The Judicial Council has been asked to reconsider Informal Opinion 95-04 of the Ethics Advisory Committee and issue a Formal Opinion addressing the question of whether judges may participate in the Executive Banking Program offered by Zions First National Bank under the terms of a contract with the Utah State Courts.

After a competitive bidding process, the Utah State Courts entered into a contract with Zions First National Bank for banking services. This contract was negotiated and executed through the Administrative Office of the Courts, without the need for involvement or approval by the Judicial Council. The contractual relationship results in Zions receiving deposits of state money, particularly that of the judicial branch.

As part of the contractual relationship, Zions has extended the "Executive Banking Program" to qualifying court employees.⁽¹⁾ The Executive Banking Program was not requested or negotiated by the Administrative Office, but was included in the contract solely at the behest of Zions. Participants in the Executive Banking Program are required to have a minimum net worth of $50,000. The Executive Banking Program offers benefits in checking, lending and bankcard services, as well as the attention of a personal banker to assist with financial issues. Zions offers the Executive Banking Program to officers and key employees of corporations and other entities that have a banking relationship with Zions. The program is apparently not available to the general public on an individual basis absent a depository relationship with the employing entity.

The Code of Judicial Conduct permits a judge to maintain certain financial relationships. For instance, Canon 4D(5)(f) allows a judge to obtain a loan from a financial institution, provided the loan is on the same terms generally available to the public. The Georgia Qualifications Commission, in Opinion 40, held that a judge could not only obtain a loan from a financial institution, but could also preside in cases involving the institution. The Florida Committee on Standards of Judicial Conduct, in Opinion 79-4, held that a judge may obtain a loan at a favorable rate, provided the favorable rate was also available to persons who were not judges.

The Code does not limit its permissiveness to loans. Judges may avail themselves of other banking services. The Alabama Judicial Inquiry Commission, in Opinion Nos. 89-367 and 89-371, held that a judge was not disqualified from presiding in cases involving the financial institution in which the judge maintained a checking account and a safe deposit box, unless the checking account or safe deposit box could be substantially affected by the outcome of the proceeding.

As these authorities note, although a judge may partake of certain financial services, a judge's financial relationships are not limitless. A judge's financial relationships become troublesome when the judge receives services and benefits that are not generally available to the public.⁽²⁾ When judges receive benefits not available to the public this creates the appearance of impropriety. For instance, in Matter of Seraphim, 294 N.W.2d 485 (Wis. 1980), a judge was disciplined for, among other things, accepting a favorable automobile lease rate from a litigant that had appeared before the judge. The rental rate was not available to other persons and the court found that this created "the appearance of impropriety." Id. at 499.

Zions Bank does not offer the Executive Banking Program to individual members of the public. Although Zions offers the program to other entities with which it has a banking relationship, individuals may only participate in the program by way of the position that they hold with the particular entity. In this situation, judges are offered the opportunity to participate in the program because of their employment within the state courts. Without Zions' contractual relationship with the state courts, the program would not be offered.

Although the Code permits judges to take advantage of services offered by financial institutions on the same basis as others who are not judges but are similarly situated,⁽³⁾ Canon 2 suggests some limitations. Canon 2 mandates that judges "avoid impropriety and the appearance of impropriety in all activities." The prohibition against impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Model Code of Judicial Conduct Canon 2A. In this instance, it may appear that Zions was awarded the contract designating it as the depository for court funds, because of, at least in part, the availability of the Executive Banking Program for state court judges. Such appearance may undermine "public confidence in the integrity and impartiality of the judiciary." Canon 2A. Avoiding the appearance of partiality is as important to developing public confidence as avoiding partiality itself.

Because the implied connection between the deposit of state monies and the Executive Banking Program would reflect adversely on the impartiality of the judiciary, state court judges may not participate in the Executive Banking Program offered in connection with Zions' contractual relationship with the state courts.

1. Only the appropriateness of a judge's participation in the Executive Banking Program is before the Council.

2. These authorities also indicate that a judge should recuse in cases where the judge's financial interests might be affected, but this is not a relevant factor in the present inquiry.

3. See In re McDonough, 296 N.W.2d 648,693 (Minn. 1979) Judge is allowed to accept the same credit terms and services offered to other persons with similar "community reputation and professional stature."