Judicial ethics and responsibilities - Extrajudicial activit...

Learning Outcomes

After reading this article, you will be able to identify the rules governing judges’ extrajudicial activities under the ABA Model Code of Judicial Conduct. You will understand which activities are permitted or prohibited, the restrictions on financial, business, and fiduciary roles, and the reporting and disclosure requirements. You will be able to apply these principles to MPRE-style questions and avoid common pitfalls.

MPRE Syllabus

For the MPRE, you are required to understand the ethical standards that regulate a judge’s conduct outside the courtroom. This includes knowing which extrajudicial activities are allowed, which are restricted, and the rationale behind these rules. You should be able to:

• Distinguish between permitted and prohibited extrajudicial activities for judges.
• Identify restrictions on financial, business, and fiduciary roles held by judges.
• Recognize the rules regarding a judge’s participation in organizations and public service.
• Apply the rules for reporting gifts, compensation, and reimbursement related to extrajudicial activities.
• Understand the consequences of engaging in improper extrajudicial conduct.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is generally prohibited for a full-time judge?
   1. Serving as a trustee for a family member’s estate if it does not interfere with judicial duties.
   2. Practicing law for a close relative without compensation.
   3. Acting as an officer of a for-profit business.
   4. Participating in a non-profit educational organization.
2. A judge is invited to serve as a director of a local charity that occasionally appears in her court. Is this:
   1. Always permitted.
   2. Permitted only if the charity never appears before her court.
   3. Prohibited unless she resigns from the bench.
   4. Permitted if she receives no compensation.
3. Which statement about a judge’s acceptance of gifts is correct?
   1. Judges may accept all gifts without restriction.
   2. Judges may never accept gifts from lawyers.
   3. Judges may accept certain gifts but must report some types.
   4. Judges may accept gifts only from family members.
4. A judge is asked to testify as a character witness in a friend’s trial. Is this:
   1. Always permitted.
   2. Permitted only if the judge is subpoenaed.
   3. Permitted if the judge believes it is in the interest of justice.
   4. Never permitted.

Introduction

Judges are held to strict ethical standards not only in their official duties but also in their activities outside the courtroom. The ABA Model Code of Judicial Conduct (CJC) sets out clear rules on what extrajudicial activities are allowed, restricted, or prohibited. These rules are designed to protect the independence, integrity, and impartiality of the judiciary, and to avoid conflicts of interest or the appearance of impropriety.

Key Term: Extrajudicial Activities
Activities undertaken by a judge outside of official judicial duties, including business, financial, charitable, educational, and civic involvement.

Judges may participate in a range of extrajudicial activities, but only if those activities do not interfere with their judicial responsibilities, lead to frequent disqualification, or undermine public confidence in the judiciary. Certain roles, such as serving as a business manager or practicing law, are generally off-limits to full-time judges.

Permitted Extrajudicial Activities

Judges are allowed to engage in activities that do not conflict with their judicial duties or create an appearance of impropriety. These include:

• Participation in educational, religious, charitable, fraternal, or civic organizations not conducted for profit.
• Speaking, writing, teaching, or participating in activities concerning the law, the legal system, or the administration of justice.
• Encouraging lawyers to provide pro bono legal services.
• Serving as a fiduciary (e.g., trustee, executor, guardian) for a family member, provided it does not interfere with judicial duties or involve proceedings likely to come before the judge.

Key Term: Appearance of Impropriety
Conduct by a judge that would create in reasonable minds a perception that the judge violated the Code or engaged in inappropriate behavior.

Prohibited and Restricted Activities

Certain extrajudicial activities are strictly prohibited or heavily restricted for full-time judges:

• Practice of Law: Full-time judges may not practice law, except for representing themselves or providing uncompensated legal advice to family members.
• Business Roles: Judges may not serve as officers, directors, managers, or employees of any business entity, except for managing their own or their family's investments.
• Fiduciary Appointments: Judges may not serve as fiduciaries for non-family members, and must resign from such roles if frequent disqualification or interference with judicial duties would result.
• Governmental Positions: Judges may not accept appointments to governmental committees or boards unless they relate to the law, the legal system, or the administration of justice.
• Character Witness: Judges must not testify as character witnesses except when duly summoned by subpoena.

Key Term: Fiduciary
A person entrusted to manage property or affairs for another, such as a trustee, executor, or guardian.

Key Term: Practice of Law (for Judges)
The provision of legal services to others; full-time judges are generally barred from practicing law except for limited exceptions.

