The Arkansas Judicial Ethics Advisory Committee issued an
advisory opinion stating that a judge may serve on a bank's advisory board, that the
judge's ownership of approximately 2% of the voting stock of the bank constitutes a
financial interest that requires disqualification in all cases in which the bank is a
party, and that the judge should consider divesting the stock and resigning from the board
if frequent disqualification is required. The Committee also advised that the judge must
disqualify himself from cases filed or tried by his brother-in-law, the city attorney, and
must not issue warrants at the request of his brother, the deputy prosecuting attorney.
The Committee also advised that the judge is not precluded from appointing his wife as an
unpaid deputy clerk but that it would be better not to do so, although she could still
occasionally do general secretarial or administrative work. The committee stated that if
the judge still considers appointing his wife as a clerk, he should do so only if she is
qualified, the position is a deputy position, the position is temporary and part-time, the
appointment is on a volunteer and philanthropic basis with no perceived present or future
financial benefits (either direct or fringe) to the relative or the judge, and the
volunteer service provided by a relative is not considered with respect to increases in
the judge's salary. In response to a question about what financial reports judges must
file, the Committee stated that the request was not made in accordance with Procedural
Rule 3 because it was not accompanied by a concise memorandum setting forth the judge's
own research and conclusion.
November 22, 1991
The Honorable Paul X. Williams, Jr.
Booneville Municipal Court
Logan County Courthouse
Booneville, Arkansas 72927
RE: Advisory Opinion # 91-04 (2)
Dear Judge Williams:
In response to your request dated September 25, 1991 for a Judicial
Ethics Advisory Opinion, we submit the following:
1. May a judge serve on a bank's advisory board?
Arkansas was one of the thirteen states which adopted the least
restrictive version of Canon 5 C(2) of the Code of Judicial Conduct. Accordingly, there is
no provision in the present Code which would specifically prohibit a judge from serving on
a bank=s board or advisory board. Canon 5 C(1) provides that AA judge should refrain from
financial and business dealings that tend to reflect adversely on his impartiality,
interfere with the proper performance of his judicial duties, exploit his judicial
position, or involve him in frequent transactions with lawyers or persons likely to come
before the court on which he serves@. The Arkansas version of Canon 5 C(2) provides that
ASubject to the requirement of subsection (1), a judge may hold and manage investments,
including real estate, and engage in other remunerative activity including the operation
of a business?. Canon 5 C(3) provides that AA judge should manage his investments and
other financial interests to minimize the number of cases in which he is disqualified. As
soon as he can do so without serious financial detriment, he should divest himself of
investments and other financial interest that might require frequent disqualification@. We
were submitted no specific information as to the impact your service on this advisory
board might have with respect to these provisions. Under the present Code you may serve on
a bank=s advisory board so long as you comply with the above and all other provisions of
the Code. In your request for an opinion, you stated that you owned approximately 2% of
the total voting stock of the bank. This ownership constitutes a Afinancial interest@ as
defined in Canon 3 C(3)(c) and you must disqualify in all cases in which the bank is a
party to the proceedings. You should also consider divesting the stock and resignation
from the advisory board should this require frequent disqualification.
You may wish to consider that membership on the bank=s advisory
board is prohibited by Canon 4 D(3) of the proposed Arkansas Code of Judicial Conduct now
pending before the Arkansas Supreme Court unless you qualify as a Acontinuing part-time
judge@ as defined in that Code. In making your decision, you are also cautioned to
consider Canon 2 B which states in part: AHe should not lend the prestige of his office to
advance the private interests of others.
2. May your brother-in-law, the elected City Attorney, file and try
cases in the Booneville Municipal Court of which you are the elected Judge?
Your brother-in-law as the elected City Attorney certainly can file
and try cases in this court. The real issue however is whether you should disqualify
yourself. Canon 3 C(1) of the Code of Judicial Conduct provides AA judge should disqualify
himself in a proceeding in which his impartiality might reasonably be questioned,
including but not limited to instances where=. . . .(d) he or his spouse, or a person
within the third degree of relationship to either of them, or the spouse of such a
person=. . . .(ii) is acting as a lawyer in the proceeding (iii) is known by the judge to
have an interest that could be substantially affected by the outcome of the proceeding;@.
