Judicial ethics and marijuana

29 or so states have decriminalized and/or legalized medical and/or recreational marijuana use since 1973.  Whatever effect that may have had on judicial caseloads, that change should not have affected judges’ personal habits.  As the Colorado advisory committee explained, even in a state that has decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge who uses marijuana in private still violates the code of judicial conduct because federal law still makes the possession and use of marijuana for any purpose a crime.  Colorado Advisory Opinion 2014-1.

Further, the California judicial ethics committee recently advised that, because of federal laws, a judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana.  California Advisory Opinion 2017-10The committee explained that restriction precluded a personal financial investment or private equity fund investment in such an enterprise, ownership of shares in a corporation that invests in marijuana, or an interest in property that is leased for marijuana growth or distribution and included interests owned by a spouse or registered domestic partnerThe Washington advisory committee stated that a judge may not permit a court employee to own a medical marijuana business, even if the business fully complied with state laws and regulations, because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2 

Judges have been disciplined for using marijuana although the cases arose when use was still a crime in the state.

The Michigan Supreme Court censured a judge and suspended him for 6 months without pay for using marijuana.  In re Gilbert, 668 N.W.2d 892 (Michigan 2003).  During a Rolling Stones concert, someone had passed a marijuana cigarette down the aisle in which the judge was sitting.  The judge took it, puffed it, and then passed it along.  When the marijuana cigarette was returned back down the aisle, the judge puffed it a second time before passing it along again.  The judge’s actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by Jay Leno on The Tonight Show.  The judge took a voluntary leave of absence and reported his conduct to the Judicial Tenure Commission.

 The judge acknowledged that he used marijuana approximately twice a year.  He obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, completed an in-patient substance abuse treatment program, and entered into a judicial monitoring participation agreement with the assistance program.

Pursuant to the judge’s consent, the Commission had recommended a 90-day suspension without pay.  However, the Court concluded that recommendation was insufficient for a judge who had admitted that he was using marijuana while trying, convicting, and sentencing defendants charged with marijuana offenses.  1 justice dissented, arguing that, in light of the judge’s “hypocrisy,” only removal “would begin to repair the damage to the public’s trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.”

Adopting the findings and recommended sanction of a panel of the Board of Commissioners on Grievance and Discipline based on the judge’s consent, the Ohio Supreme Court publicly reprimanded a judge for using marijuana.  Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010).  The judge had occasionally used marijuana on weekends, and, in March 2008, began using it daily as self-medication to alleviate the physical and psychological effects of a stroke.  In December 2008, he was cited for possession of marijuana and drug paraphernalia.  By agreement, the drug paraphernalia charge was dismissed, and the marijuana charge was resolved by forfeiture of a $168 bond.  The judge did not plead guilty to and was not convicted of any crime.

After being charged, the judge had not used alcohol or marijuana or any other illegal substance.  He had entered into a 5-year contract with the Ohio Lawyers Assistance Program and completed a detox program, an in-patient program at an addiction-medicine facility, and a 90-day intensive out-patient program.

See also Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011) (removal of judge for obtaining and consuming marijuana at least once a week for several months, in addition to unrelated misconduct); In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal of a former judge for using marijuana and supplying marijuana to another individual on one occasion, in addition to unrelated misconduct); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of a former judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 24 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand of a judge for using marijuana); In re Coughenour, Stipulation and Order (Washington Commission on Judicial Conduct September 6, 1991) (public admonishment of a judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams; an order of deferred prosecution had been entered in the traffic matter); In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid relative to the 2 charges).

When judges blog

Several judicial ethics committees have advised that a judge may maintain a blog but added caveats about being cautious and not violating the code of judicial conduct provisions relevant to communications by judges.  (Merriam-Webster’s on-line dictionary defines a “blog” as “a Web site on which someone writes about personal opinions, activities, and experiences.”)  The Arizona committee, for example, stated that a judge must ensure that no statements on her blog will negatively affect judicial proceedings, be perceived as prejudiced or biased, or necessitate frequent disqualification.  Arizona Advisory Opinion 2014-1See also New York Advisory Opinion 2010-138 (a judge may maintain an internet blog that comments on current events).

