Alaska Code Jud. Conduct Canon 3

A. ■ Primacy of Judicial Duties. The judicial duties* of

a judge take precedence over all the judge’s other activities. A

judge’s judicial duties include all the duties of the judge’s

office prescribed by law.* In performance of these duties, the

following standards apply.

B. Adjudicative Responsibilities.

(1) ■ A judge shall consider and decide all matters

assigned to the judge except those in which the judge’s

disqualification is required.

Commentary.—See Feichtinger v. State, 779 P.2d 344, 348

(Alaska App. 1989) (“Judges will frequently be assigned cases

involving unpleasant issues and difficult problems. Often

litigants and their attorneys will be particularly vexatious. In

many cases, publicity adverse to the judge is virtually certain

no matter what decision he or she reaches. In such cases,

judges insufficiently attuned to their responsibilities might

readily welcome a baseless request for recusal as an escape

from a difficult case. To surrender to such a temptation would

justly expose the judiciary to public contempt based on

legitimate public concern about judicial integrity and courage.

While we agree that judges must avoid the appearance of bias,

it is equally important to avoid the appearance of shirking

responsibility.”)

(2) (a) ■ A judge shall maintain professional competence

in the law.*

(b) A judge shall be faithful to the law.* A judge shall not

deviate from the law to appease public clamor, to avoid

criticism, or to advance an improper interest.

(3) ■ A judge shall take reasonable steps to maintain and

ensure order and decorum in judicial proceedings before that judge. Commentary.—Section 3B(3)

addresses a judge’s responsibility to preserve order and decorum in court

proceedings. “Order” refers to the level of regularity and

civility required to guarantee that the business of the court will

be accomplished in conformity with the rules governing the

proceeding. “Decorum” refers to the atmosphere of

attentiveness and earnest endeavor which communicates, both

to the participants and to the public, that the matter before the

court is receiving serious and fair consideration

Clearly, individual judges have differing ideas and standards

concerning the appropriateness of particular behavior,

language, and dress for the attorneys and litigants appearing

before them. What one judge may perceive to be an obvious

departure from propriety, another judge may deem a harmless

eccentricity or no departure at all. Also, some proceedings call

for more formality than others. Thus, at any given time,

courtrooms around the state will inevitably manifest a broad

range of “order” and “decorum.”

Section 3B(3) is not intended to establish a uniform standard

of what constitutes “order” and “decorum.” Rather, the

Section requires a judge to take reasonable steps to achieve

and maintain the level of order and decorum necessary to

accomplish the business of the court in a manner that is both

regular and fair, while at the same time giving attorneys,

litigants, and onlookers assurance of that regularity and

fairness.

(4) ■ A judge shall be patient, dignified, and courteous to

litigants, jurors, witnesses, lawyers, and others with whom the

judge deals in an official capacity. The judge shall take

reasonable steps to maintain and ensure similar conduct from

lawyers and from court staff and others subject to the judge’s

direction and control.

Commentary.—The duty to hear all proceedings with

patience, dignity, and courtesy is not inconsistent with the duty

to dispose promptly of the business of the court. Judges can be

efficient and businesslike while being patient and deliberate.

(5) ■ In the performance of judicial duties,* a judge shall

act without bias or prejudice* and shall not manifest, by words

or conduct, bias or prejudice based upon race, color, sex,

religion, national origin, disability, age, marital status, changes

in marital status, pregnancy, parenthood, sexual orientation, or

social or economic status. A judge shall not permit court staff

and others subject to the judge’s direction and control to

deviate from these standards in their duties.

Commentary.—A judge must refrain from speech, gestures, or

other conduct that manifests bias or prejudice, including

sexual harassment, and must require the same standard of

conduct from others subject to the judge’s direction and

control.

A judge must perform judicial duties impartially and fairly. A

judge who manifests bias on any basis in a proceeding impairs

the fairness of the proceeding and brings the judiciary into

disrepute. Facial expression and body language, in addition to

oral communication, can give others an appearance of judicial

bias. A judge must be alert to avoid behavior that may be

perceived as an expression of prejudice.

(6) ■ A judge shall require lawyers in proceedings before

the judge to refrain from manifesting, by words or conduct,

bias or prejudice* based upon race, color, sex, religion,

national origin, disability, age, marital status, changes in

marital status, pregnancy, parenthood, sexual orientation, or

social or economic status. This Section 3B(6) does not

preclude legitimate advocacy when race, color, sex, religion,

national origin, disability, age, marital status, changes in

marital status, pregnancy, parenthood, sexual orientation or

social or economic status, or other similar factors, are issues in

the proceeding.

