Rule
105.2
BAY MILLS INDIAN COMMUNITY TRIBAL COURT
On order
of the Court, pursuant to its authority under sec. 105 of the Tribal
Code of the Bay Mills Indian Community, the following Rule of the Bay
Mills Indian Community Tribal Court is adopted and promulgated.
Rule 105.2 CODE OF ETHICAL CONDUCT FOR JUDGES; COURT PERSONNEL; LAWYERS
AND LAY ADVOCATES
2.001 Purpose. The purpose of this Code is to provide
for and guide the professional conduct of judges, court clerks, magistrates
and administrators of this Court as well as lawyers and lay advocates
who practice before this Court.
Definitions.
When used in this Code, unless the content otherwise indicates
(A) "Attorney
or Lawyer" means an individual who is a current member of the
State Bar of Michigan or some other state. The term"attorney"
is synonymous with the term "lawyer." Further, a lawyer
must be admitted to practice before this Court pursuant to Bay Mills
Community Tribal Code Section 306.
(B) "Court"
or "Tribal Court" means the Bay Mills Indian Community Tribal
Court
(C) "Tribe"
means the Bay Mills Indian Community.
(D) "Lay
Advocate" means a person who is a non-lawyer and who has been
recognized by this Court to serve as an advocate on behalf of a party.
(E) "Court
Personnel" means any personnel employed with the Court including
but not limited to the following: judge, clerk or court administrator.
Judicial
Conduct. This Code applies to anyone, whether or not
a lawyer, who is an officer of the tribal judicial system and is performing
judicial functions. Also, this Code applies to both trial and appellate
tribal judges, who serve the Court on a full-time, part-time or pro
tempore basis.
2.102 Integrity and Independence of Tribal Judiciary.
A tribal court judge should uphold the integrity and independence of
the tribal judiciary in that an independent and honorable tribal judiciary
is indispensable to justice in the tribal community. A judge should
participate in establishing, maintaining, and enforcing, and should
himself or herself observe, high standards of conduct so that the integrity
and independence of the judiciary may be preserved. A judge should always
be aware that the judicial system is for the benefit of the litigant(s)
and the public, not the judiciary. The provisions of this Code (Section
2.101 through 2.110, inclusive) should be construed and applied to further
these objectives.
2.103 Impropriety and the Appearance of Impropriety. A
tribal court judge should avoid all impropriety and the appearance of
impropriety in all his/her activities. In addition, a tribal judge:
[A] Should
respect and comply with the law and tradition of the Tribe and at
all times should act in a manner that promotes public confidence in
the integrity and impartiality of the tribal judiciary;
[B] Should
not allow family, social or other relationships to influence his/her
judicial conduct. S/he should not attempt to use the prestige of his/her
office to advance the private interests of himself/herself or others,
nor should s/he convey the impression that anyone has special influence
on the judge; and
[C] Should
not appear as a witness in a court proceeding unless subpoenaed
2.104 Performance of Duties Impartially and Diligently.
A tribal court judge should perform the duties of the office impartially
and diligently. The judicial activities of a tribal judge should take
precedence over all other activities. The judicial duties of the judge
include all the duties of the office as prescribed by tribal law, custom
or tradition. In the performance of these duties, the following standards
apply:
Adjudicative
Responsibilities:
(1)
A tribal court judge should adhere to the laws, customs and traditions
of the Tribe. S/he should be unswayed by partisan interests, public
clamor, political pressure, or fear of criticism, and should resist
influences on the Court by other tribal officials, governmental
officials or any others attempting to improperly influence the Court.
(2)
A judge should be patient, dignified and courteous to litigants,
jurors, witnesses, lawyers, lay advocates and others with whom s/he
deals in his/her official capacity and should require similar conduct
of other persons in court proceedings and those court personnel
who are subject to the judge's direction and control.
