JUDICIAL ETHICS ADVISORY COMMITTEE
SUMMARIES OF ADVISORY OPINIONS

This page contains summaries of the advisory opinions issued by the Arkansas Judicial Ethics Advisory Committee from requests for opinions received since July 1, 1991. Copies of the full opinions are available below. They are also available upon request from the Judicial Ethics Advisory Committee, 323 Center Street, Tower Building - Suite #1060, Little Rock, AR 72201. Copies are also available at the Supreme Court Library and the law school libraries in Fayetteville and Little Rock and are included in the Law Office Information System Case Base for Arkansas.

The first three requests for advisory opinions received by the Judicial Ethics Advisory Committee evolved around the issue of nepotism. In each case the requesting judge asked if the continued employment of his spouse or relative under the unique circumstances of each employment situation was a violation of Canon 3B(4) of the Code of Judicial Conduct. In each of these instances, the requests did not meet a threshold requirement to go before the Judicial Ethics Advisory Committee. That threshold requirement is that the request for an advisory opinion relate to prospective conduct only.

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The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that a judge may serve on a bank's advisory board, that the judge's ownership of approximately 2% of the voting stock of the bank constitutes a financial interest that requires disqualification in all cases in which the bank is a party, and that the judge should consider divesting the stock and resigning from the board if frequent disqualification is required. The Committee also advised that the judge must disqualify himself from cases filed or tried by his brother-in-law, the city attorney, and must not issue warrants at the request of his brother, the deputy prosecuting attorney. The Committee also advised that the judge is not precluded from appointing his wife as an unpaid deputy clerk but that it would be better not to do so, although she could still occasionally do general secretarial or administrative work. The committee stated that if the judge still considers appointing his wife as a clerk, he should do so only if she is qualified, the position is a deputy position, the position is temporary and part-time, the appointment is on a volunteer and philanthropic basis with no perceived present or future financial benefits (either direct or fringe) to the relative or the judge, and the volunteer service provided by a relative is not considered with respect to increases in the judge's salary. In response to a question about what financial reports judges must file, the Committee stated that the request was not made in accordance with Procedural Rule 3 because it was not accompanied by a concise memorandum setting forth the judge's own research and conclusion.

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Advisory Opinion #91-05 - (November 19, 1991)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that a judge may not solicit funds in person, by telephone, or by letter from individuals or corporations to support a reception to be held following a continuing legal education seminar sponsored by the Arkansas Association of Women Lawyers nor may the judge solicit funds on personal stationery from her residence, but the judge may suggest to the organization the names of potential donors and participate in the planning of fund-raising, and non-judicial members or employees of the organization may contact donors if they are careful not to suggest that they are acting on behalf of or with the knowledge of the judge. The Committee noted that Canon 4C implies that a judge may personally participate in "private" fund-raising, but stated that private fund-raising should be interpreted as limited to narrow situations involving, for example, fund-raising among relatives and other judges.

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Advisory Opinion #91-06 - (January 8, 1992)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that 1) because a press release issued by a judge prior to his request for an ethical opinion is a past event, the propriety of the press release falls as a matter for the Judicial Discipline and Disability Commission, not the Committee, 2) because motions for recusal based on the press release made in two pending cases were properly within the jurisdiction of the chancery court and appellate review is available, the Committee would not address the issue of recusal in those cases, and 3) because the matter of future disqualification based on the press release is an issue of law that should be resolved in an adversary setting, the Committee would not address that issue. In the press release, the judge had criticized a consent decree signed by a United States judge resolving a voting rights act challenge to judicial districts, announced his intention to run for re-election in 1992 in the newly created sub-district, and commented on race relations in the judicial district. The motions to recuse in two pending cases were brought by the plaintiff in the federal suit, his law partner who had represented him in the federal action, and the Jefferson County Child Support Enforcement Unit. One member of the three member committee dissented from the advisory opinion, stating that he did not find any evidence of bias, prejudice, or judicial impropriety in the press release.

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Advisory Opinion #91-07 - (January 14, 1992)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion stating that under the presently applicable Arkansas Code of Judicial Conduct, the judge is not specifically prohibited from serving on a bank's board of directors, but noting that membership on a bank's board is specifically prohibited by the proposed Arkansas Code of Judicial Conduct now pending before the Arkansas Supreme Court.

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In response to a request for an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that it did not have authority to respond to a judge's request for an opinion regarding a pending motion for recusal.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may not speak at a dinner sponsored by a college to try to develop ways to persuade more young people to attend the college where the ticket sales receipts will be used in part to fund workshops for future training sessions for the same purpose and to pay other speakers for future events sponsored by the college.

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In response to a request, the Arkansas Judicial Ethics Advisory Committee stated that a judge is disqualified from cases involving lawyers who practice with a lawyer the judge has hired to defend the judge in another case. Noting that it had reconsidered its earlier decision not to give advice regarding disqualification issues, the Committee concluded that it should answer the ethical problem that runs concurrent with the legal problem in the disqualification questions. One member dissented from the Committee's decision to address disqualification issues.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a judge may serve as a referee or official at junior and senior high school football games in the area in which the judge resides and accepts less than $50 per game as compensation.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that Arkansas judges who hold offices filled by election may purchase tickets to and attend the inaugural ball for Bill Clinton regardless whether the ball is considered a celebration or a political gathering and regardless whether the admission charge is used to defray the costs of the event, is given to a charitable organization, or is used to support Democratic Party activities.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that, where a judge's sibling is an attorney employed in the litigation division of the state attorney general's office, the judge may sit in cases that involve the office of the attorney general, except those in which the sibling will appear of record as attorney or assists in any way in the preparation or trial. However, the Committee advised that it may be a wise course for the judge to always disclose the relationship on the record and invite the parties and attorneys to offer any additional facts that could possibly require disqualification.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a judge may not serve on an advisory group for a state hospital program that provides intensive care for persons who have been excused from criminal conduct by reason of mental incapacity.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a part-time municipal judge may not represent an individual in a domestic relations matters when the adverse spouse of that individual has an outstanding fine balance owed the municipal court over which the judge presides and may not represent a client such as a bank in a debt collection action against an individual who has an outstanding fine balance with the municipal court.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a judge may not participate in a fund-raiser by managing or playing on a softball team that would play against teams of the executive and legislative branches of state government where the judge's participation would be highly publicized and spectators would support their favorite teams or players by agreeing to contribute money to the charitable organization.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that it would be a violation of the code for a judicial campaign surplus fund to exist. The questions asked; "can a campaign committee for a judge maintain a surplus that does not exceed the yearly salary of the judge;" and "can a campaign committee dispose of existing surplus funds, or must it distribute funds to contributors or to the State Treasurer per the new code." Canon 5C(2) of the 1993 Code of Judicial Conduct provides in part; "Any campaign funds surplus shall be returned to the contributors or turned over to the State Treasurer by law. The opinion states, "Canon 5C(2) is short, concise, unambiguous and without vague or conflicting terms. Furthermore, there are no exceptions, exclusions or limitations of any description to its mandated message that it is a violation of the code for a judicial campaign surplus fund to exist."

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a judge may serve on the board of directors of Associated Marine Institutes, a non-profit organization that has a contract with the State of Arkansas to operate a residential program for juveniles who have been designated serious offenders.

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In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a band of which a judge is a member may play at a fund-raising radio broadcast performance for a public radio station where neither the judge's name nor position will be mentioned and no person being solicited would even know that the judge is performing.

