Judicial Duty Comes First

Judges as Arbitrators and Lawyers

Judicial Duty Comes First

The Model Rules of Judicial Conduct keep a judge's life outside the courtroom from becoming a second judicial or legal career. Two rules do most of the work. The first bars a judge from acting as an arbitrator or a mediator, or from performing other judicial functions apart from the judge's official duties, unless expressly authorized by law.¹ The second bars a judge from practicing law, though it lets the judge act pro se and, without compensation, give legal advice to and draft or review documents for a member of the judge's family.²

Each rule targets a role that resembles what the judge already does or knows how to do. Arbitrating and mediating draw on the judge's adjudicative skill, but they would be exercised apart from the official duties the judge owes the public. Practicing law draws on the judge's legal training, but in the service of a client. In both cases the judge would leave the assignment the office exists to fill. That is why the two rules read best as one priority applied twice: official duties come first, and any outside role must fit inside a narrow, defined exception.

The hypothetical turns on one question: what role is the judge actually performing? The first judge would sit as a private neutral for strangers. The second, in her first act, helps a relative informally. In her second, she would become an advocate. The sections that follow apply the same question, starting with the ban on arbitration and mediation, then the ban on practicing law and its exceptions.