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Canon 4. A Judge Shall So Conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations.
A. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so as to comply with the requirements of this Code and so that these activities do not:
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.*
Commentary. - Extra-judicial activities are intended to include both the quasi-judicial activities covered by Canon 4 and the extra-judicial activities covered by Canon 5 of the 1973 Code of Judicial Conduct.
Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.
Even outside the judicial role, a judge who expresses bias or prejudice may cast reasonable doubt on the judge's capacity to act impartially as a judge. Such expressions include jokes or other remarks demeaning individuals on the basis of their race, color, sex, religion, national origin, disability, age, marital status, changes in marital status, pregnancy, parenthood, sexual orientation, or social or economic status. See Section 2C and accompanying Commentary.
The ABA added the phrase "demean the judicial office" in Section 4A(2) in place of the phrase "detract from the dignity of his office" which appeared in the prior Code. According to the Reporter's Notes to the 1990 Model Code, the new language is intended "to proscribe injurious conduct, not necessarily undignified conduct, as the latter might in some cases be permissible. For example, a judge's appearing in a skit as part of the entertainment at a judicial organization's event might be at once undignified and perfectly proper."
Section 4A(2) is a legitimate limitation on a judge's extra-judicial activities to the extent that it forbids a judge from flagrantly violating community standards or engaging in activities that clearly bring disrepute to the courts or the legal system. However, Section 4A(2) should not be interpreted so broadly as to authorize disciplinary bodies to censure or penalize a judge for engaging in a non-conformist lifestyle or for privately pursuing interests or activities that might be offensive to segments of the community.
B. Avocation Activities. A judge may speak, write, lecture, teach, and participate in other extra-judicial activities concerning the law,* the legal system, the administration of justice, and non-legal topics, subject to the requirements of this Code.
Commentary. - As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary, and the integrity of the legal profession.
C. Governmental, Civic, or Charitable Activities.
·(1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law,* the legal system, or the administration of justice, or except when acting pro se in a matter involving the judge or the judge's interests.
Commentary. - See Section 2B regarding the obligation to avoid improper influence.
Section 4C(1) permits a judge to appear before a governmental body or government official on a matter concerning the judge's interests. The word "interests" should be interpreted broadly. A judge may speak on matters concerning the judge's social interests as well as matters affecting the judge's economic interests.
_·(2) A judge shall not accept appointment to or serve on a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law,* the legal system, or the administration of justice. A judge may, however, represent a country, state, or locality on ceremonial occasions or in connection with historical, educational, cultural, or athletic activities.
Commentary. - Section 4C(2) prohibits a judge from accepting any governmental position except one relating to the law, the legal system, or the administration of justice as authorized by Section 4C(3). The appropriateness of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.
Section 4C(2) does not govern a judge's service in a nongovernmental position. See Section 4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system, or the administration of justice and with educational, religious, charitable, fraternal, or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under Section 4C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Section 4C(3).
(3) A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or governmental agency devoted to the improvement of the law,* the legal system, or the administration of justice, or of an educational, religious, charitable, fraternal, cultural, athletic, or civic organization not conducted for profit, subject to the following limitations:
Commentary. - Section 4C(3) does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice; see Section 4C(2).
Participation by a judge in a non-profit organization may be governed by other provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited by Section 4G from serving as a legal advisor to a non-profit organization.
Section 4C(3) does not prohibit mere membership in a legal professional association that occasionally takes controversial or political positions.
(a) A judge shall not serve as an officer, director, trustee, or non-legal advisor if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the judge's court.
Commentary. - The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.
(b) Regardless of the judge's role within the organization, a judge:
(i) may assist the organization in planning fundraising activities and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or be the speaker or guest of honor at the organization's fundraising event, except that the judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;
(ii) may make recommendations to public or private fund-granting organizations on projects and programs concerning the law,* the legal system, or the administration of justice;
(iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive;
(iv) shall not personally participate in membership solicitation, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fundraising mechanism;
(v) shall not use or permit anyone else to use the prestige of judicial office for fundraising or membership solicitation.
Commentary. - A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice or a nonprofit educational, religious, charitable, fraternal or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fundraising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing, or by telephone except in the following cases: (1) a judge may solicit other judges over whom the judge does not exercise supervisory or appellate authority, (2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves, and (3) a judge who is an officer of a Section 4C(3) organization may send a general membership solicitation mailing over the judge's signature.
Use of an organization letterhead for fundraising or membership solicitation does not violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge's staff, court officials and others subject to the judge's direction and control do not solicit funds on the judge's behalf for any purpose, charitable or otherwise.
Section 4C(3)(b)(i) is intended to prohibit the direct solicitation of funds. Being the speaker or guest of honor at an organization's fundraising event is the functional equivalent of solicitation. However, judges may participate as workers at fundraising events such as car washes and carnivals, purchase admission to fundraising social events, and purchase goods and services (e.g., candy bars, commemorative buttons, or a car wash) that are being sold as a fundraising effort.
