November 24, 2003
Honorable Gerald W. VandeWalle
North Dakota Supreme Court
600 E. Boulevard, Dept 180
Bismarck, ND 58505-0530
Re: Proposed Amendments to Canon 4G, Code of Judicial Conduct
Dear Chief Justice VandeWalle:
At your request, the Judiciary Standards Committee has reviewed an issue initially submitted to you by Judge Ronald Goodman, Chair of the Judicial Conference's Judicial Ethics Advisory Committee. That issue concerns whether a state judge may serve on military duty as an attorney if called to active duty by the military reserve or guard.
In discussing the issue, the Committee reviewed several ethics opinions from other jurisdictions provided by Judge Goodman; Canon 4G of the Code of Judicial Conduct, which generally prohibits the practice of law by a state judge; and, perhaps most pertinent, Article VI, § 10, of the North Dakota Constitution, which also prohibits a state judge from engaging in the practice of law.
The ethics opinions reviewed by the Committee reached differing conclusions concerning whether state codes of judicial conduct permitted a sitting judge to serve in a judge advocate position, which may entail providing various forms of legal assistance and advice to other members of a guard or reserve unit. Several of the opinions were fact-specific and some were obviously affected by historical events. For example, ABA Formal Op. 22, issued in January 1930, disapproved of a judge's membership in the National Guard or Officers Reserve Corps. On the other hand, ABA Formal Op. 215, issued in March 1941, concluded it is not inherently improper for a judge to serve as a member of the National Guard or Officers Reserve Corps and found that any ethical question depended on the facts of each case. An additional consideration was reflected in Illinois Advisory Opinion 97-8, which concluded that since federal law permits the military to call reservists to active duty, the supremacy clause of the U.S. Constitution would vest the federal government with control. As a result, the opinion further concluded that "no state rules can restrict the military's right to assign the reservist to whatever activity is needed."
The Committee also received information concerning the nature of guard and reserve service and, more particularly, whether a state judge would necessarily be assigned to judge advocate duty. Information received by the Committee indicated that a judge would not automatically be assigned to such duty and could, perhaps, request a different assignment.
The Committee concluded that the supremacy clause issue could not be addressed with amendments to the Code of Judicial Conduct. The Committee also concluded that, in light of the state constitutional prohibition against engaging in the practice of law, is was not possible to amend Canon 4G to somehow allow a judge to serve in a judge advocate position and provide legal services. The Committee did, however, conclude that a general advisory in the Commentary to Canon 4G would be a helpful guide and would, in essence, put a judge on notice that there are certain issues to consider if the judge is contemplating guard or reserve service.
The proposed amendment to the Commentary to Canon 4G would serve as a general warning that service in a guard or reserve unit in a judge advocate position "might" constitute the practice of law for purposes of the prohibition in Canon 4G and the state constitution. The amending language would also discourage a judge from accepting a judge advocate position or performing related duties. Should the judge choose to accept or be assigned to judge advocate duty, whether a judge's activity would actually constitute the practice of law would be determined by a review of the facts of each situation. The Committee concluded that a warning at the outset, as set out in the amendment to the Canon 4G Commentary, and a later factual determination if the question should ever arise were likely the most practical methods of addressing the issue. The Committee voted unanimously to submit the attached proposed amendments to Canon 4G to the Supreme Court for its consideration.
If I can be of any assistance in the Supreme Court's review of the proposed amendments to Canon 4G, please do not hesitate to contact me.
Brian Neugebauer, Chair
Judiciary Standards Committee