2012-26 (September 21, 2012)
Educational Activities;
Rules 1.2, 2.10 & 3.1
 
Issue: May a Judicial Official provide assistance to a local high school’s mock trial team?
 
Additional Facts: The Judicial Official has been asked to volunteer his/her time and expertise to assist a local high school mock trial team. It is anticipated that meetings with the mock trial team will not take place during the Judicial Official’s normal work hours.

Response: Rule 1.2 of the Code of Judicial Conduct 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 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).

Although Rule 2.10 restricts a judge from commenting publicly on cases pending or impending in any court, the Committee holds the opinion that a judge who is engaged in teaching is not precluded in a classroom setting from identifying and describing pending or impending cases that are relevant to the subject matter under discussion because statements in this setting could not reasonably be expected to affect or substantially interfere with the outcome of any proceeding under Rule 2.10(a). However, a judge should refrain from making unnecessarily controversial statements about such pending cases.

Based upon the information provided, the Committee determined that the Judicial Official may provide assistance to a high school mock trial team subject to the following conditions:

(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;

(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 inappropriate comment (as indicated above) about pending or impending matters.