JUDICIAL REFERRALS

This revised opinion supplants the previous Opinion 206 dated January 28, 1997, which is withdrawn.

Revised Ethics Opinion No. 206 (1997)

To address its backlog of criminal cases, the county initiated a program to require first time family violence offenders to attend a course in family counseling. If the defendant completes the course, criminal charges are dismissed; if the defendant does not cooperate or does not complete the course of counseling. the agency notifies the court and the cause is set for trial. The defendant pays the cost of the counseling.

QUESTION: May a judge in this county order the defendant to attend counseling at only one agency or business, or to select between two or three specified agencies or businesses without violating the Code of Judicial Conduct?

ANSWER: Yes, so long as the selection process encourages referrals to qualified programs that advance the county's objective of reducing family violence. Canon 2B admonishes the judge not to influence the selection process to advance the private interests of any provider.

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Opinion No. 206 (1997)

To address its backlog of criminal cases, the county initiated a program to require first time family violence offenders to attend a course in family counseling. If the defendant completes the course, criminal charges are dismissed; if the defendant does not cooperate or does not complete the course of counseling, the agency notifies the court and the cause is set for trial. The defendant pays the cost of the counseling.

QUESTION: May a judge in this county order the defendant to attend counseling at only one agency or business, or to select between two or three specified agencies or businesses without violating the Code of Judicial Conduct?

ANSWER: No. Canon 2(B) provides that a judge should not lend the prestige of judicial office to advance the private interests of others. By ordering a defendant to attend one designated counseling service, or to select from among two or three such services, the judge is advancing, or gives the appearance of advancing, the business interests of these providers.

Canon 2(B) also provides that a judge shall not allow any relationship to influence judicial conduct. We note that a defendant's fate is dependent on whether the counselor certifies that defendant successfully completed the course or failed To cooperate; any appearance of a relationship between the judge and the preferred provider might suggest the ability of that counselor to influence the judge's decision to dismiss The charges against defendant or proceed to trial.