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§ 5-204. Canon 4. A judge shall so conduct all extrajudicial activities as to minimize the risk of conflict with judicial obligations.

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This rule only applies to cases filed prior to December 31, 2010.

   (A) Extrajudicial Activities in General. 

   A judge shall conduct all of the judge's extrajudicial activities so that they do not:

   (1) Cast reasonable doubt on the judge's capacity to act impartially as a judge; 

   (2) Demean the judicial office; or 

   (3) Interfere with the proper performance of judicial duties.

COMMENT

 

  Complete separation of a judge from extrajudicial activities is neither possible nor wise. Judges should not become isolated from their community. Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. See section 2C and accompanying comments. 

 

   (B) Avocational Activities. 

   A judge may speak, write, lecture, teach, and participate in other extrajudicial activities concerning the law,* the legal system, the administration of justice, and nonlegal subjects, subject to the requirements of this Code.

COMMENT

 

  As a judicial officer and 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, judicial conference, or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary, and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.

 

   In this and other sections of Canon 4, the phrase "subject to the requirements of this Code" is used, notably in connection with a judge's governmental, civic, or charitable activities. This phrase is included to remind judges that the use of permissive language in various sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct. 

 

   (C) Governmental, Civic, or Charitable Activities. 

   (1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law,* the legal system, or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.

COMMENT

 

   See section 2B regarding the obligation to avoid improper influence. 

 

   (2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law,* the legal system or the administration of justice. A judge may, however, represent a country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities.

COMMENT

 

   Section 4C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system, or administration of justice as authorized by section 4C(3). The appropriateness of accepting extrajudicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary. Section 4C(2) does not govern a judge's service in a nongovernmental position. See section 4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system, or the administration of justice and with educational, religious, charitable, fraternal, or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under section 4C(2), but service on a public law school or any private educational institution would generally be permitted under section 4C(3).

 

   (3) A judge may serve as an officer, director, trustee, or nonlegal advisor of an organization or governmental agency devoted to the improvement of the law,* the legal system, or the administration of justice or of an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

COMMENT

 

   This section does not allow judges to be members of or to hold office in political organizations. See Terminology, "political organization." Canon 5 governs judges' political activities.

 

   Section 4C(3) does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system, or the administration of justice; see section 4C(2).

 

   See comments to section 4B regarding use of the phrase "subject to the requirements of this Code." As an example of the meaning of the phrase, a judge permitted by section 4C(3) to serve on the board of a fraternal institution may be prohibited from such service by sections 2C or 4A if the institution practices invidious discrimination or if service on the board otherwise casts reasonable doubt on the judge's capacity to act impartially as a judge.

 

   Service by a judge on behalf of a civic or charitable organization may be governed by other provisions of Canon 4 in addition to section 4C. For example, a judge is prohibited by section 4G from serving as a legal advisor to a civic or charitable organization. 

 

   (a) A judge shall not serve as an officer, director, trustee, or nonlegal advisor if it is likely that the organization will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

COMMENT

 

  The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

 

   (b) A judge as an officer, director, trustee, or nonlegal advisor, or as a member or otherwise:

   (i) may assist such an organization in planning fundraising and may participate in the management and investment of the organization's funds, but shall not participate personally in the solicitation of funds or other fundraising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority; 

   (ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law,* the legal system, or the administration of justice; 

 

   (iii) shall not participate personally in membership solicitation if the solicitation reasonably might be perceived as coercive or, except as permitted in section 4C(3)(b)(i), if the membership solicitation is essentially a fundraising mechanism; 

 

   (iv) shall not use or permit the use of the prestige of judicial office for fundraising or membership solicitation.

COMMENT

 

  A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system, or the administration of justice or a nonprofit educational, religious, charitable, fraternal, or civic organization as long as the solicitation reasonably cannot be perceived as coercive and is not essentially a fundraising mechanism. Solicitation of fundsfor an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing, or by telephone except in the following cases: (1) A judge may solicit, for funds or memberships, other judges over whom the judge does not exercise supervisory or appellate authority; (2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves; and (3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge's signature.

 

   Use of an organization letterhead for fundraising or membership solicitation does not violate section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization. In addition, a judge must also make reasonable efforts to ensure that the judge's staff, court officials, and others subject to the judge's direction and control do not solicit funds on the judge's behalf for any purpose, charitable or otherwise.

 

   A judge must not be a speaker or guest of honor at an organization's fundraising event, but mere attendance at such an event is permissible if otherwise consistent with this Code. 

 

   (D) Financial Activities. 

