Advisory Opinions On Judicial Ethics 81-90

QUESTION: May a judge serve as chairman of the board of a title company, a private corporation?

ANSWER: The Code of Judicial Conduct does not specifically prohibit a judge from serving as chairman of the board of a title company which is a private corporation. It does set forth guidelines that a judge should observe:
(1) A judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. (Canon 2A).
(2) A judge should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. (Canon 2B).
(3) A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial activities (Canon 5)*, and manage his investments and other financial interests to minimize the number of cases in which he is disqualified. (Canon 5C(3))**. See Canon 3C*** for judicial disqualifications.
The Committee assumes that the judge would not permit his title to be used upon the company stationery or any other printed material of the title company.
If there is no conflict with the canons set out above, the Judicial Ethics Committee perceives no violation of the Code of Judicial Conduct.

SUPPORT OF COUNTY BOND ELECTION

QUESTION: May judges support a county bond election, designated a "law and order election," to fund an expanded and improved jail facility, a new county criminal courts building, and renovation and improvement of civil district and family courts facilities?

ANSWER: Yes, with certain limitations. Canon 4 of the Code of Judicial Conduct permits a judge to engage in activities to improve the law, the legal system, and the administration of justice. However, Canon 4 also sets forth certain limitations, "subject to the proper performance of his judicial duties, [a judge] may engage in [such duties], if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him."
A possible second limitation may occur if the "law and order" bond issue is not segregated from other issues which do not pertain to law improvement, the legal system and the administration of justice. In our Opinion No. 64, this committee was of the opinion that it would be unethical for a judge to actively support a bond election to raise funds to develop a city water project. If the "law and order" bond issue is submitted with other issues and not segregated, ethical considerations may become involved. See Canon 5*.
A possible third limitation may occur depending upon what the judges mean by "support" the bond election. To support a bond issue connotes much more than a mere endorsement. Canon 1 states, "A judge should uphold the integrity and independence of the judiciary." Canon 2 states, "A judge should avoid impropriety and the appearance of impropriety." Canon 7** states, "A judge should refrain from political activity inappropriate to [the Judiciary]."
Your Committee is of the opinion that proper facilities and equipment for courts and jails are essential to the legal system and the proper administration of justice.
Subject to the limitations set forth above, a majority of the committee is of the opinion that it would not be unethical to support a bond issue for those purposes enumerated in the posed question.

** Now see Canon 5.
APPOINTMENT OF COUNSEL

QUESTION: Would a judge violate the Code of Judicial Conduct by appointing an attorney to represent indigent, if the attorney is an employee of a law firm consisting of the judge's father, brother, and the attorney receiving the appointments? All fees paid to the attorney for the judicial appointments would benefit the law firm.

ANSWER: Canon 3B(4)* states in pertinent part as follows: "[A judge shall] exercise his [or her] power of appointment only on the basis of merit, avoiding nepotism and favoritism. [A judge shall] not approve compensation of appointees beyond the fair value of services rendered."
Although the appointment of a father's or brother's employee would not be nepotism, such action would indirectly accomplish that which cannot be done directly. It violates the spirit of Canon 3B(4)* and could be considered favoritism.
Canon 2 states that a judge should avoid impropriety and the appearance of impropriety in all of his activities.
Your committee is of the opinion that judicial appointments made under the factual situation posed would violate the Code of Judicial Conduct.

TRUSTEE FOR FORMER LAW ASSOCIATE

QUESTION: Prior to becoming a district judge, an attorney served as a trustee for many years in a trust created by a law associate for the benefit of the law associate's wife's grandchildren. May the judge ethically continue to serve as a trustee after he has taken his oath of office?

ANSWER: No. Canon 5D* of the Code of Judicial Conduct states, "A judge should not serve as...[A] trustee...except for the...trust of a member of his [or her] family; and then only if service will not interfere with the proper performance of [judicial] duties."
Although the judge and the beneficiaries of the trust obviously enjoy a warm and cordial relationship, the beneficiaries are not members of the judge's family. Canon 5D* is quite clear, and to continue as trustee would be a violation of the Code of Judicial Conduct, Canon 5D*.

TRUSTEE OF CHARITABLE EDUCATION TRUST

QUESTION: May a judge serve on a charitable educational trust (consisting of 5 trustees) created for the sole purpose of funding student summer educational internships to study in a specific United States Congressman's District office during the summer. The trust will bear the name of a former Congressman of the district who is now deceased. The trustees will not be involved in fund-raising and their names will not be used in solicitation attempts.

ANSWER: Canon 5* admonishes judges to regulate their extra-judicial activities to minimize the risk of conflict with their judicial duties. However, Canon 5B expressly states that judges may serve as trustees of an educational or charitable organization not conducted for economic or political advantage of its members, subject to the following limitations enumerated in Canons 5B(1), B(2), and B(3). Judges should not serve: (1) if the organization would regularly appear in any court in adversary proceedings; and (2) they should not solicit funds, or use or permit the use of the prestige of their offices for that purpose, or be a speaker or guest of honor at an organization's fund-raising events; and (3) they may not give investment advice to such organization even though they may serve on a board which is responsible for approving investment decisions.
Subject to the limitations set forth in Canons 5B(1), B(2), and B(3), the Committee is of the opinion that it would not be a violation of the Code of Judicial Conduct to serve as a trustee in the described organization.

