An Administrative Law Judge Should Regulate Extra-Judicial Activities to Minimize the Risk of Conflict of Judicial Duties.
A. Extra-Judicial Duties in General
A judge shall conduct all of the judge’s extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties.
B. Avocational Activities
A judge may write, lecture, teach, and speak on extra-judicial subjects and may participate in or engage in other extra-judicial activities, such as the arts, sports, and other social and recreational activities.
C. Civic and Charitable Activities
A judge may participate in civic and charitable extra-judicial activities. A judge may serve as and be listed as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
- A judge shall not use or permit the use of the prestige of the judge's office in public fund-raising activities.
- A judge should not serve if it is likely that such an organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adjudicative proceedings before any agency for which the judge serves.
D. Financial Activities.
- A judge should refrain from financial and business dealings that tend to reflect adversely on impartiality, demean the judicial office, interfere with the proper performance of judicial duties, exploit the judge’s judicial position, or involve the judge in frequent transactions or continuing business relationships with lawyers or persons likely to come before the agency for which the judge serves.
- Subject to the requirements of subsection D, subdivision (1), a judge may hold and manage investments of the judge and members of the judge’s family, including real estate, and engage in other remunerative activity, unless otherwise prohibited by law.
- 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 divest himself or herself of investments and other financial interests that might require frequent disqualification
- A judge shall not accept, and members of the judge’s family residing in the household of the judge should not accept a gift, bequest, favor, or loan from anyone except:
- a gift incident to public testimonial to the judge, 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 activity devoted to the improvement of the law, the legal system, or the administration of justice;
- 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 and other family member and the judge (as spouse or family member), provided the gift, award, or benefit could not reasonably be perceived as intended to influence the judge in the performance of official duties;
- ordinary social hospitality;
- a gift from a relative or friend for a special occasion, such as a wedding or engagement gift, or an anniversary or birthday gift;
- a loan from a lending institution in its regular course of business upon the same terms generally available to persons who are not judges;
- a scholarship or fellowship awarded on the same terms applied to other applicants;
- a gift, bequest, favor, or loan from a relative or close personal friend whose appearance or interest in a matter would in any event require disqualification under section 6, subsection E;
- 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 a gift is not otherwise prohibited by law.
- A judge is not required by this code to disclose income, debts, or investments, except as may be provided in sections 6, 8, and 9.
- Information acquired by a judge in a judicial capacity should not be used or disclosed by the judge in financial dealings or for any other purpose not related to judicial duties.
E. Fiduciary Activities.
A judge should not serve as an executor, administrator, or other personal representative, trustee, guardian, attorney in fact, or other fiduciary, if such service will interfere with the proper performance of judicial duties, or if it is likely that as a fiduciary the judge will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings before an agency which the judge serves. While acting as a fiduciary, the judge is subject to the same restrictions on financial activities that apply to the judge in the judge’s personal capacity.
F. Arbitration and Mediation
A full-time administrative law judge employed by the office of administrative hearings may act as an arbitrator or mediator only for that office, but shall not act as an arbitrator or mediator in the same proceeding in which the judge serves as the judge. A temporary, contract administrative law judge may act as an arbitrator or mediator, but shall not act as an arbitrator or mediator in the same proceeding in which the judge serves as judge.
G. Practice of Law
A full-time administrative law judge employed by the office of administrative hearings shall not practice law. A temporary, contract administrative law judge may engage in the practice of law, but shall not represent a client in any matter which involves or is likely to involve any agency for which the judge serves or has recently served. The agency for which the judge serves may waive this restriction on temporary, contract administrative law judges. Also, even though a judge may be disqualified under the provisions of this subsection, he or she may participate in the proceedings under the remittal of disqualification provisions of subsection F of section 6. A judge may act pro se and may, without compensation, give legal advice to and draft and review documents for a member of the judge’s family.
H. Extra-Judicial Appointments
A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with the issues of fact or policy on specific matters which may come before the judge.
COMMENTARY - Canon 5.
Subsection B:
Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. However, a judge must be mindful that a judge’s conduct and associations reflect upon the office and affect the public confidence in the office.
Subsection C, Subdivisions (1) and (2):
The changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly examine the activities of the organization with which the judge is affiliated to determine if it is proper to continue a relationship with it.
This subsection is not intended to discourage participation in the identified organizations or preclude the use of a judge’s name on stationery or other material used to solicit contributions, provided the judge’s name is in no way selectively emphasized.
Paragraph D, Subdivision (4), Paragraph (h):
This paragraph 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 client’s interests have come or are likely to come before the judge.
Financial Matters, Canons 3, 5, and 6 Compared:
Section 6 (Canon 3) requires a judge to disqualify himself or herself in any proceeding in which the judge has a financial interest, however small. Section 8 (Canon 5) requires a judge to refrain from engaging in business and financial activities that might interfere with the impartial performance of judicial duties. Section 9 (Canon 6) allows a judge to receive compensation for activities outside the judge’s judicial office under certain circumstances. A judge has the rights of an ordinary citizen, including the right to privacy of the judge’s financial affairs, except to the extent that limitations thereon are required to safeguard the proper performance of the judge’s duties.
Subsection E:
A judge’s obligation under this section and the judge’s obligation as a fiduciary may come into conflict. For example, a judge should resign as a trustee if it would result in detriment to the trust to divest it of holdings whose retention would place the judge in violation of another section of this code.
Subsection G:
This subsection recognizes that temporary, contract administrative law judges are part-time judges who must also be allowed to continue to engage in the private practice of law. Such engagement in the practice of law is permitted provided other provisions of this code are not violated.
Subsection H:
Valuable services have been rendered in the past to the states and the nation by judges appointed by the executive to undertake important extra-judicial assignments. The appropriateness in confirming these assignments on judges must be assessed, however, in light of the demands on judicial resources created by today’s crowded dockets and the need to protect judges from involvement in extra-judicial matters that may prove to be controversial. Judges should not be expected or permitted to accept governmental appointments that could interfere with the effectiveness and independence of the judiciary. However, judges may accept governmental appointments for entities which do not appear before the agency for which they serve.