The Florida advisory committee stated that a judge could publish a blog that would alert readers to state appellate decisions as they were released because the judge did not plan to editorialize, criticize, or otherwise evaluate the opinions but only to briefly describe them.  Florida Advisory Opinion 2012-7.  Noting it had frequently approved judges’ speaking, writing, or teaching, the committee stated it would not make a distinction based on the technology used but warned the judge to exercise caution.  Acknowledging it was “not practicable to list all the provisions of the Code that could apply” and reminding the judge to expect “constant public scrutiny,” the committee directed the judge to “carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person.”  Finally, noting “that an interactive blog may invite inappropriate comment by the judge,” the committee suggested that the judge consider adding a disclaimer “that clarifies the judge does not endorse or vouch for the comments of others . . ., and that such comments do not represent the views of the judge.”

The Washington advisory committee stated that a judge may have a blog promoting “a more fair, just and benevolent society” and could respond to comments made by others on the essay the judge planned to post on the site.  Washington Advisory Opinion 2009-5.  The committee suggested that the judge should include a disclaimer that the opinions “are only those of the author and should not be imputed to other judges” and should describe the constraints on judges, such as the prohibitions on commenting on pending cases and discussing cases with persons appearing before the judge’s court.  The committee also advised the judge to consider:

  • “[T]he impression that may be conveyed when responding to comments that are posted on the blog;”
  • “[H]ow to tailor those comments to avoid any impression that the judicial officer’s impartiality might be called into question;” and
  • “[W]hether readers might perceive that the judge’s impartiality is impaired by the volume and content of the comments received.”

The committee recommended that the judge, if possible, review any comments from others before they are published on the blog or “regularly monitor the responses to make sure that the thread of the discussion does not change” into something that is prohibited.

The Connecticut advisory committee stated that a judge may be listed, including her judicial position, as an expert on a non-profit, non-partisan organization’s electronic “answer board” established to provide journalists with information on legal and constitutional.  Connecticut Advisory Opinion 2011-14.  However, the committee cautioned, the judge’s answers must be factual and instructive without expressing her opinion, indicating a predisposition with respect to particular cases, or providing legal advice.  The committee directed the judge to:

  • Monitor the web-site to ensure that it does not link to commercial or advocacy groups;
  • Stay abreast of new features on the site; and
  • Retain the right to review and pre-approve the use of biographical information.

See also Utah Informal Advisory Opinion 2012-1 (a judge may follow a blog on legal or political issues that is also followed by lawyers or politicians and need not continually monitor the contents and comments to prevent association with material that might reflect poorly on the judiciary); U.S. Advisory Opinion 112 (2014) (before commenting on a blog, a judge should analyze the post, comment, or blog to take into account the canons that prohibit judges from endorsing political views, demeaning the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the court).

 

Judges and the Boy Scouts: Top stories of 2015

47 states, D.C., and the federal judiciary have provisions in their codes of judicial conduct prohibiting judges from being members of organizations that practice invidious or unlawful discrimination.  (The 3 states without any such provision are Alabama, Illinois, and Louisiana.)  In approximately 28 jurisdictions (27 states and D.C.), sexual orientation is specifically included in the list of grounds for discrimination to which the rule applies.  In other words, those jurisdictions have adopted a version of Rule 3.6A of the American Bar Association Model Code of Judicial Conduct:

A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (emphasis added).

Since 1996, California, one of those 28 jurisdictions, has had an exception for non-profit youth organizations to accommodate judges who were members of or active in the Boy Scouts of America, according to the California Supreme Court Advisory Committee on the Code of Judicial Ethics.  In January 2015, the California Supreme Court eliminated that exception effective January 1, 2016.  Thus, after January 1, California judges would no longer have been able to be members of the Boy Scouts – except the organization changed.

