2013-39 (September 9, 2013)
Educational Activities; Speaking
Rules 1.2, 2.10 & 3.1
Issue: May a Judicial Official speak to a class of law school students about the legislative and state budget process?
Additional Facts: The Judicial Official will either speak alone or on a panel with current or former legislators, some of whom may be lawyers. The Judicial Official was selected to speak to the students because of the Judicial Official’s prior experience in these areas. The Judicial Official will receive no compensation.
Discussion: Rule 1.2 of the Code of Judicial Conduct states that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Rule 2.10(a) of the Code provides that “[a] judge shall not make any public statement that might reasonably be expected to affect the outcome or to impair the fairness of a matter pending or impending in any court or make any nonpublic statement that might substantially interfere with a fair trial or hearing.” Rule 2.10(d) recognizes certain exceptions to this prohibition, including an exception for a judge’s public statement to “explain court procedures.”
Rule 3.1 of the Code provides that subject to certain conditions a judge “may engage in extrajudicial activities except as prohibited by law.” The rule’s commentary encourages judges to participate in appropriate extrajudicial activities and observes that “[j]udges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law.” Rule 3.1, cmt. (1).
Based upon the information provided, the Committee determined that the Judicial Official is not ethically restricted from speaking to law school students about the legislative and state budget process, alone or on a panel, subject to the conditions set forth below:
(1) The Judicial Official’s participation does not interfere with the proper performance of the Judicial Official’s duties nor create grounds upon which the Judicial Official may have to recuse him/herself;
In rendering its decision, the Committee also considered its prior opinions in JE 2009-24 (teaching a course about legislative process at a state university), JE 2012-26 (providing assistance to local high school’s mock trial team) and JE 2013-11 (serving as a coach for a middle school mock trial team).
(2) The Judicial Official does not give opinions that would cast doubt on the Judicial Official’s impartiality or indicate that the Judicial Official has a predisposition with respect to a particular case; and
(3) The Judicial Official should refrain from any inappropriate comment (as indicated above) about pending or impending matters.
Committee on Judicial Ethics