RAISING MONEY FOR TEXAS ASSOCIATION OF DISTRICT JUDGES

Opinion No. 201 (1996)

QUESTION 1:  May a committee of the Texas Association of District Judges send a letter to the members of the association or those eligible for membership in the association soliciting $100.00? The funds would be spent to hire a lobbyist to assist the efforts of the association before the Legislature.

QUESTION 2:  May a committee of the Texas Association of District Judges send a letter explaining the aims of various groups that are forming to raise money to assist the judiciary in explaining their desires to the Legislature?

QUESTION 3:  May a committee of the Texas Association of District Judges send a letter accompanying correspondence from another group formed to raise money to assist the judiciary in explaining their desires to the Legislature?

ANSWER 1:  Yes.  Canon 4C(2) prohibits a judge from soliciting funds for any "education, religious, charitable, fraternal or civic organization." It is the opinion of the Committee that the Code of Judicial Conduct does not prohibit such activity so long as the letter is restricted to members of the Texas Association of District Judges or those eligible for membership in the association.

ANSWER 2:  No.  Such implicit recognition of the "various groups" would "lend the prestige of judicial office to advance the private interests" of the groups, in violation of Canon 2B.

ANSWER 3:  No.  Given the resolution to Question No. 2, any letter accompanying the correspondence of another group would violate both the letter and spirit of the Code of Judicial Conduct.

PART-TIME MUNICIPAL JUDGE ON ZONING BOARD

Opinion No. 202 (1996)

QUESTION:  May a home rule city Municipal Court Relief judge, appointed by the city council, also serve on the City's Zoning Board of Adjustment, a wholly voluntary and uncompensated position also appointed  by the city council?

ANSWER:  Yes.  Canon 6C(1)(b) exempts Municipal Court judges from the requirements of Canon 4H.

Canon 4H provides that a judge should not accept appointment to a governmental committee, commission or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.

JUDGE'S ENDORSEMENT OF LAWYER REFERRAL SERVICE

Opinion No. 203 (1996)

QUESTION 1:  May a judge permit brochures in her courtroom and other public areas in the courthouse that announce the availability of a county bar sponsored lawyer referral service? The referral service is a non profit organization open to all qualified lawyers and complies with American Bar Association guidelines, State Bar guidelines, and state statutory requirements.  The referral service in question screens questions to determine if legal representation is needed, informs callers if they qualify for pro bono legal services, makes a referral to the next name on a rotating list of attorneys who have agreed to provide an initial consultation for a nominal fee in their given areas of expertise, and maintains a list of attorneys available to provide legal services at a reduced fee in certain legal matters.

ANSWER 1:  Yes.  Canon 4-B permits a judge to participate in extra-judicial activities concerning the law, the legal system, and the administration of justice.  Access to our courts is usually not meaningful without the assistance of lawyers.  Many members of the public do not know how to find a lawyer, especially one they can afford.  A judge who advertises the existence of a lawyer referral service is promoting meaningful access to our legal system for all persons, regardless of their economic condition.

Even though the lawyers selected through this referral program will charge a fee to their clients, the judge is not promoting the individual lawyer but is assisting the public to locate a lawyer who professes familiarity with the legal issues, maintains malpractice insurance and agrees to charge only a modest consultation fee, and perhaps a reduced fee to clients of modest means.  By informing the public of this bar sponsored service, the judge is improving the administration of justice, as permitted under the Code, not misusing the influence of her office.

QUESTION 2:  May a judge appear in a televised public service announcement and recommend that unrepresented parties contact the county bar sponsored lawyer referral service to find a lawyer before going  to court?

ANSWER 2:  Yes.  Canon 4B would allow the judge to inform the public that it is wise to have legal representation in court.  Because the judge is not recommending any individual lawyer, but a lawyer referral service that is open to all lawyers who maintain malpractice insurance, announce their areas of expertise, and agree to a nominal consultation fee, the judge is not lending the influence of her office to specific lawyers but is using the influence of her office to advise the public of the desirability of obtaining a lawyer before appearing in court and informing those without other resources of one service that might help them find appropriate legal representation.  Because a lawyer selected through such a referral service is never identified there is no danger that lawyers on such a list would be in a position to influence the judge who endorses the lawyer referral service.

