjudicate the matter fairly and impartially.* (3) receive ex parte communications in proceedings in open court if the prosecutor is not present, provided: (a) that the prosecutor has not otherwise informed the judge in writing of his or her desire or willingness to appear; and (b) that the judge shall not try a case to the court or to a jury without the presence of a prosecutor. (4) verify whether a party has a valid driver’s license and mandatory automobile insurance and whether a party is complying with any restitution requirement or conditions imposed in a sentence. (5) receive ex parte communications in proceedings involving temporary orders of protection provided that the respondent has been given notice and an opportunity to appear to the extent required by law. (6) Except as set forth in subparagraphs (1) through (5), if a judge receives an ex parte communication or other information having a potentially significant bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the content of the communication or information and provide the parties with an opportunity to respond. If such communication or information is in writing, a copy of it shall be made available to the parties and retained. (E) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control. COMMENT [1] This Rule is tailored to accommodate the unique circumstances in which Montana’s courts of limited jurisdiction operate. This Rule acknowledges that these courts exist in both large metropolitan and isolated rural locations; that the judges of these courts may or may not have clerks or other staff; that prosecutors may or may not be able to be present at all proceedings of the court; that it is necessary for these judges to sometimes speak directly with a party, peace officer, administrative personnel, or insurance agent to verify or clarify administrative or ministerial facts; and that such courts must administer large case loads consisting primarily of misdemeanor criminal and traffic offenses and civil matters involving amounts limited by law. [2] This Rule provides some flexibility to the judges of courts of limited jurisdiction in dealing with procedural, administrative, and ministerial matters, while retaining requirements that the judge may not independently investigate the substantive facts or merits of any pending or impending matter; that notice and opportunity to be heard be provided if the judge receives or obtains information which may have a significant bearing upon an pending or impending matter; and that the judge personally adjudicate the matter at issue impartially and fairly. While the judge may use discretion and common sense, those must be exercised in accordance with the law and keeping in mind constitutional rights of the parties. Nothing in this Rule abrogates the judge’s obligation to comply with all applicable laws, court rules, or administrative regulations. [3] The prohibition against a judge independently investigating the substantive facts or merits of any matter that is or may come before the court extends to information available in all mediums, including electronic. [4] Judges are admonished that they are members of a distinct branch of

government—the judiciary; that they are always to perform their duties as neutral and detached magistrates; and that they do not function as arms of local government, law enforcement, or as members of either the prosecution or defense “team.” Judges do not and may not “represent” either party. [5] This Code also controls the conduct of a judge if and when the judge functions as the court clerk or administrator.

RULE 2.10 - EX PARTE COMMUNICATIONS* - ALL COURTS EXCEPT FOR COURTS OF LIMITED JURISDICTION* (A) A judge shall not initiate, permit, or consider ex parte communications, except as follows: (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided: (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the content of the ex parte communication, and gives the parties an opportunity to respond. (2) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge avoids receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter. (3) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so, or when serving on therapeutic or problem-solving courts, mental health courts, drug courts, or the water court. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others. (B) If a judge receives an ex parte communication having a potentially significant bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the content of the communication and provide the parties with an opportunity to respond. If such communication is in writing, a copy of it shall be made available to the parties and retained. (C) A judge shall not investigate matters independently.* (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control. COMMENT [1] Whenever notice to a party is required by this Rule, it is the party’s lawyer, or if the party is unrepresented, the party to whom notice is to be given. [2] 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. [3] 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, drug courts, or the water court. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others. [4] A judge must avoid ex parte discussions of a case with judges who have previously been substituted or disqualified from hearing the matter, and with judges who have trial or appellate jurisdiction over the matter. [5] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic. The prohibition does not apply to a judge’s effort to obtain general information about a specialized area of knowledge that does not include the application of such information in a specific case. Nor does the prohibition apply to interstate or state-federal communications among judges on the general topic of case management decisions in mass torts or other complex cases, such as discovery schedules, standard interrogatories, shared discovery depositories, appointment of liaison counsel, committee membership, or common fund structures. [6] Consultations with ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with this Code are permitted. [7] It is acknowledged that judges frequently receive unsolicited ex parte

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communications. Judges should apply their discretion and common sense when called upon to determine whether any such communication qualifies as one having a potentially significant bearing upon the substance of a matter, for purposes of paragraph (B).

