ACTIVITIES OF RETIRED JUDGES
Opinion No. 155 (1993)
QUESTION 1: May a retired judge who is subject to assignment do the
a. Lawyer Activities: (1) appear in court as a lawyer; (2) practice law without appearing in court; (3) use judicial title; (4) be "of counsel" to a business.
b. Other Than in Law Practice, Use Former Judicial Title in Directories, on Stationary or Business Cards: (1) for judicial purposes; (2) for business and social purposes.
c. Political Activities: (1) publicly endorse another candidate for office; (2) work on a political campaign.
d. Raise Money for Charities.
e. Activities Governed by Law: (1) perform weddings; (2) administer oaths; (3) disregard financial disclosure requirements.
ANSWERS TO QUESTION 1: (Retired Judges Subject to Assignment):
a. Lawyer Activities
(1) Appear in Court As a Lawyer
No ethical question is presented, because under Government Code Section 74.055 every judge who is eligible for assignment has certified the judge's willingness not to appear and plead as an attorney in court.
(2) Practice Law Without Appearing in Court
Yes, but subject to the provisions of Canons 2, 2B, 5, and 5C (1) and (6). Canon 8G says that a retired judge subject to assignment is not required to comply with the Canon 5F provision that a judge should not practice law (with exceptions that do not apply). However, the principles stated in the headings of Canons 2 and 5, and the specific provisions of Canon 2B and Canon 5C (1) and (6), do apply to retired judges subJect to assignment.
A retired judge subject to assignment should avoid the appearance of impropriety (Canon 2), and should minimize the risk of conflict with judicial duties (Canon 6). A judge should not use the prestige of judicial office to advance private interests. Canon 2B. Canon 5C(1) provides' that a judge should refrain from financial and business dealings that (a) tend to reflect adversely on the judge's impartiality, (b) interfere with the proper performance of judicial duties, (c)exploit the judge's judicial position, or (d) involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves. The words "financial and business dealings" include the practice of law. Opinion 132. Canon 5C(6) provides that a judge should not use or disclose for any nonjudicial purpose any information that the judge acquires in a judicial capacity. These provisions impose on a retired judge who is subject to assignment the duty to observe rather strict limitations in any law practice in which the judge engages. Paragraph (3) discusses one example.
(3) Use Judicial Title in Law Practice.
No. The use of the title "Judge" or "Justice" on letterhead, in directories, or in any other public way would at least give the appearance of using judicial prestige for private advantage and of exploiting the judge's judicial position. See Opinion 102, which concluded that a retired judge would violate Canon 2B by using the prestige of the judge's former title to advance the private interest of a law practice. (That judge was not subject to assignment, but at that time the same Code provisions applied to all retired judges.) See also Opinions 67 and 128. (In Op. 128 the reference to Canon 3B should say 2B).
(4) Be "Of Counsel" To a Business
Yes, subject to the limitations stated above in sections (1), (2), and (3). The Committee notes that Opinion 87 is no longer useful. The statute headed "Ineligibility to Practice Law", which was cited in Opinion 87, has been repealed.
b. Other than in Law Practice, Use Former Judicial Title in Directories, on Stationary or Business Cards.
(l) For Judicial Purposes
Yes. In official judicial correspondence and cards, and in law directories, a retired judge subject to assignment may be identified as a retired judge or justice. Opinion 128.
(2) For Business and Social Purposes
Yes, but subject to the pertinent provisions of Canons 2B and 5C(1). For personal business and social correspondence and cards, and in business and social directories, the Code of Judicial Conduct does not prohibit the use of the title "Judge" or "Justice". However, Canon 2B provides that a judge should not use judicial prestige for private advantage, and Canon 5C(1) provides that a judge should refrain from financial and business dealings that tend to exploit the judge's judicial position. A judge should avoid any use of judicial title that would give the appearance of using the prestige of judicial office for private advantage, or of exploiting the judge's position. See Opinion 137, Question 1.
c. Political Activities
(1) Publicly Endorse, or Work on Campaign for, Another Candidate for Office
No. Canon 7(3), which applies to retired judges subject to assignment, provides that a judge shall not authorize the public use of the judge's name to endorse another candidate for any public office. Such a judge's endorsement of another candidate, or participation in another's campaign, would be inconsistent with the principles stated by Opinions 145, 136, 130, 100, 92, and 73.
(2) Work on a Political Campaign for a Party or Issue
Only to the extent permitted by Canon 7(3), which provides that a judge may indicate support for a political party, attend political events, and express the judge's personal views on political matters. Other Code provisions preclude campaign work other than that expressly permitted by Canon 7(3). A judge should promote public confidence in the impartiality of the judiciary (Canon 2A), and should be and appear to be (Canon 2) unswayed by partisan interests or public clamor. Canon 3A(1). A judge may not serve as an officer, director, trustee, or advisor of an organization if it is conducted for the political advantage of its members. Canon 5B.* A judge should not use or appear to use judicial prestige for the benefit of others. Canon 2B.
d. Raising Money for Charities
No. Canon 5B(2), which applies to retired judges subject to assignment, provides that a judge shall not solicit funds for any charitable organization. See Opinions 150, 131, 110, 60, 59, 51, 41, 25, 16, 11, and 10.
e. Activities Governed by Law
(1) Perform Weddings;
(2) Administer Oaths;
(3) Disregard Financial Disclosure Requirements
As these activities are governed by rules of law, it would not be appropriate for this Committee to undertake advisory opinions concerning them, either as to retired judges who are subject to assignment or as to those who are not. See Opinion 127, last paragraph.
QUESTION 2: May a retired judge who is not subject to assignment do the things listed in question 1?
ANSWER TO QUESTION 2: (Retired Judges Not Subject to Assignment):
As Canon 8, headed "Compliance with the Code of Judicial Conduct" now imposes no specific responsibilities on retired judges not subject to assignment, the Code does not prohibit such judges from engaging in any of the activities listed under Question 1. Opinions 15 and 32 no longer apply to retired judges not subject to assignment, because when those opinions were issued the Code compliance provisions imposed substantially the same requirements on retired judges who were not subject to assignment and on those who were.
The right of retired judges to practice law is a law issue on which the Committee expressed no opinion, but the Committee does note that the statutory prohibition against appearing and pleading as an attorney does not apply to judges who do not choose to be subject to assignment. The Committee also notes again that the Legislature repealed the "Ineligibility to Practice Law" statute cited in Opinion 87.
*Committee Footnote: A February 10, 1988 Supreme Court Order deleted from Canon 5B(2) the word "political", thereby resolving the previous conflict between Canon 5B (a judge may not be an officer of an organization conducted for political advantage) and Canon 5B(2) (a judge may be an officer of a political organization). On page 125 of the 1990 Texas Judicial Service Handbook the word "political" in Canon 5B(2) is a misprint.