Screening an Activity

A judge deciding whether an outside activity is allowed should read the lead-in sentence of Rule 3.1 as an instruction, not a preamble. It grants permission for extrajudicial activities except as prohibited by law or by the Code, and in the same sentence it says that a judge engaging in them shall not do any of five listed things.¹ Permission and prohibition arrive together and attach to the same activity, so finding one rule that allows the activity never clears it. The activity has to pass through a series of screens, and the series works best when the most definite sources of prohibition are tested before the open-ended ones.

Exam Analysis Steps

Because permission is the starting point, every step asks what forbids the activity, and the first prohibition found ends the inquiry. The steps are these:

Ask whether law outside the Code or a specific Code rule prohibits the activity, since either one removes the baseline permission before any general limit is tested.
Test the activity against each of the five general limits in Rule 3.1(A) through (E): interference with judicial duties, frequent disqualification, apparent undermining of independence, integrity, or impartiality, apparent coercion, and misuse of court resources.
Step back and ask whether reasonable minds, looking at the activity as a whole, would perceive that the judge violated the Code or engaged in other conduct reflecting adversely on the judge's honesty, impartiality, temperament, or fitness to serve.²

The order follows how definite each source is. Law outside the Code and the specific Code rules answer narrow questions on narrow terms, so an activity they bar can be refused at once and no general limit needs to be tested. The five limits come second because they ask about effects, such as lost court time or a pattern of recusals, and effects take more facts to establish. The third step asks the broadest question, and it overlaps with limit (C). Limit (C) applies a reasonable-person test to the activity's effect on the judge's independence, integrity, and impartiality.³ The appearance test applies the same observer to the judge's conduct as a whole, and it also names temperament and fitness to serve, so it can catch an activity that clears every lettered limit and still looks wrong.⁴ The screens are cumulative: an activity is permitted only if it survives all three, and a failure at any one bars it.

The specific rules taken up in this course, on appointments, fiduciary roles, compensation, political activity, and the like, are answers the Code worked out in advance for recurring situations. The general limits cover what those rules did not foresee, and they stay in force alongside the specific rules. Two consequences follow.

The first is that permission under a specific rule does not end the analysis. An exam stem reporting that the compensation rule allows a judge to be paid reasonable fees for teaching has cleared only step one, and the instinct to stop there is the one that loses points.

The specific rule gave the same answer in both scenes, and so did the subject matter and the paycheck. The size of the commitment decided the outcome. The first schedule predictably costs court time, and that expected effect is all Rule 3.1(A) requires, because the limit looks forward to what the activity will do to the judge's work.⁵ A different variable would engage a different step. The same modest course, offered by an organization whose lawyers appear weekly in the judge's own court, would clear the time test and then run into the limits on frequent disqualification and on apparent partiality.

The second consequence runs the other way. The appearance test asks whether conduct would create in reasonable minds a perception that the judge violated this Code, and a violation of a specific rule is exactly that kind of conduct.⁶ Nearly every specific rule also forbids conduct that harms independence, integrity, or impartiality, so a judge who breaks one has usually failed the broader duty to promote public confidence and to avoid impropriety and its appearance. A failure at step one therefore tends to resurface at step three, because the same facts hand a reasonable observer the doubt the broader values exist to prevent. A violation of a specific rule is rarely only technical. A judge who checks the specific rule alone may rely on the fact that a category of activity is allowed while the harm arises from how the activity is carried out.

Screening an Activity

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