Opinion 179
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are Rules 2-3.1 Extrajudicial Activities in General and Comment 1; 2-1.3 Avoiding Abuse of the Prestige of Judicial Office; and 2-3.12 Compensation for Extrajudicial Activities.)
Issue:
May a judge speak at a continuing legal education course sponsored by a law firm wherein the judge’s participation in the course is advertised to either the Bar or the general public? Secondly, what restrictions are there on the use of the judge’s name and title in the promotion of continuing legal education programs sponsored by bar associations, law schools or other organizations that are not likely to appear before the judge as a party or an attorney for a party?
Discussion:
This situation involves balancing two conflicting goals found within the Code of Judicial Conduct. This first encourages judges to be involved in legal education and the second is to avoid giving the appearance that the judicial office is being used to promote the private interests of the sponsors.
The commentary to Canon 4B provides:
In addition, in Opinion 121 the Commission has provided that a judge may “speak at a training session for police officers and discuss the types of problems that arise in driving while intoxicated cases and what steps those officers might take to better prepare cases before they come to court.” In Opinion 160 the Commission opined that a judge under the nonpartisan court plan could “publicly endorse or criticize the nonpartisan court plan in an effort to improve the law, the legal system or the administration of justice.” The Commission’s opinion has been and continues to be that a judge’s participation in educational endeavors having to do with the law, the legal system or the administration of justice should be encouraged and thus, the judge may appear at schools, bar associations, the Attorney General’s, public defender’s or prosecutor’s offices, police departments, private law firms, and even political functions so long as the judge’s appearance is confined to an educational endeavor to improve the law, the legal system or the administration of justice.
If the judge chooses to make such appearances, the judge should also be available for similar appearances before other organizations with competing, opposing or similar viewpoints. That is, if the judge lectures at the public defender’s office, the judge should also be available to the office of the prosecuting attorney.
The second issue involved is that of advertising. Canon 2B requires that a judge: “shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” The commentary to Canon 2 also provides as follows:
As a result of the restrictions of Canon 2, it is the opinion of the Commission that the judge should avoid speaking at any continuing legal education program or educational endeavor that is sponsored and advertised by an organization, public or private, that is likely to appear before the judge as a party or attorney for a party. This restriction would include educational functions sponsored by private law firms. Judges could appear at advertised programs sponsored by bar associations, law schools or profit groups organized solely to conduct educational program as such organizations would not likely appear before the judge as a party or counsel to a party. Judges could continue to appear at in-house programs of organizations likely to appear before the judge, such as law firms, so long as these programs are not publicly advertised and so long as the judge is available for similar programs given by other competing, opposing, or similar organizations.
The Judicial Proprieties Committee of the State of Delaware provided a requesting judge an opinion on April 11, 1995, concerning judicial participation in for-profit seminars on legal issues. The Commission on Retirement, Removal and Discipline has concurred with the following language of that opinion:
In conclusion, it is the opinion of the Commission on Retirement, Removal and Discipline that a judge should not be involved in a continuing legal education program sponsored by a law firm where the program will be advertised to the Bar or the general public using the judge’s name and title. Such advertisement would give the appearance that the judge is lending the prestige of judicial office to advance the private interest of the law firm.
The use of the judge’s name and title in promotion of continuing legal education programs sponsored by bar associations, law schools or other organizations that are not likely to appear before the judge as a party or an attorney for a party is allowed to the limited extent as outlined in the State of Delaware opinion quoted herein.
(Dated: July 20, 2001)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 179
Issue:
May a judge speak at a continuing legal education course sponsored by a law firm wherein the judge’s participation in the course is advertised to either the Bar or the general public? Secondly, what restrictions are there on the use of the judge’s name and title in the promotion of continuing legal education programs sponsored by bar associations, law schools or other organizations that are not likely to appear before the judge as a party or an attorney for a party?
Discussion:
This situation involves balancing two conflicting goals found within the Code of Judicial Conduct. This first encourages judges to be involved in legal education and the second is to avoid giving the appearance that the judicial office is being used to promote the private interests of the sponsors.
The commentary to Canon 4B provides:
As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, a judicial conference or other organization dedicated to the improvement of the law.
In addition, in Opinion 121 the Commission has provided that a judge may “speak at a training session for police officers and discuss the types of problems that arise in driving while intoxicated cases and what steps those officers might take to better prepare cases before they come to court.” In Opinion 160 the Commission opined that a judge under the nonpartisan court plan could “publicly endorse or criticize the nonpartisan court plan in an effort to improve the law, the legal system or the administration of justice.” The Commission’s opinion has been and continues to be that a judge’s participation in educational endeavors having to do with the law, the legal system or the administration of justice should be encouraged and thus, the judge may appear at schools, bar associations, the Attorney General’s, public defender’s or prosecutor’s offices, police departments, private law firms, and even political functions so long as the judge’s appearance is confined to an educational endeavor to improve the law, the legal system or the administration of justice.
If the judge chooses to make such appearances, the judge should also be available for similar appearances before other organizations with competing, opposing or similar viewpoints. That is, if the judge lectures at the public defender’s office, the judge should also be available to the office of the prosecuting attorney.
The second issue involved is that of advertising. Canon 2B requires that a judge: “shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” The commentary to Canon 2 also provides as follows:
A judge should avoid lending the prestige of judicial office for the advancement of the private interests of others ... in contracts for publications of the judge’s writings a judge should retain control over the advertising to avoid exploitation of the judge’s office.
