NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.

JI-137

May 11, 2012

SYLLABUS

A judge’s hosting of a commercially-sponsored program has the potential to reflect adversely on the judge’s impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

References: MCJC 2A, 3A(6), 4, 5A, 5B, 5C(1) and 5C(2); J-003; JI-99, JI-103, JI-135

TEXT

An inquiry was received seeking an opinion concerning whether a judge could ethically receive an honorarium or per diem fee for hosting a cable television show with a format of having guests that discuss topics. The Committee first examines the propriety of a judge’s hosting any type of media forum as a regular, ongoing activity before giving any consideration to the appropriateness of receiving an honorarium for performance of the hosting duties.

For the sake of analysis, the Committee makes the following assumptions about the format and content of the contemplated cable program: (1) that, as host, the judge has some involvement in the selection of subject matter and guests; (2) the topics discussed may include subjects that either have been or may be the subject of litigation; (3) the selection of the judge as host of the program is in some measure reflective of the inherent credibility a sitting judge will bring to the program; (4) the judge will be identified as such in the way the program is titled, in the way the judge identifies herself and is addressed by others during the program, and in the way that the program is advertised; (5) the viewing area for the program overlaps to some extent with the geographic area served by the judge’s court; (6) the judge would or could have access to information about advertisers who purchase advertising to be aired during the program; (7) the continued viability of the program is dependent upon advertising revenue as well as the size of the viewing audience; and (8) the remuneration the judge would receive bears some relationship to advertising revenue as well as the size of the viewing audience.

Michigan’s Code of Judicial Conduct articulates that being a jurist requires the application of ethical standards and conduct of the highest order because of the unique nature of the responsibilities that are entrusted to judges. Implicit in much of the language, as well, are the concepts that the role of judge is a full-time endeavor and that the responsibilities inherent in being a judge extend beyond the literal work life, impacting a judge’s activities off the bench in a myriad of ways.

The first paragraph of Canon 2 illustrates these concepts:

A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

While the notion of educating the public about the law and the legal system is supported in the Code, it is secondary to the performance of judicial functions. Canon 4 provides in pertinent part:

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, the 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.

A judge, subject to the proper performance of judicial duties, may engage in the following quasi-judicial activities:

A. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

A judge’s ability to speak publicly about the law and the legal system is tempered by the proscription against publicly commenting about a pending or impending proceeding in any court that is set forth in Canon 3(A)(6)1. To the extent that a judge is permitted to engage in financial and business dealings outside the scope of judicial functions, doing so cannot impinge on the integrity of the performance of those functions.

Canon 5(C)(1) provides:

A judge should refrain from financial and business dealings that tend to reflect adversely on the judge’s impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

A judge's ability to speak on "nonlegal subjects" and to participate in "civic and charitable activities" also has some limitations.

Canon 5(A) provides:

A. Avocational Activities. A judge may write, lecture, teach, speak, and consult on nonlegal subjects, appear before public nonlegal bodies, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the office or interfere with the performance of judicial duties. [Emphasis added.]

Canon 5(B) provides in pertinent part:

B. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. [Emphasis added.]

The Committee views the proposed conduct as problematic for several reasons. First, a judge's regular appearance in a public forum that addresses topical issues affords opportunities for the judge to express views that extend well beyond educating the public about "the law, the legal system, and the administration of justice" to nonlegal topics that may "detract from the dignity of the office" or "reflect adversely upon the judge's impartiality," while at the same time creating opportunities where the judge may be asked to comment upon or may volunteer to comment upon a "pending or impending proceeding" in a court.2 Given the limitless potential subject matter for such a program, the Committee cannot provide a blanket approval for a judge's participation in whatever content might be delivered.

Secondly, to the extent that the judge has a role in the selection of guests or is in any way involved in the selection of advertisers or the promotion of what is advertised, the judge may be seen as promoting the guests' and advertisers' business interests and, when the judge is identified as such during the program and its advertising, the prestige of office is being used to promote those business interests. At the same time, the program's content may impact the public's perception of the judge's impartiality or, at the very least, exploit the position of judge in lending credibility to the guests and advertisers by virtue of their association with the program.

If guests and advertisers have some likelihood of being drawn from the viewing area for the program, which is coextensive with the geographical area served by the court, there is the possibility that matters involving them or their interests could come before the judge.

Lawyers who appear regularly before the judge might perceive a benefit to purchasing advertising on the judge's program. Members of the public viewing advertisements for law firms during commercial breaks on the judge's program could conclude that those law firms have a special relationship with the judge or that the judge would favor lawyers from that law firm who appear in his or her court, thereby rendering more difficult the judge's charge to "promote public confidence in the integrity and impartiality of the judiciary.3

In short, even if the content of the program could conceivably comport with Canon 4(A) and Canon 5(A), it is difficult to envision how hosting on a regular basis any commercially-sponsored program would not place the judge in contravention of Canon 2(C)'s proscription against the use of the prestige of office to advance personal business interests or those of others.4

Having concluded that the proposed activity poses a number of potential ethical pitfalls, the Committee turns to the question of a judge's receipt of remuneration for hosting a program, with that remuneration tied in some manner to the program's advertising revenue.

