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July 6, 1999

 

Honorable Graham Partlow
Circuit & Chancery Judge
County Courthouse
Blytheville, Arkansas 72315

RE: Advisory Opinion 99-07 

Dear Judge Partlow:

In our Advisory Opinion # 99-04, responding to a request from Judge Rice Van Ausdall, we advised against membership in organizations dedicated to promoting and furthering the interests of either the plaintiffs' bar or the defendants' bar and its clientele. We expressed the belief that such memberships call into question the judge's ability to preside in certain cases with the unquestioned impartiality envisioned by Canons 2A and 4A of the Code of Judicial Conduct. We noted that other jurisdictions - Arizona, Georgia, Florida, and Louisiana - have taken similar positions.

You have asked the Committee to reconsider, mentioning your own long standing memberships in the American Trial Lawyers Association and the Arkansas Trial Lawyers Association. You state that after your judicial service began in 1981 your membership in ATLA continued on a complimentary basis. You do not attend meetings, but you do find the publications informative and beneficial. We suspect that your involvement is typical of other judges throughout the state.

Our examination of the literature, both print and electronic, of the Arkansas Trial Lawyers Association and the American Trial Lawyers Association, reveals that these organizations of attorneys have a consistent position on the plaintiffs' side in personal injury matters. Certainly judges are permitted to attend ATLA meetings and forums (see Advisory Opinion 99-06), to speak at ATLA programs, to receive ATLA mailings, to receive ATLA materials, and to prepare materials for ATLA publications. But to be a member, whether or not the judge pays dues, whether or not the membership is described as honorary or complimentary, identifies the judge as generally supportive of the positions taken by that part of the bar. Likewise, continuation of membership after assuming a full-time judicial role does not, in our opinion, promote public confidence in the impartiality of the judiciary. Canon 2 A (1).

Perhaps other organizations of attorneys have a likewise consistent position on legal issues, both within the profession and to the public at large. Such organizations may be on the plaintiffs' or defense side in civil matters, may be on either side in criminal matters, or might be other specialized bar organizations. Our opinion applies to them also.

However, it is the responsibility of the judge to make the determination whether membership in an organization calls into question the judge's ability to preside with unquestioned impartiality. Similarly, in disqualification matters, case law indicates that the judge had discretion to determine whether his impartiality can reasonably be questioned. Likewise, the commentary to Canon 2 C indicates that the judge in his own conscience must determine whether participation in an organization that appears to be discriminatory does violate the Code. The judge must decide whether her membership in an organization covered by Canon 4 C (3) is consistent with the general guidelines on extra-judicial activities. The responsibility placed on the judge in this opinion is consistent with these other areas.

 

Yours very truly,

 

Judge Steele Hays

For the Committee

Professor Howard Brill and Judge Edwin Alderson concur.

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