D. Financial Activities.
(1) Generally.
(a) A judge shall not engage in financial or business dealings, or permit his or her name to be used in connection with any business venture or commercial advertising program, with or without compensation, if the activity might reasonably be perceived to exploit the judge's judicial position.
· (b) A judge shall not enter into financial or business dealings that would involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.
Commentary. - See Time for Compliance, Section 6E.
When a judge acquires information in a judicial capacity, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See Section 2B; see also Section 3B(11).
A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. With respect to affiliation of relatives of a judge with law firms appearing before the judge, see Commentary to Section 3E(1) relating to disqualification.
Participation by a judge in financial and business dealings is subject to the general prohibitions in Section 4A against activities that tend to reflect adversely on the impartiality of the judge, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in Section 2B against the misuse of the prestige of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge's activities, as set forth in Canon 1.
Under Section 4D(1)(b), a judge may enter into financial or business dealings with a lawyer who is a relative or close friend whose appearance or interest in a case would in any event require the judge's disqualification under Section 3E.
(2) Judge as Investor. A judge may hold and manage investments of the judge and members of the judge's family,* including real estate. In addition, a judge may participate as a passive investor in any business. For purposes of this Section, "passive investor" means that the judge is not a director, officer, manager, partner (except a limited partner in a limited partnership), advisor, employee, or controlling shareholder of the business.
Commentary. - See Time for Compliance, Section 6E. For active investments and other business interests, see Section 4D(3).
(3) A judge may actively engage in business or other remunerative activity, as long as the judge would not expect the business or remunerative activity to:
(a) involve the judge or the judge's business associates in lobbying legislative or regulatory bodies within Alaska, or
(b) involve the judge or the judge's business associates in frequent appearances in front of legislative or regulatory bodies within Alaska, or
_·(c) have a major effect on the economic life of the community in which the judge serves. A business has a "major effect on the economic life of the community" when it employs more than five percent of the local work-force, when it provides essential financial services (for example, banking or insurance) or essential utilities (for example, electricity, oil, gas, sewage treatment) to the community, or when it is the sole provider of an essential good or service within the community.
Commentary. - See Time for Compliance, Section 6E.
_ (4) A judge shall manage investments and business and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and business and other financial interests that might require frequent disqualification.
(5) A judge shall not accept, and shall urge members of the judge's family* residing in the judge's household not to accept a gift, bequest, favor, or loan from anyone, except for:
Commentary. - Section 4D(5) does not apply to contributions to a judge's campaign for judicial office, a matter governed by Canon 5.
Because a gift, bequest, favor, or loan to a member of the judge's family residing in the judge's household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge's household.
(a) a gift incident to a public testimonial, or books, tapes, and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse* or guest to attend a bar-related function or an activity devoted to the improvement of the law,* the legal system, or the administration of justice;
Commentary. - Acceptance of an invitation to a law-related function is governed by Section 4D(5)(a); acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by Section 4D(5)(h).
A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise in compliance with other provisions of this Code. See Sections 4A(1) and 2B.
(b) a gift, award, or benefit incident to the business, profession, or other separate activity of a spouse* or other family member* residing in the judge's household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided that the gift, award, or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;*
(c) ordinary social hospitality;
(d) a gift from a relative or friend for a special occasion such as a wedding, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship;
Commentary. - A gift of excessive value to a judge or to a member of the judge's family living in the judge's household raises questions about the judge's impartiality and the integrity of the judicial office and might require disqualification of the judge when disqualification would not otherwise be required. See, however, Section 4D(5)(e).
(e) a gift, bequest, favor, or loan from a relative or close personal friend whose appearance or interest in a case would in any event require the judge's disqualification under Section 3E;
(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;
(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or
(h) any other gift, bequest, favor, or loan, but only if the donor is not a person who has come or is likely to come before the judge, and if the person's interests have not come and are unlikely to come before the judge. If the value of the gift, bequest, favor, or loan exceeds $150.00, the judge shall report the gift, bequest, favor, or loan in the same manner as the judge reports compensation under Section 4H.
Commentary. - Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests, or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests, or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge.
E. Fiduciary Activities.
_·(1) A judge shall not serve as executor, administrator, or other personal representative, trustee, guardian, attorney in fact, or other fiduciary* except on behalf of the estate, trust, or person of a member of the judge's family,* and then only if such service will not interfere with the proper performance of the judge's judicial duties.*
_ (2) A judge shall not serve as a fiduciary* if it is likely that the judge, in his or her fiduciary capacity, will 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 a court under its appellate jurisdiction.
(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary* capacity.