Commentary.—This Section is intended to prohibit not only

express judicial support for the bias or prejudice but also

speech, gestures, or inaction that could reasonably be

interpreted as implicit approval of the expressed bias or

prejudice. A judge may not ignore or overlook expressions of

bias or prejudice in any judicial proceeding, even informal

proceedings such as scheduling or settlement conferences.

Appropriate action will depend on the circumstances. In some

instances, a polite correction might be sufficient. However,

deliberate or particularly offensive conduct will require more

significant action, such as a specific direction from the judge,

a private admonition, an admonition on the record, or, if the

attorney repeats the misconduct after being warned, contempt.

(7) ■ A judge shall accord to every person the right to be

heard according to law.* A judge shall not initiate, permit, or

consider ex parte communications or other communications

made to the judge outside the presence of the parties

concerning a pending or impending proceeding except as

allowed by this Section. A judge shall make reasonable efforts

to see that law clerks and other court staff carrying out similar

functions under the judge’s supervision do not violate the

provisions of this Section.

(a) A judge may initiate or consider an ex parte

communication when expressly authorized by law* to do so.

(b) When circumstances require, a judge may engage in ex parte communications for scheduling or other administrative purposes, provided that:

(i) the communications do not deal with substantive

matters or the merits of the issues litigated,

(ii) the judge reasonably believes no party will gain a

procedural or tactical advantage because the communication is

ex parte, and

(iii) the judge takes reasonable steps to notify all other

parties promptly of the substance of the ex parte

communication and, when practicable, allows them an

opportunity to respond. This subsection does not apply to ex

parte communications by law clerks or other court staff

concerning scheduling or administrative matters.

(c) If all the parties have agreed to this procedure

beforehand, either in writing or on the record, a judge may

engage in ex parte communication on specified administrative

topics with one or more parties.

(d) A judge may consult other judges and law clerks or

other court staff whose function is to aid the judge in carrying

out the judge’s adjudicative responsibilities.

(e) A judge may, with the consent of the parties, confer

separately with the parties and their lawyers in an effort to

mediate or settle matters pending before the judge.

Commentary.—The proscription against communications

concerning a proceeding includes communications from

lawyers, law teachers, and other persons who are not

participants in the proceeding, except to the limited extent

permitted.

Whenever presence of a party or notice to a party is required

by Section 3B(7), it is the party’s lawyer, or if the party is

unrepresented the party, who is to be present or to whom

notice is to be given.

A judge may request a party to submit proposed findings of

fact and conclusions of law, so long as the other parties are

apprised of the request and are given an opportunity to

respond to the proposed findings and conclusions.

If communication between the trial judge and the appellate

court with respect to a proceeding is permitted, a copy of any

written communication or the substance of any oral

communication should be provided to all parties.

The first sentence of Section 3B(7) (“A judge shall accord to

every person the right to be heard according to law.”) is not

intended to expand or alter the law of standing (a person’s

right to bring an action), nor is it intended to expand or alter

the procedural rules governing the scope and manner of a

person’s right to be heard in a case.

Judges should endeavor to create some form of record of ex

parte communications whenever possible, even when the

communications are authorized under this Section.

Section 3B(7)(a) permits an ex parte communication when it is

expressly authorized by law, including communications that

may reveal privileged information. For example, a judge may

engage in an ex parte communication when the judge must

question a criminal defendant about the defendant’s request

for appointment of a different attorney, and the judge

determines that privileged information will be revealed.

Under Section 3B(7)(b), a judge may engage in ex parte

communications for “scheduling or other administrative

purposes.” For example, a judge may make or receive an ex

parte communication when the sole purpose of the

communication is to provide courtesy notification to the

parties or to the court of a delay or change in scheduling.

Another example of an ex parte communication contemplated

by this Section is when a defense attorney notifies the judge

that the defendant cannot be located, that the scheduled trial

should be called off, and that the defense concedes that a

bench warrant should be issued for the defendant’s arrest.

Section 3B(7)(b) requires a judge to take reasonable steps to

promptly notify all parties of any ex parte communication. The

continuing development of communications technology will

affect what steps are “reasonable.” Telephone communication

is now virtually ubiquitous and telefax communication is

widespread. In the near future, it may be common to notify

lawyers through computer mail or computer bulletin boards. A

judge should consider these alternatives when deciding the

most expeditious means of communication reasonably

available to the court and the parties.

