Serving as Co-Chair of Advisory Board for Civil Rights Project

February 8, 2007

CJE Opinion No. 2007-1

You have requested advice on whether the Code of Judicial Conduct permits you to serve as co-chairperson of the advisory board for a national civil rights project operated under the auspices of a university.

Background. The materials you provided to the committee indicate that the project is a "research and advocacy center . . . [serving] as a resource for lawyers, legislators, civil rights veterans and other community leaders who are addressing the wrongs resulting from law enforcement's failure to protect civil rights activities and activists in the South during the 1950s and 60s." Among other things, the project hopes "to support legislative initiatives to address the past crimes of the civil rights era." Examples of these anticipated initiatives include the creation of special units within State law enforcement agencies to investigate those crimes, and the "adoption of laws to remediate and redress injuries suffered by civil rights activists." The project will also seek public recognition of, and public amends for, State actions taken against activists during this period. The project's work will be conducted exclusively in Mississippi, Alabama, Louisiana, Georgia and South Carolina.

Currently, the project is focusing on two areas. "The first is a research program to document the political repression and violence of the civil rights era. The second initiative is to support public policy at the federal and state level[s] to redress the wrongs of the civil rights era." In your capacity as co-chairperson of the advisory board, you would be expected "to provide guidance on the overall direction of the project, specifically outreach in the law enforcement and social justice communities, and assistance with research design and implementation." The advisory board will meet not more than once a year. Although the project will likely engage in lobbying activities and testimony before legislative committees, you would not personally participate in any such activity.

Analysis. The committee is of the opinion that the Code of Judicial Conduct does not prohibit you from serving as co-chairperson of the advisory board, but that, as you serve, you must remain mindful of five considerations rooted in specific areas that the Code covers. In the order in which they appear in the Code, these considerations are: (1) preservation of the appearance of impartiality, (2) prohibition on the use of the prestige of judicial office to advance private interests, (3) limitations on consultation with executive and legislative bodies and officials, (4) limitations on fundraising and management of funds, and (5) avoidance of the practice of law. There follows a discussion of each of these considerations.

1. Section 2 A of the Code provides, in material part, that "[a] judge . . . shall act at all times in a manner that promotes public confidence in the . . . impartiality of the judiciary." From the information you have provided, it seems unlikely, though not impossible, that your participation as co-chairperson of the advisory board would conflict with Section 2 A. On the one hand, the project's energies will be focused in southern States where you have no official role; the project will focus on discrete events and activities that occurred in those States during the 1950s and 1960s; and you will have no overt role in carrying out plans that the advisory board formulates. On the other hand, advocacy and impartiality do not sit easily together. See generally CJE Opinion 91-2 (concluding that Code prohibits judge's membership on advisory board of coalition for battered women service groups). It may be that the project's advocacy of particular forms of remediation or particular approaches to dealing with past wrongs could cast doubt on your ability to be impartial when faced with cognate approaches to problems that come before you in Massachusetts. At the level of abstraction with which we are currently and necessarily dealing, it is impossible to know whether such doubt will arise. Because it is also impossible to say that it will not, however, you must remain alert to that concern as the advisory board begins to formulate its policy recommendations.

2. Section 2 B of the Code deals with a different concern. Section 2 B states in material part that "[a] judge shall not lend the prestige of judicial office to advance the private interests of . . . others." The committee has interpreted this provision broadly to prohibit judges from lending weight or credibility to nonjudicial endeavors through use of a judge's official title, role, or position. See, e.g., CJE Opinion 90-1. To avoid running afoul of this provision in your situation, the advisory board and project materials should not refer to your official position; you should not use your official stationery for communications relating to the advisory board's work or the project in general; and you should not use, or permit others to use, the title "judge" in connection with your appearance at any public functions and gatherings of the project or the advisory board.

3. The third consideration, limitations on appearances before executive and legislative bodies and officials, appears to be of little consequence in your situation because you have indicated in your request that you do not anticipate being directly involved in any lobbying activities or testifying before legislative bodies. Nevertheless, the broad language of Section 4 C (1) is worth keeping in mind as the advisory board's activities proceed. That section says that "[a] judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice." "Law" is defined in the terminology section of the Code as meaning "court rules as well as statutes, constitutional provisions, and decisional law." The prohibition contained in Section 4 C (1), therefore, is not limited to lobbying or testimony before legislative committees but extends to consultation with members of the executive and legislative branches on topics other than those that Section 4 C (1) specifically permits.

4. The penultimate consideration, limitations on fundraising and management of funds, also may not be an issue for you. Nevertheless, the provisions of the Code in that regard are also worth keeping in mind. Section 4 C (3) (b) (i) states that, with respect to an organization such as this project, a judge "shall not participate in the management and investment of the organization's funds, shall not assist [the] organization in planning fund-raising, and shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority." These prohibitions on a judge's participation in the monetary affairs of such an organization are obviously quite broad and unequivocal. Therefore, the project may not use your name or refer to your position on the advisory board in any of its fundraising endeavors.

5. Finally, Section 4 G of the Code states that "[a] judge shall not practice law." The core components of practicing law -- e.g., appearing in court, taking depositions, preparing opinion letters, giving advice as to how to arrange particular matters so that they comply with applicable statutes and decisional law -- are clear. The outer boundaries of the prohibition, however, are not. After the committee explored those boundaries in a different context recently, it offered the following advice:

"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, nonlawyers in the executive and legislative branches perform similar, although perhaps not identical, activities without running afoul of the prohibition on the unauthorized practice of law. To make that observation, though, is simply to note that the concept's boundaries are imprecise and that ambiguities necessarily abound. That being the case, the committee endorses the following observations on this 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)."

CJE Opinion 2002-15. See also CJE Opinion 95-3 (concluding that Code's prohibition on "practice of law" prohibits a judge from serving as a member of subcommittee of university's board of trustees that would oversee the university's conflict of interest policy for trustees, overseers, and officers).

Again, because of the level of abstraction with which we are currently dealing, it is impossible to state definitively whether your activities on the advisory board would involve you in practicing law. It is therefore important for you to keep the broad prohibition of Section 4 G in mind as the advisory board's work proceeds.

Conclusion. In sum, the committee is of the opinion that the Code does not absolutely prohibit you from acting as co-chairperson of this project's advisory board. While acting in that capacity, however, you must think about whether your activities at any given time, or as the advisory board moves in a particular direction, would adversely affect your appearance of impartiality. If there is an adverse impact, you would be required either to refrain from participating in those activities or to resign from the advisory board. You also must not use, or permit others to use, your official title in connection with your advisory board activities, and you must further keep in mind, as you go along, the Code's limitations on consultation with executive and legislative bodies and officials, the Code's limitations on fundraising and management of funds, and the Code's prohibition on the practice of law.