RULE 2.11 - JUDICIAL STATEMENTS IMPENDING CASES

ON

PENDING

AND

(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing. (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B). (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity. (E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter. 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. 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.

RULE 2.12 - DISQUALIFICATION (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of facts that are in dispute in the proceeding. (2) The judge knows* that the judge, the judge’s spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner of such a person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding. (3) The judge knows that he or she, individually or as a fiduciary,* or the judge’s spouse, domestic partner, parent, or child, 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. (4) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. (5) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court. (B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household. (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose in writing or on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. COMMENT [1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) apply. [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 paragraph, 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 (a) an interest in the individual holdings within a mutual or common investment fund; (b) 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; (c) 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 (d) an interest in the issuer of government securities held by the judge.

RULE 2.13 - SUPERVISORY DUTIES (A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code. (B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them. 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

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authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.

RULE 2.14 - ADMINISTRATIVE APPOINTMENTS (A) In making administrative appointments, a judge: (1) shall exercise the power of appointment impartially* and on the basis of merit; and (2) shall avoid nepotism, favoritism, and unnecessary appointments. (B) A judge shall not approve compensation of appointees beyond the fair value of services rendered. 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, and bailiffs. 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.

RULE 2.15 - DISABILITY AND IMPAIRMENT A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.

indicating a substantial likelihood of such misconduct, 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.

RULE 2.17 - COOPERATION WITH DISCIPLINARY AUTHORITIES (A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies. (B) A judge shall not retaliate, directly or indirectly, against a person known* or suspected to have assisted or cooperated with an investigation of a judge or a lawyer. 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. CANON 3

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. 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 2.16.

RULE 2.16 - RESPONDING MISCONDUCT

TO

JUDICIAL

AND

LAWYER

(A) A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.* (B) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority. (C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action. (D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action. 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 does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives information

A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.

RULE 3.1 - EXTRAJUDICIAL ACTIVITIES IN GENERAL A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not: (A) participate in activities that will interfere with the proper performance of the judge’s judicial duties; (B) participate in activities that will lead to frequent disqualification of the judge; (C) participate in activities that would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality;* (D) engage in conduct that would appear to a reasonable person to be coercive; or (E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law. 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] 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. [3] 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. See Rule 3.6. [4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as

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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.

RULE 3.2 - APPEARANCES BEFORE GOVERNMENTAL BODIES AND CONSULTATION WITH GOVERNMENT OFFICIALS A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except: (A) in connection with matters concerning the law,* the legal system, or the administration of justice; (B) in connection with matters about which the judge acquired knowledge* or expertise in the course of the judge’s judicial duties; or (C) when the judge is self-representing in a matter involving the judge’s legal or economic interests,* or when the judge is acting in a fiduciary* capacity. 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 2.11, 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.

RULE 3.3 - TESTIFYING AS CHARACTER WITNESS A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned. 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.

RULE 3.4 - APPOINTMENTS TO GOVERNMENTAL POSITIONS A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law,* the legal system, or the administration of justice. 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.

RULE 3.5 - USE OF NONPUBLIC INFORMATION A judge shall not intentionally disclose or use nonpublic information* known* or acquired in a judicial capacity for any purpose in contravention of or unrelated to the judge’s judicial duties.

COMMENT [1] A judge is, by definition, uniquely privy to the inclination of the court to resolve a matter or issue pending before it in a particular manner. A judge shall not, under any circumstances, disclose such information to a third party in advance of the court’s release of its decision. With respect to the parties in the case, a judge shall not disclose such information to a party or counsel unless the court simultaneously shares such information openly with all parties to the proceeding. [2] 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. [3] 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.

RULE 3.6 - AFFILIATION WITH DISCRIMINATORY ORGANIZATIONS (A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (B) A judge shall not use the benefits or facilities of an organization if the judge knows* or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices. (C) A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule. This Rule does not apply to national or state military service. 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.

