ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 6 - 2014AMENDED1
RE: Propriety of a Probate Judge serving on the board of a local bank and a closely-held corporation.
A newly-elected Probate Judge has, for years, served on the board of a local bank and a closely-held company that operates as a real estate holding company. The bank is a community bank with no trust powers and does not serve as a personal representative in any estate cases or as trustee for any trusts. With regard to the real-estate company, the judge serves as a non-voting member of the board. The judge has inquired into the propriety of continuing to serve on these two boards.
A Probate Judge may serve on the advisory board of a community bank with no trust powers as well as serve on the board of a closely-held real estate corporation.
“A judge must avoid all impropriety and appearances of impropriety. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen. . .” Canon 2, Commentary. Canon 4D(3) only allows a judge to serve as a officer, director, manager, general partners, advisor or employee of a business if the service would not conflict with judicial duties or create the appearance of impropriety. The Commentary to that section notes that a judge may be prohibited from service if the business entity frequently appears before the judge’s court.
In several opinions, we have found that a judge may not also serve on a local bank’s board of directors as such service would involve frequent recusals or create the appearance of partiality and impropriety. See Op. No. 1996-34 (full-time municipal judge not permitted to serve on bank board because of potential for bank’s frequent court appearances); 2004-2 (full-time magistrate not permitted to serve on bank board because of potential for bank’s frequent court appearances). However, we have also found that under certain facts, service may be permitted. See Opinion 5-2008 (finding the bank would not frequently appear before family court and finding family court judge was permitted serve on the bank’s board).
In this matter, we are persuaded by Opinion 5-2008. According to the facts presented, the bank here has no trust powers. It does not serve as personal representative or trustee in any estate or trust matters. In the history of the bank since 1998, the bank has never appeared before the Probate Court. Thus, under these circumstances, the judge may serve on the board.
With regard to service on the board of a closely-held corporation that acts primarily as a real-estate holding company, it is seems unlikely that the corporation would frequently appear in the Probate Court. Thus, under Canon 4D(3), service in that capacity is not prohibited and the judge may continue to act as a non-voting board member of that corporation.
May 13, 2014
1This opinion takes the place of the initial Opinion 6-2014. The inquiring judge provided additional factual information and asked the Committee to reconsider. Having considered this new information, we now issue this Amended Opinion.