BANK DIRECTOR OF HOLDING COMPANY BANK

 

Opinion No. 61 (1982)

 

QUESTION: May a judge serve as a director of a bank where the board of the bank consists of 10 directors, where one of the directors is the representative of a holding company which owns all of the stock of the bank?

 

ANSWER: The Committee is of the opinion that for a judge to serve as a bank director under such circumstances would be contrary to the purposes of Canons 5C(1)* and 5C(2),* as well as Canon 2.  A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties and he should avoid impropriety and the appearance of impropriety in all his activities.  The fact that a holding company is the sole owner of the bank should not permit a judge to do indirectly that which he could not do directly.

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*Now see Canon 4D.

 

 

CONSULTANT FOR NON-PROFIT HOUSING

 

Opinion No. 62 (1982)

 

QUESTION: May a district judge serve as a consultant for a private non-profit corporation engaged in the construction and development of a housing project for the elderly?

 

FACTS: The Judicial Ethics Committee is informed on the following facts pertinent to the question.  The project is financed by a loan from the Department of Housing and Urban Development under Section 202 of the  Housing Act of 1959.  The judge served in a similar consulting capacity on numerous projects before assuming the bench.  He would be compensated on a fee basis by the private non-profit corporation that employs him.  The fee is based upon a formula established by HUD and based upon the loan authority for the project.  As a consultant he would give advice on the determination and selection of the project site and on various other matters related to the project, confer with representatives of the various entities involved in the project and assist in the establishment of sound business practices for the project. He would not perform any legal work.  The legal work would be performed by an attorney outside his district who does not appear regularly before him.  The corporation he would be assisting also does not appear regularly in his court.  The work would require an average of 10 hours per month for 15 to 18 months and could be done before or after normal working hours.  The judge would not be engaged in arbitration or mediation, nor would he participate in hearings or testimony before governmental bodies.

 

ANSWER: The Committee is of the opinion that service as a consultant under the facts stated does not violate the Code of Judicial Conduct.

The resolution of the question is controlled by Canon 5 of the Code. Canon 5C(2)* permits a judge to "engage in other remunerative activity including the operation of a business."  That permission is conditioned upon compliance with Canon 5C(1),** which states:                      

A judge should refrain from financial and business dealings that tend to reflect adversely on his [or her] 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 he [or she] serves.

Canons 5E*** and 5F,**** which bar a judge from acting as an arbitrator or mediator or from practicing law, are also restrictions on the activity in question.

Under the facts stated none of the conditions or limitations in Canon 5 are violated; however, a judge should at all times keep in mind that it is his duty to uphold the integrity and independence of the judiciary and avoid impropriety and the appearance of impropriety in all his activities.  Thus, the judge should carefully monitor his activities and immediately terminate his service as a consultant if he perceives a violation of the Code.

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* Now see Canon 4D(2).

** Now see Canon 4D(1).

*** Now see Canon 4F.

**** Now see Canon 4G.

 

 

JUDGE AS COLUMNIST

 

Opinion No. 63 (1982)

 

QUESTION: May a judge write a weekly column concerning legal matters for publication in a newspaper?

 

ANSWER: Canon 4A* of the Code of Judicial Conduct states as follows: "[A Judge] may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system and the administration of justice."The Committee is of the opinion that the Code of Judicial Conduct encourages judges to write articles concerning the improvement of the law, the legal system and the administration of justice, provided that in doing so he does not cast doubt on his capacity to act impartially on any matter that may come before him.

The Committee is of the further opinion that a judge should not answer inquiries from the public on any matter in the field of law, other than in those areas specifically enumerated above.

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* Now see Canon 4B(1).

 

 

SUPPORT OF BOND ELECTION

 

Opinion No. 64 (1982)

 

QUESTION: May a judge actively support a bond election to raise funds to develop a city water project?

 

ANSWER: No, for several reasons.  First, a judge should regulate his outside activities to minimize the risk of conflict with his judicial duties.  Elections often are contested, and to actively engage in a bond election could interfere with the judicial responsibility of the judge.

Secondly, a judge should refrain from using the prestige of his office to help a political organization to raise funds.  Canon 5*, Code of Judicial Conduct.

Thirdly, a judge should uphold the integrity and independence of the judiciary. Involvement in an election, other than his own, by a judge tends to raise questions of why he is involved and casts doubts on his capacity to decide impartially an issue that may come before him.

