2012-14 (June 1, 2012)
Advocacy; Public Statements
Rules 1.2, 1.3, 2.10, 2.11, 3.1, 3.2, 3.7 & 3.10
 
Issues: May a Judicial Official, who has written about a subject of public policy involving concerns about the welfare of a particular category of Americans, advocate publicly for -- or permit his/her name to be used in connection with advocacy by others in connection with -- the creation of a governmental commission to study and attempt to provide solutions for the concerns?

The advocacy would be non-partisan in terms of politics and would concern the law, the legal system and the administration of justice, in part. The advocacy would involve urging the establishment of a governmental commission to make recommendations concerning the criminal justice system, as well as other issues that may be involved. The “others” include other authors who are authorities on the subject, plus academics and public officials.

Applicable Rules: Rule 1.2 of the Code states that a judge “should act at all times in a manner that promotes public confidence in the … 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 1.3 of the Code provides that a judge “shall not use or attempt to use the prestige of judicial office to advance the private interests of the judge or others or allow others to do so.”

Rule 2.10 of the Code prohibits judges from making “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 ….”

Rule 2.11 of the Code requires disqualification “in any proceeding in which the judge’s impartiality might reasonably be questioned” due to personal bias or prejudice.

Rule 3.1 of the Code concerns extrajudicial activities and sets forth general limitations on such activities, such as not using court premises, staff or resources, except for incidental use or for activities that concern the law, the legal system, or the administration of justice unless otherwise permitted by law and not participating in activities that (1) interfere with the proper performance of judicial duties, (2) lead to frequent disqualification, (3) appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or (4) appear to a reasonable person to be coercive.

Rule 3.2 of the Code prohibits judges from appearing voluntarily at public hearings before governmental commissions, or consulting with governmental officials, except: “(1) in connection with matters concerning the law, the legal system, or the administration of justice; (2) in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties; or (3) when the judge is acting in a matter involving the judge’s legal or economic interests or when the judge is acting in a fiduciary capacity.”

Rule 3.7 of the Code deals specifically with participation with educational, religious, charitable, fraternal and civic organizations and activities. Subsection (a) of Rule 3.7 provides that, subject to the general requirements in Rule 3.1, a judge may participate in activities sponsored by or on behalf of organizations not conducted for profit including, but not limited to: …

(4) appearing or speaking at,… being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;

(5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs or activities but only if the organization is concerned with the law, the legal system, or the administration of justice; ….

Rule 3.10 of the Code contains the prohibition against the practice of law.  

Response: Based upon the information provided, including that the proposed activity is non-partisan and that the advocacy is for the establishment of a governmental commission, an activity that is primarily concerned with the law, the legal system and the administration of justice, the Committee determined that the Judicial Official may advocate publicly for -- or permit his/her name to be used in connection with advocacy by others in connection with -- the creation of a governmental commission pursuant to Rule 3.2 & 3.7, subject to the following conditions:

1. the participation does not interfere with the Judicial Official’s judicial duties (see Rule 3.1(1));
2. the Judicial Official does not give opinions which would cast doubt on the Judicial Official’s impartiality (see Rule 3.1(3));
3. the Judicial Official’s responses are factual and instructive about the subject matter but do not include comments about any pending or impending matters (see Rule 2.10);
4. the Judicial Official is careful not to express opinions in a way that would indicate that the Judicial Official has a predisposition with respect to particular cases (see Rule 2.11(a));
5. the Judicial Official should disqualify himself or herself if the Judicial Official knows he or she has a personal bias or a strong feeling involving an issue in a case before the Judicial Official (See Rule 2.11 (a)), and
6. the Judicial Official does not provide legal advice (see Rule 3.10).