A judge’s secretary or law clerk may also engage in ex parte

communications to discuss scheduling or other administrative

matters. Such communications are permitted as long as the

requirements of Sections 3(B)(7)(b)(i) and (ii) are satisfied,

that is, as long as the communications do not deal with the

substance or merits of the litigation and no party gains an

advantage as a result of the ex parte contact. When the

communication is with a staff member rather than a judge,

Section 3B(7)(b)(iii) does not apply. Thus, if an attorney asks

about the status of a pending motion, the judge’s secretary

may provide this information without notifying the other

parties of the communication or including them in a

conference call.

Section 3B(7)(c) allows the various parties in multi-party

litigation to designate a “lead” party for their side and have

that party appear at pretrial hearings to deal with issues such

as scheduling and discovery.

Section 3B(7)(d) assumes that the other judge or member of

the judge’s adjudicative staff is not disqualified from

participating in the decision of the case. Thus, it would be

improper for a judge to consult another judge who had been

challenged either peremptorily or for cause, and it would

likewise be improper for a judge to consult another judge, a

law clerk, or anyone else who the judge knows has a

disqualifying interest in the proceeding. Likewise, it would be

improper for the judge to consult a member of an appellate

court whose duty it would be to review the judge’s decision.

The verb “consult” is intended to mean “engage in discussions

regarding the substance or merits of the case.” Just as a

presiding judge may continue to perform purely administrative

functions following his or her peremptory challenge—see

Criminal Rule 25(d)(3)—a disqualified judge may engage in

limited, purely administrative communication with the

successor judge. Thus, when a new judge is assigned to a case

following a judicial disqualification, the successor judge may

speak to the disqualified judge about purely administrative

matters (the dates already scheduled for court proceedings, the

identities of the attorneys, etc.). However, the new judge may

not speak to the disqualified judge about the merits of any

pending issues, the merits of any previously decided issues, or

the substance of any proceedings already held in the case. The

new judge’s information on these topics is to be gleaned from

the court file or from the attorneys.

Section 3B(7)(d) is not intended to authorize a judge to engage

in ex parte consultation with court staff such as custody

investigators and court-employed juvenile intake officers,

whose function is to provide evidence in the proceeding.

A judge may not ex parte seek advice on the law applicable to

a proceeding from a disinterested expert.

(8) ■ A judge shall dispose of all judicial matters

promptly, efficiently, and fairly.

Commentary.—In disposing of matters promptly, efficiently,

and fairly, a judge must demonstrate due regard for the rights

of the parties to be heard and to have issues resolved without

unnecessary cost or delay. Containing costs while preserving

fundamental rights of parties also protects the interests of

witnesses and the general public. A judge should monitor and

supervise cases so as to reduce or eliminate dilatory practices,

avoidable delays and unnecessary costs. A judge should

encourage and seek to facilitate settlement, but should not

coerce parties into surrendering the right to have their

controversy resolved by the courts.

Prompt disposition of the court’s business requires a judge to

devote adequate time to judicial duties, to be punctual in

attending court and expeditious in determining matters under

submission, and to insist that court officials, litigants and their

lawyers cooperate with the judge to that end.

(9) ■ A judge shall not, while a proceeding is pending or

impending in any court, make any public comment that might

reasonably be expected to affect its outcome or impair its

fairness, or make any nonpublic comment that might

substantially interfere with a fair trial or hearing. The judge

shall take reasonable steps to maintain and ensure similar

abstention on the part of court staff subject to the judge’s

direction and control. This Section does not prohibit judges

from making public statements in the course of their official

duties or from explaining for public information the procedures

of the court. This Section does not apply to proceedings in

which the judge is a litigant in a personal capacity.

Commentary.—The requirement that judges abstain from

public comment regarding a pending or impending proceeding

continues during any appellate process and until final

disposition. This Section does not prohibit a judge from

commenting on proceedings in which the judge is a litigant in

a personal capacity, but in cases such as a writ of mandamus

where the judge is a litigant in an official capacity, the judge

must not comment publicly. The conduct of lawyers relating to

trial publicity is governed by Rule 3.6 of the Alaska Rules of

Professional Conduct.

