Informal Opinion 99-5
June 24, 1999

Question: A justice court judge has asked whether the judge may ethically execute an agreement with a private probation provider, if applicable statutes, rules and ordinances otherwise allow the judge to sign such an agreement.

Answer: The judge may exercise the agreement if it is determined that the agreement is legally permissible.

Discussion: The requester has provided the Committee with a copy of the proposed agreement between the probation provider and the court and the city. The proposed agreement contains a line for the judge's signature. Under the agreement, the probation provider will provide many of the same services as a public provider, such as collecting fines and restitution, and monitoring defendants' attendance at treatment programs.

The contemplated conduct is not prohibited by any of the express provisions of the Code of Judicial Conduct in canons 3, 4, or 5. Resolution of the question therefore depends on whether the conduct falls within the more general proscriptions found in canons 1 and 2. Canon 2A states that "[a] judge shall respect and comply with the law and should exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2B states that "[a] judge shall not lend the prestige of the judicial office to advance the private interests of others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

Canon 2A requires a judge to "comply with the law." Because of the unique nature of the proposed arrangement, there may be issues related to the legality of the agreement. The Committee cannot address those issues. The Committee suggests that the judge consult with the court and city's legal advisors. If those advisors determine that the agreement is legally impermissible, then it would be unethical for the judge to participate in the arrangement.

If the advisors determine that the agreement is legally permissible, the Committee believes that the judge's participation is permitted. An agreement to provide probation services would not lessen the public's confidence in the integrity or impartiality of the judiciary. The integrity of the judiciary may, in fact, be promoted. The probation provider will assist the court in ensuring that its orders are enforced, improving public confidence in the authority and impact of court decisions.

Also, although the probation provider's private interests will be advanced, the Committee does not believe that the prestige of the judicial office is being used to advance the private interests. The judicial branch often executes agreements with third parties, which agreements improve the financial standing of the third parties. However, those agreements are a necessary part of business and do not involve the prestige of the judiciary. Therefore, if the agreement is legally permissible the judge is not ethically prohibited from participating in the agreement.

If the judge signs the agreement and it is later determined through litigation that the agreement is not legally permissible, the judge cannot be ethically faulted for signing the agreement if the judge reasonably relied on the opinion of the legal advisors.