In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by the law firm of Watkins & Scott, PLLC, if it was appropriate for members of the law firm to continue to sit as special judge in the Rogers Municipal Court after they hired an associate who is the wife of the deputy prosecuting attorney in the Rogers Municipal Court. The law firm provides an attorney who sits at least once a month as special judge in the Rogers Municipal Court, where the associate’s husband works. The law firm has no financial interest in the outcome of the court cases upon which they preside. Because of the relationship between their associate and the court’s deputy prosecuting attorney, should the law firm continue with this practice. The Committee is of the opinion that under the facts presented, there is no violation of the Code of Judicial Conduct. Under the Arkansas Code of Judicial Conduct the attorneys serve as a Apro tempore part-time judge”. The Commentary to the Code does not require automatic recusal of the judge merely because a relative of the judge is a member of a law firm appearing before the judge. The Committee, therefore, concludes that disqualification is not required when a member of the law firm is married to the deputy prosecuting attorney appearing before the judge. The Committee notes as in Arkansas Judicial Ethics Advisory Opinion 96-07, the underlying issue in Canon 3(E) is whether the impartiality of the judge might reasonably be questioned. The Commentary to Canon 3(E)(1) states that Aa judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification”. The Committee recommends that there be disclosure, on the record, that a member of the law firm is married to the prosecuting attorney appearing in court. The responsibility then shifts to the defense attorney to request a recusal.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked to issue an advisory opinion to an Arkansas Supreme Court Justice. He requested an opinion concerning when and how a member of the Arkansas Supreme Court may comment on a criminal case in federal district court in Arkansas, when the media has widely reported on testimony concerning the action or inaction of members of the Supreme Court. The opinion states that a judicial statement concerning events in dispute might be expected to affect the outcome or impair the fairness of the proceeding, which is expressly prohibited by the express language of the Code of Judicial Conduct. Judicial comment on pending criminal matters, no matter how presented, does not promote public confidence in the impartiality of the judiciary. The opinion goes on to state that comments are not appropriate even after the trial court proceedings are concluded. If appeals from convictions are pending, comment might impair the fairness, or the perception of fairness, of the proceedings. The opinion also acknowledges the frustration of judges when compelled to remain silent when inaccurate and unfounded statements are made. The opinion notes that the conclusion reached permits misstatements to be made, and implications to be drawn and widely reported and accepted or believed by the public, without any possibility of timely response or correction. Any other citizen can stand up and say, “let me tell the people of Arkansas my side of the story.” But a judge is not any other citizen. A judge must uphold the integrity of the judiciary, avoid all appearance of impropriety, and expect to be the subject of constant public scrutiny.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal court judge if a judge could write a letter to a sentencing court judge at the request of a defendant, the defendant’s attorney, or someone on his or her behalf. The Committee was of the opinion that a judge should not write such letters as per Canon 2(B) of the Arkansas Code of Judicial Conduct. Any such letter does lend the prestige of judicial office to advance the private interest of others, and therefore, a judge should not write such letters.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a Chancery/Probate judge whether he might serve on the board of directors of a local country club. The board has oversight of membership, facilities, and general operations of a golf course and club house. The Committee is of the opinion that there is no apparent violation of Canon 2C of the Code of Judicial Conduct and that the judge may serve in this capacity. Canon 2C provides that a judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin. The Committee cautions the judge that discrimination in any organization takes subtle forms. Occasionally reviewing organizational policies and practices was encouraged.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by circuit judge whether he might teach evening courses at Arkansas State University at Beebe, and if he could be compensated for teaching as an adjunct professor. In a previous opinion, Number 95-05, the Committee approved such teaching at a private institution of higher education and stated the Code of Judicial Conduct does not require that teaching at universities be treated differently. In regard to the question of being compensated for teaching as an adjunct professor with reference to Article 7, Section 18 of the Arkansas Constitution, Ark. Code. Ann. §19-4-1604 and §21-1-401, and Arkansas Attorney General 92-050, the Committee stated their authority is limited to providing interpretations of the Code of Judicial Conduct. The Committee further stated they cannot interpret legislation, particularly 1999 acts that may regulate employment by state agencies. Those interpretive matters belong to the courts or to the Attorney General

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal court judge whether a judge who has been subpoenaed to testify as a character witness may, if given the opportunity, submit an affidavit in lieu of live testimony. The Committee noted the applicability of Canon 2B which states in part that “[A] judge shall not testify voluntarily as a character witness.” The commentary to Canon 2B makes it clear that while judges may be called on to testify in the interest of justice, a judge should discourage a party from requiring the judge to testify as a character witness. The judge’s letter did not specify matters concerning the case or the mechanics of the affidavit, i.e., who was to prepare it or whether it was to be in question and answer form, etc. If it is contemplated that the judge is simply to compose a verified statement relative to the character or reputation of the litigant, it would be, the Ethics Advisory Committee believes, little different from the judge writing a letter of recommendation and could impinge on the constraints of Canon 2B, notwithstanding the subpoena. In the absence of exceptional circumstances the Committee believes the preferred course in conformity with Canon 2B where a judge is compelled to testify as a character witness is for such testimony to be given verbally in the presence of the jury or fact finder.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by a municipal court judge if he would be in violation of Canon 2 by continuing to use a jail that fails to meet jail standards. The Attorney General’s office is preparing to file suit against the county to shut the jail down. In fashioning a response the Committee noted the applicability of Canon 3A(2) which states in part that “A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interest, public clamor or fear of criticism.” The Committee further noted that its opinion was also based on distinguishing between a violation of the code of judicial conduct and legal error. The advisory opinion went on to state that the Code of Judicial Conduct does not require that a judge have universal knowledge of all things that affect the sentencing process. However, if the judge in his or her carefully considered judgment, without being influenced by partisan interest, public clamor or fear of criticism, determines that the conditions of the jail are so unsatisfactory as to be illegal or unconscionable the judge may use alternative methods of sentencing so long as those alternative methods comply with the law.