In July 2015, Boy Scouts of American amended its adult leadership policy to remove “the national restriction on openly gay adult leaders and employees” although local religious chartered organizations “may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality.”

Thus, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, even after elimination of the youth group exception, “judicial membership in a BSA-sponsored eagle scout alumni organization is not prohibited because, due to recent changes, current Boy Scouts of American policy precludes invidious discrimination on the basis of sexual orientation for non-unit-serving volunteers such as the eagle scout alumni members.”  California Oral Advice Summary 2015-13.

Similarly, as a result of that recent change in Boy Scout policy, the Connecticut Committee on Judicial Ethics recently advised that a judicial official may participate in the Boy Scouts by teaching ethics courses as a regional or high level volunteer (Connecticut Informal Advisory Opinion 2014-15Aand by serving as a board member of a regional council (Connecticut Informal Advisory Opinion 2014-15B).  Prior to the policy change, the Connecticut committee had issued an advisory opinion stating that a judicial officer may not hold adult volunteer leadership positions with the Boy Scouts that gay persons are barred from holding.  Connecticut Informal Advisory Opinion 2014-1.

Both the California and Connecticut codes, like the model code, contain exceptions for religious organizations, which, even after the Boy Scouts policy change, can still discriminate based on sexual orientation as a matter of religious belief.  Thus, the California committee said that a judge may be a scoutmaster for his church-sponsored Boy Scouts troop if he is satisfied that the troop does not exclude members based on sexual orientation or is dedicated to the preservation of religious values of legitimate common interest to the troop members.  California Oral Advice Summary 2015-14.  The Connecticut committee advised that a judge may, as the lawful exercise of his religious freedom, be a member of a Catholic archdiocese committee on Scouting.  Connecticut Informal Advisory Opinion 2014-15B.

These developments will be one of the topics discussed in the free webinar on the “Top Judicial Ethics Stories of 2015” presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics.  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.  The webinar is free, but you must sign up ahead of time.  Click this link to sign up: https://attendee.gotowebinar.com/register/1087418470610271489.

 

Complying with the law

The recent legalization of marijuana in several states has apparently not yet prompted many inquiries to advisory committees, but two opinions have been issued on the possible judicial ethics repercussions of that change.

Most recently, the Washington State Ethics Advisory Committee stated that a judge may not permit a court employee to own a medical marijuana business even if the business fully complies with Washington state laws and regulations because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2.

The committee concluded that, “even if owning a medical marijuana business may comply with the state statutory scheme, possessing, growing, and distributing marijuana remains illegal under federal law for both recreational and medical use. . . .  Although the Code does not generally prohibit a court employee from engaging in outside businesses or employment, operating a business in knowing violation of law undermines the public’s confidence in the integrity of the judiciary . . . , and is contrary to acting with fidelity and in a diligent manner consistent with the judge’s obligations under the Code.”

Last year, after Colorado decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge asked the Judicial Ethics Advisory Board “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code of judicial conduct.  The board responded:  “Because the use of marijuana is a federal crime, a judge’s use of marijuana for any purpose is not a ‘minor’ violation of criminal law and therefore violates Rule 1.1 of the Code of Judicial Conduct.”  Colorado Advisory Opinion 14-1.

The board considered whether a judge’s personal marijuana use is a “minor” violation of the law because the Colorado code states in Rule 1.1(B) that “conduct by a judge that violates a criminal law may, unless the violation is minor, constitute a violation of the requirement that a judge must comply with the law.”  (This provision is not in the model code or codes in other states, although the model code notes in the preamble that “it is not contemplated that every transgression will result in disciplinary action.”)  Based on the minutes of the Committee to Consider Revisions to the Colorado Code of Judicial Conduct, the advisory board concluded that Rule 1.1(B) exempted “as ‘minor’ only violations of relatively insignificant traffic offenses and local ordinances,” such as receiving a parking ticket or permitting a dog to run at large, “not state or federal drug laws.”  The board rejected the judge’s argument that the determination whether an offense is “minor” should be based on a “moral turpitude” test.

