J.P. RUNNING COLLECTION AGENCY

Ethics Opinion No. 211 (1997)

QUESTION:  May a Justice of the Peace make telephone calls and send letters to debtors on behalf of a collection agency? The judge's communications would not mention her judicial status, she would do the work at home and not at the court offices, and any suits to collect the debts would be heard by a different judge.

ANSWER:  No. Such activity would violate Canon 4D(l), which provides that "A judge shall 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 lawyers or persons likely to come before the court on which the judge serves."

Canon 2B also contains this general prohibition: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or other." Direct debt collection activities by the judge would inevitably cause some litigants and others in the community to question her impartiality in debt collection cases, or to perceive that she is exploiting her office or lending its prestige to the private interests of the collection agency and the creditors it represents.

For similar reasons, previous opinions have forbidden judges to own an interest in a title insurance company (Opinion 23), to serve as directors of banks or related corporate entities (Opinions 37, 38, 42, 61, and 89), or to serve on a downtown development committee (Opinion 141).

JUDICIAL CAMPAIGN STATEMENTS

Opinion No. 212 (1998)

FACTS:  During a political campaign in a judicial election, a candidate produced a campaign brochure including the following material:

1. statements that the candidate should receive a vote because he or she would "get tough with criminals" or was "tough on crime";

2. a statement that the candidate should receive a vote because he or she was    "an experienced prosecutor for judge";

3. a statement that the candidate would be a "conservative judge";

4. a statement criticizing the incumbent's previous decisions, for example, "Judge X    was wrong in giving probation to a convicted drug dealer.";

5. a photograph of the candidate with a recognized office-holder who has not    endorsed the candidate in the race.

QUESTION:  Does the inclusion of these matters in campaign literature violate the Code of Judicial Conduct?

OPINION:  Political campaigns by judges and judicial candidates are governed by Canon 5 of the Code of Judicial Conduct. A judge and judicial candidate may not make statements that indicate an opinion on any issue that may be subject to judicial interpretation, except that discussion of judicial philosophy is appropriate if conducted in a manner which does not suggest to a reasonable person a probable decision on any particular case, Canon 5(l). A judge or judicial candidate may not make pledges or promises of conduct in office other than the fair and impartial performance of the duties, Canon 5(2)(i), and may not knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent, Canon 5(2)(ii). A judge or judicial candidate should also act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2 A.

The statements contained in 1. ("tough on crime") would not violate Canons 5(2)(i) and 2A. The pledges to be tough with criminals and tough on crime are of such an amorphous nature that they do not define any specific conduct and, therefore, are not violative of Canon 5(2)(i). The Committee also believes the amorphous nature of these phrases prevents them from indicating an opinion on an issue subject to judicial interpretation as proscribed in Canon 2A.

Statement 2 ("experienced prosecutor" ) does not violate the Code, assuming that it is a true statement. An accurate discussion of qualifications is permissible, including prior positions held, even though some person reading the statement might conclude that a judge or judicial candidate who had been a prosecutor would be more likely to rule a particular way in certain types of cases.

Statement 3 ("conservative judge") does not violate the Code. Stating that one will be a conservative judge is a statement of judicial philosophy. While it may appear to convey some meaning, the meaning is so complex that it certainly does not suggest a probable decision in any particular type of case.

The fourth statement ("criticizing decision of the incumbent") violates Canons 5(l) and 2A. A statement that criticizes an earlier decision is a violation if the candidate goes beyond a statement of judicial philosophy and implies to a reasonable person that he or she would reach a different decision in a similar type of case.

The fifth inquiry, concerning the use of a photograph in political material of a person or officeholder who has not endorsed the judge or candidate, would be a violation of Canon 5(2)(ii) of the Code. The use of the photograph clearly implies permission or an endorsement. If that permission or endorsement does not exist, the photograph is a misrepresentation of a fact concerning the candidate and clearly a violation.

MULTIPLE CANDIDATES ENDORSED OR ADVERTISED IN SINGLE PUBLICATION

Ethics Opinion No. 213 (1998)

FACTS:  A political party, a Political Action Committee (PAC), a speciality bar association, and/or an individual endorse several candidates in one publication.

QUESTION:  May a judge or judicial candidate contribute toward the publication of the advertisement?

ANSWER:  Political Party, Yes. A judge and a judicial candidate may contribute to a political party. If the political party uses that contribution to pay for campaign publicity and decides to include only candidates who helped pay for the advertisement, this does not violate the Judicial Code.