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Clarifying its advisory opinion 93-04, the Arkansas Judicial Ethics Advisory Committee stated that the requirement in Canon 5C(2) of the Arkansas Code of Judicial Conduct, effective July 5, 1993, that a judge must return any campaign fund surplus to the contributor or turn it over to the state treasurer applies to any and all campaign surplus funds, without exception or exclusion, including the time of its accumulation or variance with legislative acts or other rule of law. Advisory opinion 93-07 had advised that a judge's campaign committee may not maintain a surplus to be used as a filing fee in the next election. The Committee noted that the question whether a legislative enactment can override a Canon or a Canon override a legislative enactment was a question of law upon which it could not comment.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may take a public stand in favor of, opposed to, or indifferent to an upcoming bond election in which county voters will decide whether to increase the sales tax to pay for a new courthouse and jail and the judge may be a member of a committee formed to promote passage of the sales tax, although there are limits on the judge's involvement in fund-raising.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge should disqualify himself or herself in all cases in which an attorney opposing the judge for re-election appears.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may not be a speaker at a banquet sponsored by a church where the portion of the proceeds from ticket sales that exceeds the cost of the banquet will go to the church's scholarship fund.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may take a public stand on a proposed constitutional amendment that would make judicial elections non-partisan and would impose limits on judicial terms.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that, where an attorney appearing before a judge is an announced candidate for the position of the judge, the judge must recuse even if no one before the court objects.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a retired judge, who receives retirement pay, may participate in the campaign of a candidate who is running for judge to the same extent and with the same limitations as any other attorney regardless whether the retired judge is subject to recall to service.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge need not disqualify from cases in which an assistant prosecutor who has announced her intention to run against the judge appears where the judge hears all the juvenile delinquency cases for two counties and special judges may not be feasible or appropriate for juvenile matters, particularly those that extend over months or years. The committee noted that the attorney had been hired on a part-time contract basis by the prosecutor to handle felonies and some misdemeanors and typically appeared before the judge in 10-20 cases a week and that none of the other assistant prosecutors typically represented the government in delinquency proceedings. The committee noted that there may be some specific cases where the judge must disqualify, for example, cases in which the campaign might be relevant; the parties object; or the judge's own subjective evaluation of the situation requires recusal.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge is not disqualified from a case in which a subsidiary of AT&T is a party by the fact that the judge is the executor and one of the three beneficiaries of an estate that holds approximately 1,000 shares of an equity income fund about 18% of which is invested in AT&T. The issue before the court was whether a city had appropriately levied a franchise tax or fee. Noting that AT&T has one billion, three hundred million outstanding shares, the Committee concluded that the judge's relatively small share of the fund's relatively small investment in one of the world's largest corporations was a de minimis interest that did not require disqualification.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may not serve on the ad hoc fund-raising committee of a local boys/girls club where the fund-raising will involve lobbying government officials.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that judges may write letters of recommendation but must do son on personal stationery and that judges may permit their names to be used as references and may respond to an inquiry using judicial letterhead.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge is not required to recuse from cases involving an attorney who shares office space with the judge's sibling-in-law where the two attorneys' practices are separate and they are not partners in a firm.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may serve on the advisory committee of a public technical college where the committee recommends changes in the college curriculum, assists in planning, supports the program at the local level, and offers suggestions to the college authority, and where political activity is not anticipated.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that the Code of Judicial Conduct provides that judicial candidates shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. The opinion goes on to note specific acts that may or may not be done by the candidate or the candidate's campaign committee. 1.) A judicial candidate may not personally ask a supporter for a contribution, for permission to put the supporter's name in an advertisement, or for permission to place a sign on the supporter's property. 2.) At any time, a candidate may send a letter, either by bulk mail or individually addressed, to all the attorneys in the state or a district or to other members of the electorate with information about the candidate's background, reasons for seeking office, and plans for office and that asks for advice, support, and his or her vote. A candidate may make similar requests by telephone or in person. 3.) A candidate, as long as he or she does not take the initiative and seek publicly stated support, may respond to a supporter's offer of such support, for example, by telling the supporter to contact the campaign committee; giving the name of the supporter to the committee; giving the supporter a bumper sticker; asking if the supporter would be willing to have his or her name appear in an advertisement; asking the supporter to put in a good word for the candidate with friends; asking if the supporter would be willing to have a campaign sign in the yard and erecting the sign. 4.) A candidate may personally contact important individuals to ask for their private support (for example, asking them to send post cards to friends encouraging support of the candidate). 5.) A candidate or potential candidate may personally contact potential supporters to ask them to serve on a campaign committee, which can be formed at any time.

Noting that a candidate has an obligation to ensure that the candidate's campaign committee understands the restrictions on judicial campaigns, the committee advised that it is the campaign committee, not the candidate, that 1) solicits funds, 2) obtains permission for names of supporters to go into advertisements, 3) requests landowners to allow signs to be placed on their property, 4) seeks other forms of publicly stated support, 5) solicits volunteers to make phone calls, 6) solicits signature to be placed on widely distributed post cards, 7) seeks public support from organizations, local bar associations, or well-known individuals or public figures. The advisory committee noted that a campaign committee can solicit funds and publicly stated support no earlier that 180 days before a primary election and no later than 45 days after the last contested election in which the candidate appears, and that funds received outside that period are to be returned to the contributor. The committee also noted that a candidate could not use or permit the use of campaign contributions for the private benefit of the candidate or others and that any surplus must be returned to the contributors or turned over to the state treasurer.

The committee also advised that independent, individual supporters may take action in support of a candidate at any time but that a candidate could not stand by and do nothing if an independent supporter were placing a misleading advertisement.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that the Code of Judicial Conduct provides that judges are in a unique position to contribute to the improvement of the legal system and may lecture on matters concerning the legal system. The opinion goes on to note that such teaching may be done as time permits and as long as it does not interfere with the performance of judicial duties.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge is not disqualified from cases involving a deputy prosecuting attorney who is the uncle of the judge's part-time secretary.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may serve on a policy and planning board, required by the Department of Human Services, that will determine the services needed for delinquents, families in need of services, and at risk juveniles, will determine what organizations will provide the services, and will establish the amount of money to be awarded.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a candidate for judicial office who is unopposed in the primary election may solicit contributions for 45 days after the filing deadline for party candidates or the filing deadline for independent candidates, whichever is later.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may permit an artist to use the judge's likeness in a commissioned painting by a local artist that will be based on Rembrandt's painting "The Night Watch" with the faces of people depicted in Rembrandt's painting replaced by those of local citizens where the judge's name will not appear, there will be no identification of the judge or the other faces, the judge will not be paid, and the judge is not paying to be included.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may be one of the authors of a book that is intended to provide practical guidance for Arkansas lawyers and solicit attorneys to work on the project where the contract requires the publisher to adhere to ethical standards in using the judge's name and qualifications in marketing the book and permits the judge to give speeches, participate in conferences, and publish on the subject of the work, although the contract bars the judge from writing or assisting in another project that may injure, hamper, or adversely affect sales.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a Deputy Prosecuting Attorney who had been nominated for a Circuit Chancery/Juvenile Judgeship (the position was unopposed) from the same district could continue in the present position as Deputy Prosecutor until the swearing in of the judge without violating the Code of Judicial Conduct.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that the Committee should not address such matters as the recusal of a trial judge with regard to a pending motion, as they are Aissues of law@ to be resolved in an adversary setting rather than by an advisory committee.

