JUDGE AS FACILITATOR OR MODERATOR

 

Opinion No. 171 (1994)

 

QUESTION: May a judge facilitate or moderate a discussion between two factions of a community dispute (developer vs. environmentalist)?

The focus of the discussion is to find ways to improve communication in order to avoid conflicts that ultimately would require legislative or judicial determination.  There would be no compensation for the judge.

 

ANSWER: No.  The activity described is that of a mediator.  Opinion 161 discusses the judge's role as mediator and clearly states that mediation is not a judicial activity.  (See Opinion 161 for further discussion of judges and mediators.)

 

 

RECUSAL OF MUNICIPAL JUDGE

 

Opinion No. 172 (1994)

 

QUESTION: Should the judge of a municipal court recuse himself from presiding over the trial of cases of a Defendant who has civil actions pending against the judge in state and federal courts?

 

FACTS:  The question is submitted by an attorney in private practice who also serves as a part-time municipal court judge.  In the municipal court over which he presides, there are a number of pending complaints against an individual who has named the judge as a party, along with a number of others, in state and federal lawsuits.  There is some indication that the judge may have been added as a party defendant in the civil actions to secure his recusal from the municipal court cases.

 

ANSWER: Since this is a recusal question, there is a threshold issue which the Committee must address.  Since the adoption of Tex. R. Civ. P. 18a and 18b and the companion Tex. R. App. P. 15 and 15a, the Committee has not responded to questions regarding recusal.  See Opinion No. 127 (1989).  The facts presented by this inquiry, though, require that a limited exception to this rule be established.  The judge presides over a municipal court, and it appears that no statute or rule of court specifically applies to recusal.  For instance, Tex. R. Civ. P. 2 provides that the rules govern procedure "in the justice, county, and district courts of the State of Texas in all actions of civil nature, with such exceptions as may be hereafter stated."  The judge in question presides over a municipal court, and the question submitted does not involve actions of a civil nature but rather actions of a criminal nature.  There appears to be no provision of the Code of Criminal Procedure directly governing this matter.  Tex. Code Crim. P. Ann. art. 30.01 deals with disqualification but does not appear to apply to this case.  It seems that the specific question regarding recusal is not governed by any statute or rule of court.  Since the reason for the Ethics Committee's reluctance to deliver opinions on recusal issues does not exist in this case, we conclude that we should proceed to render an opinion.

Canon 2A provides that a judge should act in a way that promotes public confidence in the integrity and impartiality of the judiciary .  Canon 2B provides that a judge should not allow "family, social, or other relationships to influence his or her judicial conduct or judgment."  While not directly governing the issue, the spirit of Rule 18b(2), which provides that a judge shall recuse himself in any proceeding in which his impartiality might reasonably be questioned, has applicability here.  Consequently, it is the conclusion of the Committee that the judge should recuse himself. Procedural mechanisms which might effectively deal with the problem of a party making a practice of naming a judge and his successors as party defendants for the sole purpose of securing a recusal are beyond the scope of this Committee's authority.

 

 

 

EX PARTE COMMUNICATIONS TO MUNICIPAL COURT JUDGE;

MUNICIPAL COURT JUDGE ACTING AS CITY ATTORNEY FOR THE SAME MUNICIPALITY; MUNICIPAL COURT JUDGE AS A PRACTICING ATTORNEY

 

Opinion No. 173 (1994)

 

QUESTIONS: 1.  What is a municipal court judge's ethical obligation upon receiving ex parte phone communications from a criminal defendant concerning a pending case?

2.  May a municipal court judge simultaneously serve as city attorney for the same city?

3.  May a municipal court judge who is a practicing attorney preside in a case when one of his clients is a party?

 

ANSWER: Judicial Ethics Opinion 154 (1993) discusses a judge's obligation when receiving ex parte communications in writing.  The general considerations discussed there also apply here.  It should be noted that Canon 3A(4) and (5) discussed in Opinion 154 have been amended by the new Code effective March 1, 1994.  Comparable provisions are now found in Canon 3B(8) of the present Code; however, it should also be noted that Canon 3B(8) does not apply to justice and municipal court judges.  See Canon 6C(1)(a).  Instead, Canon 6C(2) of the present Code applies to municipal and justice court judges.