Financial, Business, and Remunerative Activities

Judges may hold and manage personal and family investments but must avoid roles that could lead to frequent disqualification or interfere with judicial duties. Judges may not serve as officers or employees of for-profit businesses, except for closely held family businesses that do not regularly appear before the judge’s court.

Judges may receive reasonable compensation for permitted extrajudicial activities, such as teaching or writing, as long as the compensation does not appear to influence the judge’s conduct or compromise impartiality. All compensation must be reasonable and commensurate with the task performed.

Key Term: Reasonable Compensation
Payment to a judge for permitted extrajudicial activities that is fair for the work performed and does not create an appearance of impropriety.

Gifts, Reimbursement, and Reporting

Judges are subject to strict rules regarding gifts, loans, bequests, and other things of value:

• Judges may not accept gifts if acceptance is prohibited by law or would appear to undermine independence, integrity, or impartiality.
• Certain gifts are permitted without reporting (e.g., from family, friends, or items of nominal value).
• Other gifts, such as those incident to a public testimonial or from parties likely to appear before the judge, may be accepted only if reported as required by law.
• Judges may accept reimbursement for expenses associated with permitted extrajudicial activities, provided acceptance does not create an appearance of impropriety.

Key Term: Reporting Requirement
The obligation of a judge to publicly disclose certain gifts, compensation, or reimbursements received in connection with extrajudicial activities.

Participation in Organizations and Public Service

Judges may participate in organizations devoted to the law, legal system, or administration of justice, and in non-profit educational, religious, or civic organizations. However, they must not participate in organizations that practice invidious discrimination or that frequently appear in the judge’s court.

Judges may assist in fundraising for such organizations only in limited ways, such as planning events or soliciting contributions from family or other judges over whom they do not exercise authority. Judges must not personally solicit funds from the general public or lawyers likely to appear before them.

Worked Example 1.1

A full-time judge is asked to serve as treasurer for a local for-profit business owned by a friend. The business does not appear in the judge’s court. Is this permitted?

Answer:
No. Full-time judges may not serve as officers or employees of any business entity, except for managing their own or their family’s investments or closely held family businesses, and only if this does not interfere with judicial duties or lead to frequent disqualification.

Worked Example 1.2

A judge is invited to speak at a legal education seminar and is offered a modest honorarium and reimbursement for travel expenses. The event is sponsored by a bar association whose members regularly appear in the judge’s court. Must the judge report the honorarium and reimbursement?

Answer:
Yes. Judges may accept reasonable compensation and reimbursement for permitted extrajudicial activities, but must report such payments if required by law, especially when the sponsor’s members appear before the judge.

Worked Example 1.3

A judge is asked to serve as a character witness for a friend in a civil trial. The judge is not subpoenaed but is willing to testify voluntarily. Is this allowed?

Answer:
No. Judges may not testify as character witnesses unless duly summoned by subpoena. Voluntary testimony as a character witness is prohibited.

Exam Warning

Judges must avoid even the appearance of impropriety in all extrajudicial activities. Accepting gifts, compensation, or roles that could be perceived as influencing judicial conduct can result in discipline, even if no actual bias exists.

Revision Tip

Focus on the distinction between permitted and prohibited activities. Pay special attention to rules on business roles, fiduciary appointments, and reporting requirements.

Summary

Judges may participate in extrajudicial activities that do not interfere with their duties or create an appearance of impropriety. Full-time judges are generally barred from practicing law, serving as business officers, or acting as fiduciaries for non-family members. Permitted activities include involvement in non-profit organizations, teaching, and writing, subject to reporting and compensation rules. Judges must report certain gifts and reimbursements and avoid personal solicitation of funds. Violations can result in discipline, even if no actual harm occurs.

Key Point Checklist

This article has covered the following key knowledge points:

• Judges may engage in extrajudicial activities only if they do not interfere with judicial duties or create an appearance of impropriety.
• Full-time judges are prohibited from practicing law, serving as business officers, or acting as fiduciaries for non-family members.
• Judges may participate in non-profit, educational, religious, and civic organizations, with restrictions on fundraising and organizational roles.
• Judges must report certain gifts, compensation, and reimbursements related to extrajudicial activities as required by law.
• Judges may not testify as character witnesses unless subpoenaed.
• Violations of these rules can result in disciplinary action, regardless of actual harm or intent.

Key Terms and Concepts

• Extrajudicial Activities
• Appearance of Impropriety
• Fiduciary
• Practice of Law (for Judges)
• Reasonable Compensation
• Reporting Requirement