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Opinion 28

The Commission has been requested for an opinion concerning the legality and propriety of a Justice of the Peace acting as the agent for the holder of a security interest in personal property in securing the repossession of such property on behalf of the creditor.

There does not appear to be any statutory or ethical rule which would necessarily prohibit a Justice of the Peace from engaging in a business activity unrelated to the duties of his office. Repossession of personal property under security agreements authorizing the same is in the opinion of the Commission unrelated to the duties of the office of the Justice of the Peace. However, if the Justice of the Peace in any way uses his official title so that it reasonably appears that he gains repossession because of his office which he would not otherwise have been able to do, he would clearly be in violation of the Code of Judicial Conduct. This is true because a judicial officer should uphold the integrity and independence of the judiciary and avoid impropriety and the appearance of impropriety in all of his activities (Canon 1 and Rule 1.2(A)) and must not use the prestige of his office to advance the private interest of others (Rule 1.3).

Judge Horkan dissents from the views expressed above. It is his opinion that one who holds the office of Justice of the Peace, and is thereby directly involved as a judge in legal proceedings concerning writs of possession, would necessarily give the improper impression and appearance to the general public and particularly to the debtor in a self-help repossession procedure under the UCC, that he (a) was acting in his capacity as a judicial officer, and (b) was using his judicial office to advance the private interests of others, when he acts as the agent of a security interest holder in repossessing the collateral in a non-judicial proceeding. It is his further opinion that such action would tend to erode public confidence in such judicial officer and tend to “chill” the exercise of any legal defensive action on the part of the debtor, if any he had; and that in this view such action by the Justice of the Peace not only violates Canons 1 and 3 of the Code of Judicial Conduct, but transgresses the entire spirit of the Code.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 1.2(B), 2.4(B), 2.11(A), 3.11. Cross reference to other relevant opinions for review: #21, #47, #70, #97, #160, #168.]

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