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked by three (3) judges (1 Chancellor, 2 Circuit/Chancery), whether a judge may release information concerning an investigation into allegations of professional misconduct by an attorney. A written request for the information was received from an attorney representing beneficiaries in a contested will dispute. The information sought included documents, correspondence, and exhibits of any kind involved in the judicial investigation concerning the allegations. The opinion notes that judges are under an ethical obligation to take appropriate action after receipt of information indicating the likelihood that an attorney has violated the Rules of Professional Conduct. Pursuant to that obligation, a judge may gather information relevant to the possible professional misconduct. That information is absolutely privileged and the Code of Judicial Conduct does not permit disclosure of the materials gathered upon the request of an interested party. However, judges are permitted to provide all of the relevant information to the Supreme Court Committee on Professional Conduct. The opinion also points out that the Ethics Advisory Committee has no authority to interpret the Arkansas Freedom of Information Act or other statutes.

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether it is permissible for a judge to accept a gift of a judicial robe from a bar association of which that judge is a member on the occasion of his or her investiture as a judge. Additionally, Judge Fleming questioned whether restrictions would apply in the event of progressive reelections to the same judgeship and to different judgeships. The opinion states that the practice of presenting judicial robes dates back some half a century to a time when judges in this state began wearing robes. The Committee does not find anything in the Arkansas Code of Judicial Conduct on which this tradition infringes, nor do any of the advisory opinions from other states criticize the practice. In the Committee’s opinion, the acceptance of a robe from a bar association by a newly appointed or elected judge does not encroach on judicial ethics. Additionally, the Committee stated that while they see no particular ethical restraints arising from this practice in the event of progressive reelections to the same or to different judgeships, it would seem that at some point, practicality, if not ethical considerations, would mitigate against repeated robe giving.

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether a candidate in a run-off election for municipal judge would have a conflict of interest by being both a city prosecutor and municipal judge. The opinion states that neither Arkansas law, nor the Code of Judicial Conduct prohibits a person who practices law as an assistant city attorney from one city from being a part-time municipal judge in another city. That person, however, should be very sensitive to the fact that conflicts can and will occur, and should be mindful of numerous provisions of the Code that would be applicable. The Committee emphasized that a continuing part-time municipal judge must make the judicial office first in service and priority.

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether it was advisable for a judge’s wife to take a job which would require her to solicit business for her employer from various businesses in the area of the judge’s jurisdiction. The wife’s solicitations would be under the name of her employer, which provides accounting and bookkeeping services, as well as advice regarding worker’s compensation insurance and employer/employee relations, taxes and other business related matters. Such advice would not be provided by the judge’s wife, but through her employer, a Florida corporation. The opinion states that the Committee saw no immediate problem in the activities described, whether there are potential conflicts between the work the judge’s wife is considering and the judge’s judicial duties would depend on circumstances not available to the Committee at present. Problems could conceivably arise involving an appearance of partiality and conflicts of interest. If, for example, a business solicited by the judge’s wife were an expectant or inchoate litigant, or, due to the nature of its enterprise, were frequently involved in cases heard by the judge, then the judge’s impartiality may be reasonably questioned.

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In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee was asked whether it was advisable for a judge to serve on the Board of Advisors for Legal Assistants at the Northwest Community College. The position is unpaid and does not involve the rendering of any legal opinions, however, as a board member, the judge would assist in the selection of curriculum and course material, as well as teaching staff. The Committee is of the opinion that there is no immediate problem in the activities described. While the College is a State institution, the judge’s service on the board will not violate the Code of Judicial Conduct so long as the judge conducts this and all extra-judicial activities so that they do not: (1) cause reasonable doubt on the judge’s capacity to act impartially as a judge; (2) demean the judge’s judicial office; or (3) interfere with the proper performance of the judge’s judicial duties. (Canon 4 A).

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee the permissibility of membership/recognition as a judicial fellow with the Trial Lawyers of America, and whether such membership/recognition would be considered as a gift. In its opinion, the Committee cited two (2) previous opinions (99-04 and 99-07), and concluded that a full-time judge could not be a member of ATLA or any other organization that outwardly favors one side or consistently takes one side in legal issues. To do so would violate the prohibition against the “appearance of impropriety” contained in Canon 2 and might raise doubt on the judge’s ability to decide impartiality as required by Canon 4. The prohibition applies regardless of whether membership dues are required. The Committee noted that any judge may receive free publications from ATLA, may accept complimentary registration at ATLA conventions, and may speak at ATLA programs, but public and ongoing identification as a member, fellow, or supporter, no matter what phrase is used, is inappropriate.