COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 36

Commenting on Legal Issues Arising before a College Board of Trustees of Which a Judge Is a Member.

The Committee has received an inquiry on the propriety of the following actions by the two judges:

1. A reporting judge serves as a member of a "Lay Advisory Committee" of a college, and as director of one historical society and vice president of another. The reporting judge sets forth that, although the judge participates in no fund-raising activities for these organizations the judge "[has] on occasion, as a board or committee member, expressed my views as to the legal effect of contemplated action under discussion."
2. The reporting judge records the fact that the judge serves as a trustee of a college located in the judge's district. With reference to this service, the judge reports that, although the college has its own counsel, "I have, with other board members, reviewed leases and other instruments and commented on the legal aspect of them."

One federal statute and two provisions of Canon 5 of the Code of Conduct for United States Judges must be considered.

Section 454 of title 28, United States Code, provides:

Any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor.

Canon 5 provides in pertinent part:

B. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members.

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F. Practice of Law. A judge should not practice law.

The Reporter's Notes to Code of Judicial Conduct, commenting on the ABA model code provision that parallels Canon 5F, state:

The suggestion was made that the Committee should define in specific terms what is meant by "the practice of law." After examining the various decisions and ethics opinions of a number of states on the question, the committee decided that the definition of "practice of law" should be left to common law development by each adopting jurisdiction in light of its own decisions, ethics opinions, and local practices.

See Thode, Reporter's Notes to Code of Judicial Conduct 90 (ABA 1973).

Subject to other restrictions in Canon 5, a judge may serve as a trustee of a college, and may vote, as any other trustee, to approve or disapprove leases and other instruments. But a judge should leave to counsel for the college the responsibility for reviewing, passing upon and commenting on the legal aspects of the proposed leases and other instruments. A judge may with propriety suggest that there are legal questions involved in a proposed instrument or course of action, and suggest that the matter be referred to counsel for a legal opinion. See also Advisory Opinion No. 44.

May 8, 1974
Revised January 16, 1998