Baseline Rule of Permission

Limits on Extrajudicial Activities

Baseline Rule of Permission

Rule 3.1 of the Model Code of Judicial Conduct (the Code) begins with a grant: a judge may engage in extrajudicial activities, which means the judge's work outside the courtroom, except as prohibited by law or by the Code.¹ The direction of that presumption sets the method for every problem on the subject. A student facing an extrajudicial activity does not ask what authorizes it, because authorization is already assumed. The student asks what, if anything, forbids it. The permission gives way only when a prohibition turns up, and most of this chapter maps where those prohibitions live.

The Code starts from permission because a judge remains a member of the community. A rule that cut judges off from ordinary life would isolate them from the society whose disputes they decide. Decisions about friendship rest on the same premise. In Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, the court acknowledged that a decisionmaker "must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation." It then held that a member of the Federal Labor Relations Authority was not required to renounce his personal or professional friendships when he was appointed.² The case involved an agency member and not a judge applying the Code, so it illustrates the premise without construing the Code. Taking the office does not require a person to withdraw from ordinary life.

The qualifier "except as prohibited by law or this Code" names two separate sources of exclusion, and each works on its own.³ The first is law outside the Code, such as a statute or a constitutional provision, which can bar an activity even when the Code says nothing about it. The second is the Code itself. It has specific rules on particular subjects, which later units cover, and it has the general prohibitions that Rule 3.1 states for itself. A proposed activity must clear both layers, and passing one does not excuse failing the other.

The last clause of the rule, "However, when engaging in extrajudicial activities, a judge shall not," attaches five prohibitions to every activity, including activities the Code otherwise allows.⁴ This is where students lose points. A label such as teaching does not make an activity safe, because the permission to teach is itself subject to the limits. Suppose a judge's teaching schedule begins to crowd out the docket, or the judge's chosen subject keeps forcing recusal from pending cases. The label "teaching" does not rescue that judge.

The Code takes this form because the same harms recur wherever a judge is active outside the courtroom: interference with judicial duties, frequent disqualification, damage to independence and impartiality, coercive conduct, and misuse of court resources. Rather than ban whole categories of activity, Rule 3.1 names those harms as the tests. The default can then stay broad while each harm is policed where it actually arises. The permission is a presumption to be tested against each limit, and it never works as a license. The next section takes up the five limits one at a time.