RULE 3.7 - PARTICIPATION IN EDUCATIONAL, RELIGIOUS, CHARITABLE, FRATERNAL, OR CIVIL ORGANIZATIONS AND ACTIVITIES (A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law,* the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities: (1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization’s or entity’s funds; (2) soliciting* contributions* for such an organization or entity, but only from members of the judge’s family,* or from judges over whom the judge does not exercise supervisory or appellate authority; (3) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be

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used in connection with a non-fund-raising event of such an organization or entity; (4) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (a) will be engaged in proceedings that would ordinarily come before the judge; or (b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member. (5) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; (6) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and (7) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting her or his title to be used in connection with a fund-raising event of an organization which concerns the law, the legal system, or the administration of justice. (B) A judge may encourage lawyers to provide pro bono publico legal services. 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. The activities permitted by paragraph (A) do not include those sponsored by or on behalf of organizations which have as a primary purpose advocating in political processes for or against change in the laws related to limited subject areas. Activities relating to such political advocacy organizations are subject to the requirements of Rule 3.1, as well as Canon 4 and the Rules thereunder. [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). 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] 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 if comparable designations are used for other persons. [5] 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. [6] Subject to the requirements of Rule 3.1 and paragraph (A), a judge may provide leadership in improving equal access to the justice system; developing public education programs; engaging in outreach activities to promote the fair administration of justice; and convening and participating in advisory committees and community collaborations devoted to the improvement of the law, the legal system, the provision of legal services, and/or the administration of justice.

RULE 3.8 - APPOINTMENTS TO FIDUCIARY POSITIONS (A) A judge shall not accept appointment to serve in a fiduciary* position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge’s family,* and then only if such service will not interfere with the proper performance of judicial duties. (B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its

appellate jurisdiction. (C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally. (D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge. 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 2.12 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. This Rule does not prohibit a judge from assuming guardianship of a minor child, as authorized by law.

RULE 3.9 - SERVICE AS ARBITRATOR OR MEDIATOR A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge’s official duties unless expressly authorized by law.* COMMENT [1] A “judge’s official duties” may include acting as a mediator in a case pending before another judge.

RULE 3.10 - PRACTICE OF LAW (A) A judge authorized by law to engage in the practice of law* must scrupulously avoid conduct in the practice of law which may create a conflict with judicial duties or create the appearance of impropriety.* If a conflict arises between the judge’s obligations as judge and the private practice of law, the judge shall resolve the conflict in such a way that accomplishes the fulfillment of judicial duties. (B) A judge may self-represent and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family,* but is prohibited from serving as the family member’s lawyer in any forum. COMMENT [1] A judge may self-represent 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.

RULE 3.11 - FINANCIAL, BUSINESS, ACTIVITIES

OR

REMUNERATIVE

(A) A judge may hold and manage investments of the judge and members of the judge’s family.* (B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in: (1) a business closely held by the judge or members of the judge’s family; or (2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family. (C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will: (1) interfere with the proper performance of judicial duties; (2) lead to frequent disqualification of the judge; (3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or (4) result in violation of other provisions of this 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

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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 2.12. [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.

RULE 3.12 - COMPENSATION FOR EXTRAJUDICIAL ACTIVITIES A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law* unless such acceptance would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality.*

RULE 3.13 - ACCEPTANCE AND REPORTING OF GIFTS, LOANS, BEQUESTS, BENEFITS, OR OTHER THINGS OF VALUE (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law* or would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality.* (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following: (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending* or impending* before the judge would in any event require disqualification of the judge under Rule 2.12; (3) ordinary social hospitality; (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges; (6) scholarships, fellowships, and similar benefits or awards: (a) related to training in the law, the legal system or the administration of justice; or (b) available to similarly situated persons who are not judges, based on the same terms and criteria; (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner,* or other family member of a judge residing in the judge’s household,* but that incidentally benefit the judge; (9) gifts incident to a public testimonial; and (10) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge: (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or (b) an event associated with any of the judge’s educational, religious, charitable, fraternal, or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge. 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. 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 2.12, there would be no opportunity for a gift to influence the judge’s decision making. [2] 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 belowmarket 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. [3] 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. [4] 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.

RULE 3.14 - REIMBURSEMENT OF EXPENSES AND WAIVERS OF FEES OR CHARGES (A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge’s employing entity, if the expenses or charges are associated with the judge’s participation in extrajudicial activities permitted by this Code. (B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge’s spouse, domestic partner,* or guest. 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;

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(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 2.12; (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.

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. CANON 4 A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.

