JUDICIAL ETHICS OPINION 2020 v. << (2020)

¶1. QUESTION

The question presented to the Advisory panel asks for an Advisory Opinion from an active Court of Criminal Appeals Judge. The question is whether or not this Judge is permitted to serve on the Board of Directors of an LLC company in a non-voting capacity located in the Judge's city. The business is a financial technology/payments company and, the Judge's father holds the most shares in the company with the exception of one controlling shareholder. The company is a closely held private company owned by five shareholders.

¶2. ADVISORY ANSWER

Yes

¶3. DISCUSSION

This question involves consideration of the following two sections of our Code of Judicial Conduct:

1. Code of Judicial Conduct, Chapter 1, Appendix 4, Rule 3.11 -- Financial, Business, or Remunerative Activities.

(A) A judge may hold and manage investments of the judge, members of the judge's family and members of the judge's household.

(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in:

(1) a business closely held by the judge, members of the judge's family or members of the judge's household; or

(2) a business entity primarily engaged in investment of the financial resources of the judge, members of the judge's family or members of the judge's household.

(C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will:

(1) interfere with the proper performance of judicial duties;

(2) lead to frequent disqualification of the judge;

(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or

(4) result in violation of other provisions of this Code.

2. Code of Judicial Conduct, Chapter 1, Appendix 4, Rule 3.1 - Extrajudicial Activities in General.

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

(A) participate in activities that will interfere with the proper performance of the judge's judicial duties:

(B) participate in activities that will lead to frequent disqualification of the judge;

(C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality;

(D) engage in conduct that would appear to a reasonable person to be coercive; or

(E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law. This Rule is also subject to the exceptions provided for in Rule 4.1A(10) and 4.1C.

COMMENT

[1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.

[2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge's official or judicial actions, are likely to appear to a reasonable person to call into question the judge's integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status. See Rule 3.6.

[4] A judge's extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination.

[5] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge's solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.

The Judge's participation in this extrajudicial activity implicates the restrictions and concerns expressed in Rule 3.1. This rule prohibits conduct by participation in activities that interfere with the judicial duties; frequently causes disqualification; places into question the Judge's independence, integrity or impartiality; behavior that could be considered coercive or, improperly makes use of this Judge's judicial office, court premises, staff or court resources.

We find nothing in this Judge's proposed relationship with the closely held private company that violates Rule 3.11 as long as the impartiality and behavioral considerations of Rule 3.1 of the Code of Judicial Conduct are fully complied with.

WITNESS OUR HANDS this 26th day of May, 2020.

/s/ Honorable Edward C. Cunningham

/s/ Honorable Bill Hetherington

/s/ Honorable April Sellers White

/s/ Honorable Allen McCall

/s/ Honorable Jerry Bass