MAY A BAIL BONDSMAN SERVE AS A MUNICIPAL JUDGE?

 

Ethics Opinion 261 (2000)

 

Question:  Can a city appoint a part-time bail bondsman as an alternate municipal court judge?  The part time position does not receive a salary, but is paid a pro rata payment for the days worked.  The alternate judge will not bail out any defendants with whom he has come in contact as a judge.

 

Answer:   Yes, Canon 4 A states that a judge shall conduct all of the judge's extra-judicial activities so that they do not (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2) interfere with the proper performance of official duties.

 

Canon 4D(2) and 4D(3) which restrict activities of judges are not applicable to municipal judges.  Canon 4I does apply to all judges and it states that,

 "A judge may receive compensation and reimbursement of expenses for extra-judicial activities permitted by the Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety."

 

Whether the municipal judge is an alternate judge or the chief judge is not material, neither is the method of compensation.  When a person acts as a judge all other activities (including occupations) are considered "extra-judicial activities."  The concern would be that the alternate judge, acting as a magistrate, might appear to set bonds in a way which would result in lower payments to his competitors and further, since the alternate judge is also a bail bondsman, defendants might use the alternate judge as a surety under the impression that they would get better treatment.

 

The bondsman can act as a municipal judge provided he disqualifies himself if: (i) he is hearing a matter involving a person for whom he has acted as surety or (ii) the compensation received from the extra-judicial activity of issuing bail bonds gives the appearance of influencing his performance or otherwise gives the appearance of impropriety.

 

 

IS IT APPROPRIATE FOR A JUDGE TO ATTEND A LAW FIRM FUNCTION ATTENDED BY CLIENTS, PROSPECTIVE CLIENTS AND/OR EMPLOYEE RECRUITS?

 

                                                              Ethics Opinion 262 (2000)

 

Question:  May a judge present a legal overview of a particular type case that is handled in the judge's court to an in-house law firm seminar attended by lawyers from the firm, its clients and prospective clients?  Does it matter whether the law firm currently has a case pending?

 

Question:  May a judge attend a law firm function where only attorneys from that firm, invited clients, and legal recruits attend?  May a judge participate in a law firm's attorney recruitment program?

 

Answer:    No to both questions.  Such activities would violate Cannon 2 (B) which provides that "A judge should not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge nor permit others to convey the impression that they are in a special position to influence the judge."

By presenting a legal overview of a case to an in-house law firm seminar attended by lawyers from the firm, it's clients and prospective clients, the judge would not only be lending the prestige of her judicial office to advance the interest of that law firm, the judge would also be indirectly allowing the law firm to convey the impression to its clients and prospective clients that the firm has a special position of influence with the judge.  It does not matter whether the law firm currently has a case pending in the judge's court or not.

By attending the law firm's function where only attorneys from that firm, invited clients and legal recruits attend, the judge would be lending the prestige of his office to advance the interest of that  law firm in it's attorney recruiting efforts.

See also Opinion 194, Opinion No. 39 and Cannon 4(D)(4)(b).

 

 

DOES THE CODE PERMIT EX PARTE COMMUNICATION

BETWEEN AN APPELLATE JUDGE AND A TRIAL JUDGE?

 

Ethics Opinion 263

 

Question:  Does the Code of Judicial Conduct permit an ex parte communication between an appellate judge and a trial judge regarding a pending appeal from the trial judge's court?

 

Answer:    No, such a communication is clearly prohibited by the Code of Judicial Conduct.  The list of prohibited ex parte communications found in Canon 3 B. (8) is not an exclusive list of inappropriate ex parte communications by judges.  Canon 3 requires that a judge perform his/her duties impartially and requires that every person who is legally interested in a proceeding the right to be heard.  To allow a trial and appellate judge to communicate ex parte regarding an appeal from the trial judge=s court would clearly violate these requirements. The  consultation between judges that is permitted in Canon 3 are conversations between judges regarding the law and its application where neither judge has an interest in the out come of the  litigation being discussed. 

 

 

DOES THE CODE OF JUDICIAL CONDUCT PERMIT

A JUDGE'S RELATIVE TO ACT AS A CASA VOLUNTEER?

 

                                                              Ethics Opinion  264 (2000)

 

Question A:    Is it permissible for a judge to appoint a person within the third degree of consanguinity as a CASA volunteer in a case in the judge's court?

 

Answer A:       No.  It is not permissible for a judge to appoint a person within the third degree of consanguinity as a CASA volunteer in a contested case to be heard by the judge.  Canon 2 requires a judge to avoid impropriety and the appearance of impropriety in all of the judge's activities.  It is the responsibility of a CASA volunteer to advocate the position of a child in a lawsuit.  It seems apparent that the judges impartiality would be questioned if a close family member of the judge appeared in a contested matter before the judge.

