Could a judge perform with a paid band at a prosecutor candidate’s fundraiser?

Short answer West Virginia JIC Opinion 2004-19 advised the judge against performing because the appearance could be construed as a public endorsement and would involve the judge in fundraising.
Bar
JUDICIAL-WV
Issued
May 17, 2004

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This page answers the general question as of 2004. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2004
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A judge who sometimes worked as a professional musician asked about playing with a band at a prosecutor candidate’s fundraiser. The band would receive its normal $450 fee, of which the judge would receive $75; the judge’s name and office would not be advertised. Applying former Canon 5, the Commission advised against the performance because it could be seen as public endorsement and would involve the judge in fundraising.

In practice

The Commission reached its answer even though the band would charge its normal rate and would not identify the performer as a judge.

Common questions

Q: Did the ordinary performance fee change the result?

A: No. The Commission advised against the appearance despite the stated normal rate and the judge’s $75 share.

Q: What conduct concerned the Commission?

A: It said the performance could be construed as a public endorsement and would involve the judge in fundraising.

Background and rules framework

The letter quoted former Canon 5A(1)(b), which barred a judge from publicly endorsing or opposing another public-office candidate.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 5; Canon 5A(1)(b).

See also

Source

Original opinion text

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

JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 * FAX (304) 558-0831

May 17, 2004
JIC Advisory Opinion 2004-19

Dear Judge

In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion. In your letter you state that you are sometimes engaged in self-employment as a professional musician. Recently your band was contacted in regard to a political function set to take place on September 10, 2004. A candidate for County Prosecuting Attorney sought to hire the band to perform at a fund raiser steak fry. The candidate has been quoted the normal rate for a three-hour engagement by your band. He has agreed to compensate the band $450 for the performance. Your portion of the amount would be $75. You state that your name is not utilized in connection with the band nor are you introduced or otherwise noted to be a judge.

The Commission reviewed Canon 5 of the Code of Judicial Conduct to address the question which you have raised. Canon 5 states in relevant part:

Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity.

A. All judges and candidates. (1) Except as authorized in sections 5B(2), 5C(1), and 5C(3), a judge or a candidate for election or appointment to judicial office shall not:

(b) publicly endorse or publicly oppose another candidate for public office; ...

The Honorable
May 17, 2004
Page Two

Based upon this section of Canon 5, it is the opinion of the Commission that you should not engage in this activity since it could be construed as a public endorsement and you as a judge would also be engaging in fund raising.

If there is any further question regarding this matter do not hesitate to contact the Commission.

Very truly yours,

Fred L. Fox, II, Chairperson
Judicial Investigation Commission

FLF,II:nb

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