September 16, 1992

The Ethics Advisory Committee has been asked for its opinion as to whether active senior judges may serve as arbitrators for the American Arbitration Association (the "AAA"), and if so, whether their photographs and biographical sketches, along with the photographs and biographical sketches of other former judges, may be included in an AAA brochure describing and promoting a "Judicial Panel." Committee members were provided with a copy of the brochure in addition to the opinion request. According to the brochure, the AAA is a "public-service, not-for-profit organization offering a broad range of dispute resolution services ."

The Code of Judicial Conduct does not apply to former judges who are no longer involved in judicial service. However, active senior judges are included within the definition of "part-time judges" found in the Code's Compliance section:

A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.

Like other part-time judges, active senior judges are required to comply with all provisions of the Code except Canons 4B, 5D, 5E and 5F. None of those exceptions are at issue here.

As recognized in Informal Opinion 91-3, our Code, unlike the 1972 ABA Code of Judicial Conduct upon which it is based, does not contain a provision prohibiting judges from acting as arbitrators or mediators. In 91-3, the Committee concluded that a trial judge may serve on an arbitration panel established by the Utah State Bar to resolve attorney fee disputes, because participation on the panel serves to improve the legal system and the administration of justice. The Committee believes that participation in private, not-for-profit arbitration proceedings also improves the legal system and the administration of justice, and consequently, that active senior judges may serve as arbitrators.

The more difficult question is whether the Judicial Panel brochure may include the photographs and biographical sketches of the active senior judges, or whether such inclusion tends the prestige of the judicial office to advance the private interests of others, as prohibited by Canon 2B. In Informal Opinions 88-6 and 90-7, the Committee concluded that judges may teach CLE courses for public and non-profit entities without violating Canon 2B.

Despite the general grant of authority implied in those Opinions, care should be taken by the judge to ensure that the integrity of the judicial office is not compromised. For example, in Informal Opinion 90-8, the Committee stated that although a judge may write a foreword to a legal publication, the judge must take appropriate steps to ensure that neither the foreword's content nor the advertising and marketing scheme exploit the judicial office to advance the author's or publisher's interests, and in Informal Opinion 89-12, the Committee concluded that although a part-time justice court judge could own and operate a small business, the judge could not include any reference to the judge's judicial office in the business' advertisements.

The Judicial Panel brochure at issue does not indicate that some panel members are still occasionally active within the judiciary. Nor does it distinguish the active senior judges from the other panel members. Rather, it refers to all panel members generically as "former or retired justices or judges." The Committee therefore believes that the biographical sketches and photographs of the active senior judges may be included in the brochure, but takes no position on the other contents of the brochure.