The Judicial Council was asked to reconsider Informal Opinion No. 89-13 of the Ethics Advisory Committee and issue a Formal Opinion as to whether the Code of Judicial Conduct permits a judge with the Utah Court of Appeals to serve as president-elect and, subsequently, president of the State Bar. The Council granted the request for reconsideration and adopted Informal Opinion 89-13 of the Ethics Advisory Committee as set forth below.

The Code does not prohibit a Court of Appeals judge from holding the office of president-elect or president of the State Bar, provided no appearance of impropriety results; the judge does not participate in certain activities of the bar, and the judge does not allow the office to interfere with the proper performance of judicial duties.

SERVICE AS BAR PRESIDENT
The pertinent provision of the Utah Code of Judicial Conduct is Canon 4, which governs a judge's participation in quasi-judicial activities or organizations. According to Canon 4, a quasi-judicial activity or organization is one concerned with the improvement of the law, the legal system and the administration of justice. The Utah State Bar is considered a quasi-judicial organization under Canon 4. Canon 5, which regulates the extra-judicial activities in which a judge may participate, does not apply to this situation.

Canon 4 of the Utah Code of Judicial Conduct provides:

A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities if in doing so the judge does not cast doubt on his capacity to decide impartially any issue that may be involved in matters before the court:

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B. To the extent that an appearance does not reflect adversely on a judge's impartiality, a judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice.

C. A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice which may include a constitutional revision commission and may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

The Commentary to Canon 4 states:

As a judicial officer and person specially teamed 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 his time permits, he is encouraged to do so, either independently or through a bar association judicial conference, or other organization dedicated to the improvement of the law.

The Federal Advisory Committee on Judicial Activities has stated there is no impropriety or violation of any canon of judicial ethics where a judge serves as an officer of a state bar association, if the participation does not interfere with the performance of judicial duties and if the judge did not actively seek the office. Advisory Opinion No. 14.

Accordingly, the Code does not prohibit a judge from serving as an officer of a bar association.

RESTRICTIONS ON SERVICE AS BAR PRESIDENT
In the opinion request, the judge acknowledged that certain restrictions would apply to judges serving as bar officers, including participation in policy or legislative activities which constitute a potential conflict of interest and which may be presented to the judge in his/her judicial capacity; participating in certain fund-raising activities, and ensuring that the office does not interfere with the prompt performance of judicial duties.

In addition, the judge questioned whether the Bar's involvement in litigation would affect his or her participation as an officer and whether the judge could participate in bar admissions and disciplinary matters.

This opinion responds only to those issues raised in the judge's opinion request and does not address any issues which were not identified by the judge but which may exist in connection with the bar president's responsibility to perform duties established by the Supreme Court and the Legislature, such as serving on or appointing bar members to serve on the Judicial Conduct Commission, this Council or the Judicial Nominating Commissions.

As to the specific duties of a bar officer that are raised by the judge in the opinion request, the Council is of the opinion that certain restrictions would apply. The restrictions will be addressed separately as follows.

LEGISLATIVE ISSUES AND OTHER PUBLIC POLICY INITIATIVES
Article 11, Section 1, of the Bar's By-Laws states that one of the Bar's purposes and objectives is "to recommend to the Legislature and other public bodies the enactment or change of laws in the public interest, and to oppose those laws or changes in laws not in the public interest."

In comparison, Canon 4B states that a judge may appear at a public hearing before a legislative body or official on matters concerning the law, the legal system, and the administration of justice and may otherwise consult with a legislative body, but only on matters concerning the administration of justice. Similarly, Canon 4C states that a judge may make recommendations; to public fund-granting agencies on programs concerning the law, the legal system, and the administration of justice

It therefore, would not be appropriate for the judge to make recommendations to the Legislature or to other public bodies about laws in-the public interest. The judge would have to confine his/her participation in public legislative proceedings to matters concerning the law, the legal system and the administration of justice. The judge would further have to limit any other consultations with a legislative body to matters concerning the administration or justice.