While we are sensitive to the fact that significant inconvenience may ensue, particularly
in thinly populated areas of the state, it is clear that the Code requires that you
disqualify in all cases filed or tried for or on behalf of the City Attorney. In addition
to the Arkansas Code of Judicial Conduct there is a body of Arkansas case law which should
be studied. Consider for instance Braswell v. Gehl, 263 Ark. 70, 567 S.W. 2d 113 (1978).
See also Brill, Howard W., Arkansas Professional and Judicial Ethics, Second
Edition, M & M Press (1991). We recommend also that you review Canon 3 D, Remittal of
3. May your brother, who is the Deputy Prosecuting Attorney, present
to you affidavits for warrants of arrest and transmit criminal information with the
affidavits for the issuance of warrants even though he will not try the cases?
The issuance of warrants is a very important part of the criminal
law process and you should not issue such for your brother. Based on the reasoning and
authorities set forth under Question 2 above, we are of the opinion that you should
disqualify in all matters handled by your brother.
4. May you appoint your wife as an unpaid deputy clerk in order that
she may voluntarily handle the paid clerk=s duties in his or her absence?
Canon 3 B(4) of the Code of Judicial Conduct was recently amended by
the Arkansas Supreme Court by Per Curiam Order dated November 19, 1990 to provide as
follows: AA judge should not make unnecessary appointments. A judge should exercise his
power of appointment only on the basis of merit, avoiding nepotism and favoritism. No
judge shall employ a spouse or other relative unless it has been affirmatively
demonstrated to the Arkansas Judicial Discipline and Disability Commission that it is
impossible for the judge to hire any other qualified person to fill the position. A judge
should no approve compensation of appointees beyond the fair value of services rendered@.
This change reflected the Supreme Court=s concern that the appointments of close relatives
to position do case doubt on the integrity and impartiality of the judiciary.
On November 15, 1991, the Judicial Discipline and Disability
Commission considered a number of complaints wherein a judge=s spouse or mother regularly
performed an number of clerical functions for the judge as a volunteer and while in a
non-pay status after July 1, 1991. In all of these instances the complaints were dismissed
because such relative worked for the judge as a volunteer and in a non-pay status. These
cases concerned persons who previously had been paid for the same work.
Because of this recent ruling by the Judicial Discipline and
Disability Commission, the need for judicial staff assistance and your apparent sincere
and altruistic motives, we have struggled with this part of our opinion. We are unable to
opine that you are precluded from appointing your wife as a deputy. However, we believe
that the best approach is to avoid even the appearance of impropriety and, accordingly you
should not appoint your wife as a deputy clerk even if she is not compensated. She would
still be able to assist occasionally by doing general secretarial or administrative work.
Should you still consider appointing your wife as a volunteer deputy
clerk, you should not do so unless each of the following questions can be answered in the
a) Is the relative qualified for the position?
b) Is the position a deputy position?
c) Is the position a temporary and part-time position?
d) Is the appointment on a volunteer and philanthropic basis with no
perceived present or future financial (either direct or fringe) benefits to the relative
or to the judge?
Such volunteer work or service provided by a relative should never
be persuasive, or even considered with respect to future increases in the salary of the
5. What financial reports are due under Canon 6 of the Code of
This request was not made in accordance with our Procedural Rule 3
in that it was not accompanied by a concise memorandum setting forth your own research and
conclusions. Canon 6 is not very long and you can read it just as easily as we can. You
are reminded that Part-time judges are exempted from Canon 6 C. We also invite your
attention to the fact that there are other filings which are required of judges and the
Administrative Office of the Courts is available to assist judges in this regard and to
supply blank forms.
Very truly yours,
Bruce K. Bullion, Chair