(3)
A tribal court judge should accord to every person who is legally
interested in any proceeding, or his/her lawyer or other representative,
full right to be heard according to tribal law and tradition, and
except as authorized by law, neither consider nor permit ex parte
or other communication with a litigant or his/her attorney or lay
advocate concerning a pending or impending proceeding unless all
parties to the proceeding are present.
(4)
A tribal court judge should maintain order in the Court. S/he should
not interfere in the proceedings except where necessary to protect
the rights of the parties.
(5)
A tribal court judge should dispose promptly of the business of
the Court.
(6)
A tribal court judge should not comment publicly on any pending
Court proceeding and should also prohibit other court personnel
from making such public comment. However, this subsection does not
prohibit a judge from making public statements in the course of
his/her official duties or from explaining for public information
the procedures of the Court.
Administrative
Responsibilities:
(1)
A judge should diligently perform his/her administrative responsibilities
with a high degree of integrity and diligence.
(2)
A judge should require his/her staff and court officials to observe
high standards of integrity and diligence. As such, a judge should
direct his/her staff and court officials subject to his/her control
to observe high standards of fidelity, diligence and courtesy to
litigants, jurors, witnesses, lawyers, lay advocates and others
with whom they deal in their official capacity.
(3)
A judge should initiate appropriate disciplinary measures against
a judge, lawyer, lay advocate, or court personnel for nonprofessional
conduct of which the judge may become aware.
2.105 Improvement of the Legal System and the Administration of
Justice. A tribal court judge may engage in activities to improve
the law, the legal system and the administration of justice; in fact,
to the extent that his/her time permits, s/he is encouraged to do so,
either independently or through a legal/judicial association, judicial
conference, or other organization dedicated to the improvement of the
law. Therefore, a judge, subject to the proper performance of his/her
judicial duties, may engage in the following activities:
[A] The
judge may speak, write, lecture, teach and participate in other activities
concerning tribal law and custom, the legal system of the Tribe, the
administration of justice, and the law in general;
[B] The
judge may appear at a public hearing before a tribal executive or
legislative body or official on matters concerning the tribal legal
system and the administration of justice of general concern to tribal
members, or of personal concern. When speaking to the public, press,
or others on matters other than the administration of tribal justice,
the judge shall not identify himself/herself as the tribal judge and
shall make it clear that s/he is not speaking in his/her capacity
as tribal judge; and
[C] The
judge may serve as a member, officer, or director of an organization
or tribal governmental agency devoted to the improvement of tribal
law, its legal system or the administration of justice. The judge
may assist such an organization in raising funds and may participate
in the management and investment of such funds. S/he may make recommendations
to public and private fund-granting agencies on projects and programs
concerning tribal law, its legal system and the administration of
justice.
2.106 Extra-Judicial Activities.
Avocational
Activities: A tribal judge may write, lecture, teach, speak, and
consult on non-legal subjects, appear before public non-legal bodies,
and engage in the arts, sports, and other social and recreational
activities, provided such avocational activities do not detract from
the dignity of his/her office or interfere with the performance of
his/her judicial duties.
Civic
and Charitable Activities: A tribal judge may participate in civic
and charitable activities that do not reflect adversely upon his/her
impartiality or interfere with the performance of his/her judicial
duties. A judge may serve as an officer, director, trustee or non-legal
advisor of a bona fide educational, religious, charitable, fraternal,
or civic organization, whether tribal or otherwise, provided that
a tribal judge does not participate if it is likely that the organization
will be involved in proceedings which would ordinarily come before
him/her or would be involved in adversarial proceedings in any tribal
court.
Financial
Activities:
(1)
A tribal judge should avoid financial and business dealings that
tend to reflect adversely on his/her judicial duties, exploit his/her
judicial position, or involve him/her in frequent business transactions
with lawyers or others likely to come before the Court on which
s/he serves.
