NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
May 11, 1990
A judge who has developed a computer program which will produce forms for use by lawyers may sell the program to a lawyer or other person as a distributor. The judge may retain a royalty for the units sold, but may not take part in the marketing of the product or be retained in any advisory capacity as to technical questions concerning the product. The judge should have no ownership in the purchaser entity, nor have any rights in the operation by which the product is distributed.
References: MCJC 2C, 4A, 5C, 6; CI-94, CI-383, CI-427, CI-470, CI-502.
A judge has developed a computer program which will produce all the State Court Administrative Office forms for use by lawyers and others. The fields would be typed in by a secretary, and would export and create a database for the lawyer using the program, upon completion of the form. The judge proposes to sell the program "lock, stock and barrel" to a lawyer or distributor for a stated amount of money which would include the necessary hardware. The judge would receive a royalty percentage for each unit sold. Other than selecting a proper distributor to whom the program would be sold, the judge would have no control of the product after development and sale. The judge would not take part in the marketing, and technical questions which might arise would be handled by third parties. The judge would have nothing to do with the distributor or its company, and would not be a stockholder. Nor would the judge have a voice in running the operation.
Code provisions applicable to this question are as follows:
MCJC 2C. "A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not use the prestige of his office to advance the business interests of himself or others . . . ."
MCJC 4A. "He may speak, write, lecture, teach and participate in other activities concerning the law, the legal system, and the administration of justice."
MCJC 5C. "(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality or his judicial office, interfere with the proper performance of his 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.
"(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as director, officer, manager, advisor or employee of any business . . . ."
"(3) A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified . . . ."
MCJC 6. "A judge may receive compensation and reimbursement of expenses for quasi-judicial and extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge in his judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:
"A. Compensation. Compensation should not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity."
In CI-383, applying MCJC 5C, the Committee held that it is not improper for a judicial officer to manage and hold investments as long as the conduct does not affect the judicial officer's partiality, does not require the judicial officer to serve actively as a director, officer, or owner of the business investment, and does not require the judicial officer to recuse on a regular basis from service as judicial officer. CI-427 permitted a judge to write a manual for judges and lawyers, together with a book for the general public on the subject of child abuse and neglect, using materials from actual case histories, under the theory that such activity was "improvement of the law" and "activity concerning the law" under MCJC 4A.
Development of a computer program to assist in using state-approved forms qualifies as activity "for the promotion of the law" under MCJC 4A, provided that it comports with MCJC 5C.
CI-470 and CI-502 discuss thoroughly extra-judicial activities and the risk of conflict of interest with a judge's judicial duties. CI-470 defines "business" to include "business organization" through which a commercial pursuit is carried on, "and accordingly a judge may not ethically serve as an officer of a business corporation unless such service qualifies as passive business activity of a personal character. Service by a judge as an officer of a corporation which is in fact the judge's alter ego and the stock in which is owned exclusively by the judge or the judge and his immediate family is passive business activity of a personal character and is not prohibited by the Canon." In accord, ABA i1385.
CI-502 concerned the propriety of a judge engaging in a mail order business, holding out for sale publications and articles of manufacture. The activity did not identify the judge by title or refer to the judicial office, did not interfere with the proper performance of the judicial duties, and did not reflect adversely on the judge's impartiality.
Therefore a judge may sell the computer program and reserve royalty rights of a set amount per unit sold, as long as the judge retains no ownership interest in the business and does not participate in the business. The judge should not sell the program to any lawyer or organization made up of lawyers who are likely to appear before the judge.