21-500
A. Extra-judicial activities in general.
A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast doubt on the judge's capacity to act impartially as a judge;
(2) demean the judicial office;
(3) interfere with the proper performance of judicial duties; or
(4) violate the judge's oath and obligation to uphold the laws and constitutions of the United States and the State of New Mexico.
B. Avocational activities.
A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.
C. Governmental, civic or charitable activities.
(1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the judiciary or matters relating to the judiciary or which affect the interests of the judiciary, the legal system or the administration of justice or except when acting pro sein a matter involving the judge or the judge's interests;
(2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities;
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to the following limitations and other requirements of this Code:
(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization:
(i) will be engaged in proceedings that would ordinarily come before the judge; or
(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.
(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;
(ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice;
(iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Subparagraph (3)(b)(i) of this paragraph, if the membership solicitation is essentially a fund-raising mechanism;
(iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.
D. Financial activities.
(1) A judge shall not engage in financial and business dealings that:
(a) may reasonably be perceived to exploit the judge's judicial position; or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.
(2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge's family, including real estate, and engage in other remunerative activity.
(3) A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in:
(a) a business closely held by the judge or members of the judge's family; or
(b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family.
(4) A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification.
(5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept a gift, bequest, favor or loan from anyone except for:
(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;
(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;
(c) ordinary social hospitality;
(d) a gift from a relative or friend, for a special occasion, including, but not limited to, a wedding anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;
(e) a gift, bequest, favor or loan from a relative;
(f) a loan from a lending or similar institution in its regular course of business on the same terms generally available to persons who are not judges; or
(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants.
E. Fiduciary activities.
(1) A judge shall not serve as the executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family or the family of a close friend, and then only if such service will not interfere with the proper performance of judicial duties.
(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.
(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.
F. Service as an arbitrator or mediator.
A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.
G. Practice of law.
A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro seand may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.
H. Conflicting compensated activities.
A judge shall not hold any other paid position, judicial or otherwise, that conflicts with the hours and duties the judge is required to perform for every judicial position. A judge shall devote the number of hours that is required by any judicial position held. In no event shall other paid employment or compensable activity hours be performed simultaneously.
I. No full-time municipal, magistrate, metropolitan, district or appellate judge may hold any other judicial position, elected or appointed.
[As amended, effective January 1, 1987; March 1, 1988 and October 1, 1989; February 16, 1995.]
Commentary
Paragraph A. Extra-judicial activities in general
Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.
Paragraph B. Avocational activities
As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.
In Paragraph B and other paragraphs of this rule, the phrase "subject to the requirements of this Code" is used, notably, in connection with a judge's governmental, civic or charitable activities. This phrase is included to remind judges that the use of permissive language in various provisions of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.
Paragraph C. Governmental, civic or charitable activities
Paragraph C(1)
See Paragraph B of Rule 21-200 regarding the obligation to avoid improper influence.
Paragraph C(2)
Paragraph C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Paragraph C(3). The appropriateness of accepting extra judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.
Paragraph C(2) does not govern a judge's service in a nongovernmental position. See Paragraph C(3) of this rule permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under Paragraph C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Paragraph C(3).
Paragraph C(3)
Paragraph C(3) of this rule does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice; see Paragraph C(2).
See Commentary to Paragraph B of this rule regarding use of the phrase "subject to the following limitations and the other requirements of this Code". As an example of the meaning of the phrase, a judge permitted by Paragraph C(3) of this rule to serve on the board of a fraternal institution may be prohibited from such service by Paragraph A of Rule 21-200 if the institution practices invidious discrimination or if service on the board otherwise casts reasonable doubt on the judge's capacity to act impartially as a judge.
Service by a judge on behalf of a civic or charitable organization may be governed by other provisions of Rule 21-400 in addition to Paragraph C of this rule. For example, a judge is prohibited by Paragraph G from serving as a legal advisor to a civic or charitable organization.
Paragraph C(3)(a)
The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the court for adjudication.
Paragraph C(3)(b)
A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice or a nonprofit educational, religious, charitable, fraternal or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: (1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority; (2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves; and (3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge's signature.
Use of an organization letterhead for fund-raising or membership solicitation does not violate Paragraph C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge's staff, court officials and others subject to the judge's direction and control do not solicit funds on the judge's behalf for any purpose, charitable or otherwise.