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Advisory Opinion #96-07 - (September 4, 1996)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether there would be a conflict of interest and the necessity for disqualification when a judge hired a certified court reporter who was married to an attorney who practices before this court. The opinion of the Committee was that disqualification was not required. In each instance in which the spouse of the court reporter is the attorney of record, the judge should disclose on the record the relationship between the court reporter and the attorney. The obligation then shifts to the opposing party to make any motions deemed necessary.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that an associate justice of the Supreme Court may hire a relative (second cousin) of the Chief Justice who was graduating from law school to be a law clerk of any associate justice of the Supreme Court or a judge of the Court of Appeals. It was held that assuming the hiring is based solely on merit and done wholly independently of the Chief Justice, such an employment would not violate the nepotism provisions of the Code of Judicial Conduct.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee addressed the ethical considerations surrounding the financial issues of a judge as he was leaving his law firm to assume judicial office. It was stated that after selection and prior to assuming the position as a full-time judge, the attorney may continue to practice law. The attorney may be compensated according to a partnership or employment agreement.

The terms of a law partnership agreement may provide for compensation to the attorney regardless of when the work was performed. In the Committee=s opinion, a distinction must be drawn between work performed in the firm before the judge departs and work performed by members of the firm after departure. The departing attorney may receive compensation for work performed by anyone in the firm prior to the departure. However, no compensation may be paid to the judge for work performed after the judge=s departure from the firm.

The opinion also addresses the question of whether a judge may receive Aclient attraction funds from the former firm if the judge makes a referral to the firm. The opinion states that once an attorney becomes a judge, he or she should never make a referral to any attorney.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge elect, who was presently serving as a member of a state Commission, could not continue to serve as a member of that Commission while he was also serving as a judge. The primary purpose of the Commission was to set policy and budget for the operations of that Commission. It would be a violation of the Code of Judicial Conduct even though the Commission is a governmental committee concerned with issues of fact or policy on matters not related to the administration of justice or the legal system. The Code prohibits a judge from being a member of such a Commission while also serving as a judge.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that it would not be improper for an associate justice of the Supreme Court of Arkansas to write a recommendation for a prospective candidate for a federal judicial appointment and not wait to respond to an official inquiry concerning the person being considered. The recommendation could be written assuming that the judge had adequate knowledge of the character and capabilities of the subject individual and was satisfied that there was no undue intent to capitalize on the prestige of the judicial office.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge, randomly giving away balloons to children imprinted with AHappy Daze@ and the judge=s name during a town festival would not be a violation of the Code of Judicial Conduct. It was stated that the judge=s campaign for election was in a previous year, and that there would be no overt political conduct and that there would be no solicitation of voting. The Committee assumed the judge would purchase the balloons with her personal funds, and that the balloons would simply be small gifts to the children. The Committee considered the proposed conduct to be appropriate as the judge interacts with and relates to the community in which she lives, and to be in keeping with the letter and spirit of the Arkansas Code of Judicial Conduct.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if disqualification was necessary when a judge sold his personal law office property to a deputy prosecuting attorney, and also rents office space to that deputy prosecuting attorney, and when this same deputy prosecuting attorney practices in his court. The opinion states that reasonable individuals within and without the legal community might question the impartiality of a judge who has an on-going financial relationship as landlord of one of the attorneys. The judge should minimize the potential appearance of favoritism and avoid creating an appearance of exploitation of office. The alternative is disclosure of the relationship and the reason for the disqualification. If there is an agreement of all the parties that the judge should not be disqualified, this should then be incorporated into the record.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if a municipal judge, who is a Apart-time@ city court judge and has a private law practice, would be prohibited from representing the city in which he lives in a civil matter in any court, could he represent the city in a municipal court in the same county, or could he represent the city in circuit court where all of the judges are Afull-time@. The opinion states in matters affecting the image and integrity of the judiciary, judges should be very sensitive, and if deciding a close case, to err on the side of caution. In practicing law, extra case and effort must be made so as not to create the appearance of impropriety. It is the opinion of the Committee that the judge, representing the city that he serves as a municipal judge, could create a question concerning his ability to carry out his judicial responsibilities with integrity, impartiality, and competence. The Committee concluded that it would be inappropriate for a municipal judge to represent the city that he serves in any cases regardless of the forum. The judge=s law practice should be as far removed as possible from his court and the city that he serves. The public is not expected to understand the fine points of jurisdictional issues and would tend to look at the judge as both the attorney and the judge for the city.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee addressed the concern of individuals appearing before a judge, who owns and rents property under a partnership, to attorneys who practice in his court.

A judge who is one of three partners in a general partnership that owns an office building is disqualified from cases in which one of the attorneys is a tenant in the building even if one of the other partners manages the building, the judge had no direct dealings with the tenants, and the attorney is only one of many tenants. If there is an agreement of all the parties that the judge should not be disqualified, this should then be incorporated into the record. An alternative is that the judge may make a full disclosure of the relationship.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if a judge should recuse from a specific circuit court case because of bias. Canon 3 (E) provides that judges are presumed to be impartial. The party seeking disqualification bears a substantial burden to overcome that presumption. A mere allegation that a judge's conduct has the appearance of impropriety is not sufficient. Bias is a subjective matter which is confined to the conscience of the judge. Accordingly, a judge who has declined to recuse from a case is not disqualified from other cases involving the same defendant if the judge has no bias against the defendant.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if a judicial candidate would bw in ciolation of the code of Judicial Conduct by making pledges and specific campaign promises with respect to changing or improving court administration should he be elected. It was the opinion of the Committee the the candidate may state general changes or improvements in court administration. However, he should not state specific terms. (Cindy Gray's states: A judicial candidate may announce that he or she will require that plea agreement forms used throughout a district be uniform and consistent but may not state the specific terms the candidate would consider incorporating into the plea agreement. A judicial candidate may make general statments about the condidte=s ideas concerning rehabilitation and the importance of education, public service, counseling, and strict rules ofd conduct with regard to persons on probation.)

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committes was asked if if it is proper fror a municipal judge with jurisdiction over cases wherein the State (as represented by the prosecuting attorney) regularly appears, to represent defendants in other municipal or circuit courts where the same prosecuting attorney also represents the State. The opinion found that it would be improper for a municipal judge to represent criminal defendants in other municipal or cuircit courts where the same prosecuing attorney also represents the State.

The Judicial Ethics Advisory Committee was of the opinion that an individual who accepts the position of a continuing part-time judge places the judicial office first in service and priority, and certain restrictions must follow. It is, they believe, self evident that a municipal judge who is engaged in an adversarial role opposing a prosecuting attorney in a criminal case brought by the State and who presides over proceedings involving that same prosecuting attoirney is in an untenable position, however principle that individual may be. Acting as both judge and jury, the municipal judge has significant discretion in dealing with the prosecuting attorney. To oppose that same attorney in another matter creates an appearance of impropriety which is prohibited by the Code of Judicial Conduct. The opinion concludes that under such circumstances and in the perception of reasonable minds, the ability of municipal judges to carry out their responsibilites with integrity, competence and impartiality could be imparied. It follows tha the initial responsibility rests on the municipal judge to decline the personal representation of a criminal defendant in the circuit within which the prosecuting attorney has jurisdiciton.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether a part-time municipal court judge in Pulaski County should terminate his current representation of clients with criminal cases pending in the Pulaski County Circuit Courts.

The Judicial Ethics Advisory Committee was of the opinion that continuing part-time judges may complete representation of criminal defendants in pending matters in which the prosecutor is the prosecutor who appears before the judge but should decline such representation in the future.

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 Advisory Opinion # 98-04 - (September 4, 1998)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a chancery court judge, if he should continue to disqualify himself from hearing cases in his court when the attorney of record is his first cousin, or hearing those cases only after all of the parties involved sign a written waiver of disclosure.

