COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 93

Extrajudicial Activities Under Canons 4 and 5.

The Committee regularly is asked to give ethical advice regarding a judge's involvement in extrajudicial activities. In giving such advice, it is often important to determine whether the extrajudicial activity at issue is governed by Canon 5, which sets forth rules of general applicability for extrajudicial activity, or whether it falls within a subset of extrajudicial activity specifically directed at efforts "to improve the law, the legal system, and the administration of justice," which may in some situations receive more lenient consideration pursuant to Canon 4. There is, of course, considerable overlap between Canon 4 and Canon 5 (compare Canons 4A, 4B and 4C with Canons 5A, 5B and 5G) and many of the provisions in Canon 5 pertain to all extrajudicial activities, whether or not law-related. See, e.g., Canons 5C, 5D, 5E and 5F. Nevertheless, there are important differences in treatment depending on whether the extrajudicial activity is regarded as law-related or non-law-related.

While the Code permits judicial participation in Canon 5 activities, judicial participation in Canon 4 activities is actively encouraged. See Commentary to Canon 4. Accordingly, a judge will be given greater latitude when participating in extrajudicial activities expressly covered by Canon 4. A distinction between legal and non-legal extrajudicial activity also is found within Canon 5G, which prohibits a judge, unless required by an Act of Congress, from accepting appointment to a governmental position concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. Thus, a judge may serve on the board of a private or public law school, see Commentary to Canon 4C, but may not serve on a state board responsible for operating a public university, see Advisory Opinion No. 44. Moreover, Canon 4C permits a judge slightly greater latitude to participate in fundraising for good causes related to the law. Advisory Opinion No. 89. Finally, a judge permissibly may use judicial resources to engage in Canon 4 activities so long as such use is not substantial, Canon 4D, while only a de minimis use of judicial resources is permissible for Canon 5 activities, Canon 5H. See Advisory Opinion Nos. 79, 80. This advisory opinion is intended to explain the principles by which the Committee determines whether extrajudicial activity is governed by Canon 4 or Canon 5, and to clarify our precedents on this issue.(1)

Not every activity that involves the law or the legal system is considered a Canon 4 activity. Law is, after all, a tool by which many Canon 5 social, charitable and civic organizations seek to advance a variety of policy objectives. We have concluded, for example, that an organization lobbying for legislation to implement a particular policy pertaining to drug and alcohol abuse is not dedicated toward improving the law. Similarly, we have advised that judicial participation in policy oriented organizations, such as B'nai B'rith, NAACP and the Sierra Club that may engage in litigation in furtherance of stated policy goals, is to be evaluated under Canon 5. Advisory Opinion No. 40. In addition, judicial participation in a private dispute resolution enterprise that focuses primarily on settling specific disputes rather than advancing the general cause of dispute resolution through arbitration is governed by Canon 5, and is therefore prohibited. Rather, to qualify as a Canon 4 activity, the activity must be directed toward the objective of improving the law, qua law, or improving the legal system or administration of justice, and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.

A judge's participation in Canon 4 activities is encouraged because "[a]s a judicial officer and person specially learned in the law, a judge is in an unique position to contribute" to such endeavors. Commentary to Canon 4. We traditionally have defined activities to improve the law, the legal system and the administration of justice narrowly.

Two formulations emerge from our prior advice. First, we have described the phrase "improve the law" as "being limited to the kinds of matters a judge, by virtue of [the judge's] judicial experience, is uniquely qualified to address." If a judge's participation is sought for some reason other than his or her judicial expertise, the activity is less likely to be a Canon 4 activity. For example, we have advised that service on a Senate Ethics Advisory Panel was not an activity designed to improve the law, where the judge's participation was sought primarily because of his previous experience as a state senator.

Consistent with this emphasis upon whether a judge brings a special expertise to the activity, Canon 4B provides that a judge may appear before or consult with an executive or legislative body or official only to the extent that it would generally be perceived that a judge's judicial experience provides special expertise in the area at issue. Under that canon, we have advised that legislative appearances by a judge are permissible only where "the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual." Advisory Opinion No. 50 (suggesting that a judge should not testify before a legislative committee on social legislation). A similar inquiry inheres in Canons 4C and 5G.

