SERVE PRO BONO AS
MEDIATOR
Opinion No. 161 (1993)
QUESTION: May a
trial judge appoint another sitting judge to serve pro bono as a mediator of a
dispute that is the subject of a pending case?
ANSWER: No,
because, for the following reasons, it would be inappropriate for the appointed
active judge to serve as a mediator:
1.
Mediation is not a judicial activity. A court's referral of a dispute to a
mediator initiates a statutory, nonjudicial dispute resolution procedure that is
an alternative to and outside of the judicial system. The applicable statute only authorizes a
judge to refer the dispute to a "non-judicial" forum. Civ. Prac. & Rem. Code, Sec.
154.021(a)(3). Diverting a pending
civil dispute to a nonjudicial forum is analogous to diverting a defendant from
criminal prosecution to nonjudicial drug or mental health treatment, outside of
the criminal justice system. The
purpose of such procedures is to move disputes out of the court system so that
courts can devote their limited resources to due process litigation of cases
that must be tried. The Code of Judicial Conduct recognizes this principle by
locating its mediation provision in Canon 5,* concerning extra-judicial
activities.
2. Judges
should not be mediators in a private capacity.
a.
Texas Canon 5E,** which prohibits an active full-time judge from acting
as a mediator for compensation outside the judicial system but permits a judge
to encourage settlement in the performance of official duties, should be
construed to have the meaning stated by the corresponding ABA Code provision,
which provides that a judge shall not act as a mediator in a private
capacity.
b. Texas Canon 3A(5)(b),***
concerning one of a judge's "Duties of Office", permits a judge to try to settle
a case by conferring separately with the parties, but such an attempt to settle
a case in court does not constitute mediation pursuant to the statutory
plan.
3.
Mediation confidentiality conflicts with judicial duty. Canon 3A(5)(b)*** states the only
exception to the principle that a judge should not participate in secret
proceedings concerning any pending case, and it has a proviso that such ex
parte communications in effect
terminate the judge's judicial authority in the case. The Committee concludes that, except
when using this limited procedure in Canon 3A(5)(b)*** subject to the proviso,
active judges should not be mediators, because a mediator's duty not to disclose
confidential information (Civ. Prac. & Rem. Code, Sec. 154.053) may conflict
with a judge's duty to disclose certain types of information (such as criminal
conduct or a lawyer's unprofessional conduct). Another problem is that being a
mediator could involve a judge in litigation under related Sec. 154.073 to
resolve a conflict between mediation confidentiality and other law requiring the
judge to disclose information.
4. Judge
mediation would impair confidence in judiciary. Widespread judge participation in
negotiating and deal making for the purpose of avoiding the judicial system
would diminish public confidence in the independence, integrity, and
impartiality of the judiciary. A
judge should refrain from activities that involve the judge in frequent
nonjudicial transactions with lawyers likely to come before the court. Advisory opinions and private
conversations with parties and lawyers are essential to mediation; but advisory
opinions are not consistent with the constitutional duty of the judicial branch
to decide "cases" and "controversies", and ex parte conferences
are not consistent with due process or with the adversary.
______________
* Now see Canon 4.
* *Now see Canon 4F.
*** Now see Canon 3B(8)(b).
GUEST OF HONOR AND FUND
RAISING FOR A POLITICAL
PARTY
Opinion No. 162
(1993)
QUESTION: May a
judge be a guest of honor at a fund raising event for a political
party?
ANSWER:
Yes. Canon 7(3)* states that a
judge may indicate support for a political party and attend a political
event. Canon 5C(4)(a)** allows a
judge to accept a gift incident to a public testimonial and by implication
endorses public testimonials to judges.
Canon 5(B)2*** at one time prohibited judges from
soliciting funds for any educational, religious, charitable, political,
fraternal, or civic organization.
The Canon also prohibited judges from speaking or being guests of honor
at such an organization's fund raising events. The word "political" was removed from
this section of the canon by the Supreme Court
It should be noted that Canon 5B(2) found on page 125 of
the 1990 edition of the Texas Judicial Service Handbook erroneously includes the
word "political," which was deleted by the Supreme Court in
1988.
_____________
* Now see Canon 5(3).