 

Question B:    Is it permissible for a judge's family member to serve as a CASA volunteer so long as the activity does not have a significant  potential for requiring the volunteer to testify in court?

 

Answer B:       Yes.  As long as the judge's close relative is not testifying or in a position to have an ex parte communication with the judge about a specific case, it is appropriate.

 

 

                           MAY JUDGE PARTICIPATE ON A MEDIA RESPONSE TEAM?

 

                                                              Ethics Opinion  265 (2000)

 

Question:  May a judge participate on a media response team whose job it is to respond to negative or inaccurate media stories about the legal profession, the judiciary and the courts?

 

Answer:     No.  Canon 3B.(10) prohibits a judge from publically commenting on pending litigation.  Participation in this group would inevitably entail comment about pending litigation.  A judge cannot do something as part of a group which he/she cannot do as an individual

 

 

MAY THE SENTENCING JUDGE MAKE A RECOMMENDATION

TO THE BOARD OF PARDONS AND PAROLES?

 

                                                              Ethics Opinion  266 (2000)

 

Question:  May a judge make a recommendation for commutation of sentence  pursuant  to the Rules of the Texas Board of Pardons and Paroles? In relevant part the Texas Administrative Code, [Title 37, Part 5, Chapter 143, Subchapter E, Rule 143.52 Commutation of Sentence, Felony or Misdemeanor], states that the board will consider recommending to the governor a commutation of sentence upon a request accompanied by the written recommendation of a majority of the trial officials.  Trial officials are defined among others as the judge in the court of offense, conviction and release.

 

Answer:    Yes, any recommendation made by the judge would be in his/her official capacity and therefore permissible.  See Opinion 146 which by implication would allow this official activity.

 

 

                        MAY A JUDGE EMPLOY A CANDIDATE FOR JUDICIAL OFFICE?

 

Ethics Opinion  267 (2000)

 

Question:  May a sitting judge hire in a staff position a lawyer who is a candidate for judicial office?

 

Answer:    No.  The judge would violate Canon 2 A and B and Canon 5(3).  Canon 2 A requires a judge to promote public confidence in the integrity and impartiality of the judiciary.   Cannon 2 B prohibits  lending  the  prestige of judicial office to advance the private interest of others.   Canon 5 (3) prohibits a judge from making a public endorsement of a candidate for public office.

A lawyer running for judicial office must comply with the Code of Judicial Conduct (RPC 8.02 (b) and Canon 6 (G) 1).  While these rules set the standard for expected conduct of the sitting judge and the candidate, the rules do not alleviate the appearance to the public that the sitting judge holds the candidate in high esteem or the judge would not have hired the candidate.  The judge should avoid the appearance of lending his/her endorsement to a political candidate.

The result would be different if a staff attorney for a judge became a candidate some time after being hired.

 

 

        DOES THE CLOSE PROXIMITY OF COUNTY ATTORNEY'S OFFICE AND JUDGE'S

            OFFICE GIVE AN APPEARANCE OF INSTITUTIONAL BIAS AND PREJUDICE?

 

                                                              Ethics Opinion 268 (2000)

 

Question: In the portion of the courthouse where mental commitments are heard, the offices for the county attorney and the judge are right next door to each other and opposite the holding area for patients. There is no office provided for the attorneys for the proposed patients. Does this layout create an appearance of an institutional bias and prejudice in favor of the state?

 

Answer:    No, although this is not an ideal office layout, it is understood that county commissioners are responsible for assigning office space in the courthouse and not judges.  It is the position of the committee that reasonable people understand the practicalities of the often less than perfect office space allocated to government employees.  Close proximity of the two offices alone does not create an appearance of institutional bias and prejudice.

 

 

                                      MUNICIPAL COURT JUDGE OR J.P. AS SCHOOL

BOARD MEMBER OR HEAD OF SCHOOL SECURITY

 

Ethics Opinion 269 (2001)

 

Question 1: May a municipa1 court judge or justice of the peace serve as a school district board member, given the fact that such judge presides over cases involving students, employees and parents of students of that school district?

 

Answer 1: Yes, Canon 6C(1)(b) removes the restrictions set by Canon 4H which would prohibit a judge from serving on a school board.  In serving on the school board, the judge should be mindful of the restrictions of  Canon 4, A(1), A(2) and C(1).  Section A(1) of Canon 4 requires a judge to conduct extra-judicial activities so they do not cast reasonable doubt on the judge's impartiality.  Canon 4A(2) requires a judge to conduct all of the judge's extra-judicial activities so that they do not interfere with the proper performance of the judge's duties.  Canon 4C(1)prohibits  a judge  from participating in civic activities if the organization is likely to be engaged in proceedings that would ordinarily come before the judge or will be regularly or frequently engaged in adversary proceedings in any court.   See op. 143.