ANSWER:  PAC, Yes. Unless the judge or judicial candidate participates in the selection of candidates promoted by the PAC, the Code of Judicial Conduct does not prohibit the judge or judicial candidate from contributing to the PAC. The Committee would draw attention to Texas Election Code Section 253.1611 which severely limits contributions by a judge or judicial candidate to a PAC.

ANSWER:  Specialty Bar, Yes. Unless the judge or judicial candidate participates in the specialty bar=s selection of candidates, the Code of Judicial Conduct does not prohibit the judge or judicial candidate from contributing to the specialty bar to promote the publication of the advertisement.

ANSWER:   Individual, Yes. Unless the judge or judicial candidate participates in the individual's selection of candidates the Code does not prohibit a judge or judicial candidate from contributing to the publication.

QUESTION:  May two or more judges conduct a joint campaign that includes a mailed brochure and a newspaper ad? The judges invite only certain other judges to participate. The campaign is funded totally by the participating judges' campaigns. All funds are given to the political party, which actually pays the campaign expenditures. Is such a campaign permissible under the Judicial Code of Conduct?

ANSWER:  No. Since the judicial candidates selected the candidates with whom they advertised, it is the opinion of the committee that this constitutes an endorsement prohibited by Canon 5(3) and 2(b). Additionally, it constitutes a joint campaign as prohibited in Opinion 100. In responding to these inquiries the Committee referred to Canons 2(b) and 5, and Committee Opinions Nos. 100, 170 and 180. Canon 2(b) provides that a judge shall not lend the prestige of office to anyone's private interest. Canon 5(3) provides that a judge or judicial candidate shall not publicly endorse another candidate for public office. Committee Opinion No. 100 prohibits joint campaigns by judges; Opinion No. 170 prohibits a judge handing out material that advertises candidates other than the judge; Opinion No. 180 prohibits a judge from using the judge's name to promote a spouse's candidacy. (It should be noted that Texas Election Code Section 253.1611 sets limits on political contributions by a judge or judicial candidate.)

To avoid the appearance of impropriety, judges should request that in any multiple candidate material a prominent disclaimer be included that states that the inclusion of any judge or judicial candidate does not constitute an endorsement by that judge or judicial candidate of any other candidate. Any contribution permitted by this opinion that is intended as a subterfuge for joint campaigning forbidden by Opinion No. 100, constitutes an endorsement that would violate Canon 5(3).

SUPPORT FOR ORGANIZATION SEEKING CJAD FUNDING

Ethics Opinion No. 214 (1997)

QUESTION:  May a judge write a letter of support for a non-profit organization pertaining to the organization's seeking CJAD funding if the letter deals only with the judge's knowledge of the services the organization provides in the community and does not itself solicit funds?

ANSWER:  Yes. Canon 4(C)(2) states that a judge "shall not solicit funds for any educational, religious, charitable, fraternal or civic organization..." If the letter were restricted to a recitation of the services the organization provides in the community, based on the judge's knowledge, and does not solicit funds, there would be no violation even if the net effect of the letter would be to make more likely the organization's receiving the funds, if the other requirements of Canon 4 were met. In this context, a judge could very well be in a unique position to provide such information.

QUESTION:  May a judge serve as a member of an advisory board of an organization which is partly funded by government and partly by private funding?

ANSWER:  Yes. Canon 4(C)(2) states that a judge "may be listed as an officer, director, delegate or trustee of (any educational, religious, charitable, fraternal, or civic organization)."

GIFTS TO JUDGES FOR CATASTROPHIC LOSS

Ethics Opinion No. 215 (1997)

QUESTION 1:  May a judge or a judge's family, who has suffered a catastrophic loss, accept gifts of money from individuals who work in the courthouse or practice in the judge's court?

ANSWER:  Yes and no. Canon 4D(4)(c) clearly states neither a judge nor his family may accept gifts from anyone whose interests have come or are likely to come before the judge. Therefore, a judge may not accept gifts from lawyers or parties who have come or might come before the court.

The Canon 4D(4)(c) also states that a judge or his family may accept gifts from individuals whose interests have not come and are not likely to come before the Court. It would seem, then, that the judge and family could accept gifts from non-lawyer friends and acquaintances who happen to work in the courthouse but have no interest that has or might come before the Court.

QUESTION 2:  May a judge accept gifts he would otherwise be prohibited from receiving if they are placed in a blind trust?

ANSWER:  No. The prohibition against accepting gifts is clear.  A judge may not accept gifts from ANY persons whose interests have or may come before the court, whatever the form!

LAWYER HOSPITALITY

Ethics Opinion No. 216 (1997)

QUESTION: Would it be proper for a judge who is hearing a case out of county to stay in the lake house of a lawyer who often appears in his court? The lawyer has no connection with the out of county case. Would it make any difference if the county paid the attorney the same rate that would be paid if the judge stayed in a motel?

