Serving on Board of Directors, non-profit organization providing services to juveniles & families

March 4, 2010

CJE Opinion No. 2010-2      

You have requested an opinion by the Committee on Judicial Ethics as to whether you, as a district court judge from one region, may apply to serve on the board of directors of a charitable organization serving court-involved clients in another region, when the service the organization provides to its clients does not include involvement in adversary proceedings.  The organization is a non-profit entity that provides community-based services to juveniles and families to promote healthy living.  These services include personal support, referrals for additional community services, family mediation, and counseling.  The organization is contracted with the Department of Children and Families ("DCF") as well as the Department of Youth Services ("DYS") to provide these services.  The organization's clients may be court-involved and, in such cases, are likely served by the Probate and Family Courts and Juvenile Courts outside of the area covered by your District Court's region.

The organization itself does not advocate before the Court on behalf of its clients, but may be asked by a party to report to a court.  The issues that must be determined include (1) whether you may be on the board of this organization; (2) whether you must recuse yourself in particular matters; (3) whether service to the organization will conflict with your ability to carry out your judicial duties; and (4) what you may do in your capacity as a member of the board.
 

A. You are not prohibited from serving on the board under Canon 4C(3).


Canon 4C(3) permits a judge to serve as a director of any charitable organization that is not conducted for the economic or political advantage of its members. The Code of Judicial Conduct, however, does prohibit service to a non-religious organization engaged in frequent adversary proceedings either before the court on which the judge serves or before any court, state or federal, in the Commonwealth.  See  Canon 4C(3)(a)(ii) (precludes service on boards of charitable organizations that are "engaged frequently in adversary proceedings in any court, state or federal, in the Commonwealth.").  This Canon, which mirrors almost verbatim the American Bar Association's 1990 Model Code of Judicial Conduct, was designed to loosen the prohibitions affecting a judge's service to charitable organizations under similar language in rules modeled after the ABA 's 1972 Model Code of Judicial Conduct.  Lisa L. Milord, The Development of the ABA Judicial Code 35 (1992) (noting replacement of prohibition against service to charities "regularly" appearing in adversary proceedings to those "frequently" doing so); see Model Code of J. Conduct 4C(3) (1990); Model Code of J. Conduct Section 5B(1) (1972).  But see, e.g., Oklahoma Judicial Ethics Adv. Op. 2000-9 (2000) (deciding judge's membership in organization investigating incidents of child abuse and, where appropriate, aiding in prosecution violates spirit of Canon 4); Illinois Judicial Ethics Comm. Op. 98-5 (1998) (deciding judge may not serve on board of directors of charitable organization involved in proceedings regularly before court); Georgia Judicial Qualifications Comm'n Op. 197 (1994) (deciding judge must discontinue service on board of directors for state affiliate of American Civil Liberties Union because ACLU frequently engaged in litigation); West Virginia Judicial Investigations Comm'n Op. 10/7/94 (1994) (deciding judge may not serve on board of directors of legal services organization or juvenile justice committee because organization and committee regularly involved in adversary proceedings in court).

As a general matter, the Canons recognize that ethical rules do not necessitate isolating judges from their communities and prohibiting their service to charitable organizations, except where either the judge's impartiality is at risk or the judge could exert an improper influence over others in joining or contributing to a charitable organization.  The evolution in the four major revisions of the ABA's judicial ethics rules have embodied an increasing trend toward permissibility, while more accurately pinpointing the ethical concerns motivating the restrictions.  Compare Canons of J. Ethics Canon 25 ("[A judge] should avoid giving ground for any reasonable suspicion that he is utilizing the power or prestige of his office to persuade or coerce others to patronize or contribute.") and Model Code of J. Conduct Canon 5B(1) and Model Code of J. Conduct Canon 4C(3)(a) (1990) ("A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization . . . will be engaged frequently in adversary proceedings in the court of which the judge is a member. . . .") with Model Code of J. Conduct Rule 3.7(A) (2007) ("[A] judge may participate in activities sponsored by . . . charitable . . . organizations not conducted for profit, including . . . serving as an officer, director, trustee, or nonlegal advisor of such an organization . . . unless it is likely that the organization. . . will frequently be engaged in adversary proceedings in the court of which the judge is a member . . . .").(1)

The organization to which you refer is a community, charitable organization that is not conducted for profit.  Therefore, the nature of the organization itself is not an impediment to your service on the board.  You have noted that the organization serves juveniles and families who may be court-involved. However, because Court involvement arises out of an area other than the district court region in which you sit, there is little chance that the organization's clients will appear as litigants before you.  More importantly, while the organization serves clients, some of whom are court-involved, the organization does not engage in adversary proceedings before any court in the Commonwealth, or at least does not do so frequently.  As such, it seems unlikely that your involvement with the organization would be barred by Canon 4C(3).   This decision is bolstered by the policies behind the prohibitions set forth in Canon 4C(3), as well as the general trends in the development of the ABA 's various revisions of judicial ethics rules, the relevant language of which closely tracks the Canons enacted in this Commonwealth.  The ABA has continually refined the ethical prohibitions in order to recognize the valuable role that judges serve with charitable organizations, while continuing to guard against ethical compromises.  We believe that your service to this organization would comport with this recognition, without inherently constituting an ethical violation.


