Judicial Ethics Opinions 281-286

MAY A JUDGE SERVE ON THE BOARD OF

THE HOUSTON VOLUNTEER LAWYERS PROGRAM?

Ethics Opinion 281 (2001)

Question: May a judge serve on the Board of the Houston Volunteer Lawyers Program, an organization whose staff and volunteer attorneys appear as advocates in the judge's court? May a judge serve on the Advisory Board in an ex officio advisory capacity, not involved in decision or policy making?

Answer: No, as to both questions. See Opinion 270. Service in any capacity in an organization whose staff appears in the judges court violates Canon 2. Canon 2 requires a judge to act at all times in a way that promotes the public confidence in the judge's impartiality. Canon 2 further prohibits lending the prestige of office to advance the private interest of others or to convey that others are in a special position to influence the judge.

MAY A JUDGE PARTICIPATE IN A CONFERENCE HOSTED BY

THE TEXAS ASSOCIATION OF DOMESTIC RELATIONS OFFICERS?

Ethics Opinion 282 (2001)

Question: May a family court judge speak and/or participate in an annual conference hosted by the Texas Association of Domestic Relations Officers?

Answer: Yes, Canon 4 allows a judge to speak or participate in activities concerning the law, the legal system, and the administration of justice so long as such participation does not cast doubt on the judge's capacity to decide any issue that may come before the court or interfere with the proper performance of judicial duties.

MAY AN APPELLATE COURT STAFF ATTORNEY PERFORM

PRO BONO APPELLATE WORK?

Ethics Opinion 283 (2001)

Question: May an attorney employed at a state intermediate appellate court perform pro bono work on a federal appeal when the issue appealed involves only a federal issue and no state, Texas or otherwise, has concurrent jurisdiction? May the same attorney perform pro bono work on an appeal in another state?

Answer: No, to both questions. Canon 3 B (6), (8), (10) and 3C (2) require that appellant court staff attorneys are subject to the same ethical standards as the judge for whom they work. Cannon 4G prohibits a judge from practicing law except as permitted by statute or this Code. Pro bono appellate work in a federal or sister-state requires the practice of law. No Code sections provide an exception to the prohibition against practicing law under the circumstances presented here.

MAY A JUDGE'S SPOUSE HOST A FUND RAISER

FOR A JUDICIAL CANDIDATE IN THE JUDGE'S HOME?

Ethics Opinion 284 (2001)

Question: May a judge's spouse host a fund raiser for a judicial candidate in the judge's home?

Answer: No. A judge may not host, sponsor or give a fund raiser in the judge's home for a judicial candidate. Canon 5 (3) states that a judge shall not authorize the public use of his or her name endorsing another candidate for any public office. Canon 2 (B) prohibits lending the prestige of judicial office to others or to convey the impression that someone is in the special position to influence the judge. A fund raiser for a judicial candidate held in a judge's home violates all of these provisions.

While the Committee has long been cognizant of the independent nature of spouses of judicial members, the hosting of the event at the judge's residence crosses the line of permissible conduct. The public perception would be that the event is being sponsored by the judge.

It would be permissible for the spouse of the judge to sponsor the event at another location provided no reference to the judge is made or implied.

Question: May a person who believes they may later be appointed to a judicial position sponsor a fund raiser for a judicial candidate?

Answer: Yes, such a person could sponsor a fund raiser for a judicial candidate. The Code of Judicial Conduct only applies to sitting judges or official judicial candidates.

See opinions 73, 130, 259

MAY A JUDGE CONTACT THE DISTRICT ATTORNEY TO DISCUSS THE CONDUCT OF

AN ASSISTANT DISTRICT ATTORNEY APPEARING IN THE JUDGE'S COURT?

Ethics Opinion 285 (2001)

Question: A judge is hearing a case in which an assistant district attorney is representing the state interests in a case involving Child Protective Services. Individual attorneys are representing the parents. May the judge hearing the case, after or during temporary hearings or after the final hearing contact the district attorney to advise him of the failure of the assistant district attorney to properly prepare or handle the court proceedings?

Answer: Yes, but only under limited circumstances. Canon 3B(8) provides that a judge shall not initiate or permit ex parte communications concerning the merits of a pending or impending judicial proceeding. Conversation between the Judge and the District Attorney is permitted if it is confined to conduct of the assistant district attorney. If the conversation involves specifics of a case it may only be done after the case is final.

SUMMER INTERNSHIP PROGRAM

Ethics Opinion Number 286 (2003)

Question: May a judge receive the benefits of a law student serving as a summer judicial clerk/intern who receives a monetary stipend from money raised and distributed by a local bar association’s foundation scholarship program funded by contributions from local law firms, businesses, private individuals and fundraisers sponsored by the bar association?

Answer: Yes, with certain qualifications regarding implementation of the program.

