Could a judge use allegations in a confidential judicial complaint to seek criminal or other legal action?

Plain-English summary

A judge believed a complainant had sworn falsely in a judicial disciplinary complaint and considered seeking a criminal warrant or other legal action. The judge asked whether the complaint’s allegations could be disclosed and used for that purpose.

The Commission applied Rules of Judicial Disciplinary Procedure 2.4 and 2.5. It described the complaint matter as confidential and the filed statements as protected by privilege and immunity, and advised the judge not to use the allegations in the proposed action.

Currency note

This opinion was issued in 1997, before West Virginia adopted its 2015 Code of Judicial Conduct, effective December 1, 2015. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on the letter's conclusion.

Common questions

Q: Could the judge use the complaint allegations?

A: The Commission said no, citing the confidentiality and privilege provisions.

Q: Which rules did the opinion apply?

A: Rules of Judicial Disciplinary Procedure 2.4 and 2.5.

Background and rules framework

Rule 2.4 addressed confidentiality of judicial disciplinary complaints and investigations. Rule 2.5 addressed privilege for complaint information and immunity for Commission and disciplinary personnel.

Citations and references

West Virginia Rules of Judicial Disciplinary Procedure:

• Rules 2.4 and 2.5, complaint confidentiality and privilege.

Statute mentioned:

• West Virginia Code § 61-5-2, alleged false swearing.

See also

• WV JIC Advisory Opinion 1997-22: Character letter in ethics matter

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1997-24, redacted
• Code adoption date: West Virginia JIC 2015 Annual Report

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
212 Dickinson Street
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 FAX (304} 558-0831

October 1, 1997

Dear
Your letter to Counsel to the Judicial Investigation
Commission referencing _ ,
, was reviewed by the Commission at its recent meetinq. In your correspondence you stated that you believed
that
: had deliberately, maliciously, and
dishonestly committed false swearing against you in this complaint in violation of West Virginia Code §61-5-2 or other applicable law. You stated you were considering seeking a criminal warrant against him for that criminal offense or taking other appropriate legal action.
You asked whether, at this time, in accordance with Commission's Rules, Regulations, Practices, Procedures, and Guidelines, it is permissible for you to disclose and use the
false sworn statements made by
in the complaint
particularly the claim that you "forced" your way into a magistrate's office and thereby damaged a door. You asked whether you could use the allegation as a material part of your seeking an appropriate criminal warrant or taking other appropriate legal action against _____ in state or federal courts.
The West Virginia Rules of Judicial Disciplinary Procedure provide in Rule 2.4 that:
The details of complaints filed or investigations conducted by the Office of Disciplinary Counsel shall be confidential, except that when a complaint has been filed or an investigation has been initiated, the Office of Disciplinary Counsel may release information confirming

• 2 - October 1, 1997

or denying the existence of a complaint or investigation, explaining the procedural aspects of the complaint or investigation, or defending the right of the judge to a fair hearing. Prior to the release of information confirming or denying the existence of the com~laint or investigation, reasonable notice shall be provided to the judge. Rules 2.4 requires that all matters handled by the Judicial Investigation commission remain confidential.
The West Virginia Rules of Judicial Disciplinary Procedural provide in Rule 2.5 that:
All information provided, documents filed or testimony given with respect to any investigation or proceeding under these Rules shall be privileged in any action for defamation. All members of the Commission, the Judicial Committee on Assistance and Intervention, the Office of Judicial Disciplinary Counsel, and their employees, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this State for any conduct in the course of their official duties. This Rule gives a protection of ~rivilege and immunit¥ over matters asserted in complaints filed with the Commission.
Based upon the language contained in these two Rules, the Commission feels that the matters asserted in Complaint No. 124-97 are confidential and that you should not use any of the allegations made in the complaints to address those matters which you set forth in your letter. If you have any further question re9arding this matter, do not hesitate to contact the Commission.

Chairman
JWB/bl