The board concluded:

We recognize that simple possession of marijuana is a misdemeanor under federal law and that, in some circumstances, marijuana use is an infraction punishable only by a civil penalty.  . . .   It is nevertheless a violation of federal criminal law and, in our view, while not necessarily a “serious” offense, it is not a “minor” offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation referred to in the Committee minutes, and is no less serious than the unlawful conduct of the judges involved in Sawyer and Vandelinde.

See In re Sawyer, 594 P.2d 805 (Oregon 1979) (temporary suspension of a judge as long as he was employed part-time as a teacher at a state-funded college in violation of a state constitutional prohibition); Matter of Vandelinde, 366 S.E.2d 631 (West Virginia 1988) (reprimand of a judge who had made excessive contributions to a political organization that supported his candidacy, a misdemeanor under the applicable statute, even though he had not been criminally charged).

The Colorado board did note that “even parking tickets can give rise to judicial discipline,” citing In re Harrington, 877 A.2d 570 (Pennsylvania Court of Judicial Discipline 2005), in which a former magistrate who repeatedly parked at expired meters and displayed parking tickets issued to others was banned from judicial office for 5 years.  See also In the Matter of Williams, 701 A.2d 825 (Delaware 1997) (censure and 3-month suspension without pay for a part-time judge who had 29 unpaid parking tickets, in addition to other misconduct); In the Matter of LaPorta, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline July 13, 2004) (removal of pro tempore judge who had accrued over $8,000 in parking tickets, in addition to other misconduct); In re Ballentine, Opinion and order (Pennsylvania Court of Judicial Discipline August 4, 2015) (removal for pleading guilty to 3 misdemeanors for dismissing several of her own parking tickets, not filing state and federal tax returns for 5 years, failing to remit approximately $130 in sales taxes owed by a shoe store she owed, and opening the shoe store without a license).

Dog violations have also led to judicial discipline.  See In the Matter of Post, Determination (New York State Commission on Judicial Conduct October 12, 2010) (admonition for failing to appear for sentencing on dog-running-at-large violation and failing for 7 months to pay the fine imposed, in addition to other misconduct); In the Matter of Van Woeart, Determination (New York State Commission on Judicial Conduct August 20, 2012) (censure for failing to expeditiously transfer tickets issued to herself and her sons for violations of dog-control ordinance, sending messages to the judges of the transferee court, and failing to maintain proper records of the tickets).

The Colorado board noted that other states have disciplined judges for using and possessing marijuana, although it acknowledged marijuana use had been illegal under those states’ laws at the time.  It cited Matter of Marquardt, 778 P.2d 241 (Arizona 1989) (1-year suspension without pay for judge convicted of possession of a small quantity of marijuana); In re Peters, 715 S.E.2d 56 (Georgia 2011) (removal for obtaining and consuming marijuana at least once a week from March to May of 2010, in addition to other misconduct); In re Whitaker, 463 So. 2d 1291 (Louisiana 1985) (1-year suspension without pay for smoking marijuana on 2 occasions, in addition to other misconduct); In re Gilbert, 668 N.W.2d 892 (Michigan 2003) (censure and 6-month suspension for using marijuana at a Rolling Stones concert); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 20 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand for using marijuana); In re Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid).  There are additional cases as well.  See also In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal for using marijuana, in addition to other misconduct); Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010) (publicly reprimand for using marijuana); In re Coughenour, Stipulation and Order (Washington State Commission on Judicial Conduct September 6, 1991) (public admonishment for judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams).

Noting it was only authorized to provide “opinions ‘concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct,’ not regarding whether such conduct is censurable,” the Colorado board emphasized it was not addressing whether a judge who uses marijuana consistent with Colorado law should be disciplined.  Finally, the board stated, “having concluded that a judge’s use of marijuana violates Rule 1.1, we need not address whether it also violates the requirement in Rule 1.2 that judges ‘act at all times in a manner that promotes public confidence in the . . . integrity . . . of the judiciary’ and ‘avoid impropriety and the appearance of impropriety.’”