B. You may be required to recuse yourself from some number of cases under Canon 2B.


Even if your service on the board is permissible pursuant to Canon 4C(3), the Code still requires that you avoid impropriety and the appearance of impropriety in all of your activities.  Canon 2B requires that "A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment.  A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."   

The Committee has previously examined the question of a judge serving as a board member of a non-profit organization and the possible implications of Canon 2B. In CJE Op. 2006-7 (Serving on Board of Non-Profit Organization Devoted to Individuals with Substance Abuse and Mental Health Issues) the committee concluded that the given the frequency of court involvement, service on the board was inappropriate. Given the facts that have presented in your cases, the appearance of impropriety is not implicated.  However, you must consider more than the minimal degree to which the organization will be before you in determining whether your service on the board will encourage the appearance of or actual impropriety.  It may still be necessary for you to recuse yourself from a case if it is known to you that an individual before you has received services from the organization, if the organization will be testifying before you, or if you would be in the direct position to order individuals to participate in programs run and supported by the organization. Failure to recuse in such instances could cause the appearance of impropriety in that it may seem that you are using the judicial office to bring prestige or advance the interests of the organization because of your position on the board.

The standard for recusal is outlined in Lena v. Commonwealth, 369 Mass. 571 (1976); see also CJE Op. 2008-6.  The Lena court states "(f)aced . . . with the question of his capacity to rule fairly, the judge [must] consult first his own emotions and conscience.  If he passed the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this was `a proceeding in which his impartiality might reasonably be questioned.'"   This test has both a subjective and an objective prong.  Should you, subjectively, find that you are able to be impartial on a case before you involving the organization, you must also question whether your impartiality could be objectively challenged. CJE Op. 2008-6.  If you determine that you may remain impartial after the application of the Lena test then it is unlikely that your service on the board will result in the appearance of impropriety or actual impropriety.


C. Your continued service on the board of the organization may be prohibited under Canon 4A(3), should you need to recuse from a large number of cases.


While recusal from a particular matter may be warranted, recusal from a large number of cases due to ethical conflicts caused by service to a charitable organization could preclude continued service to the organization.  Canon 4A(3) requires that you conduct all of your extrajudicial activities so that they do not interfere with the proper performance of judicial duties.  Specifically, the Code provides that "the appropriateness of undertaking extrajudicial activities or of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets . . . ."    You have indicated that clients of the organization are located in an area not covered by the district court region in which you sit.  As such, it appears that court-involved clients of the organization would rarely, if ever, appear before your court.  While recusal from a given matter that does present an ethical conflict would be prudent, an occasional recusal would not preclude your service to the organization.  See Section B, supra (detailing necessity to recuse in particular cases); see also Mass. Code of J. Conduct Canon 4A(3), Mass. Code of J. Conduct Canon 4A cmt. 1.  As such, we do not believe that the current volume of cases, from which you would be required to recuse yourself, if any, would implicate Canon 4A(3) and thus preclude your service to the organization.


D. Your Service to the Organization.


Other practicalities of your judicial duties may affect by your service on the board.  Canon 4C(3)(b)(i) prohibits a judge from participating in the management and investment of the organization's funds as well as planning fundraising and soliciting funds.  Canon 4C(3)(b) states that  "a judge must not permit his name and office to be selectively emphasized by the organization, but information about him can be listed along with similar information about other officers and directors."  However, the commentary provides that "Use of an organization's letterhead listing a judge's name for fund-raising or membership solicitation violates Section 4C(3)(b)."  


Conclusion

In sum, you may serve this organization while sitting as a judge, but you must recuse yourself in cases that present specific ethical conflicts between your duties as a judge and your service to the organization.  Should you find yourself recusing from a large volume of cases, you will need to determine whether your continued service to the organization is precluded.  Finally, your service is permissible so long as you avoid the impropriety or the appearance of impropriety.  Should the organization come before your court, you must apply the Lena analysis to determine if recusal is necessary.  Additionally, during your course of service on the board of directors you must always refrain from fundraising and avoid the management of any funds associated with the organization.


1. The Massachusetts Code of Judicial Conduct most closely resembles the ABA 's 1990 Model Code.  Compare Mass. Code of J. Conduct Canon 4C(3)(a) with Model Code of J. Conduct Canon 4C(3)(a) (1990).