CJEO Expedited Opinion No. 2023-051 — Extrajudicial Service as a Government Affairs Director for Another State’s Attorney General

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Expedited Opinion 1 2023-051
[Posted November 27, 2023]
EXTRAJUDICIAL SERVICE AS A GOVERNMENT AFFAIRS DIRECTOR FOR
ANOTHER STATE’S ATTORNEY GENERAL
I. Question
Is it permissible for a retired judicial officer to take a position as the government affairs
director for another state’s attorney general while participating in the Temporary Assigned
Judges Program in California?
1 The California Supreme Court Committee on Judicial Ethics Opinions (CJEO or the
committee) issues Expedited Opinions, formerly known as Oral Advice Summaries, pursuant to
California Rules of Court, rule 9.80(i)(1) (eff. Jan. 1, 2021). Expedited Opinions are issued to
requesting judicial officers following a discretionary decision by CJEO to address the ethical
issues raised in an expedited process that does not include posting draft opinions for public
comment, as required for CJEO Formal Opinions. CJEO Expedited Opinions are published in
full, without identifying information regarding the requesting judicial officer, to provide
information and analysis to the bench and the public regarding judicial ethics.

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II. Facts
The Temporary Assigned Judges Program is an exercise of the Chief Justice’s
constitutional authority to assign retired judicial officers to fill vacancies on a temporary basis in
courts requesting assistance. (Cal. Const., art. VI, § 6, subd. (e) [“The Chief Justice shall seek to
expedite judicial business and to equalize the work of judges”].) The judge is an active member
who regularly sits on assignment through the temporary assigned judges program.
The inquiry is whether it would be permissible to serve as the government affairs
director in another state. It is a compensated position. The government affairs director position
would report directly to the state’s attorney general and would require the retired judge to act as
a liaison between the attorney general, the state’s legislative representatives, and other state
officers. As part of the position’s duties, the retired judge would review and analyze proposed
state legislation submitted to the state attorney general and provide feedback to the authors of
the proposed legislation concerning textual clarity, completeness, and compliance with statutory
and constitutional requirements. The position would also provide administrative, analytical, and
professional support in connection with the legislative affairs of the office of the state attorney
general. Finally, the government affairs director may draft and review legislative opinions,
including opinions authored by deputies within the state attorney general’s office regarding
prospective legislation, and legal opinions for other state agencies and officers.
III. Advice Provided
The committee advises that it would be improper for a retired judge to hold a position as
a government affairs director reporting to the attorney general of another state while
simultaneously serving in the temporary assigned judges program in California. The government
affairs director position would involve giving legal advice and drafting legal documents and
opinions. This constitutes the practice of law, which is impermissible for judicial officers,
including retired judges participating in the temporary assigned judges program.2
2 While not discussed at length herein, there are other independent grounds under the
canons that would render the out-of-state position improper. First, if the laws of the other state
are in conflict with the laws of California, such extrajudicial service may give the appearance of
impropriety, which could diminish public confidence in the integrity and impartiality of the

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IV. Discussion
The California Code of Judicial Ethics3 permits judges to engage in extrajudicial
activities, particularly those devoted to the improvement of the law, the legal system, and the
administration of justice. (Advisory Com. commentary foll. canon 4A [complete separation of
judges from extrajudicial activities is neither possible nor wise]; Advisory Com. commentary
foll. canon 4B [judicial officers are specially learned in the law and in a unique position to
contribute to the improvement of the law, the legal system, and the administration of justice].)
However, any advisory position must be non-legal in nature. (Canon 4C(3)(a) [a judge may
serve as an officer or nonlegal advisor or an organization or government agency dedicated to the
improvement of the law, legal system, or the administration of justice so long as it does not
constitute public office]; canon 4C(3)(b) [a judge may serve as an officer or nonlegal advisor of
a non-profit organization, subject to the limitations and other requirements of the code];
Rothman et al., Cal. Jud. Conduct Handbook (4th ed. 2017) § 8:80, p. 570 (Rothman).)
In addition, and most relevant here, judges are prohibited from practicing law. (Canon
4G; Advisory Com. com. foll. canon 6C [retired judges in the temporary assigned judges
program are bound by canon 4G barring the practice of law].) Retired judicial officers serving
in the temporary assigned judges program must carefully navigate the path between what is
permitted and what is prohibited by the code. (Canon 6B [retired judges in the temporary
assigned judges program are required to comply with all provisions of the code, with exceptions
inapplicable to civic organization positions].)
CJEO addressed a similar issue in an expedited opinion in 2019, and its conclusion is
instructive. (CJEO Expedited Opinion 2019-031 (2019) Extrajudicial Service as a Rotary
District Youth Protection Officer.) In that matter, a retired judicial officer who regularly served
judiciary. (Canon 2.) In the same vein, the retired judge may have to take a position on issues
reasonably likely to come before California courts. (Canon 2A.) Finally, if the judge were to
accept the out-of-state position, it may give the impression of lending the prestige of the judicial
office to further the interests of the judge and others, or using one’s judicial title for financial
gain. (Canons 2B(2), 4D(1), 4D(2).)
3 All further references to the code, canons, and advisory committee commentary are to
the California Code of Judicial Ethics unless otherwise indicated.