Canon 6C(2) provides that a justice or municipal court judge should not consider ex parte communications concerning the merits of a pending judicial proceeding, unless authorized by law or by one of the seven listed exceptions to the rule.  Thus, justice and municipal court judges may comply with Canon 6C(2) by doing the following:  1. Upon receiving an ex parte phone call, the judge should inform the caller that ex parte communication is prohibited unless it falls within one of the exceptions of Canon 6C(2).  The judge should then converse with the caller in order to determine if the call is a proper ex parte communication allowed by Canon 6C(2) or an improper ex parte communication.  If improper, the judge should inform the caller that the communication is improper, that such communication should cease, that the judge will take no action whatsoever in response to the call, and that no improper communication should take place in the future.  The call should then be ended.

Regarding Question No. 2, a municipal court judge should not simultaneously serve as an attorney for the same city.  Such action compromises the independence of the judiciary.  It violates numerous code provisions including, at least, the following:  1) Canon 1, which requires a judge to uphold the integrity and independence of the judiciary,  2) Canon 2A, which requires a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, 3) Canon 2B, which provides that a judge should not allow any relationship to influence judicial conduct or judgment nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge, 4) Canon 3A, which requires that a judge's judicial duties take precedence over all the judge's other activities, 5) Canon 3B(2), which provides that a judge shall not be swayed by partisan interest, public clamor or fear of criticism, 6) Canon 3B(5), which requires that a judge perform judicial duties without bias, 7) Canon 4D(1), which requires that a judge refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with persons likely to come before the court on which the judge serves, 8) Canon 4I, which provides that a judge may receive compensation if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety, 9) Canon 5(1), which provides that a judge shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which he holds.

Regarding Question 3, a municipal court judge who is a practicing attorney should not preside in a case in which one of his clients is a party.  Doing so would violate all of the Canons listed in the previous paragraph.  In such a case, the judge should recuse himself.  See Judicial Ethics Opinion 172 for further guidance.

 

 

PASSING OUT BUSINESS CARDS OF THE HARRIS COUNTY

 CRIMINAL LAWYERS ASSOCIATION

 

Opinion No. 174 (1994)

 

QUESTION: Does the Code allow a judge to give to unrepresented criminal defendants business cards of the Harris County Criminal Lawyers Association?

 

ANSWER: The Harris County Criminal Lawyers Association is a private and voluntary organization of criminal defense attorneys.  The organization has asked district and county court judges to provide unrepresented defendants with a business card urging the defendant to call the association for referral to a lawyer among its members.

Canon 2B states that a judge should not lend the prestige of judicial office to advance the private interests of others, nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.  The Committee concludes that by presenting the association's business card, the judge would be advancing the private interests of the association and its members, in violation of Canon 2B.

 

 

PROBATE COURT INVESTIGATOR SERVING SIMULTANEOUSLY  

 AS MASTER IN THE SAME COURT

 

Opinion No. 175 (1994)

 

QUESTIONS: 1.  May a probate judge appoint a person to serve simultaneously in the same court as both a master under Section 574.0085 of the Health and Safety Code and as a probate court investigator under Section 25.0025 of the Government Code?

2.  May a person appointed to be a probate court master simultaneously serve in the same court as a court investigator?

 

FACT ASSUMED: The person serving as statutory probate court investigator would file applications for guardianship for indigent incapacitated persons.

 

ANSWER TO QUESTIONS: 1.  The Committee has previously declined to answer a question concerning who a judge may appoint as a master because that is a question of law as distinguished from a question of ethics.  See Opinion No. 79 (1985).  Whether a person is qualified to be appointed a master is a question of law.  As we stated in Opinion No. 79, the only foreseeable ethical consideration would be if a judge knowingly appointed a person who was not qualified or made an appointment in disregard of Canon 3C(4).  Because the Committee assumes the judge would only appoint a qualified person and would follow the requirements of Canon 3C(4), the Committee declines to answer the question for the same reasons it declined to answer a similar question in Opinion No. 79.