What they said that got them in trouble in 2015 – So far

  • “You’re held in contempt at this time. All cases are dismissed.”  Judge to assistant city prosecutor who refused to meet with her outside the courtroom prior to the criminal docket.  In re Sims, 159 So. 3d 1040 (Louisiana 2015) (http://www.lasc.org/opinions/2015/14O2515.opn.pdf).
  • “This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap.  So everybody’s excused.”  Judge to attorneys in divorce matter.  Disciplinary Counsel v. Weithman (Ohio Supreme Court February 12, 2015) (http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-482.pdf).
  • “If I determine that’s not a valid religious belief I could require you to remove the hat.” Judge to a defendant wearing a fedora in the courtroom as part of his Jewish faith.  In re Ladenburg, Stipulation, agreement, and reprimand (Washington State Commission on Judicial Conduct February 20, 2015) (http://www.cjc.state.wa.us/Case%20Material/2015/7599_Ladenburg_Stip_Final.pdf).
  • “You look like a Muslim, and I wouldn’t hire you with it,” or words to that effect. Judge to bearded assistant district attorney in courtroom at the conclusion of the criminal docket.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “New York Jew.” Judge referring to district attorney during a private conversation with the district attorney’s secretary in the judge’s office.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6”x8’ ‘box’ inside the courtroom!” Judge on Facebook page about high profile criminal case.  Public Admonition of Slaughter and Order of Additional Education (Texas State Commission on Judicial Conduct April 20, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “I wondered what was taking the jury so long, but a lot of times they want to just make it look official, so they’ll spend 30, 40 minutes back there. . . .” Judge during a presentation about sex offenders before the Texas Patriots PAC.   Public Reprimand of Seiler and Order of Additional Education (Texas State Commission on Judicial Conduct April 24, 2015) (http://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf).
  • “Must be nice to take such an expensive trip but not pay your bills. Just sayin’.”  Judge on Facebook in response to a photo of the father of her twin babies and his girlfriend.  In the Matter of Bennington, 24 N.E.3d 958 (Indiana 2015) (http://www.in.gov/judiciary/opinions/pdf/02101501per.pdf).

The judge as author

The spring 2013 issue of the Judicial Conduct Reporter had an article on “The judge as author,” discussing the general rule that judges may author or co-author fiction or non-fiction books on legal or non-legal topics for legal or general publications and describing the limits to that permission for both content and promotion.

Recently, in U.S. Advisory Opinion 114 (2014), the advisory committee for federal judges issued comprehensive guidance for judges promoting books they have written.  The opinion addressed advertising, book signings, and media interviews.

The committee stated that a judge may not use “his or her judicial position, length of service, and court” in advertising materials and that the title “judge” may not precede a judge’s name in advertisements.  However, that information may be included “in a book jacket or in other similar straightforward author summaries, provided that the identification is without embellishment and appears in the context of other biographical information.”

According to the opinion, as long as the events are free and do not interfere with the performance of official duties, a judge may sign or discuss the judge’s books at book stores and other public venues where the books are available for sale.  The marketing materials for the judge’s appearances must comply with the advertising guidelines and should not suggest that attendees must purchase books or may enjoy special influence over the judge.  The committee stated:

During the events, the judge may read from and discuss the work in a dignified manner that focuses on the substance of the work and not merely on the author’s status as a federal judge.  Discussing the contents of the book, or how it came to be written, would generally be acceptable.  Urging attendees to buy the book would not.

If those guidelines are met, the committee advised, a judge may sell a book to an individual who happens to be an attorney or sign a book at an attorney’s request, “particularly if the book has not been marketed to the particular legal constituency the person represents” and the judge is not aware that the attorney has a relationship to any cases before the judge’s court.