** Now see Canon 4D(4)(a).
*** Now see Canon 4C(2).
Opinion No. 163
(1993)
QUESTION: May a
judge actively support and campaign for voter approval of a bond issue to build
a criminal justice center by speaking at civic clubs, writing letters, and
preparing documentary material in support of the bond
issue?
ANSWER: Yes,
with certain limitations. Canon 3
provides that judicial duties of a judge shall take precedence over all other
activities. Thus, judicial duties
should take precedence over campaigning for a bond issue to build a new criminal
justice center.
Other limitations are set out in Opinion No. 82
(1986). Because the question in
Opinion 82 is so similar to the question asked in this opinion, the Committee
reiterates the answer it gave in Opinion 82 and reproduces that answer
below.
SUPPORT OF COUNTY BOND
ELECTION
Opinion No. 82
(1986)
QUESTION: May
judges support a county bond election, designated a "law and order election," to
fund an expanded and improved jail facility, a new county criminal courts
building, and renovation and improvement of civil district and family courts
facilities?
ANSWER: Yes,
with certain limitations. Canon 4
of the Code of Judicial Conduct permits a judge to engage in activities to
improve the law, the legal system, and the administration of justice. However, Canon 4 also sets forth certain
limitations, "subject to the proper performance of his judicial duties, [a
judge] may engage in [such duties], if in doing so he does not cast doubt on his
capacity to decide impartially any issue that may come before
him."
A possible second limitation may occur if the "law and
order" bond issue is not segregated from other issues which do not pertain to
law improvement, the legal system and the administration of justice. In our
Opinion No. 64, this committee was of the opinion that it would be unethical for
a judge to actively support a bond election to raise funds to develop a city
water project. If the "law and
order" bond issue is submitted with other issues and not segregated, ethical
considerations may become involved. See Canon 5.*
A possible third limitation may occur depending upon
what the judges mean by "support" the bond election. To support a bond issue connotes much
more than a mere endorsement. Canon
1 states, "A judge should uphold the integrity and independence of the
judiciary." Canon 2 states, "A
judge should avoid impropriety and the appearance of impropriety." Canon 7** states, "A judge should
refrain from political activity inappropriate to [the
Judiciary]."
Your Committee is of the opinion that proper facilities
and equipment for courts and jails are essential to the legal system and the
proper administration of justice.
Subject to the limitations set forth above, a majority
of the committee is of the opinion that it would not be unethical to support a
bond issue for those purposes enumerated in the posed
question.
_______________
*Now see Canons 4C and 5.
** Now see Canon 5.
USE OF TITLE "JUDGE" BY MUNICIPAL
COURTJUDGE RUNNING FOR
JUSTICE OF THE
PEACE
Opinion No. 164
(1993)
QUESTIONS:
1. May a municipal court judge
running for Justice of the Peace use the title "Judge" in campaign literature,
campaign stationery, and press releases?
2. May a
municipal court judge running for Justice of the Peace use a photograph of
herself wearing a judicial robe in campaign literature and newspaper
articles?
ANSWER: Yes to
both questions.
In Opinion 137 (1990), the committee stated in answer to
question 3 that "a judge's campaign literature should state the judge's present
title and position . . . ." The
committee also stated that the judge should not use "judicial letterhead" to
solicit contributions or other support for the judge's campaign. The term "judicial letterhead" was
defined in that opinion as "letterhead that shows a judge's title, position, and
official address and is suitable for official judicial correspondence." Thus, the committee concludes that while
the municipal court judge may use the title "Judge" in campaign literature,
stationery, and press releases, she should not use "judicial letterhead" as
defined in Opinion 137 for those purposes.
In Opinion 159 (1993), the committee stated in answering
questions 1 and 2 that a judge running for non-judicial political office
should not use the title "Judge" in political advertising or in the name of a
campaign committee. The committee
believes that a different result is proper when a judge is running for a
judicial office. In that case, the
committee believes that it is permitted to use the title "Judge" in political
advertising, in the name of the campaign committee, in campaign literature, in
campaign stationery, in campaign press releases, and in newspaper articles. In addition, a judge may describe in her
political literature her experience as a judge, see Opinion 159, question
3.