The Judicial Ethics Advisory Committee was of the opinion that the judge must continue to recuse. A judge is disqualified from cases in which the judge=s first cousin participates because under Arkansas law, first cousins are within the third degree of relationship and the judge's impartiality might reasonably be questioned.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if there was any ethical impropriety by a judge in his presiding over cases in which one of the litigants is represented by an attorney for whom his spouse, who is self-employed, performs part-time accounting services.

The Judicial Ethics Advisory Committee was of the opinion that a judge is not disqualified from a case involving an attorney for whom the judge=s spouse performs accounting services if the spouse has no involvement with the firm's clients or the case and has only limited contact with the firm in general.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if an appellate judge may sit on a jury. It was further asked whether an appellate judge would be required to disqualify himself from all cases appealed from the jury panel.

The Judicial Ethics Advisory Committee was of the opinion that there would be no limitation of the judge serving as a judge serving as a juror. However, disqualification matters are left to the discretion of the judge.

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 Advisory Opinion # 98-07 - (February 9, 1999)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked, by a mayor, if it would be appropriate for a newly elected part-time judge to hear cases presented by the assistant city attorney. The city attorney pays this judge, when he is practicing in his attorney capacity, a monthly retainer fee for helping him (the city attorney) with his private practice in representing other public entities, counties, cities, and their subdivisions. The city attorney and the judge also share office space, personnel, and equipment.

The Judicial Ethics Advisory Committee was of the opinion that to hear such cases would be a violation of Canon 3E. The violation would continue even if the city attorney discontinued paying the monthly retainer fee to the judge, and they maintained their the office sharing relationships.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal judge if there was any ethical impropriety in his representing a client (former husband), who had been the complaining witness against his former wife in a harassing communications criminal case. The municipal judge presided in that case. The client (former husband) now wants sole custody as opposed to the court awarded joint custody. The former wife wants the municipal judge to be disqualified from representing the former husband in the change of custody case.

The Arkansas Judicial Ethics Committee declined to advise a part-time judge whether he may represent a client in connection with a motion for change of custody in a divorce proceeding after presiding in a criminal case filed by the client against his ex-wife where the representation had already occurred and a motion for disqualification was pending in the chancery court.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if an individual may, as a private attorney, serve as civil attorney for Garland County, and at the same time serve as the Garland County Municipal Judge.

The Arkansas Judicial Ethics Committee stated that a municipal judge should not serve as a civil attorney for the county in which the judge presides. Holding such dual roles in the same county is both unwise and imprudent.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if there would be a violation of the Code of Judicial Conduct by employing a secretary that the judge and the part-time city attorney had jointly employed prior to one (1) of the individuals becoming a judge. The secretary would be hired for typing purposes only, and paid directly and individually by both persons. The Arkansas Judicial Ethics Committee stated that a judge may employ the secretary of a former law partner on a contractual basis so long as the judge has severed all financial ties with his former partner.

The second question relates to the part-time judge and the part-time city attorney being independently retained and independently paid by a mutual former client. The Judicial Ethics Advisory Committee stated that as a Acontinuing part-time judge@, as defined in the Code of Judicial Conduct, he may engage in the practice of law so long as: his judicial duties take precedence over all his other activities (Canon 3A); his practice does not cause reasonable doubt on his capacity to act impartially as a judge, demean the judicial office he holds, interfere with the proper performance of his judicial duties (Canon 4A); he avoids impropriety and the appearance of impropriety (Canon 2), and otherwise does not violate the Code.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if there would be a violation of the Code of Judicial Conduct by a full-time judge being offered and accepting free memberships in the American Trial Lawyers Association, and in the Arkansas Trial Lawyers Association.

The Committee stated that a judge may not accept complimentary membership in the American Trial Lawyers Association of the Arkansas Trial Lawyers Association.

Membership in professional organizations which are dedicated to promoting the interests of either the plaintiffs' bar or the defendants' bar and its clientele gives an appearance of impropriety by calling into question the judge's ability to preside in certain cases with unquestionable impartiality.

(Click Here To Read The Full Opinion)

The Arkansas Judicial Ethics Advisory Committee was asked if there would be a violation of the Code of Judicial Conduct if a judge selected the wife of his first cousin to be municipal court clerk.

The Committee stated that the commentary to that Canon states: ". . . Nepotism is the appointing of relatives within the third degree of relationship by affinity or consanguinity. . . ." The terminology definition section does not include first cousins within the third degree of relationship. Therefore, the judge may consider and select the spouse of his first cousin.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked if it was permissible to participate as a guest of The Roscoe Pound Foundation, an educational Forum for State Court Judges to be held in San Francisco, California.

The Committee is of the opinion that there is no violation of the Code of Judicial Conduct by attendance at a forum or symposium of a professional association, as it is not the equivalent of a membership. The Committee does not believe that it would be inappropriate for a judge to participate in the forum.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee advised judges to avoid membership in organizations which are dedicated to promoting and furthering the interests of either the plaintiffs' bar or the defendants' bar and its clientele. The Committee further expressed the belief that such memberships call into question the judge's ability to preside in certain cases with the unquestioned impartiality envisioned by Canons 2A and 4A of the Code of Judicial Conduct.

The Committee has examined the literature, both print and electronic, of the American Trial Lawyers Association (ATLA) and the Arkansas Trial Lawyers Association. That examination reveals that these organizations of attorneys have a consistent position on the plaintiffs= side in personal injury matters.

Certainly judges are permitted to attend ATLA meetings and forums, to speak at ATLA programs, to receive ATLA mailings, to receive ATLA materials, and to prepare materials for ATLA publications. But to be a member, whether or not the judge pays dues, whether or not the membership is described as honorary or complimentary, identifies the judge as generally supportive of the positions taken by that part of the bar. Likewise, continuation of membership after assuming a full-time judicial role does not, in the Committee=s opinion, promote public confidence in the impartiality of the judiciary. Canon 2A (1).

However, it is the responsibility of the judge to make the determination whether membership in an organization calls into question the judge=s ability to preside with unquestioned impartiality.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by an Arkansas Court of Appeals judge if it would be appropriate to send a letter to specific patrons announcing his election plans.

The Committee is of the opinion that there was no violation of the Code of Judicial Conduct by the judge sending his submitted election letter with the appropriate changes to his letterhead.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by the law firm of Watkins & Scott, PLLC, if it was appropriate for members of the law firm to continue to sit as special judge in the Rogers Municipal Court after they hired an associate who is the wife of the deputy prosecuting attorney in the Rogers Municipal Court. The law firm provides an attorney who sits at least once a month as special judge in the Rogers Municipal Court, where the associate's husband works. The law firm has no financial interest in the outcome of the court cases upon which they preside. Because of the relationship between their associate and the court's deputy prosecuting attorney, should the law firm continue with this practice.

The Committee is of the opinion that under the facts presented, there is no violation of the Code of Judicial Conduct. Under the Arkansas Code of Judicial Conduct the attorneys serve as a Apro tempore part-time judge". The Commentary to the Code does not require automatic recusal of the judge merely because a relative of the judge is a member of a law firm appearing before the judge. The Committee, therefore, concludes that disqualification is not required when a member of the law firm is married to the deputy prosecuting attorney appearing before the judge.

The Committee notes as in Arkansas Judicial Ethics Advisory Opinion 96-07, the underlying issue in Canon 3(E) is whether the impartiality of the judge might reasonably be questioned. The Commentary to Canon 3(E)(1) states that Aa judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification". The Committee recommends that there be disclosure, on the record, that a member of the law firm is married to the prosecuting attorney appearing in court. The responsibility then shifts to the defense attorney to request a recusal.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked to issue an advisory opinion to an Arkansas Supreme Court Justice. He requested an opinion concerning when and how a member of the Arkansas Supreme Court may comment on a criminal case in federal district court in Arkansas, when the media has widely reported on testimony concerning the action or inaction of members of the Supreme Court.

