COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 80

Use of Chambers, Resources, and Staff for Activities Permitted by Canon 5.

In a pluralistic society, judges can enrich their community and their own lives by participation in those civic, charitable, and avocational activities best suited to their talents, interests, and background. A judge can preserve the integrity of the judicial office without undergoing a complete isolation from community life.

In this opinion, the Committee supplies advisory guidelines concerning the use of judicial resources⁽¹⁾ by judges for non-law related activities.⁽²⁾

The canons and our advisory opinions are intended to achieve a proper balance between the right of judges to lead active lives in the community and the need to safeguard the independence and integrity of the judiciary. To this end, limits on judicial involvement in non-law related activities have been set. The judge's participation in a given activity must not interfere with the discharge of official duties. See, e.g., Canon 5A and B; Advisory Opinion Nos. 2, 3 and 40. The judge must be certain that judicial involvement will not exploit or create the appearance of exploiting the judicial office for the private benefit of the judge or others. See, e.g., Canon 5B(2) (prohibiting solicitation of funds); Advisory Opinion No. 3 (permitting uncompensated teaching of humanities seminar where there was "no ground for any reasonable suspicion that the judge's office persuaded others to patronize or contribute to the seminar sponsor"). The judge must take care that the activity does not involve him or her in partisan political activity, see, e.g., Advisory Opinion No. 15 (approving directorship of nonprofit club not engaged in partisan political activity or taking positions on governmental, economic, or social issues that might hamper the discharge of judicial duties); Advisory Opinion No. 19 (prohibiting membership in political club), or with groups likely to litigate in the courts, see, e.g., Canon 5B(1); Advisory Opinion No. 40.

We reaffirm the need for judges to observe these limits when engaging in non-law related activities.

Where an activity is permitted by Canon 5, there is a further question whether the judge may, in the course of pursuing such activities, make use of judicial resources, and if so, to what extent. Canon 5H addresses this question, providing that:

A judge should not use chambers, resources, or staff to engage in activities permitted by this Canon, except for uses that are de minimis.

Canon 5H thus recognizes that some minimal use of chambers' resources in connection with non-law related activities permitted by Canon 5 is unavoidable, while mandating that such use not be more than de minimis.

Canon 5H treats compensated and uncompensated activity alike; it bars all but deminimis uses in either case. There is special hazard, however, that use of judicial resources will be perceived to be, or even become, more than de minimis when the judge does non-law related work for compensation. Thus, a judge doing this work must exercise extra vigilance to avoid anything more than de minimis use.

The standard of de minimis use is more restrictive than the standard of insubstantial use employed by Canon 4. Thus, the acceptable use of judicial resources for non-law related activities is less than that acceptable for law-related activities that are extra-judicial. Accordingly, all limitations set forth in Advisory Opinion No. 79 (pertaining to law-related extra-judicial activities permitted by Canon 4) apply a fortiori to non-law related activity permitted by Canon 5.

De minimis use of judicial resources includes occasional telephone calls, scheduling, and storage of files, books, or equipment, though not the use of staff to maintain extensive files, correspondence, or equipment. So long as the activity does not interfere with the full and prompt performance of judicial duties and so long as the government incurs no incremental costs, a judge may perform the activity in the judicial chambers. It is prudent for the judge to use his or her own funds to purchase separately supplies used in Canon 5 activity.

When federal statutes or regulations impose other, more stringent duties and obligations on judges pertaining to the appropriate use of government resources, these statutes or regulations, of course, control.

May 6, 1987
Revised January 15, 1993
Reviewed January 16, 1998

Note:

1. Guidelines for determining whether an extra-judicial activity is non-law related (and therefore beyond the more liberal treatment allowed in Canon 4) are contained in Advisory Opinion No. 93. If it is determined that the extra-judicial activity is law-related, see Advisory Opinion No. 79.

1. 1 Unless otherwise stated, the term judicial resources includes judicial chambers, facilities, and staff.

2. 2 Canon 4 governs the use of judicial resources for extra-judicial activities that are law-related. Compare Canon 4D; Advisory Opinion No. 79.