Question: A judge has asked the Ethics Advisory Committee whether the judge may engage in discussions with the judge's insurance carrier concerning insurance coverage.

Answer: The judge may communicate with the insurance carrier concerning coverage for the judge's family member. Communications may be through telephone or letter. In these communications, the judge should not make any reference to the judge's position unless the information is elicited for the purpose of qualifying for insurance. For instance, the judge cannot use judicial letterhead, sign the letter as a judge, or mention the judge's occupation in the letter. In keeping with the private nature of the discussions, the judge should only draw upon personal, as opposed to professional experiences when discussing issues with the insurance carrier.

Discussion: The judge has a family member who suffers from a serious mental illness. The judge would like to engage in discussions with the judge's insurance carrier concerning the merits of giving parity to the insurance coverage given to mental illnesses in relation to the coverage given other serious physical disorders. The financial implications of additional insurance coverage would be significant to the judge. The issue of insurance coverage for mental illnesses has also become a state and federal issue, with several states enacting statutes to require parity. The United State Congress has considered the issue, and a bill requiring parity was introduced in the Utah Legislature, but the bill was never presented for a full legislative vote.

The Code of Judicial Conduct reaches the private conduct of judges through Canons 2 and 4. Canon 2A requires a judge to "exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciary." Canon 4A states that "a judge shall conduct the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) demean the judicial office;
(3) interfere with the proper performance of judicial duties; or
(4) exploit the judges' judicial position."

Canon 4 contain other proscriptions when a judge's extra-judicial activities are more public in nature. As a general rule, when a judge is in engaged in public activities, the judge can only participate in activities which involve the law, the legal system or the administration of justice or activities with certain non-profit organizations. In the fact situation presented, the judge would not be able to, for instance, attend a public meeting and engage in any public discussions concerning insurance coverage for mental illnesses, because this is not a subject that is directly related to the law, the legal system or the administration of justice. However, it is obvious that these proscriptions do not and should not extend to the private dealings of judges. A judge would be severely restricted in private dealings if the proscriptions applied. Because insurance coverage for mental illnesses is an issue on which the judge has a personal, private interest, the Committee believes that the judge should be able to engage in discussions with insurance company representatives with certain restrictions.⁽¹⁾

"The policy justifications for placing restrictions on off-the-bench activities generally fall into the following broad categories:

(1) the need to avoid the appearance of partiality, favoritism, or other misuse of public office;
(2) the need to maintain public confidence in the members of the judiciary; and
(3) the need to ensure that judges will not be distracted by non-judicial activities."

Jeffery Shaman et al., Judicial Conduct and Ethics, 303, 304 (2d ed. 1995). "It is considered improper for a judge to take advantage of his or her position and title in order to advance an economic, political, social, or other interest. Furthermore, it is considered improper for a judge even to appear to do so." Id. at 305. A judge should certainly be free to engage in private negotiations and dealings in areas in which the judge has an interest. However, a judge must be careful when the judge's interests may be affected through these dealings. A judge must not create any perception that the judge is attempting to use influence. Obvious examples would occur if a judge were to mention his or her title in hopes of gaining special treatment, favors, discounts, etc. The judge must never attempt to use the judge's names or title as a tool in private dealings and the judge must never create a perception that the judge is attempting to use the judge's name or title in such dealings.

1. The Committee does not address whether a judge could engage in these types of discussions if the judge did not have a direct, personal interest.