Second, we look to see if the beneficiary of the activity is the law or legal system itself. A Canon 4 activity, in other words, is one that serves the interests generally of those who use the legal system, rather than the interests of any specific constituency, or enhances the prestige, efficiency or function of the legal system itself. The clearest examples of Canon 4 activities are those addressing the legal process. Thus, we have concluded that Canon 4 governs judicial participation in such activities as an educational videotape to improve the quality of court reporters; a not-for-profit organization to promote the concept of the resolution of disputes through arbitration; an organization that researches and provides information on the juvenile justice system; an organization sponsoring informative programs on trial practice; and an organization to eliminate gender bias in the judiciary. Whether an activity benefits a specific constituency or the legal system as a whole will sometimes be a close question that should be answered by evaluating how closely related the substance of the activity is to the core mission of the court of delivering unbiased, effective justice to all.

Although such matters as "the administration of the business of the courts, the delivery of legal services, the preparation of codifications of judicial decisions, etc." are the clearest examples of activities to improve the law, Canon 4 applies to a broader range of activities. The Commentary to Canon 4 defines the improvement of the law, the legal system, and the administration of justice as including "revision of substantive and procedural law and improvement of criminal and juvenile justice." Therefore, activities directed toward substantive legal issues, where the purpose is to benefit the law and legal system itself rather than to benefit any particular cause or group, may be Canon 4 activities. We have concluded, for example, that activities of the National Conference of Commissioners on Uniform State Laws, whose purpose is to promote uniformity in the law across jurisdictions, and the American Law Institute, whose purpose is to distill, rationalize and restate the law, are covered by Canon 4. Similarly, the Working Group on Detention of the United Nations Human Rights Commission, which reports to the United Nations on compliance with the Universal Declaration of Human Rights, was determined to be an organization devoted to the improvement of the law, the legal system or the administration of justice. However, judicial participation in organizations such as the Sierra Club, which advocate particular causes rather than the general improvement of the law, is analyzed under Canon 5. See Advisory Opinion No. 40.

Additionally, a judge may teach and write on substantive legal issues. Judicial scholarship is particularly encouraged by Canon 4. See Canon 4A. The evolution and exposition of the law is at the core of a judge's role. Judges, therefore, have the ability to make a unique contribution to academic activities such as teaching and scholarly writing, which similarly serve to advance the law. See Advisory Opinion No. 55 (referring to Thode, Reporter's Notes to Code of Judicial Conduct 74 (ABA 1973)) ("[A] judge may write or lecture on a legal issue, analyzing the present law and its history, its virtues and its shortcomings; [the judge] may commend the present law or propose legal reform . . .").

In addition to Canons 4 and 5, a judge's extrajudicial activity will often implicate other canons as well. Sometimes our analysis of such activity has included an explicit consideration of the other canons, although on other occasions we have referred to such other canons only implicitly, integrating the concepts there expressed into Canons 4 and 5. The most important restrictions contained in other canons to consider when evaluating extrajudicial activity are Canon 1's mandate that a judge uphold the independence of the judiciary; Canon 2's prohibition against impropriety and the appearance of impropriety in all activities; and Canon 7's restrictions on political activity.

Canon 1 provides that a judge should uphold the integrity and independence of the judiciary. Under this directive, a federal judge's extrajudicial participation in an activity directed toward improving the law nonetheless may be impermissible to the extent that it enmeshes the judge in, or subordinates the judge to, the operation of a state or local government. We have advised, for example, that it would be inappropriate under Canon 5G for a judge to serve on a state law reform agency created by the state legislature and given quasi-legislative responsibilities, even though the goal of the agency was the improvement of state law. We noted that "a federal judge should not sit as a member of an official state body charged with quasi-legislative responsibilities." Although we did not explicitly discuss Canon 1 in this opinion, but rather focused on Canon 5G, clearly Canon 1's prescription for an independent federal judiciary was at the core of the advice given. Other times in considering a judge's extrajudicial activity, we have invoked Canon 1 explicitly. For example, we expressly relied on Canon 1 in advising that a judge may not serve on a state board of law examiners, an arm of the state supreme court. Similarly, we invoked Canon 1 in concluding that a judge may not serve, by appointment by state supreme court, upon a state supreme court commission on racial and ethnic bias in the state court system. Although in both cases we observed that such extrajudicial activity was law-related, it was prohibited because it could compromise the independence of the federal judiciary. We observed that federal courts occasionally are required to consider decisions of the state supreme court, and thus a federal judge should not sit on a committee of the state court.

