Ethics Opinion 1: Withdrawn (Judge's Involvement in Private Business Venture, 05/28/58)

1. Service on the Board of Trustees of a corporation engaged in a private business venture by a Judge of a court of record violates the Canons of Judicial Ethics of the American and Colorado Bar Associations Nos. 24 and 25.
2. A Judge should not be identified with a private business venture under circumstances that will give reasonable ground for the suspicion that the power or prestige of his office is being utilized to persuade or coerce others to patronize such private business venture.

The following statement and inquiry were presented by a member of the Association:

Facts

A corporation is organized under the laws of a state as a non-profit organization. The certificate of incorporation states the purposes of the corporation to be:

The particular business and objects for which our said Corporation is formed and incorporated shall be: to establish, maintain, and operate a Non-Profit Medical Service Plan whereby medical and surgical care may be obtained at the expense of the Corporation by residents of the State of ________ who are subscribers to the Plan under a contract entitling the subscriber to such medical and surgical care as may be provided thereby and as may be procured from doctors of medicine duly licensed to practice by the State of _______ and registered with the Corporation to render such services; to arrange with such doctors of medicine for the rendering of such service to the subscribers to the Plan; to promote the general and social welfare of subscribers to the Plan; and to do all things necessary, proper or convenient for the purpose of promoting, establishing, and operating said Non-Profit Medical Service Plan.

The corporation is now engaged in operating such non-profit medical service plan. It has a board of trustees, consisting of 19 trustees. Neither the officers nor trustees of the corporation receive any compensation for their services.

Two members of the board of trustees of the corporation are judges of courts of record.

Subscribers to the plan make payments to the plan on the basis of rate schedules.

The corporation, on its letterhead, sets forth the names of the trustees. Preceding the names of the two judges who serve as trustees is the word "Judge."

The corporation publishes an annual report which contains reproductions of photographs of the members of the board of trustees. The name of the trustee appears under his photograph. Preceding the names of the two judges is the word "Judge."

Questions

An inquirer desires the opinion of the committee as to whether, under the facts stated: (1) Service on the board of trustees by a judge of a court of record violates the Canons of Judicial Ethics of the American and Colorado Bar Associations; (2) The use of the names of the judges on the letterhead of the corporation and the use of the reproduced photographs and names of the judges in the annual report constitutes a violation of Canon 25 of the Canons of Judicial Ethics of the American Bar Association.

The committee's opinion was stated by Mr. Younge, Messrs. Chutkow, Phillips, Platt, Romer and Sears concurring.

In this, an early opinion of the committee, we deem it desirable to define the functions of this committee.

First, it is not a function of this committee to investigate charges of a violation by a lawyer or a judge of the Canons of Professional Ethics or the Canons of Judicial Ethics of the Colorado Bar Association and/or the American Bar Association, or to undertake to ascertain and state the facts with respect to such alleged violation or to determine whether the lawyer or the judge has been guilty of a violation of the Canons of Professional Ethics or the Canons of Judicial Ethics.

Rather, it is the function of this committee to answer inquiries on the basis of an impersonal and hypothetical statement of facts and the assumptions contained therein presented by the inquirer as to whether the conduct set forth in such statement of facts would or would not constitute a violation of the Canons of Professional Ethics or the Canons of Judicial Ethics of the Colorado Bar Association and/or the American Bar Association.

1. Judicial Canon 24 states:

A judge should not accept inconsistent duties; . . . which will in any way interfere or appear to interfere with his devotion to the expeditious and proper administration of his official functions.

The facts as stated concerning the particular corporation and the participation of judges therein disclosed that this is a corporation which may be competitive to other corporations both of a profit and non-profit nature. The corporation may become involved in litigation which could come before the judges serving as directors or trustees.

Judicial Canon 25 specifically provides:

A judge should avoid giving ground for any reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute, either to the success of private business ventures, or to charitable enterprises. He should, therefore, not enter into such private business, or pursue such a course of conduct, as would justify such suspicion, nor use the power of his office or the influence of his name to promote the business interests of others; he should not solicit for charities, nor should he enter into any business relation which, in the normal course of events reasonably to be expected, might bring his personal interest into conflict with the impartial performance of his official duties.

The facts stated warrant a reasonable suspicion that the power and prestige of the office of the judges is being utilized by the corporation engaged in a private business venture to persuade others to patronize its services. A judge should avoid that possible suspicion.

2. The use of the names of the judges on the letterhead of the corporation and the use of the reproduced photographs and names of the judges in the annual report merely emphasize and make more obvious the fact that there is a violation of Canon 25 of the Canons of Judicial Ethics. See Canons 4 and 5 of the new Code of Judicial Ethics.