2.  No.  In Opinion No. 104 (1987) and again in Opinion No. 127 (1989), the Committee concluded that a judge should not prepare pleadings to begin the process of civil commitment for mentally ill persons.  The Committee adheres to those conclusions and concludes that a master should not do so for the same reasons stated in Opinions 104 and 127.

Even if the master does not prepare applications for guardianship or other pleadings, the Committee concludes that he should not simultaneously serve in the same court as an investigator. In Opinion No. 166 (1993), the Committee concluded that a master conducting probable cause hearings and mental commitment cases should not appear as an attorney on unrelated matters in the same court he serves as a master.  Opinion No. 166 was based on Canon 6D, which provides that a part-time master should not "practice law" in the court in which he or she serves.  Although the duties of a court investigator may not include practicing law and may therefore not be expressly prohibited by Canon 6D(2), such simultaneous service would contravene other code provisions. These include, at least, the following:  1) Canon 1, which requires a judge to uphold the integrity and independence of the judiciary, 2) Canon 2(A), which requires a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, 3) Canon 2B, which provides that a judge should not allow any relationship to influence judicial conduct or judgment nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge, 4) Canon 3A, which requires that a judge's judicial duty takes precedence over all the judge's other activities, 5) Canon 3B(2), which provides that a judge shall not be swayed by partisan interests, public clamor or fear of criticism, 6) Canon 3B(5), which requires that a judge perform judicial duties without bias, 7) Canon 4D(1), which requires that a judge refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with persons likely to come before the court on which the judge serves, 8) Canon 4I, which provides that a judge may receive compensation if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety, and 9) Canon 5(1), which provides that a judge shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which he holds.  The Committee concludes that serving simultaneously as a master and court investigator would be likely to cause a conflict with all of these provisions.

In Opinion No. 173 (1994), the Committee cited all these provisions in concluding that a municipal court judge should not simultaneously serve as city attorney for the same city.  The Committee believes that the same conflicts are inherent when a probate court master serves simultaneously as the court's investigator.

 

 

APPLICABILITY OF LIMITATIONS ON JUDICIAL FUNDRAISING IN NEW CANON 5,

EFFECTIVE JANUARY 1, 1995, TO CANDIDATES IN THE 1994 GENERAL ELECTION

 

Opinion No. 176 (1995)

 

QUESTION: May a judge or judicial candidate in the 1994 general election solicit and accept contributions later than 120 days after the general election?

 

ANSWER: Yes.  On January 1, 1995, a new version of Canon 5 of the Code of Judicial Conduct takes effect that imposes time limits on fundraising by judges and judicial candidates.  The relevant parts provide:

(4) In addition  to  any other restrictions imposed  by law a judge or judicial candidate shall not either personally or through others solicit or accept contributions:

       (i) earlier than 210 days before the filing deadline for the office sought by the judge or

      (ii) later than 120 days after the general election in which the judge or judicial candidate seeks office.

(5) The requirements of (4) above shall not apply to political contributions solicited or accepted solely for one or more of the purposes sent forth in Tex. Elec. Code Sec. 253.035(i).

The question is whether section (4) applies to the 1994 election, so that the 120 days begins to run on November 9, 1994, the day after the general election.  The Committee concludes that it does not.

The Supreme Court adopted the order establishing the new Canon 5 on September 21, 1994, but did not make it effective until January 1, 1995.  The Committee concludes that if the Supreme Court intended for the new limitation to apply to judges and candidates in the 1994 election, it would have made the new Canon 5 effective on or before November 9, 1994.  Because it did not do so, we conclude that the new Canon 5 imposes no limitations on fundraising by judges and judicial candidates in the 1994 general election.

