Could a D.C. senior judge perform paid private arbitration while also sitting as a judge?
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This page answers the general question as of 1992. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A Superior Court judge asked whether a senior judge who still performed judicial duties could serve as a paid private arbitrator. The Committee read the then-effective Code's retired-judge and part-time-judge provisions as exempting D.C. senior judges from Canon 5E's general prohibition on judges acting as arbitrators.
The opinion did not confine arbitration work to another city. It said a matter that might later come before the Superior Court could be arbitrated, but the senior judge could never act judicially to review that judge's own arbitration decision. The judge also could not conduct arbitration in the courthouse or use court personnel or resources for it.
The Committee rejected a fixed number of days or weeks between the two roles. It did, however, bar arbitration work during normal hours when the senior judge was being paid for judicial duties. Although an unresolved judicial matter did not automatically bar arbitration work, Canon 3A(5)'s prompt-disposition duty still applied. Frequent daily switching could create appearance and performance concerns; the Committee suggested blocks of time devoted to one role.
Currency note
This opinion was issued in 1992 under the judicial Code then in force. The D.C. Courts' Opinion No. 5 records a revised Code effective June 1, 1995, and Opinion No. 12 records another effective January 1, 2012. Treat this page as historical context and verify current restrictions before relying on its arbitration analysis.
Common questions
Q: Could the senior judge arbitrate in D.C. rather than another city?
A: Yes. The Committee said the location alone did not prohibit the arbitration work under the Code it applied.
Q: Could the judge use a courtroom or court staff for private arbitration?
A: No. The opinion barred arbitration on court property and use of court personnel or resources for that work.
Q: Did an undecided judicial matter automatically prevent arbitration?
A: No. The Committee rejected that automatic bar, while retaining the judge's duty to dispose promptly of court business.
Q: Was a fixed hiatus required between judging and arbitration?
A: No. The opinion rejected a fixed waiting period but prohibited arbitration during paid judicial service and discussed the appearance concern of constant daily alternation.
Background and rules framework
The Committee applied the 1972 Code's Compliance Section exemptions for part-time and retired judges, together with Canon 2A on judicial integrity, Canon 2B on judicial prestige, Canon 3A(5) on prompt court work, and Canon 5E on arbitration and mediation by judges.
Citations and references
Judicial conduct provisions cited in the opinion:
- 1972 Code, Compliance Section A and C, part-time and retired judges.
- Canon 5E, arbitration and mediation.
- Canon 2A and 2B, integrity and judicial prestige.
- Canon 3A(5), prompt disposition of court business.
Statutes:
- D.C. Code § 11-504 (1989), senior-judge appointment.
See also
Source
- Landing page: D.C. Code of Judicial Conduct and advisory opinions
- Original PDF: Advisory Opinion No. 3
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