A judge may also discuss a book during an event sponsored by a general membership bar association at a neutral location.  However, the opinion cautioned that “a judge’s signing or discussing books during an event before a narrow legal constituency at a non-neutral location . . . may suggest the judge favors the organization and the interests it represents.”  The committee noted that “concerns of favoritism are reduced if the events are open to a variety of attendees and held at neutral locations, and if the judge is available to address opposing or contrasting constituencies.”

The opinion warned judges to be dignified in media interviews about their books and to ensure “that the discussions and any mentions of the judicial position do not appear to exploit or to detract from the office.”  The committee explained:

Judges should approach live interviews with particular caution, especially if they anticipate being questioned about subjects whose public discussion might lead (even if unintentionally) to an appearance of impropriety.  The duty of a judge to promote public confidence in the integrity and impartiality of the judiciary may be at risk when a judge voluntarily injects him or herself into the limelight of public controversy or discussions of sensitive matters, including confidential aspects of the judicial process.  Related commentary to the press may generate further disputes, lead to disqualification, or embroil the judge in personal and professional disputes.  Accordingly, judges should take care in their approach to press interactions, particularly live press interactions, although ultimately the judges themselves are in the best position to weigh the ethical considerations that apply to a particular situation and to choose the manner in which they respond.

On a somewhat related issue, a recent emergency staff opinion from the Connecticut Committee on Judicial Ethics advised that a judge may be a contestant on the TV reality show “The Amazing Race” but should tell the show that his or her title may not be used for promotional or commercial purposes.  The committee noted that the judge should retain the right to pre-approve any biographical information used in connection with the show.  As additional conditions, the committee warned that the judge must receive advance permission to take off the time, that taking the time off must not interfere with the performance of his or her judicial duties, and that the association with his or her teammate on the show must not create an appearance of impropriety, result in frequent disqualifications, or violate other provisions of the code.

Practicing law pursuant to military service

At least 8 states have added a comment to their codes of judicial conduct that allows judges to practice law pursuant to military service as an exception to the prohibition on full-time judges practicing law.  (That exception is not in Rule 3.10 of the American Bar Association Model Code of Judicial Conduct, which does have exceptions for acting pro se or, without compensation, giving legal advice to and reviewing documents for family members.)  The 8 states are:  Delaware, Hawaii, Indiana, Iowa, Nebraska, Oklahoma, Tennessee, and Washington.

Advisory committees have also created that exception.  Alabama Advisory Opinion 2003-820 concluded that performing assigned legal duties when on active duty in the armed forces did not create a “significant risk that . . . would erode public confidence in the judiciary” or “any realistic prospect that the advice or advocacy efforts . . . would create a potential appearance of either undue advantage to the judge/advocate or of reciprocal favoritism.”  The opinion noted that “such work is unlikely to become the subject of any litigation, nor would an appearance be created that a judicial position was being exploited.”

Similarly, the Kentucky advisory committee stated that serving as a judge advocate officer in a National Guard or reserve unit does not constitute the practice of law within the meaning of the code because that service has a special nature and the judge is in effect on leave.  Kentucky Advisory Opinion JE-16 (October 1980).  The Illinois judicial ethics committee approved a judge on military reserve duty giving legal advice, serving on military courts, and helping prepare wills, leases, or other documents for military personnel.  Illinois Advisory Opinion 1997-8See also Nevada Advisory Opinion JE2007-7 (judge may serve in the Air Force Reserve as a judge advocate general).

Alaska Advisory Opinion 2007-1 distinguished between types of legal services.  The opinion advised that, while in military service, judges may provide legal services authorized for officers of the Judge Advocate General’s Corps but may not provide services that resemble those provided by civilian attorneys for members of the military, which remain within the prohibition.  Prior to adoption of the exception in the state’s code noted above, Washington Advisory Opinion 2004-8 had made a similar distinction.  See also Virginia Advisory Opinion 2003-4 (cautioning that providing legal assistance that resembles the services provided by civilian attorneys may give the impression that the judge is practicing law and violate the code of judicial conduct).

But see West Virginia Advisory Opinion 2014-18 (judge cannot serve as a JAG officer, citing state constitution and statute as well as code of judicial conduct).