(10) ■ A judge shall not commend or criticize jurors for

their verdict other than in a court order or opinion in a

proceeding. However, a judge may express appreciation to

jurors for their service to the judicial system and the

community.

Commentary.—Commending or criticizing jurors for their

verdict may imply a judicial expectation in future cases and

may impair a juror’s ability to be fair and impartial in a

subsequent case.

(11) ■ A judge who acquires nonpublic information* in a

judicial capacity shall not disclose the information for any

purpose unrelated to the judge’s judicial duties, nor shall the

judge use the information for the financial gain of the judge or

any other person.

Commentary.—The ABA’s version of this Section prohibits a

judge from disclosing or using nonpublic information acquired

in a judicial capacity for any purpose unrelated to judicial

duties. This rule does not adequately address the problem

presented when a judge obtains confidential information that

has relevance to the judge’s personal life outside of the

financial sphere. A judge hearing a confidential proceeding

might obtain information about a doctor that has potentially

crucial relevance to the judge’s decision of which doctor to

employ. A judge who hears a search warrant application might

obtain information that would affect the judge’s decision

regarding what day-care center to use or what restaurant to

patronize. Even though the judge reveals this information to no

one, it would not strain the English language to say that a

judge who makes decisions based on this information has

“used” the nonpublic information for a purpose unrelated to

the judge’s official duties.

The Alaska version of the Section recognizes that a judge

cannot reasonably be expected to disregard nonpublic

information when it comes to the health or safety of the judge’s

immediate family. The first clause of the Alaska rule forbids

“disclosure” of such information for any non-judicial purpose

(thus allowing the judge to “use” the information for personal

purposes so long as the judge does not violate the second

clause).

The second clause forbids the “use” of nonpublic information

for anyone’s financial gain. A judge who wishes to misuse

confidential information for financial gain will often not need

to disclose the information to anyone else; indeed, the amount

of the improper financial gain may be directly proportionate to

the judge’s success in concealing the information from all

other persons.

(12) ■ Without prior notice to the parties and an

opportunity to respond, a judge shall not engage in

independent ex parte investigation of the facts of a case.

Commentary.—This Section does not prohibit a judge from

exercising the judge’s authority to independently call witnesses

if the judge believes that these witnesses might shed light on

the issues being litigated or to take judicial notice of certain

facts. See Evidence Rules 614 & 201.

C. Administrative Responsibilities.

(1) ■ A judge shall maintain professional competence in

judicial administration, and should cooperate with other judges

and court staff in the administration of court business. A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice.*

Commentary.—See Terminology, “bias or prejudice.”

The definition of “bias or prejudice” found in the terminology

Section was written in an exclusionary manner to allow judges,

with regard to administrative matters, to countenance

legitimate distinctions relevant to the policies or decisions

involved.

To the extent judges have administrative authority over other

judges, that authority should likewise be exercised in such a

way as to provide the best use of judicial resources and the

optimum development of all judicial officers. Just as the

individual court must perform judicial administration without

bias or prejudice, so too, judges with administrative authority

over others must do the same with respect to the judicial

officers subject to their orders.

(2) ■ A judge shall take reasonable steps to ensure that

court staff and others subject to the judge’s direction and

control observe the standards of fidelity to the law* and

diligence in the performance of their duties that apply to the

judge and refrain from manifesting bias or prejudice* in the

performance of their official duties.

(3) ■ A presiding judge or any other judge with

supervisory authority over other judges shall take reasonable

steps to assure that, for matters within the supervising judge’s

scope of authority, the other judges properly perform their

judicial responsibilities.

(4) ■ A judge shall not make unnecessary appointments.

A judge shall exercise the power of appointment impartially

and on the basis of merit. A judge shall avoid nepotism and

favoritism. A judge shall not approve compensation of

appointees beyond the fair value of services rendered.

Commentary.—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 Section 3C(4).

D. Disciplinary Responsibilities.

(1) ■ A judge having information establishing a

likelihood that another judge has violated this Code shall take

appropriate action. A judge having knowledge* that another

judge has engaged in conduct reflecting the other judge’s lack

of fitness for judicial office shall inform the appropriate

disciplinary authority,* unless the judge reasonably believes

that the misconduct has been or will otherwise be reported.

Conduct reflecting lack of fitness for judicial office includes:

(a) or accepting a bribe or otherwise acting dishonestly

in reaching a judicial or administrative decision,

(b) improperly using or threatening to use the judge’s

judicial power in a manner adverse to someone else’s interests

for the purpose of inducing that person to bestow a benefit

upon the judge or upon someone else pursuant to the judge’s

wishes, or

(c) commission of a felony.

