COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 87
Participation in Continuing Legal Education Programs.
The Committee has received several inquiries concerning various
forms of participation by judges in continuing legal education programs,
and the impact of the Ethics in Government Act of 1978, as amended, and
accompanying regulations on such participation. This advisory opinion summarizes,
for the benefit of the judiciary in general, the Committee's views concerning
the ethical implications of judicial participation in such programs.
I. Introduction
Judges are permitted to teach and write, and to receive compensation
for doing so. Judges are not, however, permitted to accept honoraria, defined
as including payment for a personal appearance, speech, or article.
The applicable regulations make clear that "participation in continuing
legal education programs for which credit is given by licensing authorities
or programs which are sponsored by recognized providers of continuing legal
education" constitutes teaching activity for which compensation may properly
be accepted.
It is, of course, necessary for the judge to obtain advance approval
from the chief judge of the circuit, before engaging in such teaching activity.
And the normal restrictions on extra-judicial compensation apply: the compensation
must be reasonable in amount, no greater than a similarly situated non-judge
would receive for the same services; the 15% cap on outside earned income
is applicable; and the payments must be included in the judge's annual
financial report.
It is permissible for a judge to receive separate or additional
compensation for preparing written instructional materials for use in such
continuing legal education programs. Ordinarily, such payments constitute
compensation for teaching activities, rather than a sale of intellectual
property or receipt of a royalty, and therefore fall within the 15% limitation.
There may, however, be situations which do involve a sale of intellectual
property; exception (5) of section 3(b) of the regulations permits judges
to receive "[r]oyalties, fees, and their functional equivalent, from the
use or sale of copyright . . . received from established users or purchasers
of those rights."
II. Avoiding Improper Exploitation of Judicial Office
Canon 5C(l) provides in part:
A judge should refrain from financial and business dealings
that tend to . . . exploit the judicial position.
On the other hand, Canon 4A provides:
A judge may speak, write, lecture, teach, and participate in
other activities concerning the law, the legal system, and the administration
of justice.
And the Commentary to that rule states:
As a judicial officer and person specially learned in the law,
a judge is in a unique position to contribute to the improvement of the
law, the legal system, and the administration of justice . . . . To the
extent that the judge's time permits, the judge is encouraged to do so,
either independently or through a bar association, judicial conference,
or other organization dedicated to the improvement of the law.
Construing these provisions together, the Committee is of the view
that a judge who, in writing or teaching, utilizes the special insights
derived from his or her judicial experience, is not thereby engaging in
improper exploitation of the judicial office, when the subject of the teaching
or writing is not principally concerned with the specific court on which
the judge sits.
A judge who writes on a legal topic or teaches in the field of law
inevitably draws to some degree upon his or her experience as a judge.
This is unavoidable if judges are to write and teach as the canons encourage
them to do. And, as noted above, the canons expressly approve the receipt
of reasonable compensation for encouraged scholarly activity. But the Committee
believes there is a distinction between a judge's writing or teaching for
compensation when the subject matter is how to practice before the judge's
own court, as distinguished from a judge's writing or teaching for compensation
on other legal topics with respect to which the judge does not occupy a
unique position by virtue of his or her own particular judgeship. The "unique
position" mentioned in the commentary to Canon 4 means the judicial position
in general, rather than the particular judgeship of that particular judge.
For a judge to derive financial benefit, over and above the judicial
salary, from the publication and sale of a book about his or her own court,
or from participation in a seminar on the same topic, would constitute
exploiting the judicial position for financial gain. It could also permit
others -- the publisher of the book, the sponsor of the seminar -- to benefit
from the judge's exploitation of his or her judicial position. Moreover,
when the subject matter is so limited, there is the likelihood that a lawyer
practicing in that court could reasonably believe that purchase of the
publication, or attendance at the seminar, is expected by the judiciary.
In short, it is the Committee's view that it is inappropriate for
a judge to sell his or her expertise on the idiosyncracies of practice
before that particular court. This does not mean that a judge cannot lecture
or write on that subject, only that the judge may not properly do so for
compensation. Nor does this mean that a judge who is lecturing or writing
for profit about some aspect of legal practice or procedure is foreclosed
from giving illustrations from his or her own experience on the court,
only that a judge may not charge for giving a lecture or writing a book
where the principal focus is on how to practice before the judge's court
and where, as a necessary result, a substantial part of the value and appeal
to the audience arises from the fact that the lecturer or author is an
"insider."
III. Limitations on Uncompensated Teaching or Writing
As stated above, when a judge's teaching or writing focuses upon
the ins-and-outs of practice before that judge's court, his or her particular
judicial position is being exploited, to some extent. It is therefore improper
for the judge to receive compensation for such activities, because to do
so would be to exploit the judicial office for his or her own private gain.
By the same token, when the sponsoring entity of the seminar or course
is a private individual or a for-profit entity, the judge could be said
to be exploiting the judicial position for the private benefit of the sponsor,
irrespective of whether the judge is being compensated. Where the sponsoring
organization is a law-related non-profit entity, however, these restrictions
do not apply: Canon 4 permits judges to assist in the activities of law-related
entities, including their fund-raising activities, so long as the judge
does not personally participate in fund-raising activities. Hence, there
is no ethical impediment to a judge teaching or writing about the practices
of his or her own court, if the sponsor is a law-related non-profit entity,
provided the judge does not accept compensation for doing so.
IV. Summary
It is permissible for judges to engage in teaching and writing,
including participation in continuing legal education seminars, and to
accept compensation for doing so, unless the subject matter primarily relates
to practice before the judge's own particular court. When the subject matter
is thus focused, a judge may participate only if no compensation is accepted,
and only if the sponsoring organization is a not-for-profit entity.
It is the continuing obligation of the participating judge to monitor
any promotional activities associated with his or her participation, to
insure that no improper exploitation of judicial office occurs.
June 30, 1992
Reviewed January 16, 1998