Judicial conduct and bar-discipline chairs tell committee H.1 consultation mandate would conflict with court confidentiality and procedure

Officials who oversee judicial and attorney discipline told the Senate Committee on Government Operations that H.1, which would require consultation with the State Ethics Commission on certain referred complaints, would conflict with existing court rules governing confidentiality and procedure.

Terry Corson, the state bar administrator, introduced witnesses including Merrill Bent, chair of the Judicial Conduct Board (JCB), and Carolyn Anderson, chair of the Professional Responsibility Board (PRB). Bent described the JCB process as a "very formal process" governed by rules promulgated by the Vermont Supreme Court. "The code applies to judges all the time, not only when they are performing their judicial functions," she said, and she noted the board's investigatory and subpoena powers, its quasi‑judicial procedures once a formal complaint is initiated, and the need to protect deliberations and confidentiality under court rules.

Anderson outlined the professional-responsibility process for attorneys: screening counsel receives complaints and can dismiss them or refer them to disciplinary counsel, who has subpoena power and conducts investigations that remain confidential until a public complaint is filed. She noted that disciplinary matters that become public are assigned to hearing panels and proceed with discovery and evidentiary rules; those decisions — findings of fact, conclusions of law, and sanctions — are published and may be appealed to the Vermont Supreme Court.

Both witnesses and Terry Corson cited a memorandum submitted to the committee by Professor Teachout, which they said narrowed the issue by acknowledging the distinctive ethics regimes that apply to judges and lawyers and by suggesting that any required consultation should, if at all, come only after a complaint becomes public. Bent and Anderson told senators even that limited approach is problematical: JCB rules, they said, expressly bar board members from discussing deliberations on matters before them with anyone outside the board other than the board clerk and the board's legal counsel, which would make mandated consultation with the ethics commission inconsistent with existing court rules and potentially raise due-process and separation-of-powers concerns.

Committee members pressed witnesses on procedural details and transparency. Bent said the JCB publishes outcomes, often anonymized when a complaint is not pursued publicly, and explained that many complaints do not allege a violation of the code of judicial conduct but rather disagreement with a judge's decision. Anderson emphasized that attorney investigations and the work product of disciplinary counsel are protected by privilege and court rule and that the PRB's process already makes public the complaint and file once a public complaint is filed and probable cause is found.

Senator White said the testimony made clear both boards have robust, well‑documented processes and that the committee should be cautious about interfering. Witnesses provided activity figures: Bent said the JCB received 36 new complaints and disposed of 35 after initial inquiry in the most recent fiscal year she cited; Anderson said her office received roughly 175 complaints to screening counsel in the most recent fiscal year and that screening counsel referred 21 cases to disciplinary counsel, with public complaints proceeding to hearing panels.

Witnesses asked the committee to exempt the JCB and PRB from a blanket consultation requirement because the courts establish disciplinary procedures for judges and lawyers and because mandated consultations could either be meaningless (if limited to post-public-complaint disclosure) or would force board members to violate court rules (if required during confidential investigatory stages). The committee heard the testimony; no committee vote was recorded during the session.