(2)
Because it is recognized that the position of tribal judge may be
a part-time position, such a tribal judge may accept other employment
and participate in the operation of a business, legal or otherwise
in nature, subject to the following:
(a)
A part-time tribal judge should not practice law either as a lawyer
or an advocate:
(i) in the tribal court in which he or she serves; or
(ii)
in any court subject to the appellate jurisdiction of the tribal
court or council on which he or she serves; and
(b)
A part-time tribal judge should not act as a lawyer or advocate
in any proceeding in which he or she has judicially served or
in any related proceeding.
(3)
Neither a judge nor a member of his/her family residing in his/her
household should accept a gift, bequest, favor, or loan from anyone
if the same would affect or appear to affect his/her impartiality.
2.107 Political Activities.
[A] A
tribal court judge should refrain from political activity inappropriate
to his/her judicial office. However. a judge or candidate for judicial
office may attend political gatherings; speak to such gatherings on
his/her own behalf or on behalf of other judicial candidates; and/or
contribute to a political party.
[B] A
tribal judge shall not be a candidate for or serve on the Tribal Council,
nor shall a tribal judge be actively involved in the campaign of another
for Tribal Council.
[C] A
candidate, including an incumbent judge, for a tribal judicial office
that is filled by tribal election or appointment:
(1)
Should maintain the dignity appropriate to the judicial office and
should refrain from any political activity which might interfere
with the performance of his/her judicial duties. Further, a tribal
court judge should encourage members of his/her family to adhere
to the same standards of political conduct that apply to him/her;
and/or
(2)
Should not make pledges or promises of conduct in judicial office
other than the faithful and impartial performance of the duties
of the office, nor announce his/her views on disputed legal or political
issues.
2.108 Continuing Educational Activities. A judge, regardless
of their education and experiences prior to being appointed or elected
a judge, should seek further legal and pertinent non-legal education
designed to improve their performance as a judge.
[Digitizer's note: 2.109 - 2.200 Reserved / Not Used]
2.201 Applicability of this Code of Conduct for Court Personnel.
This Code applies to court clerks, court magistrates, court administrators
or other similar court personnel who are employed within a tribal judicial
system, whether such employment is on a full-time, part-time or pro
tempore basis.
2.202 Integrity and Independence of Court Personnel. Court
personnel should uphold the integrity and independence of the judiciary
and of the court personnel's office in that an independent and honorable
judiciary is indispensable to justice in the tribal community. Therefore,
court personnel should observe and impart to other court personnel high
standards of conduct so that the integrity and the independence of the
judiciary may be preserved and so that the court personnel's office
may reflect a devotion to serving the public. The provisions of this
Code (Sections 2.201 through 2.206, inclusive) should be construed and
applied to further these objectives. The standards of this section shall
not affect or preclude other standards which may be promulgated by the
Court.
2.203 Impropriety and the Appearance of Impropriety. Court
personnel should not engage in any activity which would put into question
the propriety of conduct in carrying out the duties of the office, including
but not limited to the following:
[A] Court
personnel shall not allow family, social, or other relationships to
influence official conduct or judgment. Court personnel shall not
lend the prestige of their office to advance the interests of himself/herself
or others, nor should court personnel convey, or others be permitted
to convey, the impression that they are in a special position to influence
the court personnel;
[B] Court
personnel, as well as family member(s) who reside in the same household
as the court personnel, should not accept a gift, bequest, favor,
or loan from any person whose interests have come, or are likely to
come, before said court personnel or from any other person under circumstances
which might reasonably be regarded as influencing the performances
of the duties of the office;
[C] Court
personnel should abstain from public comment about pending or impending
Court proceedings and should require similar abstention on the part
of other court personnel. Court personnel should never disclose to
any person any confidential information received in the course of
official business, nor should such information be employed for personal
gain;
[D] Court
personnel should avoid favoritism, unfairness, or nepotism in connection
with the hiring, discharge, or treatment of subordinate court staff;
[E] Court
personnel should never influence or attempt to influence the assignment
of cases, or perform any discretionary or ministerial function of
the Court in a biased manner, which improperly favors any litigant
or attorney or other representative, nor imply that such court personnel
is in a position to do so; and/or
(F) Court
personnel should not practice law
2.204 Performance of Duties Impartially and Diligently.
The official duties of court personnel take precedence over all activities.