SITTING JUDGE EMPLOYED AS TV JUDGE

Ethics Opinion 204 (1997)

QUESTION NO. 1: May an active, sitting judge accept employment to appear in a television program portraying a judge presiding over simulated court proceedings based on actual trials? Program credits would indicate that the judge is presently a member of the Texas judiciary.

QUESTION NO. 2:  May an active trial judge accept employment to consult with the producers of such a television proceeding, sharing his experiences with the producers and writers of such program and advise them as to proper court decorum and procedures?

ANSWER: No, to both questions, but only because the judge is being paid. Canon 1 of the Code of Judicial Conduct calls upon the judiciary to maintain high standards of conduct. Canon 4D(l) states that a judge shall refrain from exploiting his or her judicial position. Both activities in Questions No. 1 and No. 2 would exploit a judge's position for financial gain.

The subject activity is not prohibited if the judge is not paid so long as all other portions of the Code are followed, i.e. does not demean the judiciary, etc. Canon 4(B) specifically allows the judge to participate in activities concerning the law, the legal system, the administration of justice.

JUDGES DONATIONS TO FUND RAISING AUCTIONS

Opinion No. 205 (1997)

QUESTION NO. 1:   May judges participate in county bar association fund raiser "auctions" by donating such items as dinners with the judge or golfing rounds with the judge, to be awarded to the highest bidder?

ANSWER:  No. This conduct would violate Canon 2B. A fund raiser auctioning dinner or golf with a judge would lend the prestige of judicial office to advance the private interests of others. It would also convey or permit others to convey the impression that they are in a special position to influence the judge.

A judge is allowed to participate in civic and charitable activities if those activities do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. Canon 4C. A judge is prohibited by Canon 4C(2) from soliciting funds for any educational, religious, charitable, financial or civic organization. See Opinion 165.

QUESTION NO. 2:  May judges participate in political party fund raiser "auctions" by donating items to be auctioned off where the proceeds benefit the sponsoring political party?

ANSWER:  No. The conduct would violate Canon 2B as stated in the answer to Question 1 because this would lend the prestige of judicial office to advance the private interests of the judge or others. It would also convey or let others convey the impression they are in a special position to influence the judge. Participation in "political party fund raiser auctions" where the prestige of the judicial office is not used is permissible. Where the items donated are attributable to a judge such as dinner or golf with a judge, a violation of Canon 2B would occur.

A judge may indicate support for a political parry and attend political events. Canon 5(3). Canon 4C(2) prohibits solicitation of funds only for education, religious, charitable, fraternal or civic organizations. Under a previous codification of this section, political solicitation was also prohibited. This change appears to allow political solicitations. See Opinion 162. A judge may participate in political party fund raisers but the level of participation is limited by Canon 2B.

JUDICIAL REFERRALS

Revised Ethics Opinion No. 206 (1997)

To address its backlog of criminal cases, the county initiated a program to require first time family violence offenders to attend a course in family counseling.  If the defendant completes the course, criminal charges are dismissed; if the defendant does not cooperate or does not complete the course of counseling, the agency notifies the court and the cause is set for trial. The defendant pays the cost of the counseling.

QUESTION:  May a judge in this county order the defendant to attend counseling at only one agency or business, or to select between two or three specified agencies or businesses without violating the Code of Judicial Conduct?

ANSWER:  Yes, so long as the selection process encourages referrals to qualified programs that advance the county's objective of reducing family violence. Canon 2B admonishes the judge not to influence the selection process to advance the private interests of any provider.

JUDGE WRITING "CHARACTER AFFIDAVIT"

Opinion No. 207 (1997)

QUESTION:  May a Judge file a Character Affidavit on behalf of a person seeking a pardon from the President of the United States?

ANSWER:  No. This would be a violation of Canon 2B, where A judge shall not testify voluntarily as a character witness.

JUSTICE OF THE PEACE SERVING AS CASA VOLUNTEER

Opinion No. 208 (1997)

QUESTION:  Can a justice of the peace serve as a Court appointed special advocate (CASA volunteer) in the county in which he or she serves as a justice of the peace or in other counties?