Commentary. - See Time for Compliance, Section 6E. The restrictions imposed by Canon 4 may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee if, by virtue of Sections 4D(4) and 4E(3), the judge would be obliged to sell or trade trust assets to the detriment of the trust.
_ F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.*
Commentary. - Section 4F does not prohibit a judge from participating in arbitration, mediation, or settlement conferences performed as part of judicial duties. A senior judge may act as a private arbitrator or mediator subject to Administrative Rule 23(f), which states:
(f) Private Arbitration and Mediation. If a retired judge acts as a private arbitrator or mediator, the judge must comply with the following rules to remain eligible for pro tempore appointment:
(1) Prior to acceptance of any pro tem appointment, the judge shall file with the administrative director a list of the lawyers and parties for whom the judge has served as an arbitrator or mediator within the last two years. This list must be made available to the lawyers and parties in any case assigned to the judge.
(2) The judge shall refrain from soliciting or accepting employment as an arbitrator or mediator from a lawyer or party who is currently appearing in a case assigned to the judge.
(3) The judge shall disqualify himself or herself from sitting as a pro tem judge in a case if the judge has previously served as an arbitrator or mediator in the same matter. This disqualification may be waived under Section 3F of the Code of Judicial Conduct.
(4) The judge shall disqualify himself or herself from sitting as a pro tem judge in a case if the judge is currently serving or scheduled to serve as an arbitrator or mediator for a lawyer or party in the case. This disqualification may be waived under Section 3F of the Code of Judicial Conduct.
(5) The judge shall disqualify himself or herself from sitting as a pro tem judge in a case if within the last two years the judge has served as an arbitrator or mediator for a lawyer or party in the case. This disqualification may be waived under Section 3F of the Code of Judicial Conduct.
(6) The judge shall refrain from accepting employment as an arbitrator or mediator from a lawyer or party who has appeared in a case assigned to the judge within the last six months.
· G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.*
Commentary. - This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family. See Section 2B.
The Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, provided the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge's family in a legal matter.
Even though Section 4G does not apply to part-time magistrates and deputy magistrates, Administrative Rule 2 prohibits employees of the Alaska Court System from engaging directly or indirectly in the practice of law in any of the courts of the state.
H. Compensation, Reimbursement, and Reporting.
(1) Compensation and Reimbursement Defined.
(a) "Compensation" is income received by the judge for personal services or from business activities. It does not include income from a business or property that the judge does not actively manage.
(b) "Reimbursement" is money paid to defray a judge's expenses or any credit or discount given to reduce these expenses. Expense reimbursement other than government-approved per diem shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, when appropriate to the occasion, the judge's spouse* or guest. Any payment, credit, or discount in excess of these limits is compensation.
(2) Limits on Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code if the source of these payments does not give the appearance of influencing the judge's performance of judicial duties* or otherwise give the appearance of impropriety. Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.
(3) Public Reports of Compensation. At least once a year a judge shall report the date, place, and nature of any extra-judicial activity for which the judge received compensation, the name of the payor, and the amount of compensation received. Compensation or income of a spouse* that is attributed to the judge by operation of a community property law is not extra-judicial compensation to the judge for purposes of this Code. The judge's report shall be submitted at the times and in the form prescribed by the Administrator Director of the Alaska Court System. The report shall be filed as a public document in the office of the Administrative Director.
Commentary. - See Section 4D(5) regarding reporting of gifts, bequests, and loans.
Section 4H is divided into three Sections. Section 1 contains the definitions of the terms "compensation" and "reimbursement." Section 2 prescribes the limits on compensation and reimbursement permitted by the Code for extra-judicial activities. Section 3 requires a judge to report compensation (not reimbursement) at least annually.
Section 4H(1)(a) defines "compensation." In general terms, this definition is intended to cover "earned income" - that is, salary, wages, professional fees, tips, and any other income generated by the judge's personal efforts. Compensation does not include income generated by a judge's investments or by partnerships or businesses in which the judge is a passive participant (a limited partner, for example).
Section 4H(1)(b) defines "reimbursement" of expenses. The first sentence gives the general definition of reimbursement: any money, credit, or discount that defrays or reduces a judge's expenses. Reimbursement in the form of government per diem can exceed actual expenses and still not be classified as "compensation."
This Code does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. A judge must not appear to use his or her judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. In addition, the source of the payment must not raise any question of undue influence or the judge's ability or willingness to be impartial.
I. Disclosure of a judge's income, debts, and investments and other assets is required only to the extent specified in this Canon and in Sections 3E and 3F, or as otherwise required by law.*
Commentary. - Section 3E requires a judge to disqualify himself or herself in any proceeding in which the judge has an economic interest. See "economic interest" as explained in the Terminology Section. Section 4D requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of judicial duties. Section 4H requires a judge to report all compensation the judge received for activities outside judicial office. A judge's financial affairs are private except to the extent disclosure is required by law.
(Adopted by SCO 1322 effective July 15, 1998)
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