The opinion states that a judicial statement concerning events in dispute might be expected to affect the outcome or impair the fairness of the proceeding, which is expressly prohibited by the express language of the Code of Judicial Conduct. Judicial comment on pending criminal matters, no matter how presented, does not promote public confidence in the impartiality of the judiciary. The opinion goes on to state that comments are not appropriate even after the trial court proceedings are concluded. If appeals from convictions are pending, comment might impair the fairness, or the perception of fairness, of the proceedings.

The opinion also acknowledges the frustration of judges when compelled to remain silent when inaccurate and unfounded statements are made. The opinion notes that the conclusion reached permits misstatements to be made, and implications to be drawn and widely reported and accepted or believed by the public, without any possibility of timely response or correction. Any other citizen can stand up and say, "let me tell the people of Arkansas my side of the story." But a judge is not any other citizen. A judge must uphold the integrity of the judiciary, avoid all appearance of impropriety, and expect to be the subject of constant public scrutiny.

(Click Here To Read The Full Opinion)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal court judge if a judge could write a letter to a sentencing court judge at the request of a defendant, the defendant’s attorney, or someone on his or her behalf.

The Committee was of the opinion that a judge should not write such letters as per Canon 2(B) of the Arkansas Code of Judicial Conduct. Any such letter does lend the prestige of judicial office to advance the private interest of others, and therefore, a judge should not write such letters.

(Click Here To Read The Full Opinion)

Advisory Opinion # 2000-04 - (June 5, 2000)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a Chancery/Probate judge whether he might serve on the board of directors of a local country club. The board has oversight of membership, facilities, and general operations of a golf course and club house.

The Committee is of the opinion that there is no apparent violation of Canon 2C of the Code of Judicial Conduct and that the judge may serve in this capacity. Canon 2C provides that a judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin. The Committee cautions the judge that discrimination in any organization takes subtle forms. Occasionally reviewing organizational policies and practices was encouraged.

(Click Here To Read The Full Opinion)

Advisory Opinion # 2000-05 - (June 27, 2000)

Request for opinion was withdrawn.

Advisory Opinion #2000-06 - (June 29, 2000)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by circuit judge whether he might teach evening courses at Arkansas State University at Beebe, and if he could be compensated for teaching as an adjunct professor.

In a previous opinion, Number 95-05, the Committee approved such teaching at a private institution of higher education and stated the Code of Judicial Conduct does not require that teaching at universities be treated differently.

In regard to the question of being compensated for teaching as an adjunct professor with reference to Article 7, Section 18 of the Arkansas Constitution, Ark. Code. Ann. §19-4-1604 and §21-1-401, and Arkansas Attorney General 92-050, the Committee stated their authority is limited to providing interpretations of the Code of Judicial Conduct. The Committee further stated they cannot interpret legislation, particularly 1999 acts that may regulate employment by state agencies. Those interpretive matters belong to the courts or to the Attorney General.

(Click Here To Read The Full Opinion)

Advisory Opinion #2000-07- (July 7, 2000)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal court judge whether a judge who has been subpoenaed to testify as a character witness may, if given the opportunity, submit an affidavit in lieu of live testimony.

The Committee noted the applicability of Canon 2B which states in part that "[A] judge shall not testify voluntarily as a character witness." The commentary to Canon 2B makes it clear that while judges may be called on to testify in the interest of justice, a judge should discourage a party from requiring the judge to testify as a character witness.

The judge's letter did not specify matters concerning the case or the mechanics of the affidavit, i.e., who was to prepare it or whether it was to be in question and answer form, etc. If it is contemplated that the judge is simply to compose a verified statement relative to the character or reputation of the litigant, it would be, the Ethics Advisory Committee believes, little different from the judge writing a letter of recommendation and could impinge on the constraints of Canon 2B, notwithstanding the subpoena. In the absence of exceptional circumstances the Committee believes the preferred course in conformity with Canon 2B where a judge is compelled to testify as a character witness is for such testimony to be given verbally in the presence of the jury or fact finder.

(Click Here To Read The Full Opinion)

Advisory Opinion #2000-08- (August 8, 2000)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal court judge if he would be in violation of Canon 2 by continuing to use a jail that fails to meet jail standards. The Attorney General's office is preparing to file suit against the county to shut the jail down.

In fashioning a response the Committee noted the applicability of Canon 3A(2) which states in part that "A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor or fear of criticism." The Committee further noted that its opinion was also based on distinguishing between a violation of the code of judicial conduct and legal error.

The advisory opinion went on to state that the Code of Judicial Conduct does not require that a judge have universal knowledge of all things that affect the sentencing process. However, if the judge in his or her carefully considered judgment, without being influenced by partisan interest, public clamor or fear of criticism, determines that the conditions of the jail are so unsatisfactory as to be illegal or unconscionable the judge may use alternative methods of sentencing so long as those alternative methods comply with the law.

(Click Here To Read The Full Opinion)

Advisory Opinion #2000-09- (October 3, 2000)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by three (3) judges (1 Chancellor, 2 Circuit/Chancery), whether a judge may release information concerning an investigation into allegations of professional misconduct by an attorney. A written request for the information was received from an attorney representing beneficiaries in a contested will dispute. The information sought included documents, correspondence, and exhibits of any kind involved in the judicial investigation concerning the allegations.

The opinion notes that judges are under an ethical obligation to take appropriate action after receipt of information indicating the likelihood that an attorney has violated the Rules of Professional Conduct. Pursuant to that obligation, a judge may gather information relevant to the possible professional misconduct. That information is absolutely privileged and the Code of Judicial Conduct does not permit disclosure of the materials gathered upon the request of an interested party. However, judges are permitted to provide all of the relevant information to the Supreme Court Committee on Professional Conduct. The opinion also points out that the Ethics Advisory Committee has no authority to interpret the Arkansas Freedom of Information Act or other statutes.

(Click Here To Read The Full Opinion)

Advisory Opinion #2000-10 (November 16, 2000)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether it is permissible for a judge to accept a gift of a judicial robe from a bar association of which that judge is a member on the occasion of his or her investiture as a judge. Additionally, Judge Fleming questioned whether restrictions would apply in the event of progressive reelections to the same judgeship and to different judgeships.

The opinion states that the practice of presenting judicial robes dates back some half a century to a time when judges in this state began wearing robes. The Committee does not find anything in the Arkansas Code of Judicial Conduct on which this tradition infringes, nor do any of the advisory opinions from other states criticize the practice. In the Committee's opinion, the acceptance of a robe from a bar association by a newly appointed or elected judge does not encroach on judicial ethics.

Additionally, the Committee stated that while they see no particular ethical restraints arising from this practice in the event of progressive reelections to the same or to different judgeships, it would seem that at some point, practicality, if not ethical considerations, would mitigate against repeated robe giving.

(Click Here To Read The Full Opinion)

Advisory Opinion #2000-11 (January 18, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether a candidate in a run-off election for municipal judge would have a conflict of interest by being both a city prosecutor and municipal judge.

The opinion states that neither Arkansas law, nor the Code of Judicial Conduct prohibits a person who practices law as an assistant city attorney from one city from being a part-time municipal judge in another city. That person, however, should be very sensitive to the fact that conflicts can and will occur, and should be mindful of numerous provisions of the Code that would be applicable. The Committee emphasized that a continuing part-time municipal judge must make the judicial office first in service and priority.