The official duties include all the duties of the court personnel's
respective office as prescribed by law or by order of the tribal court.
In the performance of these duties, the following standards apply:
[A] Court
personnel should respect and comply with the law and should act at
all times in a manner that promotes public confidence in the integrity
and impartially of the tribal judiciary and the respective court personnel's
office; and
(B) Court
personnel should be faithful to the highest standard of the profession
and maintain professional competence in it. Also, court personnel
should be patient, dignified, courteous, and fair to all persons whom
s/he has contact with in an official capacity such as litigants, jurors,
witnesses, lawyers, lay advocates and others, and should require similar
conduct from subordinate staff and others subject to his/her direction
and control.
2.205 Improvement of the Legal System and the Administration of
Justice. Court personnel, subject to the proper performance
of official duties, may engage in the following quasi-official activities:
[A] Court
personnel may speak, write, lecture, teach and participate in other
activities concerning court management, the legal system, and the
administration of justice; and
[B] Court
personnel may promote the development of professional organizations
and foster the interchange of technical information and experience
with others in the profession. Court personnel should be available
to the public-at-large for speaking engagements and public appearances
designed to enhance the public's knowledge of the operation of the
tribal court system.
2.206 Continuing Educational Activities. Court personnel,
regardless of their education and experience prior to being appointed
or elected as court personnel, should seek further legal and pertinent
non-legal education designed to improve their performance as court personnel.
[Digitizer's note: 2.207 - 2.300 Reserved / Not Used]
2.301 Applicability of this Code of Ethics for Lawyers and Lay Advocates.
This Code shall apply to all persons, whether licensed attorneys or
lay advocates, who are admitted to practice before the Court. It is
recognized that attorneys who are admitted to practice before the Court
are also members of the State Bar of Michigan or some other State and
are therefore subject to discipline under the appropriate State ethical
rules. This Code is not intended to preempt or supersede any State authority
to discipline attorneys for any conduct prohibited by this Code (Sections
2.301-2.305)
2.302 Purpose. This Code is adopted both as an inspirational
guide to the persons practicing before the Tribal Court and as a basis
for disciplinary action when the conduct of a person falls below the
required minimum standards stated in the rules set forth below.
2.303 Client - Lawyer Relationship. The following provisions
apply to the client-lawyer relationship:
(A) Competence.
A lawyer shall provide competent representation to a client. A lawyer
shall not:
(1)
Handle a legal matter which the lawyer knows or should know that
the lawyer is not competent to handle, without associating- with
a lawyer who is competent to handle it;
[2]
Handle a legal matter without preparation adequate in the circumstances;
or
[3]
Neglect a legal matter entrusted to the lawyer
(B)
Scope of Representation.
[1]
A lawyer shall seek the lawful objectives of a client through reasonably
available means permitted by law and this Code. A lawyer does not
violate this rule by acceding to reasonable requests of opposing
counsel which do not prejudice the rights of the 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. A lawyer shall abide
by a client's decision whether to accept an offer of settlement
or mediation evaluation of 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 a jury trial,
and whether the client will testify. In representing a client, a
lawyer may, where permissible, exercise professional judgment to
waive or fail to assert a right or position of the client.
(2)
A lawyer may limit the objectives of the representation if the client
consents after consultation.
(3)
A lawyer shall not counsel a client to engage, or assist a client,
in conduct that the lawyer knows is illegal or fraudulent, but a
lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counselor assist a client to make
a good-faith effort to determine the validity, scope, meaning, or
application of the law.
When
a lawyer knows that a client expects assistance not permitted by
this Code or other law, the lawyer shall consult with the client
regarding the relevant limitations on the lawyer's conduct.
