Serving as Special Adviser to Branch of Government Other Than Judiciary

November 26, 2002

CJE Opinion No. 2002-15

You have requested an opinion from the Committee on Judicial Ethics regarding your "ethical obligations, if any" with respect to your possible service as special adviser in a branch of State government other than the judiciary. Specifically, you are considering service as an adviser on matters related to the State courts and improving the administration of justice.

You informed the committee that you are eligible for a sabbatical of up to one year pursuant to G. L. c. 211B, � 20. You propose to use that sabbatical year serving in this advisory capacity. In accordance with the statute, you would receive no salary from the judicial department while on sabbatical, but would nevertheless be regarded as an active judicial employee. Accordingly, your sabbatical year would be credited to you for retirement purposes, and you will remain eligible for life insurance and health plans available under G. L. c. 32A. You have stated that, to avoid conflicts, you will not take part in any discussions relating to increases in judicial salaries from which you might benefit upon your return to the bench. Against that backdrop, you have asked whether "[i]f [you] were to take a sabbatical and secure appointment as [adviser] . . . would [you] run afoul of any Canons?"

In responding to your request, the committee limits itself, as it must, to an examination of relevant provisions of the Code of Judicial Conduct. See S.J.C. Rule 3:11 (2). The committee therefore offers no advice with respect to the manner, if any, in which the provisions of G. L. c. 211B, � 20, G. L. c. 268A, S.J.C. Rule 4:02 (6), provisions of the Massachusetts Constitution, or other statutes or rules may affect the subject matter of your inquiry. In addition, apart from the subject of your proposed position, your letter contains no description of what you actually will be doing in your special adviser capacity. The breadth and imprecision of your request limits the committee's advice to generalities, and you will have to apply that advice to the facts as they subsequently emerge. (1)

With the foregoing limitation in mind, the committee begins with the observation that the sabbatical statute, G. L. c. 211B, � 20, provides that "[a]ll statutory requirements and rules of court pertaining to judges shall continue to be applicable to a judge while he is on leave of absence pursuant to this section." The Code of Judicial Conduct therefore applies to you during your sabbatical year just as fully as it would apply if you were in active service. Four provisions of the Code -- Canon 1 (providing for an independent judiciary), Canon 5 (F) (prohibiting the practice of law), Canon 5 (G) (covering extra-judicial appointments) and Canon 6 (C) (requiring reports of extra-judicial income) -- are of primary importance.

Canon 1 comes first, in the Code and in our discussion, because its broadly aspirational provisions overshadow each of the specific provisions that follow. Canon 1 states:

"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective without any limitation upon the Supreme Judicial Court in the exercise of its power of general superintendence, whether statutory or inherent, in areas not delineated in the Code."

Clearly, your request does not implicate your own integrity or the integrity of the judiciary. It does, however, raise significant issues regarding judicial independence. Those issues are no mere derivative of scholastic reverie. They lie instead at the very foundation of our governmental system. And while aspects of the governing principles are sometimes difficult to apply, the core is clear: an independent judiciary exists so that judges will be free of executive and legislative entanglements that may compromise, or appear to compromise, a completely free and unfettered exercise of independent legal judgment regarding either branch's handiwork.

Acceptance by a sitting judge, albeit on sabbatical, of full-time employment at a high, policy-making level of the executive or legislative branch is inconsistent with maintenance of that fundamental separation. Fluid movement back and forth between high executive and legislative positions and the judiciary promotes the very kind of function-blending that the concept of separation is intended to avoid. (2) That blending is likely to affect the judge's perception, and the perception of the officials with whom he serves, regarding his independent role. Even if it does not, such service will surely and adversely affect "the public perception of the independence of the courts from the executive and legislative branches of our governments." Florida Judicial Ethics Advisory Opinion 2001-16. Indeed, this committee itself has noted "the potential danger to the judiciary as an independent branch of government if its members are permitted to lend the prestige of their judicial office to the explicitly policy-making functions of the other independent branches of government." CJE Opinion 89-4, quoting the Reporter's Notes to Canon 5 (G) of the 1972 ABA Model Code of Judicial Conduct. See also CJE Opinion 96-4.

The committee recognizes that your request is broad and that the position's final configuration has not yet been determined. It may be, therefore, that the position, or its functional equivalent, can be structured in some way so as to avoid the difficult independence problems just discussed. Accordingly, the committee cannot now say that such a configuration is impossible. As long as you remain an active judge, however, the committee, quite frankly, does not see how one could achieve it.