RULE 4.1 - POLITICAL AND CAMPAIGN ACTIVITIES JUDGES AND JUDICIAL CANDIDATES IN GENERAL

OF

(A) Except as permitted by law,* or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate* shall not: (1) act as a leader in, or hold an office in, a political organization;* (2) make speeches on behalf of a political organization, or any partisan* or independent* non-judicial office-holder or candidate for public office; (3) publicly endorse or oppose a partisan or independent candidate for any non-judicial public office; (4) solicit funds for, pay an assessment to, or make a contribution* to a political organization, or to or on behalf of any partisan or independent office-holder or candidate for public office; (5) attend or purchase tickets for dinners or other events sponsored by a partisan or independent candidate for non-judicial public office; (6) publicly identify himself or herself as a candidate of a political organization; (7) seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate; (8) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others; (9) use court staff, facilities, or other court resources in a campaign for judicial office; (10) knowingly,* or with reckless disregard for the truth, make any false or misleading statement; (11) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court; or (12) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A). COMMENT General Considerations [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. If a judicial candidate who is not a judge violates this Canon and is elected, he or she may be referred to the Judicial Standards Commission for discipline on assuming office.[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. Judges and judicial candidates 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 partisan 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, or from endorsing or opposing candidates for a judicial office, because judges are in the unique position to know and share with interested persons the qualifications of judicial candidates. See Rule 4.2(B)(2) and (3). However, note that while it is acceptable for candidates for judicial office to seek and accept endorsements from another judge, and have the supportive judge attend the candidate’s dinners, judges are prohibited from soliciting or collecting money on their behalf. [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. 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)(10) 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 whole 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)(10), (A)(11), or (A)(12), the candidate may make a factually accurate public response. In addition, when an independent third party has made false attacks on a candidate’s opponent, the candidate should disavow the attacks, and request the third party to cease and desist. [9] Subject to paragraph (A)(11), 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)(11) 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)(12) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.11(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

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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)(12) 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)(12), 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 2.12.

RULE 4.2 - POLITICAL AND CAMPAIGN ACTIVITIES JUDICIAL CANDIDATES IN PUBLIC ELECTIONS

OF

(A) A judicial candidate* shall: (1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary; (2) comply with all applicable election, election campaign, and election campaign fund-raising laws* and regulations of this jurisdiction; (3) review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.4, before their dissemination; and (4) take objectively reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1. (B) A candidate for elective judicial office may, unless prohibited by law: (1) establish a campaign committee pursuant to the provisions of Rule 4.4; (2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature; (3) publicly support or oppose candidates for judicial office; (4) attend or purchase tickets for dinners or other events sponsored by a political organization* or a candidate for judicial office; (5) seek, accept, or use endorsements from any person or organization other than a partisan political organization or partisan* or independent* office-holder or candidate for non-judicial public office; and (6) contribute to a candidate for judicial office, but not more than the amount prescribed by law.

office-holder or candidate for public office. [4] Judicial candidates are permitted to attend or purchase tickets for dinners and other events sponsored by political organizations or judicial candidates, but not by partisan or other independent office-holders or candidates for public office. [5] In endorsing or opposing another judicial candidate, the judge or judicial candidate doing so must abide by the same rules governing campaign conduct and speech as apply to the candidate’s own campaign.

RULE 4.3 - ACTIVITIES JUDICIAL OFFICE

OF

CANDIDATES

FOR

APPOINTIVE

A candidate for appointment to judicial office may: (A) communicate with the appointing or confirming authority, including any selection, screening, or nominating commission or similar agency; and (B) seek endorsements for the appointment from any person or organization other than a political organization.* 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)(12).

RULE 4.4 - CAMPAIGN COMMITTEES (A) A judicial candidate* subject to public election* may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.* (B) A judicial candidate who establishes a campaign committee shall direct his or her campaign committee: (1) to solicit and accept only such campaign contributions* as are permitted by law; (2) not to solicit or accept contributions for a candidate’s campaign in an amount or in a manner that is prohibited by law; and (3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign contributions, and to file all reports required by law with the official or agency prescribed by law. COMMENT [1] This Rule recognizes that judicial candidates may raise campaign funds in an amount and in a manner permitted by law to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to solicit financial or in-kind campaign contributions personally or to establish campaign committees to solicit and accept such 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] If a campaign committee is established, the candidate must instruct the campaign committee to solicit or accept contributions in conformity with applicable law.

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, or any partisan or independent office-holder or candidate for public office, from 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), subparagraphs (4), (10), and (12). [3] In judicial elections, paragraph (B)(5) prohibits a candidate from seeking, accepting, or using nominations or endorsements from a partisan political organization or a partisan or independent non-judicial

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