Diligence.
A lawyer shall act with reasonable diligence and promptness in representing
a client.
Communication.
(1)
A lawyer shall keep a client reasonably informed about the status
of a matter and comply promptly with reasonable requests for information.
A lawyer shall notify the client promptly of all settlement offers,
mediation evaluations, and proposed plea bargains.
(2)
A lawyer shall explain a matter to the extent reasonably necessary
to permit the client to make informed decisions regarding the representation.
(E) Confidentiality
of Information.
(1)
"Confidence" refers to information protected by the client-lawyer
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.
(2)
Except when permitted under paragraph (3) below, a lawyer shall
not knowingly:
(a)
reveal a confidence or secret of a client;
(b)
use a confidence or secret of a client to the disadvantage of
the client; or
(c)
use a confidence or secret of a client to the disadvantage of
the lawyer or of a third person, unless the client consents after
full disclosure.
(3)
A lawyer may reveal:
(a)
confidences or secrets with the consent of the client or clients
affected, but only after full disclosure to them;
(b)
confidences or secrets when permitted or required by these rules,
or when required by law or by court order;
(c)
confidences and secrets to the extent reasonably necessary to
rectify the consequences of a client's illegal or fraudulent act
in the furtherance of which the lawyer's services have been used;
(d)
the intention of a client to commit a crime and the information
necessary to prevent the crime; and
(e)
confidences or secrets necessary to establish or collect a fee,
or to defend the lawyer or the lawyer's employees or associates
against an accusation of wrongful conduct.
(4)
A lawyer shall exercise reasonable care to prevent employees, associates,
and others whose services are utilized by the lawyer from disclosing
or using confidences or secrets of a client, except that a lawyer
may reveal the information allowed by Subparagraph (E) (3) above
through an employee.
(F) Conflict
of Interest: General Rule.
(1)
A lawyer shall not represent a client if the representation of that
client will be directly adverse to another client, unless:
(a)
the lawyer reasonably believes the representation will not adversely
affect the relationship with the other client; and
(b)
each client consents after consultation.
(2)
A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities
to another client or to a third person, or by the lawyer's own interest
unless:
(a)
the lawyer reasonably believes the representation will not be
adversely affected; and
(b)
the client consents after consultation. When representation of
multiple clients in a single matter is undertaken, the consultation
shall include explanation of the implications of the common representation
and the advantages and risks involved.
(G)
Client Under a Disability.
(1)
When a client's ability to make adequately considered decisions
in connection with the representation is impaired, whether because
of minority or mental disability or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(2)
A lawyer may seek the appointment of a guardian or take other protective
action with respect to a client only when the lawyer reasonably
believes that the client cannot adequately act in the client's own
interest.
(H) Declining
or Terminating Representation.
(1)
Except as stated in Subparagraph (3) below, a lawyer shall not represent
a client or, where representation has commenced, shall withdraw
from the representation of a client if:
(a)
the representation will result in violation of this Code of Ethics
or other law;
[b]
the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client; or
[c]
the lawyer is discharged.
(2)
Except as stated in Subparagraph (3) below, a lawyer may withdraw
from representing a client if withdrawal can be accomplished without
material adverse effect on the interests of the client, or if:
(a)
the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or fraudulent;
(b)
the client has used the lawyer's services to perpetrate a crime
or fraud;
(c)
the client insists upon pursing an objective that the lawyer considers
repugnant or imprudent;
(d)
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;
(e)
the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the
client; or
(f)
other good cause for withdrawal exists
(3)
When ordered to do so by this Court, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
Upon
termination of representation, a lawyer should take reasonable steps
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 that has not been earned. The lawyer
may retain papers relating to the client to the extent permitted
by law.
2.304
Advocate. The following provisions shall apply when a lawyer
serves in the role of advocate:
(A) Meritorious
Claims and Contentions. A lawyer shall not bring or defend a proceeding,
or assert or controvert an issue therein, unless there is a basis
for doing so that is not frivolous. A lawyer may offer a good-faith
argument for an extension, modification, or reversal of existing law.
