May a part-time probate judge mention judicial office on a law firm website and private practice on the court website?

Plain-English summary

A part-time probate judge planned to continue estate-planning and probate practice and asked about describing the judicial role on a private law office website and the private practice on the court’s website. [Source: Opinion 18-09, p. 1]

The committee said a factual statement of the probate judgeship on the law office site would not abuse the prestige of office. It saw a greater problem in detailed promotion of private practice on the court’s official site because it could appear to use judicial prestige and resources to attract clients. [Source: Opinion 18-09, pp. 1–2]

It suggested a limited statement of probate experience in the court biography and advised against identifying the private practice there beyond that. [Source: Opinion 18-09, p. 3]

In practice

The opinion permits an accurate judicial title on the private site, while distinguishing limited background information from detailed private-practice promotion on the court site. [Source: Opinion 18-09, pp. 2–3]

Common questions

Q: May the judge say on the law office site that the judge holds probate office?

A: Yes. The committee treated that as factual background information. [Source: Opinion 18-09, p. 2]

Q: May the court site describe the judge’s private probate practice in detail?

A: The committee advised against that and suggested only a brief statement of probate experience. [Source: Opinion 18-09, p. 3]

Background and rules framework

The opinion applies New Mexico Code of Judicial Conduct Rule 21-103 and discusses Rule 21-310 and the Governmental Conduct Act’s restrictions on private benefit. [Source: Opinion 18-09, pp. 1–3]

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-103, 21-310. Source: Opinion 18-09.

See also

• NM Judicial Ethics Op. 22-01: LLC Legal Fees and Disqualification
• NM Judicial Ethics Op. 19-03: Family Charitable Foundation Board

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 18-09

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 Paul L. Biderman, Esq. opinions are responses to inquiries from judges seeking Prof. Robert L. Schwartz guidance on judicial ethics questions. They are not Hon. Freddie J. Romero issued, approved, or endorsed by the New Mexico Hon. Sandra W. Engel Supreme Court; nor are they binding.

November 16, 2018

RE: AO 18-09

You are unopposed as a candidate for election to serve as Probate Judge for GB County, a part-time position. You will continue your law practice, which includes estate planning and probate, when not serving on the bench. You have asked the Advisory Committee on the Code of Judicial Conduct whether you will be able to identify your status as probate judge on your private law office website. You have also asked whether you can identify your private law practice in your biography to be posted on the probate court website.

The rule of the Code of Judicial Conduct most applicable to your inquiry is Rule 21-103 NMRA, Avoiding abuse of the prestige of judicial office. That rule prohibits judges from abusing “the prestige of judicial office to advance the personal or economic interests of the judge or others... .” Identifying yourself on your law office website as the probate judge for your county would not constitute an abuse of the prestige of that office. Stating on your law office website that you hold that position, which is public information in any event, provides factual information for potential clients about your background and experience. Moreover, you likely have a First Amendment ti ght to advertise usinghonest commercial speech, under Bates vy. State Bar of Arizona, 433 U.S. 350 (1977).

The answer to your second question, as to whether you can identify your estate planning and probate practice on your biography on the court website, is less clear. Describing your law practice on the court’s official website may also be seen as providing useful, factual information to the public. For example, heirs filing probate proceedings may want assurance that their judge will be qualified to preside over probates, as they decide whether to file in probate or district court. Since petitioners may know that probate judges in our state may be elected to that office with no required background in probate, they have a legitimate interest in receiving factual information regarding the judge’s experience and credentials.

On the other hand, the reference to the judge’s private law practice on the official court website may be viewed as suggesting that heirs hire the judge as their private attorney. If so, this reference could at least create the appearance that the judge is using the prestige of judicial office, as well as judicial technological resources, to attract private, paying clients. It might even engender conflicts or confusion under the restriction of Rule 21-310 NMRA, “A part-time judge is not required to comply with Rule 21-310 [prohibiting full-time judges from practicing law] but is prohibited from practicing law in the court on which the judge serves. , .
-” Rule 21-310, comm. cmt 2. Thus, a probate judge who takes on a private probate case could not then process it in the judge’s own court, possibly causing confusion for clients. Additionally, using the court website to describe the judge’s private law practice may be interpreted to violate the restrictions of the Governmental Conduct Act, see NMSA (1978), §10-16-3(A), -4 (201 1), against taking official action for private benefit. To convey valuable information to potential petitioners while avoiding the possibility of violating these rules, the Committee suggests that you limit any statement regarding your private law practice to only the minimum information necessary to convey your background in this field. A simple statement such as, “Judge X has practiced probate law in New Mexico for X years,” would inform potential petitioners that the judge is qualified to conduct the probate, without seeming to invite them to hire the judge as their attorney.

The Committee believes that using the court’s website to identify your private probate practice in greater detail would likely create, at least to some parties, an appearance of impropriety under Rule 21-103. We therefore advise you against identifying your estate planning or probate law practice on the court’s website beyond the limited disclosure of your experience. We do not see a problem identifying yourself as probate judge on your law office website.

Judge Julie J. Vargas did not participate in this opinion.