Supreme Court of Wisconsin
Judicial Conduct Advisory Committee OPINION
98-6
Date Issued:
June 9, 1998
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ISSUE
I
May a
former judge serve both as a reserve judge and provide services for hire in a
private business as a neutral third person?
ANSWER
Yes.
ISSUE
II
May a
reserve judge use the title "honorable" in advertising services for
hire in a private business as a neutral third person?
ANSWER
No.
FACTS
A
former judge would like to serve as a reserve judge and provide services as an
arbitrator, mediator, or neutral (mediator, evaluator, assessor, etc.). The former judge also would like to use the
title "honorable" in advertising the services.
DISCUSSION
The
Committee concludes that the issues presented involve provisions of SCR
60.05(6), SCR 60.07(2), and SCR 60.03(2).
A. SCR 60.05(6) and 60.07(2)
SCR
60.05(6) prohibits a judge from serving as "an arbitrator or mediator or
otherwise perform judicial functions in a private capacity unless expressly
authorized by law." SCR 60.07,
which is entitled Applicability, provides that all judges shall comply
with the Code of Conduct. However,
subsection (2) states that reserve judges are exempted from complying with SCR
60.05(6).
The
requestor of this opinion framed the issue in terms of "mediator,"
"arbitrator," or "neutral." SCR 60.05(6) includes services as a "mediator" or
"arbitrator." The Committee,
however, recognizes that the practice of alternative dispute resolution has
expanded to include many other processes analogous to mediation and
arbitration. In Wisconsin these
processes have been identified and defined in Wis. Stat. §802.12. In that statute entitled "Alternative
dispute resolution," the drafters refer to "a neutral third person"
as conducting mediation, arbitration, and other "settlement
alternatives." In this opinion and
in future opinions, the Committee adopts the designation "neutral third
person" when referring to mediation, arbitration, or other settlement
alternatives as defined in Wis. Stat. §802.12.
The
Code of Judicial Conduct expressly prohibits "a judge" as defined in
SCR 60.01(8) from providing services as an arbitrator or mediator. The Committee concludes that this
prohibition would extend to the provision of any type of service as a neutral
third person within the processes defined in Wis. Stat. §802.12, unless
expressly authorized by law.
A
reserve judge may serve in those capacities described in SCR 60.05(6), in cases
which have not been assigned to the judge as a reserve judge, because SCR
60.07(2) states that reserve judges are specifically exempted from the
provisions of SCR 60.05(6).
B. SCR 60.03
Wis.
Advisory Ops. 97-6 (1997) and 97-6R (1998) state that a reserve judge may not
use the title "judge" or "reserve judge" or appear in
judicial robes when advertising services as arbitrator or mediator. Such conduct violates SCR 60.03(2) by
lending the prestige of judicial office to advance the private financial
interest of the former judge now serving as a reserve judge and creates the
appearance of impropriety. The
Committee concludes that the term "honorable" is prohibited for the
same reasons.
CONCLUSION
The
Committee concludes that reserve judges may serve as a reserve judge and may
serve in nonassigned cases as a neutral third person. A reserve judge may not use the title "honorable" in
advertising his or her services for hire as a neutral third person.
APPLICABILITY
This
opinion is advisory only, is based on the specific facts and questions
submitted by the petitioner to the Judicial Conduct Advisory Committee, and is
limited to questions arising under the Supreme Court Rules, Chapter 60--Code of
Judicial Conduct. This opinion is not
binding upon the Wisconsin Judicial Commission or the Supreme Court in the
exercise of their judicial discipline responsibilities. This opinion does not purport to address
provisions of the Code of Ethics for Public Officials and Employees, subchapter
III of Ch. 19 of the statutes.
I
hereby certify that this is Formal Opinion No. 98-6 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin this 9th day of June,
1998.
_________________________________
Thomas
H. Barland
Chair