 

 

DOLLAR LIMITS ON FUNDRAISING BY JUDGES

 

Opinion No. 177 (1995)

 

QUESTION: Is there a dollar limit on the amount of money a judge who was elected in 1994 and who will not stand for reelection until 1998 may raise after January 1, 1995?

 

ANSWER: No.  The Code of Judicial Conduct contains no provisions on this subject.

 

 

MAINTAINING A PART-TIME OFFICE AT A

 LAW SCHOOL OF A STATE UNIVERSITY

 

Opinion No. 178 (1995)

 

QUESTIONS: 1.  May a judge of a court of appeals maintain a part-time office at a state law school where a portion of his judicial duties would be performed?  The office would be provided without charge, and the judge would be an occasional guest lecturer at the law school.

2. If the judge may maintain such an office, would he be required to disqualify or recuse himself from any appeal involving the university?

3.  Does the Code require that a judge perform judicial duties exclusively at the place where the court of appeals sits?

 

ANSWERS TO QUESTIONS: 1.  Yes, subject to certain qualifications.¹  Canon 4D(4)(c) provides that a judge shall not accept a gift from anyone and lists certain exceptions.  The pertinent exception provides that a judge may accept "any other gift," which means a gift not specifically prohibited in the Code, "only if the donor is not a party or person whose interests have come or are likely to come before the judge; . . . ."  If the university's interests have not come and are not likely to come before the judge, the judge could accept the gift of a free part-time office without violating that provision.  If, on the other had, the university has interests that have come or are likely to come before the judge, the judge should not accept the gift of a free office.

Canon 3B(11) provides, "The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion, or in accordance with Supreme Court guidelines for a court approved history project."  Performing an appellate judge's duties outside of the court's offices creates a risk that confidences of the court will be lost.  The affirmative answer to this question assumes that the judge could conduct his research, writing, and oral communications at the part-time office in a way that would preserve the confidences of the court.  If that is not the case, the judge should not perform judicial duties in such a location.

2.  Questions of disqualification and recusal are not governed by the Code of Judicial Conduct.  They are controlled by Tex. R. Civ. P. 18b and Tex. R. App. P. 15a.  The Judicial Ethics Committee does not issue advisory opinions on questions of law.

3.  The Code does not mention this issue, but Canon 2A provides that a judge shall comply with the law.  Therefore, the judge is required to comply with any statute on this subject.

_____________

¹ One member of the Judicial Ethics Committee dissents.

 

 

FORMER LAW OFFICE RENTED TO LAWYERS WHO PRACTICE BEFORE JUDGE

 

Opinion No. 179 (1995)

 

QUESTION: Does a violation of the Code of Judicial Conduct occur if a judge's former law office now owned by a trust created to benefit judge's minor children is rented to lawyers who practice in judge's court?

 

FACTS: Judge owned office building where he practiced law.  One year, prior to filing to run for his present position, the judge conveyed ownership of the building to a trust established to benefit the judge's minor children.  Judge's brother is trustee.  Since the judge assumed the bench (approximately 1-1/2 years after conveying the building to the trust), the trustee has made all decisions concerning management of the trust assets with no input from the judge.  The portion of the building which is judge's former law office is now rented to lawyers who practice in judge's court.

 

FACTS ASSUMED: Judge's children are receiving a direct benefit from the rental of the building by lawyers.  Lawyers are not paying greater than market value for the office space.

 

ANSWER: Yes.¹ This question is not governed by Opinion 153 nor is it a violation of Canon 4D(1) (2) or (3) because this is not a financial or business dealing of the judge.  It is not an economic interest of the judge since he is not an officer, advisor or other active participant in the affairs of the trust.  See Canon 8B(5).

The Code does not govern the conduct of judge's family members under the circumstances presented here, assuming the law office is being rented for fair market value.  Canon 4D(4) (d) specifically allows the judge's children to receive a benefit provided the benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Canon 2A provides that a judge "should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."  Canon 2B requires that a judge not allow any relationship to influence his judicial conduct or judgment or permit others to convey the impression that they are in a special position to influence the judge.