A lawyer for the defendant in a criminal proceeding, or the respondent
in a proceeding that could result in incarceration, may so defend
the proceeding as to require that every element of the case be established.
(B) Expediting
Litigation. A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.
(C) Candor
Toward the Tribunal.
(1)
A lawyer shall not knowingly:
(a)
make a false statement of material fact or law to this Court;
(b)
fail to disclose a material fact to this Court when disclosure
is necessary to avoid assisting a criminal or fraudulent act by
the client;
(c)
fail to disclose to this Court controlling legal authority in
the jurisdiction known to the lawyer to be directly adverse to
the position of the client and not disclosed by opposing counsel;
or
(d)
offer evidence that the lawyer knows to be false. If a lawyer
has offered material evidence and comes to know of its falsity,
the lawyer shall take reasonable remedial measures.
[2]
The duties stated in subparagraph (C) (1) above continue to the
conclusion of the proceeding, and apply even if compliance requires
disclosure of information otherwise protected by Subparagraph 2.303(F).
[3]
A lawyer may refuse to offer evidence that the lawyer reasonably
believes is false.
(4)
In an ex parte proceeding, a lawyer shall inform this Court of all
material facts that are known to the lawyer and that will enable
this Court to make an informed decision, whether or not the facts
are adverse.
Fairness
to Opposing Party and Counsel. A lawyer shall not:
(1)
unlawfully obstruct another party's access to evidence; unlawfully
alter, destroy, or conceal a document or other material having potential
evidentiary value; or counselor assist another person to do any
such act;
(2)
falsify evidence, counselor assist a witness to testify falsely,
or offer an inducement to a witness that is prohibited by law;
(3)
knowingly disobey an obligation under the rules of this Court except
for an open refusal based on an assertion that no valid obligation
exists;
(4)
in pretrial procedure, make a frivolous discovery request or fail
to make reasonably diligent efforts to comply with a legally proper
discovery request by an opposing party;
(5)
during 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
(6)
request a person other than a client to refrain from voluntarily
giving relevant information to another party, unless:
(a)
the person is a relative or an employee or other agent of a client;
and
(b)
the lawyer reasonably believes that the person's interest will
not be adversely affected by refraining from giving such information.
Impartiality
and Decorum of the Tribunal. A lawyer shall not:
(1)
seek to influence a judge, juror, prospective juror, or other official
by means prohibited by law;
(2)
communicate ex parte with such a person concerning a pending matter,
except as permitted by law; or
(3)
engage in undignified or discourteous conduct toward the tribunal.
Trial
Publicity. A lawyer shall not make an extrajudicial statement
that a reasonable person would expect to be disseminated by means
of public communication if the lawyer knows or reasonably should know
that it will have substantial likelihood of materially prejudicing
an adjudicative proceeding.
Lawyer
as Witness.
(1)
A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness except where:
(a)
the testimony relates to an uncontested issue;
(b)
the testimony relates to the nature and value of legal services
rendered in the case; or
(c)
disqualification of the lawyer would work substantial hardship
on the client.
(2)
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 Subparagraphs 2.304(G).
2.305 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 counsel as permitted by the
Indian Civil Rights Act [25 U.S.C. Section 1302];
[C] Not
seek to obtain from an unrepresented accused a waiver of important
pretrial rights;
[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 degree of the offense, and, in connection with sentencing,
disclose to the defense and to this Court all underprivileged mitigating
information known to the prosecutor, except when the prosecutor is
relieved of this responsibility by a protective order of this Court;
and
[E] 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 Subparagraph 2.305(F)
or 2.305(H).
[F] Trial
Publicity. A tribal prosecutor participating in or associated
with the investigation of a criminal matter may not make or participate
in making any 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 to the request for
assistance; or
(5)
A warning to the public of any dangers.