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in the temporary assigned judges program wanted to know if it was permissible to volunteer as a
district youth protection officer for the local Rotary Club. (Id. at p. 1.) The CJEO advised that
the retired judge would not be permitted to serve in this volunteer position because the
qualifications included legal experience and the duties included providing advice about the law.
(Id. at 5.) The opinion further advised that the Rotary district youth protection officer position
could result in the judicial officer being called as a witness or participant in proceedings
involving the Rotary district youth program, which could undermine the appearance of
impartiality and lend the prestige of judicial office. (Id.) Finally, CJEO advised that the retired
judge’s participation in the program could advance the interests of the Rotary Club based on the
judge’s title and position. (Id. at 5-6.)
The prohibition against judges practicing law includes providing legal advice, counsel,
and drafting legal documents, whether or not they are prepared in the course of litigation.
(Canon 4G; Rothman § 8:80, p. 570 [citing People v. Merchants Protective Corp. (1922) 189
Cal. 531, 535, quoting Eley v. Miller (1893) 7 Ind. App. 529 [34 N.E. 836, 837]; Birbrower,
Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 128].) “In close cases,
the courts have determined that the resolution of legal questions for another by advice and action
is practicing law.” (CJEO Formal Opinion 2021-017 (2021) Providing Close Family Members
with Advice that Implicates Legal Issues, pp. 5-8, citing California v. Superior Court (1929) 207
Cal. 323, 335 and Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543.)
Here, the duties of the government affairs director include reviewing, analyzing, and
providing feedback on proposed legislation and whether it complies with statutory and
constitutional requirements. The director would also be tasked with both preparing and
reviewing legal opinions, including opinions drafted by deputies within the state attorney
general’s office on prospective legislation. Finally, the director may also draft legal opinions for
other state agencies and officers. These duties necessarily implicate the practice of law, which
is barred by canon 4G. As such, the committee advises that the retired judge may not serve as
the government affairs director for the attorney general in another state.
For the foregoing reasons, the committee advises that it would be improper for the
retired judge to accept a position as government affairs director reporting to the attorney general

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of another state while simultaneously sitting on assignment in California as a member of the
temporary assigned judges program.
V. Conclusion
Extrajudicial service as a government affairs director in another state would not be
permitted under the code where, as here, the position includes giving legal advice and drafting
legal documents and opinions. This constitutes the practice of law, which is impermissible for
judicial officers, including retired judges participating in the temporary assigned judges
program. Extrajudicial service in a governmental agency is permitted only where the judicial
officer serves as a nonlegal advisor, which is not the case at hand. Accordingly, the committee
advises that the retired judge should not accept a position as a government affairs director
reporting to the attorney general of another state while simultaneously serving with the
temporary assigned judges program in California.
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This expedited advice opinion is advisory only. (Cal. Rules of Court, rule 9.80(a), (e);
Cal. Supreme Ct. Com. Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. rule 1(a),
(b).) It is based on facts and issues, or topics of interest, presented to the California Supreme
Court Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the committee
(Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions expressed in this
opinion are those of the committee and do not necessarily reflect the views of the California
Supreme Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a)).)