ANSWER:  No, a judge may accept gifts or hospitality only under very limited circumstances as described in Proposed Opinion No. 215. This use of the lake home is specifically disallowed in Canon 4D(4)(c), i.e., a judge may not accept the gift from a person whose interests have come or are likely to come before the judge.

If the county pays for the judge's stay, the judge could avoid ethical violation, but only if the payment is commensurate with the market value of the accommodations and the rental is done regularly and not just to the judge.

JUDICIAL CODE APPLIES TO JUDGES UNDER SUSPENSION

Ethics Opinion No. 217

QUESTION NO. 1:  May a judge who is currently under suspension by the Commission on Judicial Conduct and receiving judicial pay receive compensation for services as a mediator?

ANSWER:  It is the belief of the committee that since the judge is receiving judicial pay although suspended by the Judicial Commission, he is required to comply with the Code of Judicial Conduct. It is clear from Advisory Opinion 161 that a judge is prohibited from serving as a mediator.

QUESTION NO 2:  If a judge cannot be paid, may he ask the parties to make a donation to the Children's Assessment Center?

ANSWER:  This portion of the question is moot as a judge may not mediate. (In the interest of clarity, the committee would offer the opinion that the request of a donation to a charity is fund raising and clearly prohibited by Canon 4C(2).

COUNTY JUDGE AS PRACTICING PSYCHOLOGIST

Ethics Opinion No. 218 (1998)

FACTS: Prior to assuming the bench, a constitutional county court judge (who is also a licensed mental health professional) maintained a private clinical practice which included preparation of court-ordered social studies in adoption and child custody proceedings.

QUESTION:  May a constitutional county court judge who is also a licensed mental health professional provide clinical and technical (but not legal) consultation to other licensed mental health professionals who are involved in the preparation of court ordered social studies? The consultations would only be given under the following conditions:

1. the judge is not involved in the interview process, investigation or other information gathering activity required in conducting the studies;

2.  the judge would only consult with other licensed mental health professionals,  and he would not be involved in frequent transactions with lawyers or other persons likely to come before the court on which the judge serves;

3. the judge will not voluntarily testify as an expert witness while continuing to serve on the bench;

4. the fact that the judge was consulted in preparation of a social study report may be noted in the report by listing his name and professional credentials (absent his judicial title); however, a disclaimer will be given and no representation will be made that the judge holds a particular opinion or makes a specific recommendation regarding disposition of the case under study; and

5. the judge would be compensated on a fee basis by the mental heath professional who employs him.

ANSWER:  No. The purpose of a court-ordered social study is to provide evidentiary support for a determination of the best interests of a child in a custody or adoption proceeding, and it is ordered specifically prepared for use of a court in making that determination. Recognition of the contribution of the county judge in preparation of a social study would tend to lend the prestige of his judicial office to advance the private interests of others in violation of Canon 2(B).

This activity could also exploit the judge's judicial position, and by making him a potential witness in all cases in which he serves as a recognized consultant in preparation of a social study, it could involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves, in violation of Canon 4(D)(1).

Canon 2(A) requires a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and the judge should restrict his private clinical practice to non-court related activities while serving as a county judge.

CHARITABLE GIFT IN LIEU OF EXPENSE OF FUND-RAISING PARTY

Ethics Opinion No. 219 (1997)

QUESTION:  A judge proposes to invite supporters to a "non-event" fund raiser. Instead of paying for a fund-raising event, the judge announces that he will contribute existing campaign funds to a local charity serving inner city youth. The invitation explains that no funds raised by the solicitation letter would go to the charity. Does the proposal violate the Code of Judicial Conduct?

ANSWER:  No, this approach to fund-raising does not contravene Canon 4C(2)'s prohibition against fund-raising for charitable organizations. The Judge is clearly not going to use any of the funds being solicited for that charity. The Committee is of the opinion that the charity should not be named.

JUDGE AS CHARITY WAITER

Ethics Opinion No. 220 (1997)

QUESTION:  Is it an ethical violation for a Judge to participate as a "celebrity server" for a fund raising dinner for Court Appointed Child Advocates (CASA). CASA is a nonprofit organization. The judges' names will be used in the publicity for this event. The judges will not participate in any actual fund raising. The judges only job will be to serve dessert to the amusement of the guests.

ANSWER:  No, the proposed activity is not a violation of the fund raising prohibition found in Canon 4C(2). The judge's participation is analogous to being a guest speaker at a fund raiser that is specifically allowed in Canon 4C (2).