Serving as Member and Officer of Inn of Court; Involvement in Fundraising and Recruitment

January 11, 2005

CJE Opinion No. 2005-3

Background. You have asked the committee for advice with respect to fundraising and membership endeavors of a certain Inn of Court ("the Inn"). You are a member and an officer of that organization. By way of background, you have informed the committee that the Inn is a chapter of the American Inns of Court ("AIC"), an organization that has been granted tax-exempt status under §501 (c) (3) of the Internal Revenue Code. The Inn itself also has Federal tax-exempt status, as well as a similar exemption from the Massachusetts Department of Revenue.

Like other chapters of the AIC throughout the United States, the Inn's primary mission is the promotion of high standards of professionalism, ethics, and civility in the practice of law. The Inn's membership comprises judges, attorneys, and law students. Members meet once a month for dinner and a presentation on a topic pertaining to legal ethics or education. The Inn also holds an awards dinner each year and makes an annual contribution to charity in honor of an annual designee and in memory of several deceased Inn members. The Inn funds this annual contribution from a separate award fund that the Inn maintains. The Inn also publishes annually a directory of its members, which it distributes free to each member.

Each year, some members leave the organization and new members join. The Inn members generally are recruited and recommended by existing members; recruitment is designed to maintain a relatively constant level of membership and to promote membership diversity. Membership dues are determined on a sliding scale, with certain categories of dues kept low in order to encourage the participation of judges, law students, new attorneys, and public-sector attorneys. The Inn's operating expenses, exclusive of the time, effort, and materials donated by the Inn members, include the cost of the monthly dinners, the annual dues that the Inn pays to the AIC, and the cost of publishing the directory.

Over the past several years, rising expenses have put pressure on the Inn's desire to maintain a dues structure that all members can afford. That pressure, in turn, has led to the organization's consideration of efforts to raise funds by seeking voluntary contributions from members and other sources such as law firms and vendors of goods and services of interest to lawyers. Your letter does not indicate whether the Inn has already adopted any such fundraising plans.

Your letter correctly acknowledges that Section 4 C (3) (b) (i) of the current Code of Judicial Conduct, which became effective October 1, 2003, prohibits the participation of judicial members in the solicitation or the planning for solicitation of funds for the Inn. You request advice on four related topics: first, whether you may continue your membership in the Inn if nonjudicial members of the Inn engage in fundraising efforts in the Inn's behalf that you do not assist in planning and that do not identify judicial members by name or title; second, whether contributions from such sources to the Inn may be acknowledged (a) to the members of the Inn, including judicial members, and (b) beyond the Inn membership provided that any acknowledgment does not identify the Inn's judicial members; third, whether in-kind contributions, such as administrative services provided by law firms in which the Inn's nonjudicial members are partners, or accounting services provided by an accounting firm at the request of a nonjudicial Inn member, somehow prohibit your continued membership in the Inn; and fourth, whether judicial members may recruit attorneys for Inn membership.

Discussion. Dealing with your questions in order, the committee is of the opinion, first, that the Code of Judicial Conduct does not prohibit your membership in a charitable organization that solicits funds from the public, provided that you do not participate in planning the fundraising effort in any way and further provided that your name is not used in any fundraising solicitations. See Sections 4 C (3) (b) (i) and 4 C (3) (b) (iv) and the related commentary. See also CJE Opinion 2004-8. Given your status as an officer of the Inn, however, the Code requires that you use your best efforts to prevent your name and position from being invoked either overtly or subtly in fundraising efforts. If, despite your best efforts, your name and position are used in the Inn's fundraising initiatives, you would need to reevaluate your continued service as an officer of the organization.

Second, the committee is of the opinion that the Code of Judicial Conduct does not categorically prohibit the disclosure to judicial members of the results of the fundraising undertaken by the Inn's nonjudicial members. The commentary to Section 4 C distinguishes between the disclosure of fundraising results to judicial members of organizations "composed entirely or predominantly of judges" (Section 4 C [4]) and disclosure to judicial members of other organizations "devoted to the improvement of the law, the legal system, or the administration of justice" (Section 4 C [3]). See CJE Opinions 2004-3 and 2004-8. However, disclosure of fundraising results to judicial members, whether done directly or indirectly through the disclosure to individuals and entities beyond the Inn's membership, must be undertaken in a way that does not "permit [donors] to convey the impression that they are in a special position to influence" you. See Section 2 B. Because of the infinite variety of forms that such disclosures might take, the committee is not now in a position to offer advice on the specific manner in which the prohibitions of Section 2 B may be avoided. And again, your status as an officer of the Inn requires you to use your best efforts to prevent your name and position from being invoked, either overtly or subtly, in the organization's fundraising initiatives and reevaluation of your continued service as an officer if those efforts are unsuccessful.

Third, the Code of Judicial Conduct does not prohibit your continued membership in the Inn merely because of de minimis, in-kind contributions made to the Inn by law firms or others. As stated above, however, you cannot solicit or plan the solicitation of those contributions, and you must take care that their quantity and quality is not sufficient to permit the donors to convey to any reasonable person the impression that they are in a special position to influence you. See Section 2 B.

Finally, the Code does not contain an absolute prohibition on a judge's recruitment of members for the Inn or similar organization. Section 4 C (3) (b) (iii) does provide, however, that a judge "shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive." The commentary to Section 4 C (3) (b) observes that the "[s]olicitation of funds for an organization and solicitation of memberships involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control." Accordingly, any membership recruitment in which you participate must be planned and conducted in a way that avoids the kind of pressure at which Section 4 C (3) (b) (iii) is directed. Because coercion can exist in a virtually limitless number of ways, the committee is not in a position to offer advice on how noncoercive recruitment might be accomplished.

Conclusion. In sum, the Code of Judicial Conduct does not preclude your membership in the Inn merely because the Inn engages in solicitation of contributions from non-Inn members, provided that you do not participate in the planning or execution of those solicitations. The results of the Inn's fundraising initiatives may be disclosed to you, provided that the disclosure does not produce circumstances that would violate the provisions of Section 2 B. The Code does not prohibit your membership in the Inn because of de minimis, in-kind contributions made to the organization by or at the behest of nonjudicial members, and you may recruit members for the Inn consistent with the Code, provided that your recruitment is not coercive.