The Federal Advisory Committee on Judicial Activities reached a similar conclusion in Advisory Opinion No. 50, where it stated that Canon 4B limits the subject matter of a judge's other consultations with a legislative body or official to "matters of judicial administration." The committee noted that, " [a]though the line between the latter phrase and the broader term "law, legal system, or the administration of justice" may be difficult to draw in marginal situations, usually the distinction is clear. Matters of court personnel, budget, housing, and procedures related to the operation and administration of the courts are all matters of judicial administration.

The purpose behind this distinction involves the judge's direct interest and expertise in matters of judicial administration and the fact that such matters are not likely to include issues that will be involved in litigation. On the other hand, a judge's views on the broader issues of the law, which are much more likely to be the topic of litigation, should be available to the Legislature only if those views are expressed in a public hearing so that lawyers and litigants may be apprised of them. Opinion No. 50 cautioned that in expressing views on matters of this kind, the judge should not cast doubt on his/her capacity to decide impartially an issue involving the subject matter in question. This warning is repeated in Canon 7B(4) which states that a judge should not "take a public position on a non partisan political issue which would jeopardize the confidence of the public in the impartiality of the judicial system."

There is no provision in the Canons which authorize a judge to go beyond the broader area of the "law, legal system, and the administration of justice" and comment on matters generally affecting the public interest. The committee concluded in Opinion No. 50 that although Canon 4 speaks of "matters concerning the law" and that phrase could be broadly construed to include nearly all legislation and executive decisions, "the reach of the canon is not that broad and, indeed, was intended to be comparatively narrow."

The judge also notes that he or she will be asked, as President of the Bar, to take a public position in support of or in opposition to various legislative initiatives. Although Canon 4A permits a judge to speak or write on topics concerning the law, the legal system, and the administration of justice. Canon 7B(4) cautions the judge about taking a public position on a non partisan political issue. Likewise, Canon 5 prohibits a judge from accepting an appointment to any committee or commission 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. Informal Opinion No. 88-2.

Thus, in the present case, the judge may not take a public position on a legislative or other public policy initiative if to do so would jeopardize the confidence of the public in the impartiality of the judicial system. If, for instance, the subject of the initiative is an issue that could come before the judge in his or her judicial capacity, Canon 7B(4) would prohibit the judge from taking a public position on that proposal. If, on the other hand, the matter concerned the law, the legal system, or the administrator of justice, and would not cast doubt on the judge's impartiality, Canon 4A would permit the judge to espouse a public position.

Accordingly, a judge serving as bar president or president-elect must limit public participation in legislative activities to matters concerning the law, the legal system and the administration or justice and all other consultations to matters of judicial administration. In taking a public position on any legislative initiatives, the judge must consider whether articulating the position would call into question his or her impartiality as a judge.

FUND-RAISING ACTIVITIES
In the opinion request, the judge states that the president of the Utah State Bar also serves on the Board of the Utah Law & Justice Center. Fund-raising is conducted through the Law & Justice Center. The judge states that he/she does not intend to participate in the fund-raising activities personally.

Canon 4C provides that a judge who is an officer of an organization devoted to the improvement of the law, the legal system or the administration of justice may assist such an organization in raising funds and participate in their management and investment, but may not personally participate in public fund-raising activities.

Thus, the Code permits a judge to assist in fund-raising on behalf of a quasi-judicial organization as long as the judge does not personally participate in public fund-raising.

In Advisory Opinion No. 34, the Federal Committee on Judicial Activities addressed this participation by judges in fund-raising and the investing of funds for organizations that fall within the scope of Canon 4C. The Reporter's Notes of the ABA Code of Judicial Conduct were quoted as explaining that, although Canon 5B(2) forbids judges from fund-raising for civic, charitable, and other similar organizations, there is sufficient difference between this situation and fund-raising for a Canon 4C organization to justify different standards.

In support of this argument, the Reporter's Notes point out that the membership of Canon 4 organizations is entirely or substantially composed of judges, whereas judges are a small percentage of the membership of civic or charitable organizations. Therefore, denying judicial participation in fund-raising in the former situation would exclude such organizations from engaging in projects that require substantial funding. Canon 4 accordingly authorizes a judge to assist in fund-raising but not to the extent of personally participating in public fund raising activities, according to the committee.

