Sorting Outside Roles

A judge's relatives, neighbors, and friends ask for help in forms that look alike but fall under different rules. Rules 3.9 and 3.10 of the Model Rules of Judicial Conduct split that help into two roles, and a mixed fact pattern becomes manageable once you name the role before you choose the rule. Rule 3.9 governs the neutral: a judge may not act as an arbitrator or a mediator or perform other judicial functions apart from official duties unless expressly authorized by law.¹ Rule 3.10 governs the lawyer: a judge may not practice law, but may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family, and may not serve as the family member's lawyer in any forum.² The neutral decides or brokers a result between other people. The lawyer works for one person.

The two rules also differ in the kind of exception they allow, and a mixed fact pattern tests exactly that difference. Rule 3.9 has one exception, and it lies outside the judge: a law must expressly authorize the role.³ The judge's own relationships and motives cannot supply it. Rule 3.10's exceptions lie inside the judge's personal situation, namely the judge's own legal matters and free help for a family member. Each carries its own limit. A judge acting pro se, whether in litigation or before a governmental body, still may not use the prestige of office to advance personal or family interests, and the family allowance stops where the judge would become the relative's lawyer.⁴

Exam Analysis Steps

Because the role comes first and the exception second, run the analysis in this order:

Identify the role the judge would actually perform, by function and not by label. Ask whether the judge would decide or broker a resolution between other people, or would act for one person by representing, advising, or drafting for that person.
Apply Rule 3.9 to a neutral role and Rule 3.10 to a lawyer's role. If the facts contain both kinds of acts, treat each act as its own question.
Under Rule 3.9, ask whether the work is apart from the judge's official duties. Work that is part of those duties is not apart from them. If it is apart, ask whether a law expressly authorizes the role.
Under Rule 3.10, start from the full ban and ask whether the conduct fits a carve-out: the judge acting pro se without trading on the prestige of office, or uncompensated advice and document work for a family member that never amounts to serving as that family member's lawyer.

Exam stems like to put a judge's relative in the middle of the story, so the family tie draws the eye first. It matters at one point only, the family carve-out in step four. Rule 3.9 contains no family exception, so a judge who mediates for a brother stands where a judge who mediates for strangers stands.⁵ Compensation matters at one point as well. The words "without compensation" qualify the family allowance and nothing else. Rule 3.9 says nothing about a fee, and Rule 3.10 bars the practice of law whether or not the judge is paid.⁶ Students therefore err in two opposite directions: they excuse a free mediation for a relative, which still violates Rule 3.9, and they excuse a paid review of a brother's lease, which leaves the family carve-out and returns to the Rule 3.10 ban.

The judge, the brother, and the absence of a fee are the same in both scenes. The results diverge because the roles do. The first scene asks the judge to sit as a neutral between two private parties, and the only way out is express legal authorization. The second asks her to help one relative, and the rule allows that help while it is uncompensated advice or document work.

Real stems often bundle several acts into one story. The method then applies act by act instead of to the judge's conduct as a whole.

Hypothetical Illustration

A judge's daughter is in a dispute with her former business partner. Over one month, the judge does three things. He drafts a demand letter for his daughter at no charge. At the request of both women, he agrees to mediate their dispute privately, with no court assignment and no statute authorizing it. When the dispute reaches a small-claims court in another county, he appears there and argues her case. The letter is free document work for a family member, which Rule 3.10 permits.⁹ The mediation is a neutral role apart from official duties with no express legal authorization, so Rule 3.9 bars it whatever the family connection.¹⁰ The appearance is serving as a family member's lawyer, which Rule 3.10 forbids even without a fee, and the distant court does not change that.¹¹ Only the first act is safe.

Sorting Outside Roles

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