The second Canon of importance is Canon 5 (G), which provides in pertinent part:

"A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. The foregoing is subject to any limitations imposed by the Constitution of the Commonwealth with respect to any such appointment." (3)

On a prior occasion, the committee, discussing a judicial appointment to a community policing commission, said that the permissive provisions of Canon 5 (G) apply only if there is "a direct nexus between what a governmental commission does and how the court system meets its statutory and constitutional responsibilities - in other words, how the courts go about their business." CJE Opinion 98-13.

That interpretation is consistent with interpretations elsewhere of similar language now found in Canon 4 (C) (2) of the 1990 ABA Model Code of Judicial Conduct. (4) That Canon was created because, "[a]s a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice." Commentary to 1972 Model Code Canon 4 (C) (2). That being the case, the Advisory Committee for Federal judges has ruled that application of the pertinent language requires a two-fold inquiry. The first is whether the activity in question involves "the kinds of matters a judge, by virtue of . . . judicial experience, is uniquely qualified to address." U.S. Advisory Opinion 93 (1998), as quoted in C. Gray, Ethics and Judges' Evolving Roles Off the Bench, at 4 (American Judicature Society 2002). The second is whether "the beneficiary of the activity is the law or the legal system itself, [i.e., whether the activity] serves the interests generally of those who use the legal system, rather than the interests of any specific constituency, or enhances the prestige, efficiency or function of the legal system itself." Id. Overall, applicability of Canon 5 (G)'s permissive language should be determined "by evaluating how closely related the substance of [the] activity [in question] is to the core mission of the courts of delivering unbiased, effective justice to all." Id. Although somewhat more ample, that two-step analysis is perfectly consistent with interpretive language found in CJE Opinion 98-13.

If Canon 5 (G) were considered in isolation, then, your broad description of your anticipated position would appear to place that position within the Canon's permissive language. But Canon 5 (G) does not exist in isolation and, like every other provision of the Code, must be considered along with Canon 1. Moreover, Canon 5 (G) simply was not designed with full-time employment at a high level of the executive or legislative branch in mind. At the present level of abstraction, the committee therefore cannot reach a firm conclusion that your proposed service is or is not the kind of service that Canon 5 (G) was intended to endorse.

Whatever else Canon 5 (G) permits, in isolation or in context, it does not permit the practice of law. On the contrary, the practice of law is squarely prohibited by Canon 5 (F). The prohibition's succinct content masks its broad scope. Indeed, courts and commentators have unsuccessfully wrestled for decades over how to define the "practice of law," with the consequence that an all-inclusive definition probably is impossible.

Clearly, the practice of law includes work performed for others in relation to ongoing or anticipated court proceedings. In re Shoe Mfrs. Protective Ass'n, 295 Mass. 369, 372 (1936). As highlighted by the following passage from Opinion of the Justices, 289 Mass. 607, 613 (1935), however, the concept is far more expansive than that:

"Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation."

See also ABA Task Force on the Model Definition of the Practice of Law, September 18, 2002 Draft ("The 'practice of law' is the application of legal principles and judgment with regard to the circumstances or objectives of a person [or any other legal or commercial entity] that require the knowledge and skill of a person trained in the law").

Because of the concept's breadth, the Illinois Commission has opined that "[l]egal counseling to any group, including social organizations, constitutes the practice of law." Illinois Judicial Ethics Advisory Committee Opinion 94-2 (opinion digest). In rendering that opinion, the Commission relied on the definition of "practice of law" contained in Blacks Law Dictionary, i.e., "[t]he rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent. . . . An attorney engages in the 'practice of law' by . . . counseling clients in legal matters."

Consistent with the ABA's approach, the Alabama Judicial Inquiry Commission has made clear that the "client" may be a public as well as a private entity. That commission consequently opined that a judge who served as a member of the volunteer state militia could not give a legal opinion to another militia member regarding business of the State defense force. Alabama Judicial Inquiry Commission Advisory Opinion 02-799. Likewise, the commission told a judge that, although he might serve in an advisory position with a State-Federal public works project to promote regional economic development, he could not give legal advice to, or in any way act as a lawyer for, that project. Alabama Judicial Inquiry Commission Advisory Opinion 89-358.