BACKGROUND INFORMATION: The CASA program consists of community citizens trained and appointed by district judges to serve as volunteers to advocate for the best interests of children who are involved in the court system due to abuse, neglect or abandonment, and to aid in reducing the time spent by these children in foster care. According to the Texas CASA, Inc. Annual Report - FY96, there are currently 44 CASA programs covering 85 counties in Texas, serving approximately 6,537 children. CASA volunteers serve without compensation.

ANSWER:  Yes, to both parts of the question. Canon 6(C) provides that a justice of the peace shall comply with all provisions of the Code of Judicial Conduct, except that he or she is not required to comply with several specified provisions, such as Canon 4(F) (acting as an arbitrator or mediator) or Canon 4(G) (practicing law, if an attorney). It would appear that serving as a court appointed special advocate for a child in court proceeding would be similar in nature to these non-prohibited activities, and it is the opinion of the ethics committee that a justice of the peace would therefore not be in violation of the Code of Judicial Conduct by serving as a CASA volunteer, provided further that he or she complies with Canon 3A (requiring that the judicial duties of a judge take precedence over the judge's other activities).

JUDGE'S RESPONSE TO NEGATIVE PUBLICITY

Ethics Opinion No. 209 (1997)

QUESTION:  May a senior judge who presided in a massive tort litigation action respond publicly, while the case is still pending, to unfair criticism of his actions in the case, including allegations of bias because of personal ties to the attorney for the plaintiffs and suggestions that the judge's political interests favor plaintiffs who mostly reside in the judge's county? This judge feels the need to defend his reputation now against these false accusations even though the matter is still pending because of fears the litigation may not be concluded during his lifetime.

ANSWER:  No. A senior judge who has consented to accept judicial assignment is required to comply with the Code of Judicial Conduct. See Canon 6F(l) (with exceptions not relevant to this inquiry.) Canon 3B(10) requires a judge to refrain from public comment about a pending or impending proceeding which may come before the judge. This canon bars public commentary by the judge except for judicial statements explaining the procedures of the court. It is the Committees's opinion that the senior judge's wish to respond publicly to unfair criticism of his actions in a pending matter goes beyond explaining to the public the court's procedures, and this violates Canon 3B(l0). To engage in an editorial debate with his critics about the merits or motivations of his decision not to recuse himself or his ability to be impartial would place the judge in the position of taking sides outside the courtroom for or against parties urging certain positions inside the courtroom. That is to say that the judge's editorial efforts to defend his impartiality could unwittingly cast further doubt on his impartiality. Canon 4A(l) requires that the judge's extra-judicial activities not cast reasonable doubt on the judge's capacity to act impartially as a judge.

In Opinion No. 95 (1987) the Committee stated that it would be unethical for a judge to discuss the facts "or other aspects of the case" with the news media while a matter is pending in that judge's court or any other court. In Opinion No. 191 (1996) the Committee determined that Canon 3(B) prohibits an appellate judge from discussing in a newspaper article or editorial that judge's stated position on matters already decided by the court because they may come up again. A judge's editorial comment on pending matters, even in defense of his reputation, is likewise prohibited. We are sympathetic with the judge's desire to refute unfair or false criticism of his actions, but any response to critics of the judge's actions or motives places that judge in a potentially adversarial position that may cast doubt on his impartiality in the matter. When the judge no longer consents to accept judicial assignment and is no longer governed by the Code, he may respond publicly to his critics.

JUDICIAL ACCEPTANCE OF REFERRAL FEES

Ethics Opinion No. 210 (1997)

QUESTION:  May a judge who is asked by former clients and friends to recommend a realtor accept a referral fee from the realtor? The recommended realtor is not a lawyer but is the largest firm in the county.

ANSWER:  No, a judge may not accept a referral fee. Canon 4 begins by admonishing a judge to conduct all of his extra-judicial activities so that they do not cast reasonable doubt on a judge's capacity to act impartially. Canon 4(D) goes on to require that a judge refrain from business dealings that exploit his or her judicial position or involve the judge in frequent transactions with persons likely to come before the judge's Court.

In the facts presented, it seems that the appearance of impropriety is present, i.e., judges receiving money for referring business would not be seen as appropriate by the general public. There is a strong potential for the judge's position to be exploited. Additionally, since the real estate firm is the largest in the county, there is a potential for the real estate firm to come before the judge, additionally violating Canon 4.