[G] Restrictions.
(1)
No tribal prosecutor may receive any fee or reward from or on behalf
of any victim or other individual for services in any prosecution
or business which it is the tribal prosecutor's official duty to
attend.
(2)
No tribal prosecutor may be concerned as attorney or counsel for
either party, other than the Tribe, in any civil action depending
upon the same state of facts upon which any prosecution commenced
by the prosecutor is based.
(3)
No tribal prosecutor while in office is eligible for or may hold
any judicial office.
(4)
No person who acted a tribal prosecutor at the time of the citation
issuance arrest, or bringing of charges against any person by the
Tribe may thereafter appear for or defend that person against the
charges.
[H] Refraining
from Criticism. Tribal prosecutors shall refrain from public and
private criticism of other officers of the Court except as set out
in these rules as being their responsibility. Tribal prosecutors shall
not engage in discussions whose sole purpose or main thrust shall
be the criticism of any officers of the Court, i.e., judges, lay advocates,
attorneys, or law enforcement officers, in public or in private, except
that constructive criticism designed to improve the performance of
the individual may be given in a kind manner. Said constructive criticism
should only be delivered in a forum conducive to the purpose of the
constructive criticism.
(I) Independent
Decision-Making. Tribal prosecutors have a duty to not be frightened
or dissuaded from making difficult or unpopular decisions. Tribal
prosecutors have a responsibility to study the applicable law and
factors. They must not be influenced in making these decisions by
the fear of their being unpopular politically or from the threat of
community or personal reprisal. They must not be influenced by threatening
community or family anger. Their decisions should never be reactive
to non-admissible influences, rather they should act based on their
opinion as formed by the applicable facts and law of each case.
[J] Political
Activities.
(1)
The political activity of a tribal prosecutor shall be consistent
with the support of the community's jurisdictional rights. Tribal
prosecutors will refrain from all political activities or actions
which could be interpreted in the community as supporting any political
position except that the tribal community has the right and the
responsibility to govern its own members and its own territory.
All actions should be consistent with this belief and supportive
of this community standard.
(2)
This prohibition does not mean that tribal prosecutors cannot, if
they choose, engage in activities of electoral politics at the local,
state, national or tribal level. This prohibition is specific as
to politics adversely affecting the jurisdictional rights of the
tribal community.
[K] Avocational
and Financial Activities.
(1)
Avocational. A tribal prosecutor may write, lecture, teach
and speak on any subject, and engage in the arts, sports, and other
social and recreational activities of the Tribe, if those activities
do not interfere with the performance of his or her duties. A tribal
prosecutor may participate on tribal committees and in any tribal
educational, religious, charitable or similar organization.
(2)
Financial.
(a)
A tribal prosecutor shall avoid financial and business dealings
that tend to reflect adversely on his or her impartiality, interfere
with the performance of his or her prosecutorial duties, exploit
the prosecutor's position, or involve him or her in frequent transactions
with lawyers and others likely to be involved in the opposing
side in tribal court cases. The tribal prosecutor may, however,
hold other employment or participate in the operation of a business.
Neither
the tribal prosecutor nor any member of his or her family or household
shall accept a gift, bequest, favor, or loan from anyone which
would affect or appear to affect his or her impartiality in prosecutorial
duties, or on the prosecutor's appearance of fairness.
(L) Disqualification.
A tribal prosecutor shall disqualify himself or herself from acting
as prosecutor in any proceeding in which his or her impartiality might
reasonably be questioned, including instances where:
(1)
The tribal prosecutor has a personal bias or prejudice concerning
a party or personal knowledge of disputed evidentiary facts;
[2]
The tribal prosecutor served as lawyer, advocate, or personal representative
in the matter before the Court, or a person with whom the tribal
prosecutor has been associated in a professional capacity served
as a lawyer, advocate or personal representative concerning the
matter;
[3]
The tribal prosecutor knows that he or she individually or a member
of his or her family or household has a financial interest in the
subject matter in controversy or is a party to the proceeding, or
has any other interest that could be substantially affected by the
proceedings; or
(4)
The tribal prosecutor, or a member of his or her family or household:
(a)
is a party to the proceeding, or an officer, director, or trustee
of a party;
(b)
is acting as a lawyer or lay advocate in the proceeding; or
(c)
is to the tribal prosecutor's knowledge likely to be a material
witness in the proceeding.
