The Ethics Advisory Committee has been asked for its opinion on two related issues: first, whether the Code of Judicial Conduct permits a trial court judge to participate in a continuing legal education seminar sponsored jointly by a private non-profit organization and the Utah State Bar; and second, whether the judge may comment on or about litigation recently tried in the judge's court during the education seminar.

According to the request, the seminar is sponsored jointly by a private non-profit organization and the Utah State Bar and is open to both plaintiff and defense counsel. The requesting judge recently presided over a civil suit involving the subject matter which is the topic of the seminar. The time for filing a notice of appeal had not expired as of the date of this opinion.

Canon 4(A) allows judges to "speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice" provided the activity does not cast doubt on the capacity of the judge to decide impartially any issue that may be involved in matters before the Court. The Commentary to the ABA's 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 . . . . 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.

This committee has consistently held that the Code allows a judge to participate in teaching activities as long as those activities do not lend the prestige of the judicial office to advance the private interests of others. In Informal Opinion No. 88-6, this committee determined that although the Code prohibited a judge from teaching a class for a for-profit organization's continuing legal education seminar, "the inference is clear that judges may teach for public and for non-profit entities . . . ." Accordingly, in the present case, where the seminar is sponsored jointly by the State Bar and a private non-profit entity, the Code permits the judge to participate in teaching activities.

This committee has also previously held that judges may participate in teaching activities as long as the activity is not designed to serve the needs of only one component of the justice system. In Informal Opinion No. 88-6, this committee determined that a judge was prohibited from teaching a course on proper courtroom demeanor to law enforcement officers because such an activity may create an appearance of impropriety or convey the impression that law enforcement officers are in a position of special influence with the judge. By contrast, the seminar in question is open to both plaintiff and defense counsel, thereby avoiding the appearance of impropriety or the impression that either plaintiff or defense counsel are in a position of special influence with the judge.

The more critical question, however, is whether the judge's participation in this program is permissible when a civil suit involving the same subject matter is pending before the judge at the time of the seminar. Canon 3(A)(6) prohibits a judge from making public comments about a pending or impending proceeding in any court. Although this committee was unable to locate any advisory opinions from either the ABA or the Federal Judicial Conference which analyze the scope of Canon 3(A)(6), the language of the Canon is clear. A judge must abstain from public comment about a pending case except when making public statements in the course of official duties or explaining for public information, the procedure of the court. Neither exception is applicable here. Accordingly, in the present situation, if a motion for a new trial or a notice of appeal is filed or the time for filing a notice of appeal has not expired, the judge is prohibited from commenting on any aspect of the pending litigation. Finally, regardless of the pendency of the litigation, Canon 4 prohibits a judge from engaging, in any activity that would cast doubt on the judge's capacity to decide impartially any issue that may come before the court, thus, in the present situation, the judge is not only prohibited from commenting on pending litigation, but is also prohibited from making any general comments concerning this type of litigation which would cast doubt on his ability to decide impartially any issue presented by this type of case.

Accordingly, it is the committee's opinion that a trial court judge may participate in a non-profit organization's continuing legal education seminar, as long as the judge's participation does not create the appearance of impropriety or convey the impression that the participants are in a position of special influence with the judge and the judge does not comment on a pending or impending proceeding or engage in any conduct which casts doubt on the judge's ability to decide impartially any issue presented to the court.