(Click Here To Read The Full Opinion)

Advisory Opinion #2000-12 (January 5, 2001)

Request for opinion was withdrawn.

Advisory Opinion #2000-13 (January 24, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether it was advisable for a judge's wife to take a job which would require her to solicit business for her employer from various businesses in the area of the judge's jurisdiction. The wife's solicitations would be under the name of her employer, which provides accounting and bookkeeping services, as well as advice regarding worker's compensation insurance and employer/employee relations, taxes and other business related matters. Such advice would not be provided by the judge's wife, but through her employer, a Florida corporation.

The opinion states that the Committee saw no immediate problem in the activities described, whether there are potential conflicts between the work the judge's wife is considering and the judge's judicial duties would depend on circumstances not available to the Committee at present. Problems could conceivably arise involving an appearance of partiality and conflicts of interest. If, for example, a business solicited by the judge's wife were an expectant or inchoate litigant, or, due to the nature of its enterprise, were frequently involved in cases heard by the judge, then the judge's impartiality may be reasonably questioned.

(Click Here To Read The Full Opinion)

Advisory Opinion #2001-01 (March 19, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether it was advisable for a judge to serve on the Board of Advisors for Legal Assistants at the Northwest Community College. The position is unpaid and does not involve the rendering of any legal opinions, however, as a board member, the judge would assist in the selection of curriculum and course material, as well as teaching staff.

The Committee is of the opinion that there is no immediate problem in the activities described. While the College is a State institution, the judge's service on the board will not violate the Code of Judicial Conduct so long as the judge conducts this and all extra-judicial activities so that they do not: (1) cause reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judge's judicial office; or (3) interfere with the proper performance of the judge's judicial duties. (Canon 4 A).

(Click Here To Read The Full Opinion)

Advisory Opinion #2001-02 (April 05, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee the permissibility of membership/recognition as a judicial fellow with the Trial Lawyers of America, and whether such membership/recognition would be considered as a gift.

In its opinion, the Committee cited two (2) previous opinions (99-04 and 99-07), and concluded that a full-time judge could not be a member of ATLA or any other organization that outwardly favors one side or consistently takes one side in legal issues. To do so would violate the prohibition against the "appearance of impropriety" contained in Canon 2 and might raise doubt on the judge's ability to decide impartiality as required by Canon 4. The prohibition applies regardless of whether membership dues are required.

The Committee noted that any judge may receive free publications from ATLA, may accept complimentary registration at ATLA conventions, and may speak at ATLA programs, but public and ongoing identification as a member, fellow, or supporter, no matter what phrase is used, is inappropriate.

(Click Here To Read The Full Opinion)

Advisory Opinion #2001-03 (July 16, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by the President of the Arkansas Municipal Judges Council if council representatives communicating with the Legislative, Supreme Court and Arkansas Bar Association committee members working to restructure the Arkansas court system under Amendment 80.

The Committee is of the opinion that such contacts, direct or in writing, would come within the purview of Canon 4 of the Arkansas Code of Judicial Conduct; and, therefore, be permissible.

Further, the Committee could conceive of no reason why the use of a municipal court judge's official letterhead stationery when communicating with the restructuring committee would be inappropriate.

(Click Here To Read The Full Opinion)

Advisory Opinion #2001-04 (August 16, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee issued an advisory opinion as to whether a judge who has conducted a trial and convicted a defendant of certain charges can testify against that same defendant in a subsequent perjury trial concerning the defendant's testimony in the first trial

The Committee is of the opinion that if subpoenaed to testify before another court, the judge should simply abide by the law and by the Arkansas Code of Judicial Conduct. The only provision in the Arkansas Code of Judicial Conduct that deals directly with a judge testifying in court is Canon 2 B which states in part that "A judge shall not testify voluntarily as a character witness." Canon 2 A provides that "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

(Click Here To Read The Full Opinion)

Advisory Opinion #2001-05 (August 30, 2001)

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether, in light of the constitutional changes to Arkansas judicial elections, there should be a temporary suspension of the enforcement of the 180-day fundraising limit in Canon 5C(2) of the Code of Judicial Conduct until the Supreme Court has the opportunity to consider appropriate revisions to that Canon.

The Committee is of the opinion states that Canon 5C(2) prohibits fundraising by the committee of a candidate prior to 180 days before a primary election. With the new amendment and implementing statutes, the general elections for judges have been moved from November to May. However, the Arkansas Supreme Court has not changed the language of the Code of Judicial Conduct. It is the intent of the Code provision to place limits on the length of judicial campaigns, and that intent applies also to non-partisan elections.

The Committee stated that they have no authority to rewrite the Code or to temporarily suspend its operation. It was therefore of the opinion that Canon 5C(2) is applicable and, fundraising may not begin until 180 days prior to the May 2002 election.

(Click Here To Read The Full Opinion)

Advisory Opinion #2002-01 (FEBRUARY 22, 2002)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge candidate J. Leon Johnson of Little Rock. He requested an opinion as to whether a candidate for Circuit Judge can sit as a Star Panelist at the United Negro College Fund Annual Telethon (UNCF). The UNCF telethon requires each panelist to call upon its friends and associates and ask that they make a pledge or donation to the UNCF. It is not a political event and he would not be identified as a candidate for Circuit Judge, and there would be no solicitation of voting by the UNCF.

The opinion states that Mr. Johnson is not prohibited under the Code from participating in the event. The fund-raising activities he described are expressly disallowed under Canon 4C3(b)(iv); however, Canon 4 applies to judges rather than judicial candidates. Judicial candidates are covered under Canon 5, which contains no similar restriction.

A copy of the advisory opinion is attached.

(Click Here To Read The Full Opinion)

Advisory Opinion # 2002-02 (FEBRUARY 22, 2002)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge candidate Carla D. Fuller of Searcy, Arkansas. She requested an opinion as to whether it would violate Canon 5 of the Arkansas Code of Judicial Conduct for her to personally solicit signatures of registered voters on the Independent Candidate (or Non-Partisan Judicial Candidate) Petition for the district position of Circuit Judge.

The opinion states that Canon 5C2 states: "(2) A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support". Ms. Fuller asking persons on an individual basis and not as a group such as an social gathering, assembly, club or any other organization, whether organized formally or otherwise, to sign her petition does not constitute soliciting publicly stated support. The key is approaching people on an individual basis to ask them to sign the petition.
Reference was made to Advisory Opinion # 95-04.

A copy of the advisory opinion is attached.

(Click Here To Read The Full Opinion)

Advisory Opinion # 2002-03 (FEBRUARY 22, 2002)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge candidates William W. Benton, F. Wilson Bynum, Jr., James L. Hall, and James L. Williams, II. They all are seeking the same judicial position, and requested an opinion as to whether a judicial candidate for Circuit Judge may describe himself in his campaign materials, advertisementsand public statements as "Judge", when he has served for the past six years as a part time city judge. The position of city judge is an appointive, rather than elective position.

The opinion states that the Code of Judicial Conduct views a city judge as a Continuing Part-time Judge, who is required to comply with most provisions of the Code. The Code bars a judicial candidate from knowingly misrepresenting "the identity, qualifications, present position or other facts concerning the candidate or an opponent." Regardless of whether the candidate is appointed or elected, full time or part time, he is a judge. Accordingly, the Committee concluded that the Code does not bar him from describing himself as a "City Judge" or a "Judge" in the campaign. The term does not misrepresent his present position. It does not suggest he is an incumbent; it does not urge his re-election.