Unlike the type of organization discussed in Advisory Opinion No. 34, the Utah State Bar is not "entirely or substantially composed" of judges. The Utah State Bar is an integrated bar and although all state court judges are members, so are all of the licensed attorneys in the state. The number of attorney members far exceeds the number of judges. To deny judicial participation in fund-raising for the Bar would not exclude the Bar from engaging in projects that require substantial funding. Further more, the rationale behind prohibiting judicial fund raising in civic, charitable, and other similar organizations, see Canon 5B(2), is the danger that the persons contributing will feel coerced by the judicial office. Not only is that a danger when judges solicit funds from the general public, but attorneys are particularly susceptible to this form of coercion. Thus, the rationale for permitting judges to participate in fund-raising does not apply to the present case and in fact, suggests a contrary result.

It is the Council's opinion that the language in Canon 4C permitting judicial fund-raising on behalf of organizations devoted to the improvement of the law, the legal system, or the administration of justice, should not include a bar association whose membership consists primarily of attorneys. The Council believes that the discussion draft of the revised ABA Code of Judicial Conduct more realistically reflects the problems inherent in judicial fund-raising and provides a more meaningful standard by which judges should evaluate their conduct. The draft amends the language of Canon 4C to similarly restrict judicial fund-raising activities. The proposed language reads:

A judge may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory authority. A judge shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as provided above, if the membership solicitation is essentially a fund-raising mechanism. A judge shall not use or permit the use of the prestige of [the] judicial office for fund-raising or membership solicitation.

The notes following the draft language explain that the changes were intended "to prohibit a judge from becoming involved in any active fund-raising except for solicitation of funds from judges over whom the judge has no supervisory authority. This exception is justified because it creates no danger of improper influence by the soliciting judge." Under this language, a judge would be prohibited from soliciting funds from attorneys as well as from the general public.

Based upon the limited rationale which is offered in support of judicial fund-raising, the nature and membership of the organization in question, and the direction proposed by the American Bar Association with regard to judicial fund-raising, it is the Council's opinion that the judge should refrain from personally participating in the solicitation of funds or other fund-raising activities on behalf of the Bar or the Law & Justice Center or permitting the use of his/her name or office in any such fund-raising activities.

LITIGATION
In the opinion request, the judge states that the Bar is, on occasion, involved in litigation. This litigation involves appeals of admission and disciplinary decisions and occasional civil suits initiated by persons or entities other than the Bar.

The judge explained that in disciplinary matters involving sanctions, the sanctions are imposed by the Utah Supreme Court. Similarly, when the Bar Commission denies an applicant admission to the bar, these decisions are appealed to the Utah Supreme Court. The civil rights matters filed in recent years have all been filed in federal court.

In Advisory Opinion No. 34 (1974), the Committee on Judicial Activities discussed whether a judge may serve as an officer of a bar association. The Committee relied on Canon 4 and on the following statement of policy adopted by the Judicial Conference of the United States in October 1971:

Federal Judges should not serve as officers or directors of organizations, national, regional or local, which are present or potential litigants in the federal courts or are the promoters, sponsors or financiers of organizations sponsoring litigation in the federal courts.

The Committee on Judicial Activities considered whether the judge's service as an officer or member of the governing board of a bar association violated this statement of policy where the bar association might be involved in litigation and where the board determines whether the association should file amicus curiae briefs. The committee also was asked to decide whether the spirit and intent of this statement of policy was satisfied by the judge abstaining from discussion, debate and vote on matters being considered by the board of governors which present a conflict of interest or which might give the appearance of impropriety if the judge did participate in debate and vote.

The committee noted that under the previous Code of Conduct, Canon 33 gave at most "lukewarm" approval of a judge's continued participation in bar activities and did not address whether a judge may be an officer of a bar association. In contrast, Canon 4C specifically authorizes such activities, provided the judge does not become involved in such a way that casts doubt on his or her impartiality.