   (1) A judge shall not engage in financial and business dealings that 

   (a) reasonably may be perceived to exploit the judge's judicial position, or

   (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

COMMENT

 

  The time for compliance provision in this Code (application section C) postpones the time for compliance with certain provisions of this section in some cases.

 

   When a judge acquires in a judicial capacity information, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See section 2B; see, also, section 3B(11).

 

   A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges of the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. With respect to affiliation of relatives of a judge with law firms appearing before the judge, see comments to section 3E(1) relating to disqualification.

 

   Participation by a judge in financial and business dealings is subject to the general prohibitions in section 4A against activities that tend to reflect adversely on impartiality, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in section 2B against the misuse of the prestige of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge's activities, as set forth in Canon 1. See comments for section 4B regarding use of the phrase "subject to the requirements of this Code." 

 

   (2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge's family,* including real estate, and engage in other remunerative activity.

COMMENT

 

  This section provides that, subject to the requirements of this Code, a judge may hold and manage investments owned solely by the judge, investments owned solely by a member or members of the judge's family, and investments owned jointly by the judge and members of the judge's family. 

 

   (3) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in: 

   (a) a business closely held by the judge or members of the judge's family, or

   (b) a business entity primarily engaged in investments of the financial resources of the judge or members of the judge's family.

COMMENT

 

  Subject to the requirements of this Code, a judge may participate in a business that is closely held either by the judge alone, by members of the judge's family, or by the judge and members of the judge's family.

 

   Although participation by a judge in a closely held family business might otherwise be permitted by section 4D(3), a judge may be prohibited from participation by other provisions of this Code, when, for example, the business entity frequently appears before the judge's court or the participation requires significant time away from judicial duties. Similarly, a judge must avoid participating in a closely held family business if the judge's participation would involve misuse of the prestige of judicial office. 

 

   (4) A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall dispose of investments and other financial interests that might require frequent disqualification.

   (5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's household* not to accept, a gift, bequest, favor, or loan from anyone except for:

COMMENT

 

  Contributions to a judge's retention campaign, if permitted, are governed by Canon 5, not by section 4D(5). Because a gift, bequest, favor, or loan to a member of the judge's family residing in the judge's household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge's household. 

 

   (a) A gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law,* the legal system, or the administration of justice; 

COMMENT

 

  Acceptance of an invitation to a law-related function is governed by section 4D(5)(a); acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by section 4D(5)(h). A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise in compliance with other provisions of this Code. See sections 4A(1) and 2B.

 

   (b) A gift, award, or benefit incident to the business, profession, or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award, or benefit reasonably could not be perceived as intended to influence the judge in the performance of judicial duties; 

   (c) Ordinary social hospitality; 

   (d) A gift from a relative or friend, for a special occasion such as a wedding, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship;

COMMENT

 

  A gift to a judge, or to a member of the judge's family living in the judge's household, that is excessive in value raises questions about the judge's impartiality and the integrity of the judicial office and might require disqualification of the judge where disqualification would not otherwise be required. See, however, section 4D(e). 

 

   (e) A gift, bequest, favor, or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under section 3E; 

   (f) A loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; 

   (g) A scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or 

   (h) Any other gift, bequest, favor, or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if the value of the gift, bequest, or favor exceeds $100.00, or if the value of the loan exceeds $1,000.00, the judge reports it in the same manner as the judge reports compensation as required in section 4J. All loans that create actual conflicts of interest shall be reported in the same manner as compensation under section 4J.

COMMENT

 

  Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests, or loans from lawyers or their firms if they have come or are likely to come before the judge. It also prohibits gifts, favors, bequests, or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge. 

 

   (E) Fiduciary Activities. 

   (1) A judge shall not serve as personal representative, conservator, trustee, guardian, attorney in fact, or other fiduciary,* except for the estate, trust, or person of a member of the judge's family,* and then only if such service will not interfere with the proper performance of judicial duties. 

   (2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction. 

   (3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

COMMENT

 

   The time for compliance provision of this Code (application section C) postpones the time for compliance with certain provisions of this section in some cases.

 

   The restrictions imposed by this canon may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings the retention of which would place the judge in violation of section 4D(4). 

 

   (F) Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.*

COMMENT

 

  Section 4F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties. 

 

   (G) Practice of Law. A judge shall not practice law. A judge who acts pro se is not considered to be practicing law. 

COMMENT

 

   This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearance before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family. See section 2(B). 

 

   (H) Reimbursement or waiver of charges for travel-related expenses of the judge or the judge’s spouse or guest. 

