State of Washington

Ethics Advisory Committee

Question:

May a judicial officer, who is also a certified yoga instructor offer a weekly drop-in yoga class free of charge at the courthouse

1. As a certified instructor, I carry yoga instructor insurance. The insurance carrier requires a standard liability waiver, similar to that you would find for engaging in any sport or physical activity. May a judge offer yoga classes using the waiver? This class would be free of charge.
2. My initial thought was to offer the class just to court employees. I have been asked, however, by attorneys that practice in the courthouse if I would teach a class at the courthouse that they could attend. While these attorneys do not appear in front of me, their colleagues do, and I am concerned that this could create a potential appearance of fairness issue, especially because if I offer the class to attorneys, I would not limit which attorneys could attend.

Answer:

A judicial officer may engage in certain extra-judicial activities subject to the law and relevant provisions of the Code of Judicial Conduct. Judges shall act at all times in a manner that promotes confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CJC 1.2. Judges are prohibited from participating in activities that interfere with the proper performance of the judge's judicial duties; will lead to frequent disqualification of the judge; undermines the judge's independence, integrity, or impartiality; is coercive; or makes extrajudicial or personal use of court resources. CJC 3.1.

The question poses two scenarios, one where the judge offers yoga classes free of charge to court employees, and the other where the judge offers yoga classes to court employees and attorneys. Both scenarios include the requirement of liability waivers and extrajudicial or personal use of court premises.

Generally, a judge may be a certified yoga instructor and engage in extrajudicial activities associated with that certification within the limitations of the Code of Judicial Conduct. However, holding drop-in yoga classes on court premises with the requirement of a liability waiver creates unique issues of concern.

The duties of judicial office shall take precedence over all of a judge's personal and extrajudicial activities. CJC 2.1. When a judge engages in extrajudicial activities, they may not engage in conduct that would be coercive. CJC 3.1(D). CJC 3.1 Comment [3] gives an example of conduct that is generally permitted by the Code but in certain circumstances, would reasonably be considered as coercive. "For example, depending upon the circumstances, a judge's solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge."

Under the facts presented, the judge will be holding the yoga classes on court premises, the same location where the judge's primary duties of judicial office are carried out. Thus, a judicial officer who holds yoga classes on court premises gives those who choose to participate and sign the liability waiver unique access to the judicial officer and may lead to frequent disqualifications of the judge due to the appearance of partiality arising from the attorneys' participation in the yoga classes.

Also, although class participation is voluntary, the waiver of liability is not. The opportunity to participate in a yoga class with a judge on the court premises creates the risk that the person attending would feel obligated to sign the liability waiver to curry favor with the judge.

The Committee has previously advised that a judge can participate in an extrajudicial activity during the noon hour on court premises. EAC 14-04 stated that judges may participate in Boy Scout Merit Badge Day and use judges' courtroom to discuss topics involving the law and the legal system to Boy Scouts. Use of the courtroom for this event during the noon hour was considered incidental.

Here, however, the activity described is unlike other extrajudicial lunchtime activities because it requires a liability waiver to participate and uses the courtroom or court premises. While a judge offering yoga classes in the courthouse to attorneys presents different issues than it does for the court's employees, the committee believes that requiring waivers from all participants for the activity on the court premises could be considered coercive and in violation of CJC 3.1(D).

Opinion 20-02

01/27/2020