JUDICIAL ETHICS OPINION 2005-3

¶0 QUESTION 1: May a judge whose spouse and a third party intend to form a business corporation to design computer software programs for use in court administration to be marketed nationally and in Oklahoma, assist primarily on weekends and after working hours in the following ways:

¶1 QUESTION 2: May the judge’s spouse have an ownership interest in and participate in the corporate business?

¶2 QUESTION 3: May the judges of a judicial district direct a judge’s spouse who might engage in such an enterprise to divest her corporate interest?

¶3 QUESTION 4: Should the judge or the spouse do anything prohibited by answers to the above questions, what is the appropriate remedy?

¶5 Question 2: Yes. Nothing in the Code of Judicial Conduct prohibits a spouse from engaging in any legitimate activity or business.

¶6 Question 3: No. Nothing in the Code of Judicial Conduct, grants authority to a judicial district to make any order directed toward the spouse of a judge.

¶7 Question 4: It is not within the charge of the judicial Ethics Advisory Panel to suggest remedies or sanctions for those who violate the Code of Judicial Conduct. This responsibility is vested with the courts, the Council on Judicial Complaints and ultimately with the Court on the Judiciary.

¶8 We determine that these are appropriate questions for this body to answer by reason of the fact that a District Judge has supervisory capacity over a Special District Judge in his judicial district. This does not mean that this body has authority to answer ethical questions by a District Judge concerning conduct of a fellow District Judge. This situation would be reserved for the Council on Judicial Complaints.

¶9 Question 1: Canon 4G provides that "A judge shall not practice law. Notwithstanding, a judge may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family." If the proposed corporation were a closely held family corporation, then the exception would apply. However, in the question posed, a third party is to be a participant. There is nothing in the Code that would restrict the judge from using his or her expertise in a subject matter to facilitate the operation of the courts and judicial system on a voluntary basis and without remuneration. In fact, a judge should be commended for such efforts. However, it is most important that a judge whose family will benefit financially from the judicial district having purchased the software must take no part in the determination of the district to buy and use the product so as not to violate Canon 2 as it relates to avoiding the appearance of impropriety in all the judge’s activities, and the provision of Canon 4D(1)(a) not to engage in financial or business dealings that "may reasonably be perceived to exploit the judge’s judicial position . . ."

¶10 Questions 2 and 3: We have consistently advised that the Canons of Judicial Conduct do not apply to a judge’s spouse.

/s/Robert L. Bailey, Chairman
/s/Robert D. Simms, Vice Chairman
/s/Milton C. Craig, Secretary