July 6, 1999
Honorable Graham Partlow
Circuit & Chancery Judge
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.