23.18.02. Appearances before governmental bodies and consultation with government officials

A judge has expertise in the law – and deals with deficiencies in the law – every day.  It would not benefit the public interest if judges were prohibited from sharing their insights with government officials.  On the other hand, however, judges should not act like lobbiests or legislators.  To balance these concerns the rules provide that judges should only appear voluntarily before a governmental body or consult with government officials in limited circumstances.  Notice the word “voluntarily” – if a judge is subpoenaed or ordered by a court to appear she has not acted unethically.

A judge can appear before a governmental body:

• in connection with matters concerning the law, the legal system, or the administration of justice
• in connection with matters the judge learned expertise in the course of judge’s judicial duties
• when the judge is acting pro se in a matter involving their own economic interests or appearing as a fiduciary[1]

A couple of thoughts.  First, even when a judge may voluntarily appear before a governmental body, it might still be prohibited by another rule.  For example, if a judge has a case pending where the issue is the interpretation of a statute, it would violate the rule prohibiting a judge from making statements on pending or impending cases (Rule 2.10) for the judge to testify in favor of a particular amendment to the statute.[2]   Second, a judge may appear to defend the judge’s own financial interests.  Therefore, if there is a zoning proposal that would impact property owned by the judge, the judge may appear and speak for or against the matter.[3]

[1] ABA Code of Judicial Conduct, Canon 3, Rule 3.2(A) – (C).

[2] ABA Code of Judicial Conduct, Canon 3, Rule 3.2, Comment [2].

[3] ABA Code of Judicial Conduct, Canon 3, Rule 3.2, Comment [3].