The Ethics Advisory Committee has been asked for its opinion on the question of whether an appellate judge may participate in a tour of another' country where the judge's and the judge's spouse's trip are paid for by the travel group arranging the trip, and in exchange, the judge gives lectures to the group about the foreign country's legal system.

The for-profit travel group, based in Kansas, arranges continuing education travel programs for lawyers and doctors. Lawyers who attend often receive continuing education credit. Promotion for the trip is done by the travel group with a national mailing list. The judge has not provided the group with the names of any Utah lawyers nor has the judge signed any letters soliciting participation. A short biography of the judge will appear in the travel group's brochure along with a description of the lectures. The judge has indicated that the lectures were prepared on personal time and that vacation leave will be used to go on the tour.

It is the committee's opinion that the judge may participate in such a tour and may travel at the expense of the travel group arranging the trip, as long as the judge's participation does not create the appearance of impropriety, the judge is not required to solicit funds for the travel group or give investment or legal advice and the travel organization is not a party whose interests have or are likely to come before the judge.

Although most of the opinions interpreting the Canons of Judicial Ethics deal with the actions of judges of inferior courts and courts of general jurisdiction. the Canons apply to judges at all levels. In Formal Opinion No. 322, the American Bar Association's Committee on Ethics and Professional Responsibility stated, "probably, as they relate to appearances of impropriety, the Canons of Ethics apply with greater strictness to the judges of higher courts, for the conduct of judges of higher courts sets the tone for the whole judiciary."

CANON 4(A)
Canon 4(A) permits a judge, subject to the proper performance of his or her judicial duties to speak, write, lecture, teach and participate in other activities concerning the law, the legal system, and the administration of justice. Through this activity, however, the judge must not cast doubt on his or her capacity to decide impartially any issue that may be involved in matters before the court.

A series of lectures on a foreign country's legal system would fall within the purview of this Canon. That country's legal system is not a subject matter that is likely to come before the court, so the lectures should not cast any doubt on the judge's capacity to impartially decide matters coming before the court.

Advisory Opinion No. 79 of the Advisory Committee on the Codes of Conduct discusses activities permitted by Canon 4. The opinion notes that the Code encourages judges to write, teach, and lecture concerning the law, the legal profession, and the justice system. The committee stated:

We reaffirm the longstanding rule that it is appropriate for judges to receive reasonable compensation for outside speaking, teaching, lecturing activities related to the law. Reasonable compensation provides an appropriate incentive for judges to devote significant portions of their personal time to such work. Of course, care must be taken to avoid the fact or the appearance that such outside undertakings interfere with the prompt performance of judicial duties or exploit the judicial office.

In the last twenty years or so, there has been a significant increase in the scope and importance of continuing education programs for the practicing bar, programs often conducted outside the confines of traditional legal education. It is appropriate for judges to participate in such programs for compensation, but there are some additional concerns. For instance, these programs are often widely advertised. Judges participating in such programs should ensure that promotion of the program does not trade on the judicial office, and in particular that the judge's official position is not emphasized to encourage participation in the program.

The judge would need to ensure that the travel agency in its advertisement of the trip, does not trade on the judicial office and that the judge's official position is not emphasized to encourage participation in the program.

Opinion No. 79 further cautions against the use of the facilities and staff in a judge's chambers for the research or preparation of the writings, lectures, provides: or teaching materials, where the judge is receiving compensation. Where, as here, the judge has prepared the lectures on personal time, this would not pose a problem.

As to the judge's statement that "vacation leave" would be used for the trip, it should be noted that no leave or absentee policies exist which govern state court judges. Furthermore, although the presiding judges of the trial courts are responsible for formulating an orderly plan of judicial absences from court duties for vacation and education purposes (CJA Rule 3-104(3)(B)) no such coordination of schedules exists on the appellate court level. Due to the lack of articulated policies and the accompanying lack of guidelines, and without knowing what other extra-judicial commitments the judge has made, the committee is unable to comment on the appropriateness of the judge's travel plans as they pertain to the judge's absence from court duties. This committee has previously considered the propriety of a judge's participation in a seminar in another country at the expense of the American organization sponsoring the seminar. In Informal Opinion No. 88-10, the committee stated that the judge may participate and may have his or her expenses paid provided the judge's participation does not create the appearance of impropriety, the judge is not required to solicit funds for the organization or give investment or legal advice and the organization is not a party whose interests have or are likely to come before the judge. In addition, reimbursement for expenses had to be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge. Accordingly, the judge is not permitted to solicit funds for the travel group or give investment or legal advice. Because the travel group is not a party whose interests are likely to come before the judge, the judge's participation in the tour should not create the appearance of impropriety. The judge's compensation for providing the lectures will be limited to the actual cost of the trip.

CANON 2(B)
Canon 2(B) of the Code of Judicial Conduct

A judge should 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.