The opinion further stated that the Committee is aware of Ark. Code Ann. 7-7-305 which states that a person may use the prefix "Judge" in an election for a judgeship only if the person is currently serving in a judicial position to which the person has been elected. However, that statute prescribes the name that will be used on the election ballot. The statute does not purport to control campaign advertising by judicial candidates.

The Committee understands the potential elective disadvantage to other judicial candidates who may have been judges in the past, perhaps even to elective positions. But because they are not presently serving as a judge, the Code bars them from calling themselves "Judge." However, the Code permits
them to list their prior positions and their qualifications.

The Committee stated that the Supreme Court could amend the language of the Code or the comments to it. Likewise, the Supreme Court could provide consistency by amending the Code provisions on campaign advertising to correspond to the statute on ballot names. But it has not yet done so. The Committee concluded that under the language of the Code it is not misleading for a city judge to describe himself or herself as "Judge" in his campaign advertising.

A copy of the advisory opinion is attached.

(Click Here To Read The Full Opinion)

Advisory Opinion 2002-04 (MARCH 15, 2002)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Doug Norwood, of Rogers, Arkansas, Special Judge for Centerton City Court. He requested the opinion on behalf of a number of special judges in the area. Judge Norwood, and the other attorneys are serving as part-time judges in the absence of Judge Rodney Owens, since Judge Owens has voluntarily recused from hearing cases, pending the outcome of his trial on felony charges. The attorneys are concerned that they may have a conflict based on Judicial Ethics Advisory Opinion No. 98-02.

The opinion states that while the Committee recognizes the exigency of the circumstances outlined in Judge Norwood's letter, they find nothing in the Code of Judicial Conduct or relevant case law distinguishing continuing part-time judges from part-time judges serving temporarily, albeit indefinitely. Nor do they believe the appearance of impropriety may be cured by waiver.

The Committee referred to Advisory Opinion No. 98-02 which notes that the concurrent practice of law and judicial service are prohibited under Canon 4G, but that exception is made for continuing part-time judges under Section B of the Application section of the Code. The Committee pointed out that while the Code stops short of an outright ban on the practice of law by part-time judges, clearly restraint and caution are called for. In that context, the Committee cited Canon 2 and concluded:

[A]n individual who accepts the position of a continuing part-time judge places the judicial office first in service and priority, and certain restrictions must follow. It is, the Committee believes, self evident that a municipal judge who is engaged in an adversarial role opposing a prosecuting attorney in a criminal case brought by the State and who presides over proceedings involving that same prosecuting attorney is in an untenable position, however principled that individual may be. Acting as both judge and jury, the municipal judge has significant discretion in dealing with the prosecuting attorney.

To oppose that same attorney in another matter creates an appearance of impropriety. The Committee concludes, as have a majority of other jurisdictions, that license must yield to ethic, where, in the perception of reasonable minds, the ability of municipal judges to carry out their responsibilities with integrity, competence and impartiality could be impaired. It follows that the initial responsibility rests on the municipal judge to decline the personal representation of a criminal defendant in any circuit within which the prosecuting attorney has jurisdiction.

A copy of the advisory opinion is attached.

(Click Here To Read The Full Opinion)

Advisory Opinion No. 2002-05 (MAY 24, 2002)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Wrightsville District Judge Dennis L. James, in his capacity as President of the Arkansas District Judges Council. Judge James requested an opinion concerning the Arkansas District Judges Council's endorsement of the Arkansas State Highway and Transportation Department's Click It or Ticket program. Judge James is unsure whether the Arkansas District Judges Council's endorsement by letter, with use of judicial letterhead and Arkansas District Judges Council letterhead, of this program would appear inappropriate or suggestive of bias on seatbelt violations. Judge James states that the district judges would certainly be hearing cases involving charges of seatbelt violations, while at the same time, it is Judge James' opinion that this program is a very admirable one in that it promotes safety and education of the public.

The opinion states that members of the Arkansas District Judges Council will be acting as judges of most all the charges brought under this program, and if the Council endorsed it, the member judges would certainly have to recuse since there would the appearance of bias or prejudice. The Committee's answer is that an endorsement of this or any other law enforcement program, however worthy of support, by the Arkansas District Judges Council, Inc., or any individual judge would be in violation of the Arkansas Code of Judicial Conduct, Canons 1, 2 , 3 and 4.

A copy of the advisory opinion is attached.

(Click Here To Read The Full Opinion)

Advisory Opinion 2002-06 (JUNE 27, 2002)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Circuit Judge David Goodson of Paragould, Arkansas. He requested an opinion as to whether his wife may work either as a paid employee or volunteer in the political campaign of a candidate seeking election to a statewide office.

The opinion states that the Code of Judicial Conduct places clear restrictions on a judge. A judge may not publicly endorse or publicly oppose a candidate seeking election to office. Canon 5 (A) (1). A judge may not identify himself as a member of a political party. Canon 5 (F). In addition, the judge must encourage members of the candidate's family to adhere to the same standards of political conduct. Canon 5 (A) (3). The context of that language suggests that in the course of judicial campaigns, the candidate must encourage his relatives to behave in the same fashion.

The Committee further stated that the issue here is whether the Code bars a spouse from participating in a non-judicial political campaign. We note that the Commentary to the Code states that family members are free to participate in other political activity. Further it is questionable whether authority exists to bar relatives, who do not serve as public servants, from political life.

The Committee concludes that the spouse of a judge is free to participate in other political campaigns. The participation may be on a paid or on a voluntary basis. However, the spouse should make all efforts to avoid any suggestion or hint that the judge is supportive of a candidate.

A copy of the advisory opinion is attached.

(Click Here To Read The Full Opinion)

Advisory Opinion 2002-07 (September 3, 2002)

The creation of divisions shall in no way limit the powers and duties of the judges as circuit judges. Judges shall not be assigned exclusively to a particular division so as to preclude them from hearing other cases which may come before them.

(Click Here To Read The Full Opinion)

Advisory Opinion 2002-09 (January 28, 2003)

The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Judge Jim Hamilton of North Little Rock, Arkansas. He requested an opinion concerning out of court contact with victims of domestic violence. As there has been a change in court procedures, the judge is asking for a determination of the Code of Judicial Conduct regarding ex-parte communications.

The judge notes that when an individual is arrested for domestic violence, a no-contact order must be signed before the individual is released from custody. Previously the prosecuting attorney interviewed the victim when a request was made to withdraw the no-contact order. The prosecutor is no longer conducting the interview, and the victim sometimes attempts to talk with the judge or court staff without an attorney, the defendant, or the defendant's representative being present.

The Committee stated that their role is not to direct the actions or those of the judge's staff, nor to choose among alternative approaches. Likewise, the Committee's role is not to tell the prosecutor how to operate his office or his staff, nor can they evaluate the workload placed upon judicial or prosecutorial staffs. The Committee's role is limited to defining those options that are permissible and impermissible under the Code of Judicial Conduct.

However, the Committee believes that the best approach is for the prosecuting attorney to initiate a hearing for the cancellation of the order. A hearing in open court, with all the parties and the attorneys in attendance, permits the court or the prosecutor to question the victim and to be certain that the request for cancellation is truly voluntary

(Click Here To Read The Full Opinion)

Advisory Opinion 2003-01 (June 17, 2003)

The Arkansas Judicial Ethics Advisory Committee stated that it was beyond the scope of its duties to answer the questions whether a judge should report a city attorney who had advised the judge that he would not call any witnesses in a DWI case, which would result in dismissal of the case, so the defendant would not lose his CDL license, how the judge should proceed in the case, and whether the judge should disqualify in future cases involving the city attorney.