A judge's participation in an extrajudicial activity designed to improve the law also may be inappropriate under Canon 2. Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all activities. We have advised, therefore, that although open member bar associations are Canon 4 activities in which a judge may serve as a member or officer, see Advisory Opinion Nos. 85 and 34, a judge may not run for a contested position in a bar association because of the unseemliness and potential for creating an appearance of impropriety of a federal judge seeking votes. Similarly, Canon 2A's provision that a judge should act at all times in a manner that promotes public confidence in the impartiality of the judiciary may preclude a judge's participation in law-related activities or organizations concerning highly controversial subjects. Thus, while a judge may remain a member of a bar association which takes controversial positions on policy issues so long as the judge abstains from participating in the debate or vote on such matters in a manner in which the public may effectively become aware of the judge's abstention, see Advisory Opinion Nos. 82 and 34, we have advised that a judge may not serve as the chair of a section of the American Bar Association that concentrates its efforts on many of the most controversial political issues of the day. See Advisory Opinion No. 82 (regarding organizations in general, "[i]f the judge believes that his or her personal, direct advocacy to the public of the policy positions advanced by the organization might reasonably be seen as impairing the judge's capacity to decide impartially any issue that may come before the judge, and the affiliation may reasonably be seen as indirect advocacy of those policy positions, the judge should not be a member of the organization"). On the other hand, we have advised that membership in a United Nations human rights group is permissible, as the group only rarely, if ever, became involved in matters so controversial that a judge's involvement could jeopardize his or her effectiveness as a judge at home. Further, Canon 2B's restrictions against lending the prestige of the judicial office to advance the private interests of others also applies to Canon 4 activities. Advisory Opinion No. 89. We have advised, for example, that a bankruptcy judge should not serve on the board of an organization designed to certify individual lawyers as bankruptcy specialists because it would violate Canon 2's prohibition against lending the prestige of the judicial position to a private interest.

Finally, we note that Canon 7 states that a judge should not engage in political activity. Although the political prohibitions in Canons 7A and 7B are absolute, the catch-all prohibition in Canon 7C against "other political activity" contains a qualification that Canon 7C "should not prevent a judge from engaging in the activities described in Canon 4." However, for a judge to engage in law-related activity under Canon 4, where the activity is political in nature, is fraught with risks. Thus, before deciding to engage in law-related activity with political overtones, a judge should consider whether the express or implied values of other canons will be contravened. For example, we have advised that a judge should not serve on an official state committee formed to select state trial and appellate court judges. Although such activity is law-related, and thus is to be evaluated under Canons 4 and 7C, it might compromise the judge's independence and therefore violate Canon 1. A judge who wishes to participate in law-related activity that is politically oriented should be sensitive to the nature and tone of the activity, and should not be drawn into the activity in a way that would contravene Canon 2's goals of propriety and impartiality in the judiciary or Canon 7A and 7B's prohibition of certain activity pertaining to political organizations and candidates or pertaining to the judge becoming a candidate for office. Further, because of the ethical risks associated with any politically-oriented activity, we construe Canon 4 activities in this context narrowly, restricting them to those activities that are most directly related to the law and legal process.
 

April 25, 1997
Revised October 27, 1998

1. For consideration of the predicate question of whether the activity is extrajudicial, rather than judicial, see Canon 4 generally, Advisory Opinion No. 79 and Section 4 of the Compendium of Selected Opinions (1997).