(2) ■ A judge having information establishing a

likelihood that a lawyer has violated the Rules of Professional

Conduct shall take appropriate action. A judge who obtains

information establishing a likelihood that a lawyer has

committed a violation of the Rules of Professional Conduct by

an act of dishonesty, obstruction of justice, or breach of

fiduciary* duty shall inform the appropriate disciplinary

authority,* unless the judge reasonably believes that the

misconduct has been or will otherwise be reported.

(3) ■ A judge possessing nonprivileged information

pertaining to another judge’s potential violation of this Code

shall fully reveal this information upon proper request of the

appropriate disciplinary authority* or of any other tribunal

empowered to investigate or act upon judicial misconduct. A

judge possessing nonprivileged information pertaining to a

lawyer’s potential violation of the Rules of Professional

Conduct shall fully reveal this information upon proper request

of the appropriate disciplinary authority or of any other

tribunal empowered to investigate or act upon attorney

misconduct.

(4) ■ Acts of a judge, in the discharge of disciplinary

responsibilities, required or permitted by Sections 3D(1),

3D(2), and 3D(3) are part of a judge’s judicial duties. *

Commentary.—Section 3D establishes a judge’s duty to take

action in response to the misconduct of another judge (Section

3D(1)) or the misconduct of a lawyer (Section 3D(2)). In many

instances, Section 3D allows a judge a degree of discretion in

determining how he or she should respond to misconduct; the

Section specifies only that the judge shall take “appropriate

action.” Thus, a judge who learns that another judge has

engaged in an improper but de minimis ex parte contact, or

who learns that a judge has engaged in a fundraising activity

for a charity, may believe that the only action needed is to

point out to the other judge that his or her conduct violates the

Code. Similarly, a judge who learns that another judge is

suffering from alcohol or drug addiction might direct that

other judge to counseling or might seek the help of the other

judge’s colleagues or friends or refer the matter to a judicial

assistance committee. On the other hand, if the other judge

refuses to admit the problem or submit to ameliorative

measures, and if the other judge’s intoxication is interfering

with his or her judicial duties (so as to constitute a violation of

Canon 1 and Section 3A), then a judge who knows of this

problem may be obliged to report it to the Commission on

Judicial Conduct, unless that judge is a senior judge acting as

a member of a judicial assistance committee.

Appropriate action will vary with particular situations and

with particular individuals. There will generally be a range of

reasonable responses available to the judge who learns of

misconduct. However, a judge who learns of misconduct must

respond reasonably. For example, the judge may not

“respond” by explicitly or implicitly condoning the misconduct.

A judge’s discretion to determine an appropriate response to

misconduct is circumscribed in certain instances. Both

Sections 3D(1) and 3D(2) grant no discretion—they require

the judge to report misconduct to the appropriate disciplinary

authority—if (a) the misconduct is serious and (b) the judge’s

awareness of the misconduct rises to the specified level of

certainty.

With regard to this level of awareness, a judge must report

judicial misconduct if he or she “knows” that another judge

has engaged in serious misconduct, while a judge must report

attorney misconduct if he or she has information “establishing

a likelihood” that an attorney has engaged in serious

misconduct. The term “knows” is defined in the Terminology

Section. The term “likelihood” is used in the sense of “more

probable than not,” a preponderance of the evidence.

If the misconduct the judge learns of is not among the serious

types of misconduct, or if the misconduct is serious but the

judge’s level of awareness of the misconduct does not rise to

the specified degree of certainty, there is no absolute duty to

report. However, the judge who is aware of a likelihood of

misconduct will still be under the more general obligation to

take appropriate action.

A judge is not required to report all conduct that indicates lack

of fitness for judicial office, only conduct of the same

seriousness as that described in Subsections 3D(1)(a)-(c).

Section 3D applies to magistrates. However, a magistrate may

report serious misconduct to the presiding judge or chief

justice instead of the Judicial Conduct Commission.

