Does a nonlawyer judge violate the Code by filing a personal Chapter 7 bankruptcy petition after a former business fails?

Plain-English summary

Counsel asked whether a nonlawyer judge and spouse could seek bankruptcy protection after the failure of a retail business the judge ran before taking office. The committee applied the Code's provisions on outside activities, financial dealings, conflicts, and maintaining the judiciary's integrity. Source: Opinion 01_03, pp. 1–2

The committee assumed the judge had not operated the business while judging, that business and creditor dealings did not otherwise violate the Code, and that the business was separate from judicial work. On those assumptions, it found that the filing itself did not demean the judicial office or constitute prohibited misconduct. It reserved the possibility that undisclosed conduct, such as improper treatment of creditors, could change the answer. Source: Opinion 01_03, pp. 2–3

In practice

The opinion addresses the filing alone under its stated assumptions; it does not clear improper business or creditor conduct that the request had not described. Source: Opinion 01_03, pp. 2–3

Common questions

Q: Did the committee say every judicial bankruptcy is permissible?

A: No. It limited its answer to the facts and assumptions provided and identified undisclosed creditor misconduct or other implications as potentially material. Source: Opinion 01_03, pp. 2–3

Q: Did the former business need to be separate from the judge's court work?

A: The committee expressly assumed it was separate and unrelated to judicial responsibilities and had not been operated while the person was a judge. Source: Opinion 01_03, p. 2

Background and rules framework

The committee applied then-current New Mexico Code of Judicial Conduct Rules 21-500(A), 21-500(D), and 21-100 to the judge's personal financial conduct. Source: Opinion 01_03, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rules 21-500(A), 21-500(D), and 21-100. Source: Opinion 01_03, pp. 1–2
• In re Donaldo A. Martinez, 99 N.M. 198, 202-03, 656 P.2d 861, 865-66 (1982). Source: Opinion 01_03, p. 2

See also

• NM Judicial Op. 02-3: Investigator Business
• NM Judicial Op. 03-01: Paid Driver Classes

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 01_03 (indexed as 01-03)

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Committee on the Code of Judicial Conduct

Hon. Frank H. Allen, Jr., Chairman
Hon. Marie A. Baca
Hon. James J. Wechsler
Prof. William MacPherson

April 9, 2001

Re: Request for Advisory Opinion 01_03 Dated March 12, 2001

Dear

We are writing in response to your March 12, 2001 request for opinion on behalf of a non-lawyer New Mexico judge who is contemplating the filing of a personal Chapter 7 bankruptcy petition. Specifically, you request an opinion as to whether the judge would violate the Code of Judicial Conduct by declaring for bankruptcy under the United States bankruptcy laws. You state that your client engaged in a retail business that did not involve the practice of law prior to becoming a judge and that the failure of his business precipitated his interest and that of his spouse to initiate bankruptcy proceedings.

The New Mexico Code of Judicial Conduct addresses the extra- judicial activities of a judge as well as a judge's financial activities. Rule 21-500(A), (D) NMRA 2001. As to extra-judicial activities, a judge is required to conduct the judge's extra-judicial activities so as not to

(1) cast doubt on the judge’s capacity to act impartially …;

(2) demean the judicial office;
(3) interfere with the proper performance of judicial duties; or

(4) violate the judge's oath and obligation to uphold the laws and constitutions of the United States and the State of New Mexico.

Rule 21-500(D) relates specifically to financial and business dealings of a judge. A judge is permitted within restrictions to manage and participate in a business closely held by the judge. Rule 21-500(D)(3)(a) However, a judge is proscribed from even such generally-allowed conduct if the judge's activities will interfere with the judge's ability to impartially and regularly perform the judge's judicial duties. Rule 21-500(D)(1)(b), 21-500(D)(4) .The judge may not allow himself or herself to be in a position that causes a conflict of interest or which the public may consider to exploit the judge's judicial position. Rule 21-500(D)(1).

In addition to the specific provisions of the Code of Judicial Conduct which relate to extra-judicial activity, a judge has the obligation to establish, maintain, and enforce "high standards of conduct," even in the judge's personal life, such that the judge will preserve the "integrity and independence of the judiciary." Rule 21-

100. As you have noted in your request, a judge can be sanctioned for
     "willful misconduct in office. " In re Donaldo A. Martinez, 99 N.M. 198, 202-03, 656 P.2d 861, 865-66 (1982).

     You have not provided any information to indicate that your
     client has engaged in any improper activity. We assume that he did not operate the business in any manner during his tenure as a judge and that his business affairs and personal dealings with his creditors do not in any way otherwise violate the Code of Judicial Conduct. We further assume that his business is and was entirely separate and unrelated to his responsibilities as a judge and to the performance of his judicial responsibilities.

     With these assumptions, we do not perceive the filing of a
     bankruptcy petition under the circumstances you have described to demean your client's judicial office or to constitute a willful act which does not maintain the required level of personal conduct for a judge. The bankruptcy laws are established by the United States Congress to apply to various debtors. We assume that your client

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     would be complying with these federal laws. Unless he has engaged in some conduct which you have not described, such as improper treatment of his creditors or receipt of partial treatment by debtors, or there are implications to his proposed bankruptcy filing which are not stated in your request, we do not believe that his mere filing for bankruptcy and for debt protection under the laws of the United States is conduct that is prohibited by the Code of the Judicial Conduct.

                                    Very truly yours,
     
                                    Frank H. Allen Jr.
                                    Chairman
                                    Judicial Advisory Committee
     
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