Canon 5 contains two provisions that appear applicable. Paragraph (C)(1) provides:

A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

For the reasons discussed above pertaining to program content, guests and advertising, the Committee believes that the judge's hosting of a commercially-sponsored program has the potential to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

Paragraph (C)(2) of Canon 5 prohibits a judge from serving as a director, officer, manager, advisor, or employee of any business. While determining whether the relationship that the judge in the facts at issue has with the business is that of an "employee" may be a legal question beyond the scope of this Committee, clearly where such a relationship is found to exist, the language of Canon 5 is unambiguous. In Formal Opinion J-003, the Committee discussed this prohibition in these terms:

This language is clear and unambiguous. A full time judge may not serve as a director of any business, with or without compensation. The prohibition is absolute. A violation is not cured by recusal. Therefore, in answer to questions 1 and 25, a full time judge violates MCJC5(C)(2) by serving as a director, officer, manager, advisor or employee of any business, regardless of where the business is located, regardless of whether the judge properly reports compensation from the business to the State Court Administrative Office, and regardless of whether the judge serves on a single-judge or multi-judge court.

It is not clear whether a part-time judge or retired judge is subject to the same prohibition. The underlying policy behind the prohibition is that judicial office is intended to be a full time occupation; to the extent a judge's time is taken by his [sic] business service, the business conflicts with judicial duties, in contravention of MCJC 5C(1). Second, pursuant to MCJC 5C(3), a judge must manage investments to minimize the number of cases in which the judge is disqualified. Serving an outside business increases the incidence of disqualification.6

The Committee acknowledges that there are prior opinions approving financial activities by judges on the basis of other provisions within the Code, while failing to address the application of Canon 5(C)(2) to the same set of facts.7 None of these opinions provides a basis for disregarding the application of J-003 to the facts at issue here.

CONCLUSION

A judge identified as such who hosts a commercially-supported cable television program is using the prestige of office to advance personal business interests or those of others, contrary to Canon 2(C).

The judge's hosting of a commercially-sponsored program has the potential to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves, contrary to Canons (1), (2), (3), and (5).

A full-time judge, who is paid to host a commercially-sponsored program, violates MCJC5(C)(2) if, in doing so, the judge serves as a director, officer, manager, advisor or employee of any business regardless of where the business is located, whether the judge's compensation from the business is reported to the State Court Administrative Office, or the number of judges seated on the hosting judge's court.

1 It reads:
A judge should abstain from public comment about a pending or impending proceeding in any court, and should require a similar abstention on the part of the court personnel subject to the judge's direction and control. This subsection does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court or the judge's holdings or actions.

2 Informal Judicial Ethics Opinion JI-099, discussing a judge's desire to be a contributing editor of a journal of political opinion, notes, "There is no question about a judge's right to participate in extra-judicial activities; however, judges must recognize that those activities are the subject of constant public scrutiny and must be discontinued if they raise the appearance of bias. MCJC 1 and 2B note that the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. MCJC 2C prohibits the use of the prestige of the judicial office for the private interests of others. See JI-76, JTC A/O 97. MCJC 3A(1) advises a judge should be unswayed by partisan interests, public clamor, or fear of criticism. MCJC 3A(6) notes that a judge should abstain from public comment about a pending or impending proceeding in any court. A judge's identification with a partisan position may raise the question of whether the judge is able to render a fair and unbiased decision on an issue."

3 Canon 2(B) reads, in pertinent part, "At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary."

4 This conclusion is consistent with JI-135, in which this Committee concluded that the display of an attorney's for-profit educational courses in the court clerk's office violated both MCJC 2A, which requires a judge to avoid all impropriety and appearance of impropriety, and MCJC 2C, which proscribes the use of prestige of office to advance business interests of others because the court clerk's office is an arm of or under the control of the court.

5 Questions 1 and 2 as posed in the cited opinion are: "The Committee has been asked to interpret MCJC 5(C)(2) concerning a judge serving as director, officer, manager, advisor or employee of a business in the following circumstances: (1) A judge serves as director, officer, manager, advisor or employee of a business, receives remuneration from the business for services, and reports this income as required under MCJC 6(C). (2) A judge serves as director, officer, manager, advisor or employee of a business located in a county separate from the county in which the judge sits as a judge."

6 Formal Judicial Ethics Opinion J-003 (January 26, 1990).

7 See, for example, Informal Judicial Ethics Opinion JI-099, which approves a judge's teaching at a law school by referencing MCJC 4(A), without addressing the fact that the activity, when done by others, is performed by employees. See also Informal Judicial Ethics Opinion JI-103, which approves a judge's service on a public charity foundation's board in reliance upon MCJC 5(B) without reference to MCJC 5(C)(2), which may mean that the Committee believed that a public charity foundation is not a "business," as that term is used in MCJC 5(C)(2).