The Ethics Advisory Committee has been asked for its opinion as to whether the Code of Judicial Conduct permits a judge serving on the Court of Appeals to serve as president of a local bar association.

It is the committee's opinion that the Code does not prohibit a judge from holding such an office, provided the judge does not allow the office to interfere with the proper performance of judicial duties and that no appearance of impropriety results.

PERFORMANCE OF JUDICIAL DUTIES
Canon 4 of the Utah Code of Judicial Conduct provides in pertinent part:

C. A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice ...

The Commentary to Canon 4 states:

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 his time permits, he is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.

The local bar association at issue here is the type of organization contemplated by Canon 4. According to the judge, the bar's purpose is to advance the administration of justice and the improvement of the bar. To that end, the bar sponsors continuing legal education programs for its membership, provides newsletters containing legal updates, publishes legal practice manuals, and promotes pro bono work in the community.

This committee has previously considered whether a judge may hold office in a bar association. In Informal Opinion No. 89-13, the committee held that, based on Canon 4 and on precedent from the Federal Advisory Committee on Judicial Activities, the Code of Conduct does not prohibit a judge from serving as an officer of a bar association.

In that opinion, however, the presidency of the state bar association was at issue. Although the committee found no prohibition in the Code against serving as president of the association, several restrictions were placed on service in that position. The restrictions involved participating in legislative activities and other public policy initiatives; fundraising; litigation involving the bar, and bar admissions and disciplinary matters.

Unlike the state bar, the local bar association does not participate in these activities and therefore, the same considerations do not apply.

In Informal Opinion No. 89-13, the committee also addressed the question of whether service as a bar officer would interfere with the proper performance of judicial duties.

Canon 3 of the Code of Judicial Conduct states: "The duties of a full-time judge take precedence over all other activities. " The Commentary to Canon 3 explains that "prompt disposition of the court's business requires a judge to devote adequate time to his duties, to be punctual in attending court and expeditious in determining matters under submission." Canon 5B further specifies that any extra-judicial activities in which a judge is involved must not interfere with the performance of judicial duties.

Canon 4, which permits a judge to engage in certain quasi-judicial activities, starts with the caveat that the judge's participation is "subject to the proper performance of his judicial duties." The Commentary to Canon 4 also emphasizes that a judge is encouraged to contribute his/her expertise to an organization "to the extent that his time permits." Finally, Advisory Opinion No. 14, which found no impropriety where a judge serves as an officer of a state bar association, similarly cautioned that the participation must not "interfere with the performance of judicial duties."

This committee has expressed concern in previous opinions about extra-judicial activities interfering with the proper performance of judicial duties. In Informal Opinions Nos. 89-4, 89-9, 89-11 and 89-13, the committee explained that because no leave or absentee policies exist which govern the judge, and without knowing what other extra-judicial commitments the judge had made, this committee was unable to conclusively determine whether the extra-judicial activity contemplated by the judge was permissible.

Here, as a member of an appellate court, no leave or absentee policies exist which govern this judge. The judge has stated, however, that the duties of a local bar president include "presiding over the monthly meetings and representing the county bar". The meetings are held in the evenings. The judge further states that the position would not require spending "undue time" during regular business hours and would not interfere with the judge's primary responsibility to fulfill judicial duties. The judge states that he or she would have no difficulty performing the duties required by the bar association and staying "absolutely current" in his or her caseload.

As this committee noted in Informal Opinion No. 89-11, ultimately, the individual judge is the only one who can determine whether an outside activity will interfere with that judge's case management. Based on this judge's assurances that the time commitment involved in serving as bar president would not interfere with the proper performance of judicial duties, it is this committee's opinion that the Code of Conduct does not prohibit the judge from serving in that position.

APPEARANCE OF IMPROPRIETY
Canon 2 of the Code of Conduct provides that a judge should avoid impropriety and the appearance of impropriety in all activities. Specifically, a judge is required to exhibit conduct which promotes public confidence in the integrity and impartiality of the judiciary. Canon 2 also states that a judge must not lend the prestige of the judicial office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence with the judge.

In serving as a local bar president, the judge must avoid any activities which cast doubt on judicial impartiality and must not lend the prestige of the judicial office to advance the interests of the bar association, or give the appearance that members of the bar association are in any special position of influence.

This committee also notes Advisory Opinion No. 82 from the Federal Advisory Committee on the Code of Conduct, which points out that "'the public will normally be uninformed of any restriction or qualification that the judge may have placed" on membership in an organization. Accordingly, if the judge finds it necessary to restrict his or her bar activities to avoid the appearance of impropriety, the judge should consider the fact that the appearance of impropriety may still result, based on the public's perception of the judge's activities.

CONCLUSION
It is the committee's opinion that the Code does not prohibit an appellate court judge from serving as president of a local bar association, provided the judge does not allow the office to interfere with the proper performance of judicial duties: and that the judge's bar activities do not result in the appearance of impropriety.