If requested to be a speaker or guest of honor at an organization or fund-raising event, the judge should seriously consider whether the acceptance of such a role would constitute the use of the prestige of judicial office for fund-raising purposes. Mere attendance at such an event is permissible if otherwise consistent with this Code.
Paragraph D. Financial activities
Paragraph D(1)
When a judge acquires information in a judicial capacity, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See Rule 21-200 B; see also Rule 21-300 B(12).
A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. With respect to affiliation of relatives of judge with law firms appearing before the judge, see Commentary to Paragraph A of Rule 21-400 relating to disqualification.
Participation by a judge in financial and business dealings is subject to the general prohibitions in Paragraph A of this rule against activities that tend to reflect adversely on impartiality, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Rule 21-200 against activities involving impropriety or the appearance of impropriety and the prohibition in Paragraph B of Rule 21-200 against the misuse of the prestige of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge's activities, as set forth in Rule 21-100. See Commentary for Paragraph B of this rule regarding use of the phrase "subject to the requirements of this Code."
Paragraph D(2)
This subparagraph provides that, subject to the requirements of this Code, a judge may hold and manage investments owned solely by the judge, investments owned solely by a member or members of the judge's family, and investments owned jointly by the judge and members of the judge's family.
Paragraph D(3)
Subject to the requirements of this Code, a judge may participate in a business that is closely held either by the judge alone, by members of the judge's family, or by the judge and members of the judge's family.
Although participation by a judge in a closely-held family business might otherwise be permitted by Paragraph D(3) of this rule, a judge may be prohibited from participation by other provisions of this Code when, for example, the business entity frequently appears before the judge's court or the participation requires significant time away from judicial duties. Similarly, a judge must avoid participating in a closely-held family business if the judge's participation would involve misuse of the prestige of judicial office.
Paragraph D(5)
Paragraph D(5) does not apply to contributions to a judge's campaign for judicial office, a matter governed by Rule 21-800. Because a gift, bequest, favor or loan to a member of the judge's family residing in the judge's household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge's household.
Paragraph D(5)(d)
A gift to a judge, or to a member of the judge's family living in the judge's household, that is excessive in value raises questions about the judge's impartiality and the integrity of the judicial office and might require disqualification of the judge where disqualification would not otherwise be required. See, however, Paragraph D(5)(e).
Paragraph D(5)(h)
Paragraph D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge.
Paragraph E. Fiduciary activities
The restrictions imposed by this rule may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings the retention of which would place the judge in violation of Subparagraph (4) of Paragraph D.
Paragraph F. Service as an arbitrator or mediator
Paragraph F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties.
Paragraph G. Practice of law
This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family. See Paragraph B of Rule 21-200.
The Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge's family in a legal matter.
Compiler's Annotations
The 1995 amendment, effective February 16, 1995, rewrote the rule and rewrote the commentary.
Financial activity posing conflict of interest. — A municipal judge was in violation of this canon because he owned and directed a "driving while intoxicated school" while serving on the bench and sentencing people to attend said school; this conflict in interest reflected adversely on his impartiality as a member of the judiciary. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to 1995 amendment).
Pro se appearance as party defendant not violative of Paragraph F (now G). — State court judge's pro se appearance as a party defendant in law suit pending before federal district court does not constitute practice of law in violation of Paragraph F (now see Paragraph G). United States v. Martinez, 101 N.M. 423, 684 P.2d 509 (1984) (decided prior to 1995 amendment).
Acceptance of gratuity for marriage ceremony. — Except for municipal judges, a judge may not accept a gratuity in connection with the performance of a marriage ceremony without violating the New Mexico Constitution. 1991 Op. Att'y Gen. No. 91-09 (decided prior to 1995 amendment).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 46 Am. Jur. 2d Judges § 44 et seq.
Other public offices or employments within prohibitions as regards judicial officers of constitutional or statutory provisions against holding more than one office, 89 A.L.R. 1113.
What amounts to practice of law within contemplation of constitutional or statutory provision which makes such practice a condition of eligibility to a judicial office or forbids it by one holding judicial position, 106 A.L.R. 508.
Propriety and permissibility of judge engaging in practice of law, 89 A.L.R.2d 886.
Validity and application of state statute prohibiting judge from practicing law, 17 A.L.R.4th 829.
Disqualification of judge based on property-ownership interest in litigation which consists of more than mere stock-state cases, 56 A.L.R.5th 783.
48A C.J.S. Judges §§ 35 to 38.