The committee concluded that the judge may properly serve as an officer of a bar association, subject to the restrictions set out in Canon 4, and that the spirit and intent of the statement of policy adopted by the Judicial Conference in October, 1971 is satisfied where the judge abstains from discussion, debate and vote on matters which may present a conflict of interest or which might give the appearance of impropriety if the judge did participate in debate and vote.

In the present case, the judge has been elected an officer of an organization which is both a present and a potential litigant in state and federal courts. However, none of the matters involving litigation have been filed in or will likely be reviewed by the Court of Appeals, where the judge serves. In light of this, the judge has questioned whether he or she may participate in the discussion of and vote on matters related to the bar's litigation.

It is this Council's opinion that the judge is not prohibited from participating in the discussion of and vote on matters related the bar's litigation, but that the judge should abstain from discussion, debate and vote on any litigation which may present a conflict of interest or which might give the appearance of impropriety if the judge did participate and vote.

BAR ADMISSIONS AND DISCIPLINARY MATTERS
Part of the job of a bar officer involves participating in bar admissions and disciplinary matters. Bar applicants who are denied admission can appeal to the Bar Commission in a confidential proceeding. Bar disciplinary proceedings are also considered by the Bar Commission when a private reprimand or harsher discipline has been recommended.

Through these admission and disciplinary functions, a judge serving as president of the Bar would necessarily be privy to confidential information about attorneys who may appear before the judge. Canon 2 admonishes a judge to not only avoid impropriety, but the appearance of impropriety in all his activities.

A judge who is aware of such confidential information could consider that information when the attorney appears before him/her in court. Even if the judge is able to put the knowledge aside and deal with the attorney fairly, that does not cure the appearance of impropriety that is created when a judge operates in such dual roles. Similarly, the attorney who must appear before the judge in both capacities has no assurance that the judge has in fact put the confidential knowledge aside and is dealing with him/her impartially. Canon 2A states that a judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Therefore, a judge whom the public knows participates in disciplinary and admission matters involving the same attorneys who practice before him/her would not be promoting public confidence in that judge's impartiality.

There is case law to the effect that a judge who has filed a complaint against an attorney for unethical conduct need not automatically disqualify from future cases involving the attorney, but rather the judge can make that decision based on whether the judge feels his or her impartiality toward the parties is impaired. See e.g., Advisory Opinion No. 66: Commonwealth v. Cresta, 336 N. E. 2d 910 (Mass Ct. App. 1975). It is the Council's opinion that these cases do not govern this situation.

When examining the necessity of disqualification, ethical committees and courts weigh two competing interests: the judge's duty to perform judicial functions versus the judge's duty to report unethical conduct. In deciding that disqualification was not automatic, the committees and courts relied on the chilling effect automatic disqualification would have on the judge's affirmative duty to report unethical conduct.

In the present case, the interests are much different. This committee must weigh the judge's responsibility to perform judicial duties against the judge's desire to serve as president of a bar association. Clearly, the judge's duty must take precedence over her desire to serve as an officer of the state bar. Furthermore, with respect to disqualification, the judge has an affirmative duty to report unethical conduct. Here, the judge, who is similarly required to report such conduct, would also be part of the body that renders judgment on that conduct. The Commentary to Canon 2 explains that judges must accept restrictions that might be viewed as burdensome by the ordinary citizen to avoid all impropriety and the appearance of impropriety. Limiting the activities in which a judge may participate as an officer of an organization such as the bar association is one of those restrictions.

Accordingly, to avoid any conflict with Canons 2 or 4, it is the Council's opinion that, in the future, the judge must abstain from discussion, debate and vote on matters which may present a conflict of interest or which might give the appearance of impropriety if the judge did participate in debate and vote. These matters would include bar admission and attorney discipline proceedings.

INTERFERENCE WITH JUDICIAL DUTIES
Finally, assuming that the judge is able to restrict his/her duties as bar association president to comply with the Code, this Council must also consider whether the time commitment involved in holding such an office would interfere with the judge's ability to perform his/her judicial duties. Canon 3 of the Code of Judicial Conduct states: "The duties of a full-time judge take precedence over all other activities." The Commentary to Canon 3 explains that "prompt disposition of the court's business requires a judge to devote adequate time to his duties, to be punctual in attending court and expeditious in determining matters under submission." Canon 5B further specifies that any extra-judicial activities in which a judge is involved must not interfere with the performance of judicial duties.