Canon 4B provides considerable latitude to a judge regarding activities to improve the law. The Committee perceives this summer internship program to be primarily an educational endeavor which furthers the administration of justice, and should be permitted. However, the judge should avoid participating in any of the fundraising activities that might violate Canon 4C(2). Additionally, although the summer interns will not officially be employees of the judge to whom they are assigned, the Committee views them as court personnel who would be subject to all the provisions of the Code. Thus, the judge would be responsible for instructing the interns about their obligations and responsibilities under the Code.

AUTHORIZED COMMUNICATION WITH SURETY

Ethics Opinion Number 287 (2003)

Question: Is it considered an ex parte communication for a bail bondsperson to present an affidavit to surrender authorized by Sec. 17.19 of the Code of Criminal Procedure to a judge or magistrate in chambers or open court without the presence of the Principal/Defendant and/or his or her lawyer?

Answer: No. Canon 3B(8) generally prohibits ex parte communications concerning the merits of a pending or impending judicial proceeding, but it does not prohibit communications expressly authorized by law. See Canon 3B(8)(e) and Advisory Opinion No. 183 (1995).

Art. 17.19 C.C.P. specifically authorizes and requires that a surety submit an affidavit to a judge or magistrate in order to relieve the surety of liability on a bond. That article also requires that the affidavit state that the surety gave notice to the defendant’s attorney of his intention to surrender.

Because the affidavit procedure is well-defined and specifically authorized by law, the presentment of the affidavit to the judge or magistrate would not violate the Code of Judicial Conduct.

LEGAL REPRESENTAION BY PART-TIME MUNICIPAL JUDGE

Ethis Opinion Number 288 (2003)

Question: May an associate (part-time) municipal judge of a city represent a police officer of that municipality in connection with a criminal investigation of an alleged conspiracy to violate civil rights of individuals by planting fake drugs on them?

Answer: No.

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 4A provides that “a judge shall conduct all of the judge’s extra-judicial activities so that they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge . . . .” The representation set out above does not promote the integrity and independence of the judiciary, and it creates an appearance of impropriety.

The Committee is also of the opinion that the representation constitutes business dealings that “reflect adversely on the judge’s impartiality, interfere with the proper performance of the 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,” which is prohibited by Canon 4D(1). Defendants charged with criminal offenses in municipal court should be able to reasonably anticipate that when they appear before the court their case will be heard by an entirely fair and unbiased judge. In the vast majority of municipal court cases, the municipality’s main witness is often one of its police officers. A defendant who is aware of the fact that the judge hearing his case also privately represents police officers employed by that very same municipality could reasonably doubt that the judge was impartial when considering the testimony of any police officer and the weight to be given thereto.

A built-in dilemma exists in our justice system when a part-time judge also maintains a law practice. Under the Texas Disciplinary Rules of Professional Responsibility a lawyer has an obligation to zealously represent his client within the bounds of the law. When that lawyer also serves as a judge, however, his duty as a judge is to be impartial and to promote public confidence in the integrity and impartiality of the judiciary. The Committee stresses to all part-time judges to keep this conflict in mind when choosing to accept representation.

This answer is specific to the query and does not overrule Opinion No. 132 (1989).

Referral to Private Law Firm for Pro Bono Representation

Ethics Opinion Number 289 (2004)

QUESTION: May a Judge refer a criminal defendant to a private law firm if the criminal defendant does not qualify as an indigent for purposes of a court appointed attorney, and the law firm would provide legal representation without a fee? The law firm would be part of a short list which includes a law school criminal defense clinic. The lawyers would be qualified and meet the minimum requirements for appointment as required by the Fair Defense Act.

Notwithstanding the fact that the representation would be pro bono, the Committee is of the opinion that the referral outlined in this question would constitute a recommendation of private counsel which is prohibited by Canon 2B which states, in part, “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others, nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” By recommending a specific lawyer or private firm, the judge would be indicating support for the services of a particular lawyer or firm over others.

However, the Committee emphasizes that this opinion should not be interpreted to prohibit judges or court personnel from referring persons in need of legal assistance to departments, agencies, organizations or law school clinics which provide pro bono legal services, lawyer referral services, or lists of attorneys willing to assist the public in various areas of legal expertise.

QUESTION: May a County Court at Law Judge, who is assigned all of the probate cases for the county, appoint the spouse of one of the two probate assistants in the Judge’s office as an ad litem in guardianship and heirship cases? The spouse, who is an attorney and meets the requirements established by law to serve as an ad litem, would be one of approximately twenty qualified attorneys on the Judge’s appointment list.

There is no express prohibition in the Code of Judicial Conduct that prevents the appointment of a qualified spouse of a court employee provided the appointment is made impartially and on the basis of merit. See Canon 3C(4).

However, the Committee expresses its concern that to avoid the appearance of impropriety, the court employee should not be involved in any aspect of the specific case to which his or her spouse is appointed and the judge should make full disclosure of the nature of the relationship to all parties. Furthermore, all court personnel should be cautioned about the danger of ex parte communications regarding those cases. See Canon 3B(8).