In Informal Opinion No. 88-10, this committee found that Canon 2 did not prohibit that judge's participation in the seminar in another country. The committee stated:

In the present situation, the judge has been asked to participate in a seminar sponsored by an organization located in Washington D.C. The purpose of the seminar is to provide an opportunity for Americans to meet with the policy makers of a foreign country and discuss problems of mutual concern to both countries.

In exchange for the payment of expenses, the judge is only required to attend the seminar. The judge is not required to conduct any portion of the seminar or provide any other professional assistance during the seminar.

Under these circumstances, the judge's participation in the seminar would not create an appearance of impropriety. The organization sponsoring the seminar is located in Washington D.C. and is not a Utah organization. The purpose of the seminar is to discuss issues of an international scope rather than domestic or local. It is extremely unlikely that the organization sponsoring the seminar would ever be involved in litigation in the Utah courts or have an interest in an issue submitted to the Utah courts. Therefore, it is the committee's opinion that the judge's participation in the seminar would not create the appearance of impropriety and is not prohibited by Canon 2 of the Code.

Unlike the judge in Opinion No. 88-10. this judge is required to conduct lectures on the trip in exchange for the payment of expenses. Although the judge is participating in the tour in this manner, the purpose of the trip is to provide a tour and information about the foreign country. The judge's role in this purpose is incidental and is not a focal point of the tour.

Otherwise, like the organization in Informal Opinion No. 88-10, the travel group is located in Kansas and is not a Utah organization. The purpose of the tour and the lecture series is to discuss issues of an international scope rather than domestic or local. It is extremely unlikely that the organization sponsoring the seminar would ever be involved in litigation in the Utah courts or have an interest in an issue submitted to the Utah courts.

In Advisory Opinion No. 3, the Interim Advisory Committee on Judicial Activities consider a question involving a judge who had been invited to participate as a faculty member in a two-week seminar on humanistic studies. The judge was not compensated for his participation, but he was reimbursed for his and his wife's travel expenses and for their maintenance expenses during the period of the institute. Unlike the travel group in the current inquiry, the institute is a nonprofit program. The committee concluded that the judge may participate in the seminar provided the commitment will not, in any way, interfere or appear to interfere with his devotion to the expedition and proper administration of his official functions as a judge, and that the commitment will give no ground for any reasonable suspicion that his office persuades others to patronize or contribute to the institute. The committee added that the judge is the one best able to measure the impact of the canons upon his invitation and participation and the one best able to circumscribe his comments so as to avoid a positive commitment on any legal issue which is likely to arise before him.

In Informal Opinion No. 88-6, this committee considered whether the Code prohibits a judge from teaching a course for a continuing legal education seminar that was being operated by a private for profit group composed of attorneys. The committee found that teaching the course was prohibited since it would lend the power and prestige of the judicial office to advance the financial interests of the for profit group sponsoring the seminar. The opinion stated that where the goal of the seminar's sponsors, presumably, is for the seminar to be a financial success, by teaching at the seminar, the judge would be using the prestige of his or her office to advance the private interests of others. The opinion concluded, "the inference is clear that" judges may teach for public and for nonprofit entities, but that they should avoid lending the prestige of their office to private groups sponsoring continuing legal education seminars for profit."

While the travel group is a for-profit entity, they are not actually "sponsoring continuing legal education seminars for profit." Rather, they are sponsoring a trip abroad for profit. That the tour has the added feature of providing continuing education credit, does not change the character of the enterprise. The purpose of this trip, unlike the continuing education seminar considered in Informal Opinion No. 88-6, is to travel to the foreign country. The judge's lectures will presumably enable the participants to receive continuing education credit for the tour, but would not be the primary reason people would choose to participate. Thus, although the financial interests of the tour group will be advanced by people participating in the tour, the judge's lecture series would not necessarily encourage that participation and does not constitute an improper use of the judicial office to advance those financial interests.

CANON 6
As to the form of compensation the judge will receive, Canon 6 allows a judge to receive compensation and reimbursement of expenses for the quasi-judicial activities permitted by the Code, if the source of such payments does not give the appearance of influencing the judge in the performance of his or her judicial duties or otherwise give the appearance of impropriety. Compensation must not exceed a reasonable amount and should be comparable to what a person who is not a judge would receive for the same activity. Expense reimbursement should be limited to the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse.

Applying these factors to this matter, since the travel organization is not likely to be a party in litigation before this judge, there is no appearance of influencing the judge in the performance of judicial duties. Compensation is limited to the actual cost of the trip for the judge and the judge's spouse. There is no indication that the compensation would differ if a person who is not a judge were delivering the lecture series.

CONCLUSION
In conclusion, it is the committee's opinion that the Code does not prohibit the judge's participation in such a tour whose purpose is to visit a foreign country and not merely to attend the judge's lectures, as long as the judge's participation does not create the appearance of impropriety, the judge is not required to solicit funds for the travel group, the travel organization is not a party whose interests have or are likely to come before the judge, and the compensation received by the judge is reasonable and is similar in amount to what a person who is not a judge would receive for the same activity.