Canon 4 which permits a judge to engage in certain quasi-judicial activities, starts with the caveat that the judge's participation is "subject to the proper performance of his judicial duties." The Commentary to Canon 4 also emphasizes that a judge is encouraged to contribute his/her expertise to an organization "to the extent that his time permits." Finally, Advisory Opinion No. 14, which found no impropriety where a judge serves as an officer of a state bar association, similarly cautioned that the participation must not "interfere with the performance of judicial duties."

The Council's Ethics Advisory Committee has previously expressed concern about extra-judicial activities interfering with the proper performance of judicial duties. In Informal Opinions No. 89-4, 89-9 and 89-11, the committee explained that because there are no leave or absentee policies which govern the judge, and without knowing what other extra judicial commitments the judge has made, the committee was unable to conclusively determine whether the extra-judicial activity contemplated by the judge was permissible.

Here, as a member of an appellate court, no leave or absentee policies exist which govern this judge. Neither the Ethics Advisory Committee nor the Council know what other extra- and quasi-judicial commitments the judge may have made. What is known, is that the job of bar president represents a significant time commitment.

The following statement of policy was adopted by the United States Judicial Conference at its October 1971 session and quoted in Advisory Opinion No. 28:

 The number of positions held by federal judges as officers or directors of educational, religious, civic and charitable organizations should not be so great in number as to jeopardize the particular performance of judicial duties. Judges' participation as officers in such groups and organizations should not numerically exceed a quantity which would necessitate undue absence from the performance of judicial duties and responsibilities.

Accordingly, the judge should consider whether service as bar president or president-elect would conflict with the performance of judicial duties by requiring excessive time away from the business of judging.

CONCLUSION
Although it is the Council's opinion that, subject to the preceding restrictions, the Code of Conduct does not prohibit an appellate judge from serving as an officer in a state bar association, the decision ultimately rests with the individual judge. In making that decision, the judge should consider the fact that, even if the judge restricts his/her participation in the bar association in the manner discussed herein, the appearance of impropriety may still exist. As the Federal Advisory Committee on the Code of Conduct pointed out in Advisory Opinion No. 82, the judge should "keep in mind that the public will normally be uninformed of any restriction or qualification that the judge may have placed" on membership in an organization. Accordingly, even if the judge does not participate in the prohibited activity, that does not mean that the public will not assume such participation. Such an assumption could be seen as casting doubt on the integrity and impartiality of the judiciary in a manner that is prohibited by the Code. This is a particular concern in the areas, such as litigation, where the judge is making a case-by-case decision as to whether a conflict exists. The public may observe the judge participating in some litigation decisions and not realize that potential conflicts and the appearance of impartiality are being considered by the judge before the decision to participate is made.

In summary, it is the Council's opinion that the Code does not prohibit a Utah Court of Appeals Judge from serving as the president-elect or president of the Utah State Bar, provided the judge does not create the appearance of impropriety through his/her actions as president, the position does not interfere with the performance of judicial duties; the judge does not make any recommendation to legislative or other public bodies about laws that are "in the public interest", but restricts comments before public bodies to matters concerning the law, the legal system, and the administrationof justice, and restricts other comments to matters involving the administration of justice, the judge abstains from discussion, debate and vote on matters which involve the Bar as a litigant in any court where such involvement would present a conflict of interest or which might give the appearance of impropriety; and the judge abstains from participating in Bar admissions and disciplinary matters. The Council also recommends that the judge refrain from personally participating in any form of fund-raising for the Bar or for the Law & Justice Center.

Finally, the judge asked whether the Canons and specifically Canon 7(B) impact her ability to assume leadership responsibility for the bar association. The Council is of the view that subject to the limitations set forth in this opinion, the judge's ability to assume leadership responsibility for the bar association is a question more appropriately referred to the Board of Bar Commissioners for resolution.