As a result of the restrictions of Canon 2, it is the opinion of the Commission that the judge should avoid speaking at any continuing legal education program or educational endeavor that is sponsored and advertised by an organization, public or private, that is likely to appear before the judge as a party or attorney for a party. This restriction would include educational functions sponsored by private law firms. Judges could appear at advertised programs sponsored by bar associations, law schools or profit groups organized solely to conduct educational program as such organizations would not likely appear before the judge as a party or counsel to a party. Judges could continue to appear at in-house programs of organizations likely to appear before the judge, such as law firms, so long as these programs are not publicly advertised and so long as the judge is available for similar programs given by other competing, opposing, or similar organizations.
The Judicial Proprieties Committee of the State of Delaware provided a requesting judge an opinion on April 11, 1995, concerning judicial participation in for-profit seminars on legal issues. The Commission on Retirement, Removal and Discipline has concurred with the following language of that opinion:
The Judicial Proprieties Committee has considered this matter an unanimously opined that your participation in such a presentation would not constitute a violation of any provision of the Delaware Judges’ Code of Judicial Conduct, subject to the qualifications noted below:
It is generally appropriate for a judge to ‘speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice’ so long as such activities do not interfere with the judge’s ability to properly perform the judge’s duties or ‘cast reasonable doubt’ on the judge’s impartiality. Judges’ Code of Judicial Conduct, Canon 4A. Thus, your participation in a seminar on collection law in Delaware is generally consistent with your ethical obligations so long as the qualifications specified in Canon 4A are satisfied.
However, there is an additional ethical consideration as set forth in Judges’ Code of Judicial Conduct, Canon 2B, which prohibits a judge from "lend[ing] the prestige of the judicial office to advance the private interests of others." Although this consideration does not preclude a judge from participating in a seminar being presented by a for-profit organization, it does require that the judge take care to avoid the impression that the prestige of the judicial office is being used to advance the private interest of another. Thus, the judge must be assured that the judge’s title or office will not be used in promotional materials in a way that calls special attention to the office so as to encourage participation or attendance in the seminar. The judge also may not participate in the marketing aspects of the program. Also, to ensure that there is not appearance of favoritism, the judge should be willing and available to accept similar invitations from other organizations, should other invitations occur.
We note that we have addressed this issued previously in an opinion issued December 18, 1989, and came to the same conclusion. In that opinion, the Judicial Proprieties Committee held that the Judge could speak at a conference on matrimonial law sponsored by a for profit corporation. We noted that the committee on Codes of Conduct of the Judicial Conference on the United States reached a similar conclusion:
In the last twenty years or so, there have been a significant increase in the scope and importance of continuing education programs for the practicing bar, programs often conducted outside the confines of traditional legal education. It is appropriate for judges to participate in such programs for compensation, but there are some additional concerns. For instance, these programs are often widely advertised. Judges participating in such programs should ensure that promotion of the program does not trade on the judicial office, and in particular that the judge’s official position Is not emphasized to encourage participation in the program.
See Advisory Committee on the Codes of Conduct, Advisory Opinion No. 79 (May 6, 1987). Similarly, the judicial ethics advisory opinions from many other jurisdictions have reach a similar conclusion. See, e.g., The Digest of Judicial Ethics Advisory Opinions, Fla. 76-18 (December 1, 1976) at 110; Ga, 102 (August 28, 1987) at 200; Ks. JE-22 (October 30, 1987) at 223; Or. 87-3 (August 10, 1987) at 461; Tn. 89-9/issue 1 (1989) at 508.
To ensure that the judge’s office is not emphasized in the promotional materials to encourage participation in the program, the judge’s title may be noted on the program but only to the same degree that the titles and positions of the other speakers are noted. The judge’s official position should not be featured or singled out in the marketing of the program.
Finally, the issue of whether you may receive compensation for participating as a panelist in this program is addressed in Canon [4H] of the Judge’s Code of Judicial Conduct. A judge may receive compensation or reimbursement for expenses for law-related and extra-judicial activities permitted by the Code if the source does not give the appearance of influencing the judge in the judge’s judicial duties, or otherwise give the appearance of impropriety, and if the amount is reasonable and does not exceed what the panelists who are not judge’s receive. In addition, expense reimbursements should be limited to the actual cost of travel, food and lodging reasonably incurred by the judge. See Canon [4H]. Thus, it is appropriate for you to accept a small stipend for your participation in the seminar, so long as the amount is reasonable and the same as that received by all of the other panelist. Also, you may attend a luncheon at the seminar at no cost to you if the other panelists are also invited to the luncheon.
In conclusion, it is the opinion of the Commission on Retirement, Removal and Discipline that a judge should not be involved in a continuing legal education program sponsored by a law firm where the program will be advertised to the Bar or the general public using the judge’s name and title. Such advertisement would give the appearance that the judge is lending the prestige of judicial office to advance the private interest of the law firm.
The use of the judge’s name and title in promotion of continuing legal education programs sponsored by bar associations, law schools or other organizations that are not likely to appear before the judge as a party or an attorney for a party is allowed to the limited extent as outlined in the State of Delaware opinion quoted herein.
(Dated: July 20, 2001)