2.401 Enforcement of Ethical Codes; Definitions
(A)
"Complainant" means the person who files the request for
investigation.
(B) "Investigation"
means fact-finding on alleged misconduct.
(C) "Respondent"
means an attorney, lay advocate, judge or other court personnel named
in the request for investigation or complaint.
(D) "Request
for Investigation" means a written complaint against the conduct
of a person subject to this Rule.
[2.402] Jurisdiction over Complaints against Judges. Any
request for investigation concerning a judge shall be referred to the
Executive Council for consideration of removal proceedings under sec.
l04(C) of the Tribal code.
2.403 Jurisdiction over Complaints against Court Personnel.
Any request for investigation concerning a person employed by the Tribe
to fill a position covered by this Code shall be referred to the person's
appropriate supervisor for action under the Tribe's Personnel Policies
and Procedures.
2.404 Jurisdiction over Complaints against Attorneys and Law Advocates.
Any request for investigation concerning an attorney or lay advocate
admitted to practice in the Bay Mills Indian Community Tribal Court
shall be referred to the Chief Judge of the Tribal Court. The Chief
Judge may conduct the investigation, or assign the matter to an Associate
Judge.
2.405 Contents of Request for Investigation. A request
for investigation must be in writing, describe the alleged misconduct,
including the approximate time and place of it, and be signed and dated
by the complainant. The complainant shall file two (2) copies, one of
which shall be furnished to the respondent.
[2.406] Review of Investigation Request by the Court.
The Court shall conduct an in camera review of the request for investigation,
and shall determine whether the request specifies facts which, if proved,
would constitute a violation of this Code. If the Court determines that
no violation is apparent from the facts alleged, the complainant shall
be informed that the matter is dismissed. If the Court determines that
a violation may have occurred, it shall direct that the respondent be
provided a copy of the request and set the matter for hearing.
[2.407] Hearing by Tribal Court. An evidentiary hearing
concerning the alleged misconduct shall be conducted under the provisions
of Chapters ill and IV of the Tribal Code. Both complainant and respondent
may appear in person, present testimony of
witnesses, produce documents, and make argument At the conclusion of
the hearing, the Court shall issue a written decision within 30 days.
[2.408] Disposition of Complaint. The Court shall include
in its decision one of the following:
(A) Dismissal
of the complaint on the grounds that no misconduct was proven to have
occurred.
(B) Determination
of misconduct having been proven, and imposition of one of the following
penalties:
(1)
Admonish respondent;
(2)
Issue a reprimand;
(3)
Place respondent on probation for a specific period of time;
(4)
Revoke respondent's authorization to practice before the Tribal
Court; or
(5)
Require respondent, when applicable, to make restitution in an appropriate
amount.
Dated
this 16th day
of December ,
2003.
|
BY
THE COURT:
/s/
CORRINE A. CAMERON, Chief Judge
|
CERTIFICATION
I, the
undersigned, as Secretary of the Bay Mills Indian Community Executive
Council, do hereby certify that the attached Tribal Court Rule 105.2,
was adopted and approved at a meeting of the Bay Mills Executive Council
held at Bay Mills, Michigan, on the 26
day of January , with a vote of
4 in favor, 0
opposed, 0 absent, and 1
abstaining. As per the provisions of the Bay Mills Constitution, the
President must abstain except in the event of a tie.
| |
/s/
Greg Parker, Secretary
Bay Mills Indian Community
Executive Council |
Back
to Top