COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 79

Use of Chambers, Resources, and Staff for Activities Permitted by Canon 4.

This opinion addresses the use of judicial resources⁽¹⁾ for the preparation of writings, speeches, and teaching materials that are related to the law, the legal system, and the administration of justice. Although we have attempted to furnish some rules of general applicability to govern the use of such resources, we recognize that questions pertaining to particular uses will often be context dependent and will require line-drawing on the part of the particular judge involved. Consequently, to assist in this task, we have incorporated a number of examples into our opinion to offer additional guidance with respect to this difficult issue.

The use of judicial resources for extra-judicial law-related activities is governed by Canon 4, which is entitled "A Judge May Engage in Extra-Judicial Activities to Improve the Law, the Legal System and the Administration of Justice." Under this canon, a judge may "speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." Canon 4A. However, a judge may not "use to any substantial degree judicial chambers, resources, or staff to engage in" these activities. Canon 4D.(2)

As the title and language of Canon 4 indicate, a two-tier analysis is required to determine whether the use of judicial resources for law-related activities is appropriate. First, it must be determined whether the activity is "judicial" or "extra-judicial." If the activity is judicial, then the strictures of Canon 4D do not apply and a judge may make unlimited use of judicial resources. If the activity is extra-judicial, then it must next be determined whether the use of judicial resources is insubstantial. Canon 4D permits a judge to utilize judicial resources for extra-judicial activity so long as this use is not "to any substantial degree."

In determining the scope of a judge's judicial duties, we start with the premise that a judge's central function is to decide cases. Accordingly, any activity directly related to this function is clearly judicial in nature. By itself, however, such a definition constitutes too limited a view of a judge's official duties. In addition to deciding cases, society properly expects a judge to supervise and educate members of the bar in the practice of law in the judge's court and to act as an official representative of the judiciary. A federal judge is performing a judicial function when, for example, the judge gives a lecture to the local bar on the rules of procedure in the judge's court, gives a Law Day speech at the local high school, or presents a civics lecture on the judiciary to local community groups. Ultimately, however, the test for whether a particular activity qualifies as judicial rather than extra-judicial depends on whether the activity may properly be considered part of the judge's official duties.

A judge may not properly receive compensation beyond his or her normal salary for a judicial activity. It follows that if a judge concludes that it is appropriate to receive compensation for a law-related activity, the judge has necessarily determined that it is an extra-judicial activity and that he or she may make only insubstantial use of chamber's resources.(3)

Once a law-related activity is determined to be extra-judicial, Canon 4 prohibits a judge from using judicial resources to any substantial degree. In determining how this restriction should be interpreted, we are mindful that judicial resources are held in public trust to assist judges in performing their official duties, and that to allow judges to draw upon these resources for extra-judicial activities diverts these resources from the function for which they were dedicated. At the same time, we recognize that judges are in a unique position to contribute to the improvement of the law and the judicial system by means of extra-judicial activities, and that these activities indirectly assist judges in the discharge of their official duties. See Commentary to Canon 4. Allowing judges some limited judicial resources to perform these activities permits such activities to be accomplished more efficiently, with resulting benefits for the functioning of the judge's entire office.

With these considerations in mind, we believe the following three criteria must be satisfied in order for a judge's use of judicial resources for extra-judicial activity to qualify as insubstantial. First, the absolute amount of staff time devoted to such activity must be minor or limited in amount. Ordinarily, the use of law clerks for one or two days for blue-booking, cite-checking, editing, or discrete research assignments will qualify as a minor or limited use of law clerk time. By contrast, the use of law clerks for extensive research for, or drafting of, a substantial scholarly article ordinarily will not satisfy the requirements of this first criterion. None of these examples, of course, are intended to represent bright-line rules; the amount of time for which a staff member is used must always be examined in the context of the individual's particular duties.

Second, if the extra-judicial activity is compensated, a judge should not utilize judicial staff except as noted below. A judge may use judicial resources such as the library, chambers, and computers for compensated activity so long as this use is within reasonable limits and the government incurs no incremental cost. However, the use of judicial personnel to assist the judge in performing activities for which extra compensation is to be received raises too great a risk of abuse to permit. The danger exists that a judge may pressure current or potential staff members to work on the judge's projects, and this danger is compounded by the difficulty of distinguishing between a staff member's official and unofficial time. Thus, judges may only utilize judicial personnel in connection with compensated extra-judicial activities if the use is de minimis. Examples of de minimis uses include answering telephone calls and scheduling. See Advisory Opinion No. 80.(4)

Third, the judge's use of judicial resources for extra-judicial law-related activity must not interfere with the judge's official duties. Although Canon 3A(5) independently requires a judge to "dispose promptly of the business of the court," we believe Canon 4 is also implicated when a judge fails to discharge promptly his or her official duties. No judicial resources should be devoted to extra-judicial tasks if the judge needs these resources to perform his or her judicial functions in a timely fashion. Accordingly, even a minor use of judicial resources may be regarded as substantial under Canon 4D if such use has an adverse impact on the business of the court.

When federal statutes or regulations impose other more stringent duties and obligations on judges pertaining to the appropriate use of government resources, these statutes or regulations, of course, control.

May 6, 1987
Revised January 15, 1993
Reviewed January 16, 1998

Note:

1. Guidelines for determining whether an extra-judicial activity is law-related (which involves particularly Canon 4) or non-law related are contained in Advisory Opinion No. 93. Advisory Opinion No. 79 only addresses the use of chambers, resources and staff for law-related extra-judicial activity that falls within Canon 4. If it is determined that the extra-judicial activity is non-law related, see Advisory Opinion No. 80.

1. 1 Unless otherwise stated, the term judicial resources includes judicial chambers and staff, as well as legal research materials available to a judge.

2. 2 Canon 5 governs the use of judicial resources for non-law related activities. An activity is law-related if it concerns the law, the legal system, or the administration of justice. For Canon 5 activities, a judge may make only de minimis use of judicial resources. See Canon 5H; Advisory Opinion No. 80.

3. 3 This is not to say that all uncompensated activity will be regarded as judicial activity, nor that a judge may properly be compensated for all extra-judicial activity. See, e.g., Ethics Reform Act, 5 U.S.C. app., §§ 501-505 (restricting the receipt of outside earned income and honoraria).

4. 4 Extra compensation paid by the judge to the staff does not eliminate the danger that public resources will be misused for private gain. Thus, a judge may not avoid these restrictions on the use of judicial personnel for compensated activities even if the judge offers to share this compensation with his or her staff.