CONSULTANT FOR NON-PROFIT HOUSING

Opinion No. 62 (1982)*


QUESTION: May a district judge serve as a consultant for a private non-profit corporation engaged in the construction and development of a housing project for the elderly?

FACTS: The Judicial Ethics Committee is informed on the following facts pertinent to the question. The project is financed by a loan from the Department of Housing and Urban Development under Section 202 of the Housing Act of 1959. The judge served in a similar consulting capacity on numerous projects before assuming the bench. He would be compensated on a fee basis by the private non-profit corporation that employs him. The fee is based upon a formula established by HUD and based upon the loan authority for the project. As a consultant he would give advice on the determination and selection of the project site and on various other matters related to the project, confer with representatives of the various entities involved in the project and assist in the establishment of sound business practices for the project. He would not perform any legal work. The legal work would be performed by an attorney outside his district who does not appear regularly before him. The corporation he would be assisting also does not appear regularly in his court. The work would require an average of 10 hours per month for 15 to 18 months and could be done before or after normal working hours. The judge would not be engaged in arbitration or mediation, nor would he participate in hearings or testimony before governmental bodies.

ANSWER: The Committee is of the opinion that service as a consultant under the facts stated does not violate the Code of Judicial Conduct. The resolution of the question is controlled by Canon 5 of the Code. Canon 5C(2) permits a judge to "engage in other remunerative activity including the operation of a business." That permission is conditioned upon compliance with Canon 5C(1), which states:

"A judge should refrain from financial and business dealings that tend to reflect adversely on his [or her] impartiality, interfere with the proper performance of [the] judicial duties, exploit his [or her] judicial position, or involve [the judge] in frequent transactions with lawyers or persons likely to come before the court on which he [or she] serves. "

Canons 5E and 5F, which bar a judge from acting as an arbitrator or mediator or from practicing law, are also restrictions on the activity in question. Under the facts stated none of the conditions or limitations in Canon 5 are violated, however, a judge should at all times keep in mind that it is his duty to uphold the integrity and independence of the judiciary and avoid impropriety and the appearance of impropriety in all his activities. Thus, the judge should carefully monitor his activities and immediately terminate his service as a consultant if he perceives a violation of the Code.

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*Canons 5(C)1 and 5E were amended effective December 19, 1989.