May a retired judge serving part time as judge pro tempore also mediate, practice law, or hear agency matters?

Plain-English summary

A retired judge serving by annual agreement about four days per month asked whether compensated agency hearing work, mediation, arbitration, and law practice could coexist with pro tempore service. [Source: Opinion 18-02, p. 1]

The committee applied Rule 21-004(B)(3)’s part-time exemptions. It said a judge pro tempore could generally accept the state agency hearing appointment and undertake mediation, arbitration, or law practice. The practice-of-law exception did not allow work in the court served or a matter in which, or related to which, the judge had served; the committee believed the same limitation applied to mediation and arbitration. [Source: Opinion 18-02, pp. 1–2]

The committee stressed that other Code limits could preclude particular work, including interference with judicial duties, frequent disqualification, apparent harm to impartiality, or apparent coercion. [Source: Opinion 18-02, pp. 2–3]

In practice

The opinion permits the listed outside work only for the described part-time pro tempore status, and keeps both the matter-specific work limits and other Code restrictions in view. [Source: Opinion 18-02, pp. 1–3]

Common questions

Q: Could the judge pro tempore serve as a state agency hearing officer?

A: The committee said that was generally permitted under the part-time exemption for governmental appointments. [Source: Opinion 18-02, p. 2]

Q: Could the judge practice in the same court?

A: No. The opinion cites Rule 21-004(B)(3)(b)’s restriction on law practice in the court served and related proceedings. [Source: Opinion 18-02, p. 2]

Background and rules framework

The opinion interprets New Mexico Code of Judicial Conduct Rule 21-004(B)(3) and discusses Rules 21-309, 21-310, 21-304(A), 21-311(D), and 21-301. [Source: Opinion 18-02, pp. 1–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-004(B)(3), 21-309, 21-310, 21-304(A), 21-311(D), 21-301. Source: Opinion 18-02.

See also

• NM Judicial Ethics Op. 21-03: Mediator Ex Parte Communications
• NM Judicial Ethics Op. 19-02: Former Client as Prosecutor

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 18-02

Original opinion text

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

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Advisory Committee on the Code of Judicial Conduct ©

Hon. James J. Wechsler, Co-Chair (ret.) This is an advisory opinion by the New Mexico Advisory Hon. Julie J. Vargas, Co-Chair : Committee on the Code of Judicial Conduct. Advisory’ Lo Paul L. Biderman, Esq. opinions are responses to inquiries from judges seeking - _ Prof. Robert L. Schwartz guidance on judicial ethics questions. They are not issued, ~ .
’ Hon. Freddie J. Romero approved, or endorsed by the New Mexico Supreme Court; | Hon. Sandra: W. Engel 5 iis nor are they binding. a February 28, 2018 RECEIVED

FEB 9 82018

Supreme Court Law Library
: : Santa Fe, New Mexico
Re: Judicial Advisory Opinion No. 18-02 :

1c EEE
~ You area retired judge. Under an annual professional services agreement, you =” serve, as a judge pro tempore for the court on which you previously served. The Court ~ calls 1 upon you to sit approximately four days per month. You have also been asked - to Serve as a hearing’ officer for a state agency and have considered acting as a ‘mediator or arbitrator or engaging in the practice of law. You have asked the -
. Advisory Cominittee on the Code of Judicial Conduct whether the Code of Judicial Conduct permits you to perforin ‘these’ other tasks for compensation while you ate-.° serving as a judge pro tempore.

Although the Code does not specifically address whether you may serve as i hearing officer, it does address the other activities you describe. ‘We will first 1 turn to . these activities. r, . at 8

The Code ey a full- time judge from (1) serving as a ‘fetter ‘or gre

• arbitrator “apart from the judge’s official duties”; and (2) practicing law without THE, “24°,
  _written approval of the Supreme Court. Rule 21-309 NMRA; Rule 21-310 NMRA. Sy

_ The Code, however, expressly exempts from these provisions, “judges serving by. a

"contract Or‘appointment on a part-time basis” (judge pro tempore). Rule 21-004 . a (B)(3) NMRA. Under these exceptions, such judges “are not required to canny at _ * Page Two

any time” with Rules 21-309 and 21-310. While Rule 21- 004(B)(3) doés not limit a

“judg# pro tempore’s ability to act as a mediator or arbitrator, it does restrict a judge
. pro tempore’s ability to practice law. Under Rule 21-004(B)(3)(b), .a judge pro
-tempore may not practice law in the courts on which the judge serves and may not: , practice in any proceeding in which, or related to which, the judge has served as a judge. Although this is not formally addressed by the Rule, the Committee believes

’ that the same limitation would apply to a judge pro tempore’s services as a mediator’ - a

or arbitrator.

‘Although the Code does, not. expressly address whethe#’ a judge ‘pro tempore -

" may serve as an administrative hearing | officer for a state agency, it does address
. analogous circumstances. The Code prohibits a full-time judge from accepting an appointment to a governmental position except when required by or concerning the law or the administration of justice. Rule 21-304(A) NMRA. It further prohibits a full-time judge from holding another appointed judicial position. Rule 21-311(D). Rule 21-004(B)(3)(a), however, excepts judges pro tempore from complying at any time with Rule 21-304. A judge pro tempore may, therefore, accept an appointment to a governmental position. The Committee perceives the appointment as a hearing officer for a state agency to be a governmental position within Rule 21-304. Moreover, while Rule 21-311(D) prohibits a full-time judge from holding.another . app ointed judicial position, and even assuming that an administrative hearing officer holds a “judicial position,” the prohibition does not apply to a judge pro tempore as

defined in Rule’21-004(B)(3).

Thus, the Committee believes that, as a general matter, the Code permits you to act as a hearing officer for a state agency, as a mediator or arbitrator, or asa . practicing lawyer, as described above. The Committee cautions that such activities
_may otherwise be precluded by the Code, depending on the circumstances. In particular, the Committee cautions that, in undertaking any extrajudicial activity that you have described, you must ensure that you do not assume any responsibility or act
-in a way that (1) “will interfere with the proper performance of” judicial duties; (2) “will lead to frequent disqualification;” (3) “appear to a reasonable person to undermine” your “independence, integrity, or impartiality;” or (4) “appear to a reasonable person to be coercive.” See Rule 21-310 NMRA. ,

In addition, the Committee refers you for compliance to Rule 21-102 NMRA * 4 " (requiring a judge to “act at all times in a manner that promotes public confidence ~ Page Three

in the independence, integrity, and impartiality of the judiciary” and “avoid
_impropriety and the appearance of impropriety); Rule 21-103 NMRA (prohibiting a judge from abusing the prestige of office to advance the judge’s persorial oreconomic interests); Rule 21-201 (requiring a judge to give precedence to the judge’s judicial

duties); Rule 21-211 NMRA (requiring disqualification “in any proceeding in which .

the judge’s impartiality might reasonably be questioned”); and Rule 21-310 NMRA (prohibiting a judge from engaging in extrajudicial activities).

Cpe bles. _e?

air

cc: Hon. Sandra W. Engel
Hon. Freddie J, Romero
Professor Robert L. Schwartz
*Paul L. Biderman, Esq.