Advisory Opinions

(a) Formal Advisory Opinions. A person may request that the Commission issue a formal advisory opinion as to whether actual or contemplated conduct on the part of a judge conforms to the requirements of the Code, subject to the following procedures: (1) A request for a formal advisory opinion shall be submitted to the Executive Director in writing, who shall present the request to the Commission for consideration. (2) Upon the affirmative vote of 9 members, the full Commission may issue a formal advisory opinion, which shall be written and shall state its conclusion with respect to the question asked and the reasons therefor. (3) (4) A formal advisory opinion shall be provided to the Appellate Reporter for publication, and the Reporter shall, from time to time, as directed by the Commission, publish an index of advisory opinions. The formal advisory opinion shall also be published on the Commission’s website. A formal advisory opinion shall have precedential value in determining whether similar conduct conforms to the Code but shall not constitute controlling precedent or legal authority in the Supreme Court for the purpose of reviewing a disciplinary recommendation. To the extent the Supreme Court expressly 12 TOC Rule 8 nullifies an existing formal advisory opinion, the formal advisory opinion shall be deemed automatically withdrawn. (5) Other than as provided in subsection (a)(4) of this rule, a formal advisory opinion may be modified or withdrawn by the Commission only upon the affirmative vote of 9 members of the full Commission. Until a formal advisory opinion is modified or withdrawn by the Commission or nullified by the Supreme Court, a judge shall be deemed to have acted in good faith if he or she acts in conformity with the advisory opinion. (6) Except as published in the formal advisory opinion, information provided to the Commission and work product or communications associated with drafting and issuing the formal advisory opinion shall be confidential. (b) Informal Advisory Opinions. A judge subject to the jurisdiction of the Commission may seek a confidential informal advisory opinion from the Chairperson, Vice-Chairperson, Executive Director, or Commission Counsel as to whether conduct, actual or contemplated, conforms to the requirements of the Code, subject to the following procedures: (1) (2) (3) (4) (5) An informal advisory opinion may be requested orally or in writing. Any oral or written communications between the requesting judge and the Commission relating to an informal advisory opinion shall be confidential unless waived in writing by the judge. If a request for an informal advisory opinion discloses actual conduct that may be actionable as a violation of the Code, then the Chairperson, Vice-Chairperson, Executive Director, or Commission Counsel shall refer the matter to an investigative panel of the Commission for consideration. An informal advisory opinion may be issued orally but shall be confirmed in writing and shall approve or disapprove only the matter in issue, shall not otherwise serve as precedent, and shall be confidential. Informal advisory opinions shall be reviewed at regularly scheduled panel meetings. If upon review, a majority of the panel members present and voting decide that an informal advisory opinion should be withdrawn or modified, then the inquiring judge shall be notified in writing by the Executive Director. Until this notification takes place, the judge shall be deemed to have acted in good faith if he or she acts in conformity with the informal advisory opinion that is later withdrawn or modified. 13 TOC Rule 8 (6) If an inquiring judge disagrees with the informal advisory opinion issued by the Chairperson, Vice-Chairperson, Executive Director, or Commission Counsel, then the judge may submit a written request in accordance with subsection (a) of this rule for consideration of the inquiry by the full Commission as a formal advisory opinion. (c) Protection of Privileged Information. All inquiries, whether requesting a formal advisory opinion or an informal advisory opinion, shall present in detail all operative facts upon which the inquiry is based but should not disclose privileged information that is not necessary to the resolution of the question presented. History Note. 374 N.C. 960; 386 N.C. 974.