(Click Here To Read The Full Opinion)

Advisory Opinion 2003-02 (May 6, 2003)

A judge may serve on the Arkansas Commission on Child Abuse, Rape and Domestic Violence but may not chair the Commission or participate in administering and disbursing funds through the Children's Justice Act and grants, in receiving and expending grants and donations, in coordinating investigation and service delivery to child victims of severe maltreatment, in reviewing instances of child deaths, in supporting, coordinating, and providing technical assistance to providers of services for victims, advising the governor, or in negotiating or otherwise dealing in contract matters.

(Click Here To Read The Full Opinion)

Advisory Opinion 2003-03 (May 12, 2003)

Circuit judges may appoint a part-time district judge to perform judicial duties at the county jail under the code of judicial conduct but there may be statutory or other restrictions that apply.

(Click Here To Read The Full Opinion)

Advisory Opinion 2003-4 (December 16, 2003)

The Judicial Council may host a dinner for members of the Arkansas House and Senate Judiciary Committee to introduce the legislators the Judicial Council’s president-elect and to discuss legislative issues of interest to the judiciary at large. One member filed a dissenting opinion.

(Click Here To Read The Full Opinion)

Arkansas Advisory Opinion 2004-01 (March 5, 2004)

A drug court judge may allow funds raised by a private foundation established to fund drug courts to be used to assist indigent drug court participants obtain necessary testing and treatment and may allow the foundation to include the drug court’s name in the title, but is disqualified from cases involving the foundation.

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Advisory Opinion 2004-02 (April 1, 2004)

The Arkansas Judicial Ethics Advisory Committee stated that it does not have the authority to provide an advisory opinion in regard to the conduct of someone other than the requesting party.

Arkansas Advisory Opinion 2004-03 (May 10, 2004)

A judge may not personally solicit pledges from other members of Kiwanis even if the person solicited is not an attorney and lives outside the state.

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Arkansas Advisory Opinion 2004-04 (May 27, 2004)

A judge may not serve on a legislatively created sex offenders assessment committee that will promulgate guidelines and procedures for the disclosure of relevant information, develop an evaluation protocol for preparing reports to assist courts in making determinations against an offender, and set qualifications for the examiners.

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Arkansas Advisory Opinion 2004-05 (June 15, 2004)

A judge may not serve as a trustee of a life insurance trust.

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Arkansas Advisory Opinion 2004-06 (August 24, 2004)

A judge may sign an affidavit, to be used in a lawsuit, about actions the judge took while representing a client before becoming a judge.

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Arkansas Advisory Opinion 2004-07 (January 19, 2005)

A part-time judge who is also the managing attorney for a legal aid office should disqualify when other employees of the office appear in a case.

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Advisory Opinion 2005-01 (April 29, 2005)

A judge may not write a letter to the judge who is sentencing a life-long friend of the judge at the request of the friend’s attorney.

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Advisory Opinion 2005-02 (May 12, 2005)

An attorney may not accept an appointment to a judicial position for a term ending on January 1, 2007 when financial arrangements with the attorney’s office necessitate the attorney’s continuing obligation on long-term notes that would require him or her to periodically renew the notes on behalf of the law firm during his or her tenure as a judge, the attorney would continue to run extensive business interests out of his or her present law office, and selling the attorney’s interest in the law office is not feasible for financial reasons even if the attorney is willing to transfer his or her interest in the firm to a blind trust administered by senior partners who would have the sole responsibility of running the office.

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Advisory Opinion 2005-03 (June 3, 2005)

A part-time city court judge may serve as a city attorney in another city but may not serve as a county attorney for the county in which the city is located.

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Advisory Opinion 2005-04 (May 24, 2005)

A part-time district judge may not represent criminal defendants on felony charges in the county’s circuit courts.

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Advisory Opinion 2005-06

No opinion issued. The judge withdrew his request. Advisory Opinion 2005-06 (December 7, 2005) A retired judge may be pictured in a robe on the jacket cover of a book he or she authored on being a judge.

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Advisory Opinion 2005-07 (December 7, 2005)

A retired judge may be the subject of a “roast” that is a fund-raiser for the Northeast Arkansas Legal Support Professionals, but a sitting judge may not be “a roaster” even if the amount of money raised may be barely above expenses and the names of sitting judges should not be included in the program. The association may promote the event and the fund-raising, but those members who are trial court assistants for judges should take special precaution to avoid any suggestion that the court or court officials are promoting the event.

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Advisory Opinion 2005-08 (January 30, 2006)

A former judge may not refer to himself or herself as “judge” in a campaign logo or signs or other campaign material.

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Advisory Opinion 2006-01 (February 16, 2006)

The Arkansas District Judges Council should not make a contribution to a candidate for political office.

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Advisory Opinion 2006-02 (May 8, 2006)

The Arkansas Judicial Ethics Committee declined to consider whether the prohibition on a judge publicly endorsing or opposing candidates for public office was unconstitutional, noting its guidelines state that opinions “shall not address issues of law” and that its role is to interpret the Code of Judicial Conduct and to apply it to factual patterns not previously considered, not to hold that a provision of the code is unconstitutional or rewrite the code, which is the task of the judiciary.

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Advisory Opinion 2006-03 (June 13, 2006)

A judge may not allow a political advertisement to be displayed on property owned by the judge and his wife.

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Advisory Opinion 2006-04 (October 27, 2006)

A judicial candidate who is a former judge may not be pictured in a judge's robe or seated at a judge's bench in campaign materials.

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Advisory Opinion 2007-01 ( April 3, 2007 )

A judge may serve on the board of visitors for the University of Arkansas .

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Advisory Opinion 2007-02 ( April 18, 2007 )

A judicial candidate may not honor a commitment to chair a fundraising event for a non-judicial candidate made prior to announcing his or her candidacy.

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Advisory Opinion 2007-03 ( October 18, 2007 )

A judge may not support candidates for political office.

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Advisory Opinion 2008-01 ( February 28, 2008 )

The Judicial Ethics Advisory Committee cannot opine whether or not a judicial candidate may serve as city attorney for one city and district judge for another. However, a judicial candidate is required to resign from judicial office while running for an elective office of city attorney.

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Advisory Opinion 2008-02 ( March 12, 2008 )

A circuit judge must resign if he or she becomes a candidate for county judge.

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Advisory Opinion 2008-04 ( August 6, 2008 )
A judge is not prohibited from entering into an agreement for legal services. However, Canon 3(A) states that “the judicial duties of a judge take precedence over all judge’s other activities.” The Committee believes an agreement that would result in excessive recusal would therefore be inappropriate.

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Advisory Opinion 2008-05 ( August 28, 2008 )
A judge may not issue a press announcement or distribute cards until 365 days before election.

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Advisory Opinion 2008-07 ( August 26, 2008 )
A judge is required to recuse whenever his son appears in front of him, or by written materials, if his impartiality might reasonably be questioned.

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Advisory Opinion 2008-08 ( December 17, 2008 )
The Code of Judicial Conduct prohibits a part-time judge from serving as a deputy prosecuting attorney or representing criminal defendants in the same county.

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Advisory Opinion 2009-02 ( January 16, 2009 )
A judge engaging in permissive activities must be diligent not to violate any other provisions of the Code of Judicial Conduct.

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Advisory Opinion 2009-03 (June 22, 2009)
A judicial candidate may purchase a ticket to and attend an event of a political organization if the event does not occur more than 365 days before election.

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Advisory Opinion 2009-04 (August 20, 2009)
Issues in Judicial Campaigns--New Arkansas Code of Judicial Conduct, effective July 1, 2009.

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