Against this backdrop, the committee believes that it will be difficult to execute the responsibilities you contemplate in your new position without, in some sense, engaging in the "practice of law." Indeed, to the extent that your contemplated position involves advising others in the executive or legislative branch on the meaning of existing laws, the constitutionality of new plans or designs, the legal fit between new proposals and existing statutory schemes, the manner in which policy objectives can be achieved through design of a particular statutory plan or arrangement, or other like activities, that position will be inextricably bound up with the practice of law.

To be sure, non-lawyers in the executive and legislative branches perform similar, although perhaps not identical, activities without running afoul of prohibitions on the unauthorized practice of law. To make that observation, though, is simply to note that the concept's boundaries are imprecise and ambiguities necessarily abound. That being the case, the committee endorses the following observations on the subject contained in the leading treatise on the Code of Judicial Conduct:

"With regard to sitting judges . . . any ambiguity concerning the practice of law should be resolved against the permissibility of the activity. Any piece of legal or quasi-legal work is potentially the subject of litigation, thereby subjecting the judge's efforts to review, perhaps by her own court. Moreover, were judges to render even non-litigative services, the appearance would inevitably be created that their assistance was sought in order to exploit the judicial position. Consequently, an abundance of caution is justified in order to maintain public confidence in the judiciary."

J. Shaman, S. Lubet & J. Alfini, Judicial Conduct & Ethics 241-42 (3rd ed. 2000).

Finally, although important, Canon 6 (C) is purely mechanical. It says that you must report, before April 15th of each year, any extra-judicial compensation that you receive. Compensation you receive from the executive or legislative branch for service in that branch would be compensation covered by Canon 6 (C) and, thus, compensation that you would be required to report annually.

To sum up, because of the broad nature of your request and the broad description of your proposed activities that it contains, the committee can only describe for you the general area in which shoals may lie. Identification of particular rocks would require far more detail, and probably could not be done other than on a case-by-case basis. That said, your proposed service as a full-time, high-level adviser to a branch of State government other than the judiciary appears to the committee to be inconsistent with Canon 1 of the Code of Judicial Conduct. Although there is some theoretical possibility that your service might be structured so as to avoid Canon 1's broad reach, the committee cannot envision what form that structure might take. While the general description of your proposed position appears to fit within the definition of extra-judicial activity that Canon 5 (G) permits, that Canon was not drafted with full-time, high-level executive or legislative service in mind, and, at the present level of generality, the committee cannot render a firm opinion regarding whether the Canon would or would not permit your service. In any event, it is highly likely that your proposed service would, at some points and in some contexts, involve you in the practice of law prohibited by Canon 5 (F).

1. Indeed, the committee in the past has declined to answer requests framed as broadly as yours. Given the nature of your request and the likelihood that the content of your proposed position remains a work in progress, the committee has elected to proceed.

2. To be sure, many judges served in the executive or legislative branches before becoming judges, and some have served in those positions after leaving judicial office. In those cases, however, the appointment and the resignation processes provide a clear line of demarcation for the judge, and for observers of the political system, between service in one branch and service in another.

3. Canon 4 (B) appears to cover similar ground. In pertinent part, that Canon provides as follows:

"[A judge] may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice."

As revealed by the text and as noted in CJE Opinion 2001-12, Canon 4 (B) contains limitations on permissible consultation more stringent than those applicable to appearances at public hearings. See Thode, Reporter's Notes to the Code of Judicial Conduct 75-76 (American Bar Association 1973). Compare proposed Canon 4 C (1) of the Supreme Judicial Court's Committee to Study the Code of Judicial Conduct. Canon 4 (B), however, deals with what the Code describes as "quasi-judicial activities." Read in a manner consistent with that description, and read in the context of Canon 5 (G)'s coverage of "extra-judicial activities," the committee is of the opinion that Canon 4 (B), pertains to testimony and informal or transactional consultations. Canon 5 (G), on the other hand, governs formal appointments to commissions and positions of the type you contemplate. The committee, therefore, has analyzed your request under Canon 5 (G).

4. Canon 5 (G), like the rest of the Massachusetts Code of Judicial Conduct, derives from the 1972 ABA Model Code of Judicial Conduct. For reasons that have no bearing on the outcome of your inquiry, Canon 5 (G), with some slight modifications, was recodified as Canon 4 (C) (2) when the ABA promulgated the new Model Code in 1990.