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The Champion

January-February 2014 , Page 34 

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A Call to End Prospective Waivers of Judicial Disqualification in Accountability Courts

By Christopher C. Edwards and Jacob B. Vail

I. Introduction

A. The Proposed Comment

The ABA Model Code of Judicial Conduct (CJC), Rule 2.11: Disqualification, provides: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. …”1 A seventh comment should be added to that rule:

[7] A judge serving on therapeutic or problem-solving courts, mental health courts, or drug courts may assume a more interactive role with parties and others than in traditional courts, but impartiality of the judge is essential to the legitimacy of all courts. All judges are always subject to disqualification, unless disqualification is waived based upon known, existing facts.

The proposed comment would preclude accountability courts from requiring a prospective waiver of judicial disqualification as a condition to admission into accountability court. Included in this article are examples of the waiver forms that should be prohibited. The license to innovate in accountability

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