A majority of the Committee is of the opinion that to actively participate in such an election would violate the Code of Judicial Conduct.

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*Now see Canons 4C and 5.

 

 

SERVICE ON STATE AGENCY BOARD

 

Opinion No. 65 (1983)

QUESTION: May a judge serve as member of a board of a State agency created by the Legislature, which appointment requires appointment by the Governor and confirmation by the Senate, where the responsibilities are non-judicial and there is no compensation except reimbursement for expenses?

 

ANSWER: Canon 5G* of the Code of Judicial Conduct states as follows:

                                    "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.  A judge, however, may represent his [or her] country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities."

The Committee is of the opinion that a judge may not accept an appointment to a state board concerned with non-judicial matters, unless the function of that board is limited to historical, educational, or cultural activities.The Committee is of the further opinion that a judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties, keeping in mind that an independent judiciary is indispensable to justice in our society.

The Committee notes that the stated question raises the issue of separation of powers which deserves consideration, but such issue is not within the scope of the Committee's function.

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* Now see Canon 4H.

 

 

INSTRUCTION OF LAW OFFICERS ON CROSS-EXAMINATION

 

Opinion No. 66 (1983)

 

QUESTION: May a judge participate with law enforcement officers in the development and preparation of a program designed to inform law enforcement officers concerning possible pitfalls during cross-examination?  The program would be sold to law enforcement agencies, but the title of "Judge" would not be used in connection with the program.

 

ANSWER: Several sections of the Code of Judicial Conduct speak to the problem.  Canon 4A* states: "[A judge] may speak, write, lecture, teach, and participate in other activities concerning law, the legal system, and the administration of justice."

Canon 5C(1)** states: "A judge should refrain from financial and business dealings that tend to reflect adversely on his [or her] 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 he [or she] serves."

Canon 6*** states: "A judge may receive compensation and reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted by the Code, if the source of such payments does not give the appearance of...impropriety."

The Committee is of the opinion that the Code of Judicial Conduct encourages a judge to write, lecture and teach on matters concerning law, the legal system, and the administration of justice. However, the program described in the question has the appearance of advocating particular results in certain kinds of cases and, as such, reflects adversely on the judge's appearance of impartiality.

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* Now see Canon 4B.

** Now see Canon 4D.

*** Now see Canon 4I.

 

 

USE OF LETTERHEAD FOR FRATERNITY SOLICITATION

 

Opinion No. 67 (1983)

 

QUESTION: May a judge use his official letterhead (or a reproduction of that letterhead) to invite members of a fraternal organization, who live in the jurisdiction of his local organization but have their membership elsewhere, to transfer their membership to the local organization?

 

ANSWER: Canon 2B of the Code of Judicial Conduct impart states: "... (A judge) should not lend the prestige of his [or her] office to advance the private interests...of others..."The use of his official letterhead by a judge to invite or solicit transfer of membership in a fraternal organization appears to lend the prestige of the judge's office to assist his fraternity and is violative of Canon 2B.

 

 

 

 

LETTER OF APPRECIATION TO JURORS

 

Opinion No. 68 (1983)

 

QUESTION: Would judges who participate in a central jury system violate the Code of Judicial Conduct by sending a form letter expressing their appreciation to those persons who reported for jury duty, including those not selected as jurors?  The letterhead would contain all the names of the judges in the system and the names of the District and County clerks.  Costs would be borne by the county.

 

ANSWER: Your Ethics Committee is of the opinion that if the contents of the letter is a genuine expression of appreciation, the letter is mailed routinely when the panel is discharged, and the signatory privileges are rotated regularly, that such a letter would be appropriate.

Canon 3A(3)* requires a judge to be courteous to jurors.  Canon 2 requires that a judge avoid impropriety and the appearance of impropriety in all of his activities, and Canon 7A** requires that any candidate for judicial office, including an incumbent judge, should refrain from conduct which might tend to arouse reasonable belief that he is using the power or prestige of his judicial position to promote his own candidacy.  If the content and timing of mailing the letter of appreciation meet the criteria of these three canons the letter would be appropriate.

The Committee sees no impropriety in the county bearing the costs of such a letter, if the costs do not become prohibitive.  Consideration might be given to attaching such a letter to each panel member's check when mailed.

 

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*Now see Canon 3B (4).

** Now see Canon 5.

 

 

LETTER OF APPRECIATION TO JURORS

 

Opinion No. 69 (1983)