October 26, 1992

The Ethics Advisory Committee has been asked for its opinion as to whether a part-time justice court judge who is a full-time certified social worker may legally or ethically provide alcohol assessment/education services to persons who appear before the judge as defendants in DUI cases. The judge has also asked whether it is permissible to solicit alcohol assessment/education referrals from other courts within the state.

The Ethics Advisory Committee's role is limited to providing advisory interpretations of the Code of Judicial Conduct, Code of Judicial Administration Rule 3-109(l). It cannot advise a judge whether a proposed action is legal or illegal. Hence, this opinion is limited to the ethical considerations raised in the request.

Part-time judges are exempt from several of the Canon 5 restrictions on extra-judicial activities. However, Canon 5C is not among them. Canon 5C(l) provides that judges "should refrain from financial and business dealings that tend to reflect adversely on impartiality, 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." The practice of referring DUI defendants to oneself for assessment and education violates each of the quoted 5C(l) prohibitions.

In addition, Canons 1 and 2 require judges to uphold the integrity and independence of the judiciary, avoid impropriety and the appearance of impropriety in all activities, exhibit conduct which promotes public confidence in the integrity and impartiality of the judiciary, and exercise judicial conduct and judgment free from the influence of family, social or other (including financial) relationships. Canon 6 provides that a judge may not receive compensation for extra- judicial activities that give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety. A convicted defendant ordered to appear before the judge for alcohol assessment and education may perceive that the judge's role in the judicial proceedings was influenced by the judge's financial self interest. A situation which allows the formation of such a perception violates Canons 1, 2 and 6.

In Informal Opinion 89-12, this Committee, relying on Canon 2B's prohibition against "lending the prestige of the judicial office to advance the private interests of others", opined that it would be inappropriate for a part-time justice court judge to include any reference to the judge's judicial office in the advertisements of a business partly owned by the judge. The instant opinion request does not disclose whether the judge's full-time occupation is conducted alone or in conjunction with others. If it is the latter, 89-12 resolves the question. Even if it is the former, the Committee believes that the Canon 5C(l) prohibition against "exploit[ing] the judicial position" forbids the practice.

The only remaining question is whether the judge may solicit referrals without reference to the judicial office. In resolving this question, the Committee makes two assumptions. First, most of the judges solicited would know that the judge is a judge, even in the absence of any reference to the judicial office within the solicitation. Second, judges who have jurisdiction to hear de novo matters from the judge's court would be included in the solicitation process. Based on these assumptions, the Committee believes that the proposed solicitations cannot be made without exploiting the judicial position, and that the practice is therefore prohibited by the Code.