Question: The Ethics Advisory Committee has been asked by a juvenile court judge whether it is a conflict of interest for the judge's spouse to sit on the board of trustees of a counseling center that receives referrals from the juvenile court.

Answer: The Committee finds that the spouse's position on the board could imply that the center holds a special position of influence with the judge. Therefore, the judge should not specifically order, or allow juvenile court personnel to require, services to be sought from the center.

Discussion: According to the facts provided by the judge, the judge's spouse serves on the board of trustees of a nonprofit counseling center. The counseling center provides services to adults and juveniles in the areas of substance abuse, domestic violence, and anger management, among other areas. The juvenile court intake workers and probation officers often recommend that a juvenile be ordered to receive services from the counseling center. The judge will typically order counseling services, but will not refer to a specific counseling center. However, on occasion the judge does refer to this particular counseling center. Because of the relationship between the counseling center and the juvenile court, the judge questions whether it is a conflict of interest for the judge's spouse to sit on the board of trustees.

The Code of Judicial Conduct does not govern the behavior of a judge's family. This Committee cannot provide instruction to a judge's spouse as to whether he or she may sit on a board of trustees. The Committee can only provide guidance to the judge and how the judge should deal with referrals to the counseling center.

Canon 2B, Utah Code of Judicial Conduct, states that "[a] judge shall not lend the prestige of the judicial office to advance the private interests of others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge." For purposes of this opinion, the Committee assumes that the judge's spouse has no financial interest, as defined by the Code, in the counseling center. If such a financial interest existed, referral by the juvenile court to the counseling center, whether or not specifically ordered by the judge, would be impermissible. Canon 3E(1)(c), Code of Judicial Conduct.⁽¹⁾ The question for the Committee is whether the service on the board by the spouse either uses the judicial office to promote private interests or conveys an impression that the center is in a special position to influence the judge, thereby prohibiting referrals by the judge.

In Informal Opinion 98-13, the Committee addressed the question of whether a judge may write a letter in support of a private counseling service seeking a federal grant. The Committee concluded that such a letter was not permissible because, among other reasons, the letter could be perceived as conveying that the organization is in a special position of influence. The Georgia Judicial Qualifications Commission, in Opinion 219, found that a juvenile court judge could not order children or parents to receive services from an organization from which the judge's spouse received remuneration as executive director. The Commission's opinion was based on Canons 2B and 3C.

While the Committee realizes that, unlike the situation addressed by the Georgia Commission, the judge's spouse does not have a financial interest in the center, the spouse's service on the board may convey the impression that the center is in a special position to influence the judge. While the judge's spouse does not benefit financially from the center's work, the private interests of the center presumably are advanced by providing services ordered by the court. An impression that the center is in a special position to influence the judge could take two forms. The first would be that the center was able to receive more referrals than it would otherwise because of the board member's relationship with the judge. The second would be that the juveniles or parents would perceive that the judge would give undue credence to the arguments, testimony or evidence of the center. Therefore, the judge should not specifically order juveniles or parents to seek services from the center. In addition, the judge should not allow juvenile court personnel involved in cases in which the judge presides to require counseling from the center.

If the center appears on a list of providers from which the juvenile or parents could choose, the Committee's concerns are lessened. As long as juvenile court personnel do not make any recommendations about the services provided on such a list, parents and juveniles would choose without influence and each of the service providers would be in the same position.

1. Canon 3E(1)(c) would require the judge to be disqualified in any case in which the spouse has "any other more than de minimis interest that could be substantially affected by the proceeding."