Rule jsc-6. Confidentiality and privilege.

A. Requirements of the Constitution. As provided in Article VI, Section 32 of the Constitution: (1) All meetings of the Commission and all hearings on the merits and all other proceedings before the Commission, presiding officers, and masters are confidential. (2) All pleadings and other documents filed with the Commission, or with presiding officers and masters appointed by the Commission, or by the chair, are confidential. (3) All testimony given before the Commission, presiding officers, and masters is confidential. (4) All testimony given in depositions and recorded statements permitted by these rules is confidential. (5) A record of proceedings filed by the Commission with the Supreme Court remains privileged but, upon filing, is no longer confidential. (6) A writing which was privileged before it was filed with the Commission or its masters does not lose its privilege by filing with the Supreme Court. (7) Promptly upon their appointment, masters shall be informed of the confidentiality of all proceedings undertaken by them and shall agree to keep such proceedings confidential. B. Applicability. This rule about confidentiality applies to: (1) Witnesses in an investigation and witnesses at a hearing on the merits. (2) The Commission, general counsel, investigative trial counsel, staff, expert witnesses, and consultants retained by general counsel. (3) A judge and judge’s counsel and staff, expert witnesses, consultants retained by the judge, and guardians ad litem appointed pursuant to Rule 25. (4) The record of proceedings of a hearing on the merits loses confidentiality upon filing with the Supreme Court, but only to the extent of the filing. The record of any other Commission proceeding filed with the Supreme Court loses confidentiality only upon order of the Supreme Court and then only to the extent of the filing. C. Third party complainant exempt. A person filing a third party complaint is not prohibited from communicating to others about the filing of the third party complaint, its contents, or complainant’s testimony related thereto. D. Confidentiality during investigation. In connection with the investigation of allegations in a notice of investigation or charges in a notice of formal proceedings, the parties may disclose to third parties the existence of a notice of investigation or a notice of formal proceedings, but only to the extent necessary to conduct the investigation. E. Waiver under certain circumstances. A judge applying for a position that requires a background check may, in a sworn, written document filed with the Commission, waive confidentiality regarding the judge’s disciplinary history. Upon approval by the Commission, the general counsel shall issue a letter of certification as applicable: (1) That the judge has no history of non-disciplinary or disciplinary action. (2) That the judge has a history of docketed complaints with the Commission that resulted in either non-disciplinary or disciplinary action against the judge. (3) If the judge has a history of docketed complaints with the Commission that resulted in disciplinary action by the Supreme Court, the background investigators shall be referred to the Supreme Court for the public portion of the record. F. Commission exceptions. For good cause, the Commission may disclose otherwise confidential information to the Supreme Court, law enforcement agencies, State Auditor, Attorney General, Supreme Court Disciplinary Board, or others. G. Third party support. The parties may disclose otherwise confidential information to third parties necessary to perform the work to prepare cases for investigation and hearing on the merits including, without limitation, to court reporters and videographers, investigators, consultants, expert witnesses, and special counsel; provided, however, except at a hearing on the merits, and subject to the Rules of Evidence, that neither investigative trial counsel nor a judge shall disclose to a witness information provided either orally or in writing by another witness. All such persons to whom such otherwise confidential information is to be disclosed shall be informed in advance of the confidentiality of such information and shall agree in a writing approved by the Commission to keep such information confidential upon penalty of contempt of the Commission. H. Disclosure of third party complainant and complaint. Notwithstanding any other provisions of this rule, neither the identity of a third party complainant, nor a third party complaint shall be provided to a judge; provided, however, that if investigative trial counsel intends to call a third party complainant as a witness at a hearing on the merits, the identity of a third party complainant shall be disclosed to the judge as a witness as provided by Rule 17, below, and the third party complaint shall be produced to the judge. I. Witnesses. Except for a third party complainant, all witnesses giving testimony, either in deposition or in a hearing on the merits, shall take an oath approved by the Commission to keep the existence of any proceeding against a judge and the identity of such judge confidential until the proceeding is no longer confidential under these rules. J. Privilege. The filing of papers and giving of testimony before the Commission or its masters is privileged in any action for defamation, except that the record filed by the Commission in the Supreme Court continues privileged but, upon its filing, loses its confidential character, and a writing that was privileged prior to its filing with the Commission or its masters does not lose its privilege by the filing.