E. Disqualification.

(1) ■ Unless all grounds for disqualification are waived as

permitted by Section 3F, a judge shall disqualify himself or

herself in a proceeding in which the judge’s impartiality might

reasonably be questioned, including but not limited to

instances where:

Commentary.—Under this rule, a judge is disqualified

whenever the judge’s impartiality might reasonably be

questioned, regardless of whether any of the specific rules in

Section 3E(1) apply. For example, if a judge were in the

process of negotiating for employment with a law firm, the

judge would be disqualified from any matters in which that law

firm appeared, unless the disqualification was waived by the

parties after disclosure by the judge.

A judge should disclose on the record information that the

judge believes the parties or their lawyers might consider

relevant to the question of disqualification, even if the judge

believes there is no real basis for disqualification.

By decisional law, the rule of necessity may override the rule

of disqualification. For example, a judge might be required to

participate in judicial review of a judicial salary statute, or

might be the only judge available in a matter requiring

immediate judicial action, such as a hearing on probable

cause or a temporary restraining order. In the latter case, the

judge must disclose on the record the basis for possible

disqualification and use reasonable efforts to transfer the

matter to another judge as soon as practicable.

(a) the judge has a personal bias or prejudice concerning

a party or a party’s lawyer, or personal knowledge of disputed

evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in

controversy, or a lawyer with whom the judge previously

practiced law served during their association as a lawyer

concerning the matter, or the judge has been a material witness

concerning it;

Commentary.—A lawyer in a government agency does not

ordinarily have an association with other lawyers employed by

that agency within the meaning of Section 3E(1)(b); a judge

formerly employed by a government agency, however, should

disqualify himself or herself in a proceeding if the judge’s

impartiality might reasonably be questioned because of such

association.

(c) the judge knows* that he or she, individually or as a

fiduciary,* or the judge’s spouse,* parent, or child wherever

residing, or any other member of the judge’s family* residing

in the judge’s household:

(i) has an economic interest* in the subject matter in

controversy, or

(ii) is employed by or is a partner in a party to the

proceeding or a law firm involved in the proceeding, or

(iii) has any other, more than de minimis interest* that

could be substantially affected by the proceeding, or

(iv) is likely to be a material witness in the proceeding;

(d) the judge or the judge’s spouse, or a person within

the third degree of relationship* to either of them, or the

spouse* of such a person:

(i) is a party to the proceeding or is known* by the judge

to be an officer, director, or trustee of a party;

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

(iii) is known* by the judge to have a more than de

minimis interest* that could be substantially affected by the

proceeding;

(iv) is to the judge’s knowledge* likely to be a material

witness in the proceeding.

(e) For purposes of this Section, when a party is a

governmental entity, a person is “employed by” the party when

the person is employed by the agency, commission, department

or (if the department is broken into divisions) division, or other

unit of government directly involved in the matter to be

litigated.

Commentary.—The fact that a lawyer in a proceeding is

affiliated with a law firm with which a relative of the judge is

affiliated does not of itself disqualify the judge under Section

3E(1)(d). Under appropriate circumstances, the fact that “the

judge’s impartiality might reasonably be questioned” under

Section 3E(1), or that the relative is known by the judge to

have an interest in the law firm that could be “substantially

affected by the outcome of the proceeding” under Section

3E(1)(d)(iii) may require the judge’s disqualification.

Cross Reference.—Additional grounds for disqualification are

set out in AS 22.20.020(a). This statute provides:

(a

A judicial officer may not act in a matter in which

(1) the judicial officer is a party;

(2) the judicial officer is related to a party or a party’s

attorney by consanguinity or affinity within the third degree;

(3) the judicial officer is a material witness;

(4) the judicial officer or the spouse of the judicial

officer, individually or as a fiduciary, or a child of the judicial

officer has a direct financial interest in the matter;

(5) a party, except the state or a municipality of the

state, has retained or been professionally counseled by the

judicial officer as its attorney within two years preceding the

assignment of the judicial officer to the matter;

(6) the judicial officer has represented a person as

attorney for the person against a party, except the state or a

municipality of the state, in a matter within two years

preceding the assignment of the judicial officer to the matter;

(7) an attorney for a party has represented the judicial

officer or a person against the judicial officer, either in the

judicial officer’s public or private capacity, in a matter within

two years preceding the filing of the action;

(8) the law firm with which the judicial officer was

associated in the practice of law within the two years

preceding the filing of the action has been retained or has

professionally counseled either party with respect to the

matter;

(9) The judicial officer feels that, for any reason, a fair

and impartial decision cannot be given.

