Service on Governing Board of a Bar Association
October 2, 2017
You are a new judge. When you assumed judicial office, you were serving as a member of the Board of Directors of a county bar association and as a member of the Executive Board of the Massachusetts Bar Association (MBA). You ask whether you may complete your terms.
The CJE considered an analogous question under our former Code of Judicial Conduct, which was in effect through December 31, 2015. In Opinion No. 2003-12, the CJE concluded that a judge could not serve as a member of the Council of the Boston Bar Association. The CJE observed that Section 4(C)(3) permitted a judge to "serve as an officer, director, trustee, or non-legal advisor of an organization or agency devoted to the improvement of the law, the legal system, or the administration of justice . . . subject to the following limitations and the other requirements of this Code." The Commentary to that section noted that the grant of permission was qualified by the requirement that "such service not cast reasonable doubt on the judge's capacity to act impartially as a judge and that it not interfere with the proper performance of judicial duties." The Commentary also noted that "many bar associations have become active in litigation, filing amicus briefs that take sides on a wide range of controversial issues," and that "the more a judge takes a leadership role or a role as spokesperson in such an organization," the more likely that the judge's conduct would "cast reasonable doubt on the judge's capacity to act impartially."(1) The CJE concluded that the risks to impartiality and the appearance of impartiality were "cumulatively insurmountable" if a judge served on the bar association's governing board.
Our new Code of Judicial Conduct, in effect since January 1, 2016 ("Code") is equally concerned with a judge's obligation to uphold and promote the independence, integrity, and impartiality of the judiciary. This Code also, however, places new emphasis on the importance of a judge's outreach activities. Thus, for example, Comment  to Rule 1.2 explicitly encourages judicial outreach for purposes of improving professionalism within the bench and bar. Rule 3.7(A)(5) allows a judge to serve as an officer, director, trustee, or nonlegal advisor of a non-profit law-related organization unless it is likely that the organization (a) will be engaged in proceedings that would ordinarily come before the judge, or (b) will frequently be in engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member. Comment [1B] to Rule 3.7 reiterates that the Code explicitly encourages activities where the nature of a judge's participation will foster collegiality among the bar and communication and cooperation between the judiciary and the bar. The Code no longer includes the cautionary language specifically warning that many bar associations have become active in litigation and warning that the more a judge takes a leadership role, the more likely that the judge's conduct would cast reasonable doubt on the judge's capacity to act impartially. The Code instead provides the same cautionary language that is applicable to all otherwise permitted extrajudicial activities. Comment  to Rule 3.7 cautions that "even with respect to activities that are explicitly permitted . . . a judge must always consider whether participation would violate Rule 3.1."
Rule 3.1 emphasizes that when engaging in any extrajudicial activity, a judge must consider the obligations of judicial office and avoid any activities that are reasonably likely to interfere with those obligations. To that end, Rule 3.1 states that when engaging in otherwise permissible extrajudicial activities, a judge shall not:
(A) participate in activities that are reasonably likely to interfere with the proper performance of the judge's judicial duties;
(B) participate in activities that are reasonably likely to lead to recurrent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality; or
(D) engage in conduct that would appear to a reasonable judge to be coercive.
We believe that the Code allows you to complete your terms on the Executive Management Board of the MBA and the board of directors of the county bar association so long as you comply with the limitations imposed by Rule 3.1. The Code also provides that what a judge cannot do individually, the judge may not do as part of a collective effort. There are, therefore, a number of situations you will have to avoid. These include but are not limited to:
- Participation in discussion and decisions concerning any policy areas where the judge's involvement could adversely affect the impartiality and integrity of the judiciary. The decision to file an amicus curiae brief is of course one such instance, but there may be many others, including a bar association's discussions and decisions regarding support or opposition to legislation.
- Recruitment of new members and the solicitation of funds, except from members of the judge's family and judges over whom the judge has no supervisory authority.
- Recruitment of members to assume leadership positions or other roles. This may be perceived to be coercive by a lawyer, particularly by a lawyer who may appear before the judge.
- The selection of award recipients.
- Any involvement that would violate the prohibition on a judge's engaging in the practice of law. This would include, for example, the review of contracts with vendors, negotiating with vendors, and dealing with personnel matters within the bar association.
Our decision today is consistent with the decisions of a majority of judicial ethics advisory committees that have considered this issue. See, e.g., U.S. Courts, Committee on Codes of Conduct Advisory Opinion No. 34 (allowing a judge to serve as an officer or on the governing board of a bar association, so long as the judge "abstains from discussion, debate and vote on matters that may present a conflict of interest or may give the appearance of impropriety if the judge did participate in the discussion and vote"); Arizona Opinion No. 91-02 (judge may serve as president of local bar association); New York Opinion No. 10-68 (part-time judge may serve as treasurer of bar association so long as judge does not solicit contributions); Washington Opinion No. 86-03 (judge may serve on the board of trustees of a local county bar association).
In your new role as a judge, you will find that compliance with the requirements of the Code will affect your relationships and interactions with lawyers. Because you have not asked whether you may accept appointment to a new term or run for re-election to a new term after you complete your current terms of service, we do not decide that issue today. We note, however, that the Code would not permit a judge to place himself or herself in a position where the judge must ask for votes or support from lawyers. See, e.g., Florida Opinion No. 2004-34 (new judge may complete term on Florida Bar Board of Governors but may not seek re-election); Nevada Opinion No. 11-005 (new judge may complete term on board of governors of state bar association, but may not seek re-election).
(1) Opinion No. 2003-12 referenced Opinion Nos. 97-7 and 2003-5, which were decided under the Code in effect prior to October 1, 2003. In Opinion Nos. 97-7 and 2003-5, the CJE concluded that a judge could not serve as section chair of a MBA section or as a member of the Council of the Boston Bar Association, respectively. The CJE's reasoning was based on the same concerns that animated Opinion No. 2003-12.