   (1) Unless otherwise prohibited by law,* a judge may accept reimbursement of, or a waiver of, charges from sources other than the judge’s employing entity for necessary travel, food, and lodging expenses associated with the judge’s participation in extrajudicial activities permitted by this Code, but only if such acceptance does not cast reasonable doubt on the judge’s ability to act with independence, integrity, or impartiality. 

   (2) Expense reimbursement and waiver of charges shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s spouse or guest. Any payment in excess of such an amount is compensation.

COMMENT

 

   Judges are encouraged to participate in educational programs in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Attendance at educational activities where the expenses are paid for by persons or entities other than the judge, however, must be evaluated by the judge to determine whether attendance is consistent with the requirements of this Code.

 

   A judge’s decision whether to accept the gift of expenses or a waiver of fees in attending an educational activity should be based on an assessment of all of the circumstances, and the judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment. The judge should, for example, consider whether the sponsor or the funding source of the educational activity is currently appearing or likely to appear before the judge in a matter, thus possibly requiring disqualification of the judge. See section 3E.

 

   A judge also should not attend educational activities sponsored by organizations with which the judge may not properly be associated, such as organizations that practice invidious discrimination; to do so would violate section 2A if the judge’s attendance might be perceived as manifesting approval of the organization’s policies.

 

   The factors that a judge should consider when deciding whether to attend a particular educational activity on an expenses-paid basis include:

 

   (a) whether the sponsor is an accredited educational institution or bar association rather than a for-profit entity or trade association;

 

   (b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;

 

   (c) whether the content is unrelated to the subject matter of litigation before the judge or is related to matters that are, or are likely to come, before the judge;

 

   (d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups;

 

   (e) whether information concerning the activity and its funding sources are available upon inquiry;

 

   (f)(1) whether the sponsor or the source of funding are generally associated with particular parties or interests likely to appear in the judge’s court;  

 

   (2) whether contributors to seminar funding control the curriculum, faculty, or invitation list.

 

   (g) whether differing viewpoints are presented; and [h] the number of participants, whether a broad range of judicial and nonjudicial participants are invited, and whether the program is designed specifically for judges. 

 

   In addition, the judge should determine whether attendance may create a conflict of interest, may result in disqualification or recusal in matters coming before the judge, may give rise to a judge’s independence being questioned, or may interfere with the judge’s performance of his or her judicial duties.

 

   In addition to disclosure required by section 4J, a judge must take reasonable steps to ensure that information concerning the judge’s participation in educational activities and other events, as well as reasonable information regarding the nature and circumstances of such events, is made available to the public. A judge should therefore promptly and publicly disclose participation in extrajudicial events at which the expenses are paid by persons or entities other than the judge. 

 

   (I) Compensation for extrajudicial activities. 

   (1) A judge may accept compensation for extrajudicial activities permitted by this Code, unless such acceptance casts reasonable doubt on the judge’s capacity to act with independence, integrity, or impartiality. 

   (2) Compensation shall not exceed a reasonable amount, nor shall it exceed what a person who is not a judge would receive for the same activity.

COMMENT

 

  The Code does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. A judge must not exploit or appear to exploit the judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. The source of the payment of any such compensation must not raise any question of undue influence or the judge’s ability or willingness to be impartial.

 

   (J) Reporting of compensation, reimbursement of expenses, and waiver of charges.

   A judge shall report the date, place, and nature of any activity for which the judge received compensation, reimbursement of expenses, or waiver of charges; the name of the payor or waivor; and the amount of compensation, reimbursement of expenses, or waiver of charges so received. The judge’s report shall be made annually, and shall be filed as a public document in the office of the Clerk of the Supreme Court on forms furnished by that court.

COMMENT

 

  By reporting and publicly disclosing their compensation, reimbursement of expenses, or waiver of charges for extrajudicial activities, judges promote transparency and public confidence in the integrity, impartiality, and independence of the judiciary. 

 

   (K) Disclosure of a judge's income, debts, investments or other assets is required to the extent provided in this canon, in sections 3E and 3F, by the disclosure form provided pursuant to section 4J, or as otherwise required by law.*

COMMENT

 

  Under section 3E, a judge is not permitted to participate in any proceeding in which the judge has an economic interest. See "economic interest" as explained in the terminology section. Section 4D requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of judicial duties. Section 4J requires a judge to report all compensation the judge received for activities outside judicial office. A judge has the rights of any other citizen, including the right to privacy of the judge's financial affairs, except to the extent that limitations established by law are required to safeguard the proper performance of the judge's duties.

 

Canon 4D(5)(h), 4H, 4I, 4J, and 4K amended September 20, 2006.

This page was last modified on Wednesday, May 8, 2013