December 12, 1991

The Ethics Advisory Committee has been asked for its opinion as to whether a trial court judge may sit as a member of a fee arbitration panel established and administered by the Utah State Bar. The Bar's fee arbitration rules provide that each arbitration panel consists of one lawyer, one state or federal judge, and one non-lawyer. Both parties to the fee dispute must agree to arbitration before it can proceed. Panel members receive no compensation for their service.

Unlike the ABA Code of Judicial Conduct, our Code of Judicial Conduct does not contain a provision prohibiting judges from acting as arbitrators or mediators. In fact, Canon 4 provides that:

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

(C) A judge may serve as a member . . . of an organization . . . devoted to the improvement of the law, the legal system, or the administration of justice . . .

Because efficient resolution of attorney fee disputes serves to improve the legal system and the administration of justice, the committee believes that the Judge may serve on the arbitration panel. However, the judge's service should not interfere with the proper performance of judicial duties and should not cast doubt on the judge's capacity to decide judicial matters impartially.

This committee has previously opined that a full time trial court judge should not teach a class which would require the judge to be away from the court during business hours for four to six hours per week (Informal Opinion 90-1) and should not serve as a volunteer for the Special Olympics if such service would require the judge to be absent from the court one day per week (Informal Opinion 89-11). In light of these opinions,. the judge should ensure that arbitration panel service does not interfere with the timely performance of the judge's judicial duties. As stated in Canon 3, " [t]he judicial duties of a full-time judge take precedence over all other activities. "

The judge should determine, for each arbitration matter, whether service on the panel will cast doubt on the judge's ability to decide impartially matters which may come before the court. The judge should not serve if the disputed fees are related to a continuing judicial matter because the judge's participation on the arbitration panel may create a perceived perception of bias requiring disqualification in the judicial matter. This may be especially problematic in areas where there are a limited number of judges.

Nor should the judge serve on a particular panel if the judge has prior specific knowledge of the fees at issue in the dispute. For example, if the judge has ruled on the amount of attorneys' fees awarded in a civil case, the judge should not sit on an arbitration panel relating to those fees.

Finally, the judge should periodically review the arbitration service to ensure that it does not interfere with ethical obligations imposed by the Code, Informal Opinions 88-2, 88-4, 89-1 and 90-6.