FUND-RAISING FOR
ORGANIZATIONS
Opinion No. 165
(1993)
QUESTIONS: 1.
After
2. May a
judge participate in fund-raising activities of a civic organization in which he
is a mere participant of selling items bought by the
organization?
ANSWER:
1. No. After
Additionally, Canon 2B provides that a judge should not
lend the prestige of judicial office to advance the interest of others. The fact that the speaker is not
introduced as a judge does not remove the prohibition because a judge cannot
realistically separate the prestige of judicial office from the judge's personal
affairs. (Compare Opinions 73, 136
and 150).
Finally, the activity in question is prohibited, even
outside the judge's territorial limits, because there is no exception in Canon
4C(2) based on territorial limits.
2. No. In addition to being a prohibited
solicitation as addressed above, the judge's participation would violate Canon
2B by lending the prestige of judicial office to advance the interests of others
and would create an opportunity for someone to convey the impression that they
are in a special position to influence the judge by making generous purchases
from him. The fact that the judge
would be a "mere participant", or one of many selling the items, would not
remove the prohibition under the Canons.
See Opinions 10, 11, 16, 25, 59, 131, 150 and 155.
MASTER APPEARING AS LAWYER
IN COURT WHICH HE
SERVES
Opinion No. 166
(1993)
QUESTION: May a
master appointed to conduct probable cause hearings in mental commitment cases
on an "as needed" basis appear as an attorney on unrelated matters in the
probate court for which he serves as a master?
ANSWER:
No. Canon 6D(2) specifically
suggests that a part-time master of a probate court should not practice law in
the court which he serves as long as his appointment is in effect. Although the
master would conduct the probable cause hearings only on an "as needed" basis,
he is considered a part-time master for purposes of Canon 6D(2) because Canon 8B(18) defines
"part-time" to include service on a periodic basis.
_____________
See Opinion Number 79 (1985) for related issue. All references herein are to the Texas
Code of Judicial Conduct, effective
SERVICE ON MUNICIPAL COMMISSION ON
DISABILITIES
Opinion No. 167
(1993)
QUESTION: May a
judge accept appointment to a city commission on disabilities whose purposes are
to advise and make recommendations to the mayor, city council, and city
department directors regarding the needs, rights and privileges of people with
disabilities? The commission's
duties shall include, but not be limited to, developing programs to provide
employment opportunities for people with disabilities; to address accessibility
issues; to address issues of alcoholism
and drug abuse; to take advantage of all federal, state, and local
funding opportunities; and to insure adequate housing for people with
disabilities.
ANSWER:
No. Canon 5G provides that a judge
should not accept appointment to a governmental commission concerned with issues
of fact or policy on matters other than the improvement of the law, the legal
system, or the administration of
justice. This governmental
commission is not concerned with the improvement of the law, the legal system,
or the administration of justice.
The committee concludes that service on the commission is therefore
prohibited by Canon 5G. See also
Canon 4H of the new code of judicial conduct, effective
FACULTY EVALUATIONS IN
CAMPAIGN
ADVERTISEMENTS
Opinion No. 168
(1994)
FACTS ASSUMED: A
municipal judge, who is also a candidate for a county-level judgeship, currently
serves as a faculty member for the Texas Municipal Courts Education Center
(TMCEC) and as a Discussion Leader for a course at the National Judicial College (NJC). Both the TMCEC and the NJC provide
faculty evaluation forms where judges (whose identities are completely
confidential) make comments about the judge.
QUESTION: May
the judge use the comments from the faculty evaluation form in his campaign
advertising, e.g., comments such as "as asset to the judiciary",
"knowledgeable", "a commonsense judge"?
The comments would be used in the context of "this is what other judges
from around the state think about Judge X". No comment would be attributed to any
particular judge, since the identity of the judge making the comment is
unknown.
Would Judge X be permitted to state "this is what
lawyers from around the state say about Judge X" if Judge X can ascertain that
the judge making the comment was a lawyer?