ADVISOR TO PUBLIC TASK FORCE

QUESTION: May judges serve in an advisory capacity to a public board or task force, where in all probability they will later preside over cases arising out of the crisis or problem for which the board or task force was created to solve?

ANSWER: Judges should regulate their activities to minimize the risk of conflict with the proper performance of their judicial duties. Canon 4 applies this admonition to judges' activities to improve the law, the legal system, and the administration of justice. Canons 5A, 5B, and 5D apply this same admonition to judges' extra-judicial activities. Canon 3 states, "The judicial duties of a judge take precedence over all his other activities."
A majority of the Committee is of the opinion that it would be a violation of the Code of Judicial Conduct for judges knowingly to agree to serve on or to continue to serve on such a board or task force, if in serving, a conflict with the proper performance of their judicial duties probably would arise or does arise. One judge dissented.

RETIRED JUDGE ON LAW FIRM'S LETTERHEAD

QUESTION: May retired or former judges, who have elected to accept judicial assignments under former Art. 200a, Sec. 5a, V.T.C.S. (Now Art. 200a-1, Sec. 4.014(3), V.T.C.S.) ethically permit the use of their names on a law firm's stationery without the phrase "of counsel" or a similar phrase?

ANSWER: The question submitted requires a legal construction of Sec. 44.005, of Title 110B, Public Retirement Systems, which is entitled "Ineligibility to Practice Law."* Your Judicial Ethics Committee is not authorized to give legal opinions. However, the Committee would observe that if a construction of Sec. 44.005 should hold that retired or former judges, who have elected to subject themselves to judicial assignment, are ineligible to practice law; then, to permit the use of their names on a law firm's stationery without proper qualifying language would be a violation of the Code of Judicial Conduct, Canon 2A. The essence of Canon 2A is that a judge should respect and comply with the law, thereby avoiding improprieties and the appearance of improprieties.

CONDITIONS OF PROBATION

QUESTION: Would a trial judge violate Canon 3A(1) or Canon 2A if he imposed as a term of felony probation, that a defendant remain in his home during certain hours and monitored compliance through electronic means?

ANSWER: The question posed requires a legal construction of a statute fixing the range of punishment for specific crimes. The function of the Judicial Ethics Committee is to write opinions construing the Code of Judicial Conduct as applied to given fact situations.
The Committee does not give legal opinions. Because the submitted question requires a legal interpretation of a criminal statute prior to reaching any ethical considerations, the Committee respectfully declines to answer the question.

DIRECTOR OF BANK

QUESTION: May an attorney who has been elected as judge of a county court at law ethically continue to be a director of a bank which has one stockholder, which stockholder is a publicly held corporation? If not, can he be an advisory director?

ANSWER: The Committee is of the opinion that he cannot ethically be a director or advisory director. As stated in our Opinion 61, for a judge to continue as a director of a bank would be contrary to the purposes of Canons 5C(1)* and 5C(2), as well as Canon 2.
In our Opinion 38, the Committee was of the opinion that to accept the position of advisory director of a bank would permit a judge to do indirectly that which he cannot do directly. This same principle applies when the sole stockholder of the bank is a public corporation. Canon 5C(2)* prohibits a judge from being an officer, director or manager of a "publicly owned business." It then defines a "publicly owned business" as "a business having ten or more owners." In the present case there is only one stockholder owner which is a publicly held corporation. Ordinarily, since there is only one owner of the bank, there would not be a violation of Canon 5C(2)* for a judge to be an advisory director of the bank, however, since the sole owner of the bank is a publicly held corporation, there appears to be more than ten actual owners of the corporation and the bank.
A judge should neither lend the prestige of his office to advance the private interest of others (Canon 2B), nor engage in business dealings that tend to exploit his judicial position (Canon 5C(1))*, and should manage his financial interests to minimize the number of cases in which he is disqualified. (Canon 5C(3))*.

GOOD FAITH INTERPRETATION OF LAW

QUESTION: Is a judge's good faith but incorrect interpretation of the law a violation of either Canon 2A ("A judge should respect and comply with the law and should at all times conduct himself [or herself]...in a manner that promotes public confidence in the integrity and impartiality of the judiciary") or Canon 3A(1)* ("A judge should be faithful to the law and maintain professional competence in it")?

PREFACE: The Committee has been advised by the judge who submitted this question that he has received a public reprimand from the State Commission on Judicial Conduct for violations of Canon 2A and 3A(1)* because:
a. that in a number of criminal cases presided over by..., the judge ordered a sentence to begin at a time earlier than the date on which the sentence was pronounced...in at least one instance, the sentence was ordered to begin even prior to the time the offense was committed.

ANSWER: The function of the Judicial Ethics Committee is to write advisory opinions in answer to questions involving potential violations of the Code of Judicial Conduct. Where a ruling on the actions of the judge has been rendered by the State Commission on Judicial Conduct, the Committee considers the request for an advisory opinion to be untimely and beyond the scope of the function of the committee.
The Committee observes that the issue of the judge's "good faith" appears to have been considered and resolved by the Commission on Judicial Conduct.
The Committee respectfully declines to write an opinion on the posed question.

Judicial Ethics Opinions

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TITLE COMPANY, SERVICE ON BOARD