JUDICIAL ETHICS OPINION 2020 v. << (2020)

¶1. FACTS

A friend of the Judge has recently passed away. That friend has named the Judge to serve as one of three trustees for a charitable foundation. All of the friend's assets will be liquidated as part of the probate of the friend's estate. The funds would then be placed into the charitable foundation. The trustees' fees will be based on a percentage of the assets. The Judge assumes that the trustees will review applications for monetary support from various other charitable organizations and then issue the distribution of funds accordingly. A checking account has already been opened in the name of the foundation but there have not been any further actions taken on behalf of the foundation. The issues arose when the Judge was filing this year's Ethics Report.

¶2. QUESTION # 1

Is the Judge allowed to act as a trustee for the foundation?

¶3. QUESTION #2

Is extrajudicial income subject to the financial disclosure requirements of the Oklahoma Ethics Commission?

¶4. ANSWER TO QUESTION # 1

No

¶5. ANSWER TO QUESTION # 2

Yes

¶6. AUTHORITIES

All citations are from the Code of Judicial Conduct, Title 5, Oklahoma Statutes, Chapter 1, App. 4.

Canon 3: A Judge shall conduct the Judge's personal and extrajudicial activities to minimize the risks of conflict with the obligations of judicial office.

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] omitted

[4] omitted

RULE 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:

(1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization's or entity's funds;

(2) soliciting contributions for such an organization or entity, but only from members of the judge's family, members of the judge's household or from judges over whom the judge does not exercise supervisory or appellate authority;

(3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice;

(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;

(5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and

(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

(a) will be engaged in proceedings that would ordinarily come before the judge; or

(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

COMMENT

[1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations.

[2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge's participation in or association with the organization, would conflict with the judge's obligation to refrain from activities that reflect adversely upon a judge's independence, integrity, and impartiality.

[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

[4] Identification of a judge's position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge's title or judicial office if comparable designations are used for other persons.

RULE 3.8 Appointments to Fiduciary Positions

(A) A judge shall not accept appointment to serve in a fiduciary position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge's family, or member of the judge's household and then only if such service will not interfere with the proper performance of judicial duties.

(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction.

(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally.

(D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge.

COMMENT

[1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge's obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.

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.

RULE 3.12 Compensation for Extrajudicial Activities

The compensation for extrajudicial activities of a judge is controlled and regulated by the Rules of the Ethics Commission or other applicable law. If a judge is permitted to accept extrajudicial compensation under those rules the judge should refrain from accepting such compensation if it would appear to a reasonable person to undermine the judge's independence, integrity or impartiality. (See Rules of Ethics Commission 20-1-9(h).

COMMENT

[1] A judge may only accept compensation as provided by the Rules of the Ethics Commission or other applicable law. Any compensation that is permitted must be reasonable and commensurate with the task performed. A judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1.

[2] Compensation derived from extrajudicial activities is subject to public reporting under the Rules of the Ethics Commission.

RULE 3.15 Reporting Requirements

A judge shall publicly report the amount or value of compensation or other things of value as required by the Rules of the Ethics Commission or pursuant to applicable law;

¶7. DISCUSSION

When reviewing the above cited portions of the Judicial Code of Conduct and the Rules of the Ethics Commission, the advisory response to the first question should be in the negative. The trustees of the newly created charitable foundation could put themselves in conflicting situations with other charities based on their decisions of granting or denying the other charities' requests for funding. Any income to the Judge that is extrajudicial must be reported under the rules of the Oklahoma Ethics Commission. We therefore answer the second question in the affirmative.

WITNESS OUR HANDS AS OF THE 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