Most of the grounds for disqualification under AS 22.20.020(a)

are also listed as grounds for disqualification under Section

3E(1) of the Code. But the statute requires a judge to

disqualify himself or herself in four situations that are not

expressly covered by Section 3E(1):

● Under AS 22.20.020(a)(5), a judge must disqualify himself

or herself if the judge served as an attorney for one of the

parties within two years preceding assignment of the case to

the judge. This disqualification does not apply if the party is

the state or a municipality.

● Under AS 22.20.020(a)(6), a judge must disqualify himself

or herself if the judge was opposing counsel in a matter

involving one of the parties within two years preceding

assignment of the case to the judge. Again, this disqualification

does not apply if the party is the state or a municipality.

● Under AS 22.20.020(a)(7), a judge must disqualify himself

or herself if an attorney in the case represented the judge,

either in the judge’s public or private capacity, within two

years preceding the filing of the action. A judge must also

disqualify himself or herself if an attorney in the case was

opposing counsel in a matter involving the judge within two

years preceding the filing of the action.

● Under AS 22.20.020(a)(8), a judge must disqualify himself

or herself if the judge’s former law firm is representing one of

the parties in the case or has represented one of the parties

with respect to the matter, and the judge was associated with

the law firm within the two years preceding the filing of the

case.

The first two of these disqualifications would only be of

concern to judges who have been on the bench less than two

years.

(2) A judge shall keep informed about the judge’s

personal and fiduciary* economic interests* and make

reasonable effort to keep informed about the personal

economic interests of the judge’s spouse* and minor children

residing in the judge’s household.

Commentary.—Many judges and their families either are or

will be the beneficiaries of law firm annuities or pensions.

Depending upon the type of pension or annuity arrangement,

the law firm’s success or failure in major litigation may affect

the value or collectibility of pension or annuity benefits. When

this economic interest is present, Sections E3(1)(c)(iii) or

3E(1)(d)(iii) may require a judge’s disqualification from

litigation involving the law firm, even though Sections

3E(1)(b), 3E(1)(c)(ii), and 3E(1)(d)(ii) would not otherwise

require disqualification.

F. Waiver of Disqualification.

(1) ■ A judge shall not seek or accept a waiver of

disqualification when the judge has a personal bias or

prejudice concerning a party or a lawyer, when, for any other

reason, the judge believes that he or she cannot be fair and

impartial, or when a waiver is not permitted under AS

22.20.020. In other circumstances, a judge who would be

disqualified by the terms of Section 3E may disclose on the

record the basis or bases of the judge’s disqualification and ask

the parties to consider whether they wish to waive

disqualification. A judge is not bound by the parties’ decision

to waive a disqualification.

(2) ■ The judge shall not participate in the parties’

discussions and shall require the parties to hold their

discussions outside the presence of the judge. The judge shall

not comment in any manner on the merits or advisability of

waiver, other than to explain the right of disqualification or to

further elucidate the ground or grounds of disqualification if

requested by the parties. The judge is permitted to advise the

parties that he or she is willing to participate in the case with

the agreement of all the parties. But the judge must tell the

parties that the decision whether to waive the ground of

disqualification rests with each of them.

(3) ■ The judge may ask the parties to affirmatively

indicate their position on the judge’s disqualification, or give

the parties a reasonable length of time to waive the

disqualification, telling the parties either (a) that their failure to

act will be construed as a decision to waive the potential

disqualification or (b) that their failure to act will be construed

as a decision not to waive the potential disqualification. If all

parties decide to waive the potential disqualification, and if the

judge is then willing to participate, the judge may participate in

the proceeding.

(4) ■ All the communications between the judge and the

parties must be incorporated in the record of the proceeding.

Commentary.—A waiver procedure provides the parties an

opportunity to proceed without delay if they wish to waive the

disqualification. Under AS 22.20.020(b), the following

disqualifications may not be waived:

(1) the judicial officer is a party;

(2) the judicial officer is a material witness;

(3) the judicial officer or the spouse of the judicial

officer, individually or as a fiduciary, or a child of the judicial

officer has a direct financial in the matter;

(4) the judicial officer feels that, for any reason, a fair

and impartial decision cannot be given.

The decision whether or not to waive a disqualification is not

one that must be made by the client. An attorney may make the

decision without consulting with the client if the client is not

present or readily available, or if the attorney decides that

consultation is unnecessary.

All aspects of the communications between the judge and the

parties (but not the parties’ discussions among themselves)

must either be in writing and included in the case file or on the

record in court.