ANSWER:
No. Even though the anonymity of
the quotes would remove this question from the specific application of Canon
5(3), prohibiting a judge from authorizing the public use of his or her name
endorsing another candidate for any public office, this type of advertising
would nevertheless imply that other judges were endorsing this candidate. Such an implication would violate Canon
2(A) by causing the public to question the integrity and impartiality of the
judiciary. Furthermore, the
candidate would be causing the judges who made the evaluations to lend the
prestige of judicial office to advance his private interests in violation of
Canon 2(B).
Additionally, this type of campaign advertising
referring to lawyers is questionable.
Text, out of context, is pretext.
The quotations in question were made about a faculty/discussion
leader. To lift them from that
context and apply them in a political campaign would be a misleading use of
these speaker evaluations. The
judges and/or lawyers who filled out the evaluations may or may not be
supportive of the candidate. Canon
2 states that a judge should avoid impropriety and the appearance of impropriety
in all the judge's activities. The
Committee believes that the unauthorized use of
these evaluation quotes would violate the trust in which they were given
and should not be used.
CAMPAIGN STATEMENT THAT OPPONENT
"REMOVED" FROM OFFICE
Opinion No. 169
(1994)
QUESTION: Would
a candidate for judicial office violate the Canons of Judicial Conduct by
stating that his or her opponent had been "removed" as a District Judge when, in
fact, the opponent had not been removed but had been defeated for
reelection?
ANSWER: Yes. The
word "removed" could refer to the voters having previously voted for the
candidate's opponent and therefore the candidate has lost his or her bench. However, Canon 5(2)(ii) states that a
judge or judicial candidate shall not "knowingly misrepresent the identity,
qualifications, present position or other fact concerning the candidate or an
opponent".
The term "removed" suggests that a statutory or
administrative process was used to expel a judge for misconduct or other matters
that would make him or her unfit to serve.
Although the voters are, in effect, "removing" an office holder by voting
for the non-incumbent, this is a process of the electorate and does not state a
reason for defeat. To suggest that
a defeated judge was "removed" from office would be misleading and violate Canon
5(2)(ii).
Additionally, judges and judicial candidates should
engage in the highest form of campaigning to reflect their understanding of the
dignity and important public trust of the office they are seeking. To suggest,
by the use of words that could be misleading or taken out of context, that a
defeated judge was removed for misconduct defeats not only the Canon, but also
the spirit of the office.
CAMPAIGNING FOR OTHER
CANDIDATES
Opinion No. 170
(1994)
QUESTIONS:
1. May a judge of a district,
county or J.P. court running for reelection or candidate for any such office
hand out campaign material for candidates of one's own political party along
with one's material and recommend to people that they vote for these
candidates?
2. May a
judge of a district, county, or J.P. court running for reelection or candidate
for any such office hand out campaign material for candidates of one's own
political party along with one's material without making any endorsement but
with the request that the voters consider these other
candidates?
3. May a
judge of a district, county, or J.P. court running for reelection or candidate
for any such office hand out a campaign piece produced and paid for by one's own
political party that contains an advertisement for such judge along with
advertisements for the other candidates?
4. For any
of the activities described above which are determined to violate the new code,
would it be permissible for one's spouse to engage in such
action?
ANSWERS:
It is the opinion of the
Committee that the first three questions are prohibited by Canon 5(3) of the
Code of Judicial Conduct which provides in the first sentence, "A judge or
judicial candidate shall not authorize the public use of his own name endorsing
another candidate for public office except that either may indicate support for
a political party."
Public activity by handing out campaign material for
another candidate by a judge or candidate for judge as set out in Questions 1
through 3 would be a public endorsement.
Articulating a "recommendation" as set out in Question 1 or by asking
"consideration" as set out in Question 2 would merely be another form of public
endorsement.
Question 3, although it does not involve articulating
support for another, still involves an overt act of personally handing out
campaign material for another candidate and would be a public
endorsement.
Opinion No. 100 concluded that joint campaign activity
by two judge candidates would violate the Canon 2 prohibition against lending
the prestige of judicial office to advance the "private interests" include
candidacy. See also Opinions No.
73, 92, 136, and 145.
Question 4 involves the conduct of a spouse of a
judge. The Code does not attempt to
regulate the activities of a judge's spouse so this conduct would not be
prohibited.
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Judicial Ethics | Judicial Ethics Opinions